Human Rights and Human Trafficking: Quagmire or Firm Ground? A Response to James Hathaway

[Dr. Anne T. Gallagher is the Head of Operations at Equity International, Technical Director of Asia Regional Trafficking in Persons Project, and the former UN Adviser on Trafficking]

My response to James Hathaway, written with the benefit of close involvement in the development of the new legal framework, as well as in its implementation at the national level in over forty countries, provides an alternative and a sharply differing perspective on the global battle to combat trafficking.  In considering each of Hathaway’s major concerns in turn, and discrediting the assumptions and authorities on which they are based, I identify a number of serious flaws in both interpretation and application.

First: The scope of the new legal regime has been misrepresented and its impact and potential underestimated.  The international legal definition of trafficking covers not the claimed three percent but a considerably greater proportion of those who have been exploited for private profit – both within and outside their own country.  Despite its serious weaknesses, the Protocol has served very well as both a framework and impetus for the generation of a comprehensive range of rights-based international, regional, and national norms and standards that articulate, with much greater clarity and precision than was ever previously possible, the obligations of states in relation both to ending impunity for traffickers and providing support, protection, and justice for those who have been exploited.  It is not helpful for the human rights lawyer or advocate to be aggrieved about the fact that these changes were generated outside the formal human rights system.  Nor is it productive to sound dire, ex post-facto warnings about the dangers of consorting with the enemy.  The international human rights system amply demonstrated, over many years that it was incapable of doing anything serious about trafficking and related forms of exploitation.  That system has now been given new and better tools with which to work. The real test of its effectiveness and relevance will lie in the way it responds to this challenge.

Second: As an alternative legal framework for dealing with exploitation of individuals for profit, the prohibition on slavery is not without its own serious problems and limitations. The definition of slavery in international law (certainly much narrower than claimed), the substantive content of the relevant norm, and its application to modern manifestations of exploitation remain contested and, in legal terms, relatively untested.  Accordingly, it is not likely that the prohibition could readily apply to more than a modest portion of those who require protection from contemporary forms of exploitation, including debt bondage and forced labor.  Critiques of the application and monitoring of the prohibition on slavery within the international human rights system serve to confirm the inadequacy of this prohibition as a sole or even primary framework of protection.

Third: There is no evidence available to support Hathaway’s two central contentions in relation to refugees: (i) that the powerful countries of destination were able to trick the rest of the international community into accepting a covert extension of border controls; and (ii) that the development of an international legal response to trafficking and migrant smuggling has resulted in a worsening of the already dire plight of asylum seekers and refugees.  In marked contrast, from a purely legal perspective, the response has served to reinforce the principle that asylum claims are to be considered on their substantive merits and not on the basis of the applicant’s means of entry.  It has also affirmed the applicability of international refugee law to asylum seekers who are smuggled and/or trafficked, and expanded the potential basis for the determination of refugee status to include those whose flight was caused by the threat or fact of trafficking.  The likelihood that stronger border controls against smugglers and traffickers will make it even harder for asylum seekers to meet the technical requirements of international refugee law serves to highlight the failings and inadequacies of the international system for refugee protection.  To propose, however, that states refrain from dealing with organized, profit-driven migrant smuggling (and trafficking) because doing so will inevitably make access to asylum more difficult is to confuse the problem and to obscure its most obvious solutions.

Finally, to suggest that efforts to stamp out trafficking are in opposition to core human rights goals is to misunderstand, completely, both the nature of the phenomenon and the central place of human rights in any effective and credible response.  Far from damaging human rights, the issue of trafficking has provided unprecedented opportunities for the renewal and growth of a legal system that, until recently, has offered only platitudes and the illusion of legal protection to the millions of individuals whose life and labor is exploited for private profit.