The Best Tool for the Job: The U.S. Campaign to Freeze Assets of Proliferators and their Supporters

by CarrieLyn Guymon

[CarrieLyn Donigan Guymon is Adjunct Professor at Golden Gate University School of Law]

I would like to thank Opinio Juris and the staff of VJIL for providing this forum to discuss my recent article, The Best Tool for the Job:  The U.S. Campaign to Freeze Assets of Proliferators and their Supporters.
I started the article in the waning months of the Bush administration, but thus far the Obama administration appears to agree with my thesis that the past administration’s practice of freezing the assets of proliferators and their supporters is one worth perpetuating.  Between June 2005, when President Bush signed Executive Order 13,382 (the authority for imposing the asset freeze and related measures), and January 2009, when he left office, 135 entities and individuals were designated for these sanctions.  The Obama administration has already made a significant number of additional designations under E.O. 13,382.
This is actually a pretty sparing use of a very broad authority granted by the International Emergency Economic Powers Act, or IEEPA.  President Clinton was the first to use IEEPA in a more targeted way, against terrorist organizations and their members versus countries and their citizens.  President Bush went one step further by targeting not only terrorists, but also those who aid or abet terrorists or terrorism.  Bush then replicated that pattern of addressing support—particularly financial support—with respect to WMD proliferators and proliferation.  While terrorism and proliferation are undeniably grave threats to the United States, they are not a perfect fit for the authority envisioned by Congress when it passed IEEPA.  Congress intended IEEPA to be used by the President to address rare and brief emergencies, not such enduring issues on the U.S. agenda as terrorism and the proliferation of WMD.
The Bush administration attempted to make multilateral its unilateral asset freeze sanctions via the U.N. Security Council.  Resolutions directed at North Korea’s and Iran’s nuclear and weapons programs resemble E.O. 13,382 in targeting for asset freeze sanctions not only the proliferators themselves, but those who provide support (financial or otherwise) for proliferation or are owned or controlled by proliferators.  Resolutions 1718 (directed at North Korea) and 1737, 1747 and 1803 (all directed at Iran) have been implemented by the United States using E.O. 13,382.  In the case of Iran, the U.S. often justifies its designations of entities and individuals under E.O. 13,382 based on their presence on Security Council lists (or their relation to those on those lists).  And the U.S. also advocates the addition to the Security Council’s lists of entities already designated by the U.S. under the E.O.  With the private sector’s voluntary shunning of entities designated by the U.S., there is an argument that multilateral designation is almost a fait accompli.
This sanctions strategy toward proliferation has met with criticism both for doing too little and for going too far.  Many would prefer harsher sanctions on Iran in particular.  Others worry that freezing assets and blacklisting individuals and entities in this way denies those designated their rights to due process.
These sanctions actually strike the correct balance.  And attempting to make them multilateral also makes sense—the United States cannot go it alone when confronting the threat of proliferation.  The U.S. taking a stand that it will not allow its financial system to be accessed by proliferators, while asking others to do likewise, is the right thing—and the best thing—to do.  Legal challenges to the same approach with respect to terrorism—surveyed extensively in the article—have been unsuccessful.  Due process is not seriously infringed by targeted sanctions and it cannot be absolute in the face of the grave threat posed by proliferation.  While it is troubling that the national emergencies presented by terrorism and proliferation seem unlikely to ever be declared over, judicious use of the broad authority under IEEPA assuages that concern.

A Response to Jean Allain and Ryszard Piotrowicz

by Anne Gallagher

I begin by thanking Ryszard Piotrowicz and Jean Allain for agreeing to take on the somewhat delicate task of commenting on my critique of James Hathaway’s article.  I am sure they will not be offended by my expressing sincere regret that Professor Hathaway himself declined to participate in this symposium.

Neither respondent challenges (or seriously interrogates) my central conclusions: (i) Hathaway has misrepresented the nature and scope of the legal regime around both slavery and trafficking and, in relation to the latter, severely underestimated its impact and potential; (ii) his proposal for an alternative system of protection based on the international legal prohibition on slavery is highly problematic, based on an outdated understanding of the relevant structures, and likely unworkable; (iii) there is no evidence available to support his allegation that powerful countries of destination were able to trick the rest of the international community into accepting a covert extension of border controls; (iv) there is no evidence available to support his contention that the development of an international legal response to trafficking and migrant smuggling has resulted in a worsening of the plight of asylum seekers and refugees; and, (v) the proposed ‘quagmire’ of human trafficking is a fallacy.  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.

Both respondents nevertheless raise questions on several aspects of my critique. The following counter-response is provided with an accompanying observation that the issues raised do not call into question any of the conclusions listed above.  Ryszard Piotrowicz opines that trafficking may be best approached as a tort and a crime rather than as a human rights violation.  Certainly at the national level, this will often be the preferred approach, not just for trafficking, but also for many other human rights violations for which criminal or civil law may be invoked including discrimination and torture.  When it comes to righting wrongs, a functioning justice system will almost always offer superior odds to its international or regional equivalent.  That conclusion does not negate a central place for international law, including international human rights law, in providing impetus, authority (including legal justification) and structure to an effective national response.  International law also furnishes the foundation upon which the critical secondary rules of responsibility can be identified and applied.  In the present context, such rules affirm a range of obligations on States – not just to protect, support and provide remedies to victims, but also to investigate and prosecute trafficking cases with due diligence; to act against public sector complicity in trafficking; to cooperate with other States; and to prevent future trafficking.

As a result of his involvement in the drafting of UNHCR’s Guidelines on the issue, Piotrowicz is well-placed to warn of the limits of international refugee law for those who have been trafficked.  He is indeed correct that subsidiary/complementary protection will generally be of most relevance to trafficked persons.  As I noted, the very modest advances that have taken place are ultimately as constrained as international refugee law itself and will likely only permit a small fraction of individuals moved into exploitation across national borders to secure the protection they need (845).  In the end, this does not detract from the finding that developments in international law around trafficking do not appear to have further damaged an already deeply compromised international system for protection of refugees.

Regretfully, Jean Allain’s response does not address the issue of trafficking, rather focusing on one sub-aspect of my critique: the definition of slavery in international law.  I am happy to have provided Dr. Allain with the opportunity to canvass his recent, extensive and admirable scholarship in this area.  As my article makes clear, the much-overdue release of the travaux preparatoires to the Slavery Conventions has provided a new and important dimension to the question of what is slavery.  The decision of the Australian High Court in R v. Tang (which I also cite) represents another step forward in clarifying the parameters of slavery in contemporary international law.  We are indeed on the cusp of a new era.

It is with a considerable measure of gentleness (and perhaps a dash of scholarly pride) that Allain excuses Hathaway’s manipulation of the legal definition of slavery on the basis of the latter’s lack of access to the travaux preparatoires.  I disagree completely.  The debate over the substantive content of the international legal norm around slavery did not begin with the travaux preparatoires and will likely not end with them.  My principle objection (strongly buttressed by, but ultimately not reliant on, the travaux preparatoires) was to Hathaway’s uncritical adoption of an understanding of slavery that did not even match the language of the universally accepted international legal definition.  I also objected to his failure to take account of recent developments that were a matter of public record.  These included advances within international criminal law on the closely related issue of enslavement: advances that affirmed, independently of the travaux preparatoires, the application of the relevant prohibition to both de jure and de facto slavery and that provide clear warning against the kind of popular, expansionist conception of slavery espoused by Hathaway and increasingly favored by crusading legal scholars, politicians, social campaigners and the mass media.

International law is burdened with an unedifying record when it comes to dealing with private exploitation.  Amongst those of us working (literally) in the field, there is widespread agreement that forced labor, forced and otherwise exploitative prostitution, child sexual exploitation, coerced marriage and debt bondage are certainly not going away and are quite probably getting much worse.  The international community is struggling to deal with new waves and even new forms of profiteering.  Viewed from that perspective, the requirements of an international legal framework are clear: an unambiguous definition of the problem; an equally sharp identification of core State obligations; and effective means of monitoring and encouraging compliance.  After decades of wasteful prevarication not particularly challenged by the academy, that goal may finally be in sight.  Certainly the Trafficking Protocol, and its associated legal developments which I have documented, provide justification for cautious optimism. I respectfully submit that at this important juncture, the appropriate task of the international legal practitioner is a relatively modest one: our job is to document, to analyze and to explain the law, including its weaknesses, to those who, (in the words of d’Aspremont, note: 228) are engaged in actually using it.  We do our profession and our most important constituents a favor by remembering that, at the end of the day, it is the law that properly directs the legal scholarship, and not the other way around.

A Response to Anne Gallagher by Ryszard Piotrowicz

by Ryszard Piotrowicz

[Ryszard Piotrowicz is a Professor of Law at Aberystwyth University]

I would like to make three points in relation to the articles by Prof. Hathaway and Dr Gallagher.
First, It seems to me that Dr Gallagher effectively refutes the basic argument of Prof. Hathaway, that the developments in trafficking in human beings (THB) have served to distract attention from what is asserted to be the much wider problem of slavery.  I do not wish to comment on the core issue of that debate but rather to focus on two further matters which are nevertheless relevant to our understanding of THB, and which do come up in these articles.
Second, I think that it is not always helpful to insist on THB as a human rights violation. THB is fundamentally a private enterprise, i.e., a tort and a crime.  In the absence of State involvement or complicity, where is the human rights violation?  Of course, the State has obligations towards victims but these really occur after the person has been trafficked (e.g., obligations towards appropriate care and support) or else to prevent future trafficking (possible international protection obligations).  It is not the THB itself, but the aftermath, that gives rise to State obligations for the rights of victims.  Of course I accept that the State has an obligation to ensure rights for all those within its jurisdiction – which it does through passing appropriate legislation which is then enforced.  Dr Gallagher says there are plenty of human rights instruments that address States’ obligations regarding private exploitation (823).  I agree, but the actual THB is not normally a breach.  That is why I prefer the term “human rights approach” to THB – this can acknowledge the human rights dimension of THB.  I think there is an inherent good in calling THB what it is: a serious crime.  That does not demean the victims; nor does it deny their human rights (where relevant).  Dr gallagher says that the public/private split has been eroded and that it is not credible for States to deny an obligation to deal with THB just because it is a private activity (824-5).  I agree, but this is because States have an international obligation to tackle THB.  The THB nevertheless is not the fault of the State (usually) and, to that extent, one can maintain the public/private distinction.  I nevertheless agree with Dr Gallagher’s point that desirable changes have been effected, even if human rights law has not always been the medium of change (847).
Third, specifically on refugee status for victims of THB – it is clear to me that the law of international protection is very important in assessing States’ obligations with regard to THB.  But this will be more with regard to subsidiary/complementary protection than refugee status. At page 844, Dr Gallagher focuses on refugee status while acknowledging that it may have limits.  In actual fact, normally the only way potential victims of THB will qualify is if they are members of a particular social group.  This is possible but I don’t think it will occur very often.  In particular, it might apply to those in the foreign State who fear return to their home State because of risk of re-trafficking (and who therefore might argue that their status as victims of THB, which is an immutable fact, like being left-handed, or blue-eyed) is something they have in common with others beyond the mere fear of persecution, hence making them MPSG.  So the risk will be with regard to future danger, of course.  How many people will be in a foreign country, who have never been trafficked before, but fear being trafficked if they go home? Surely the real risk is that of re-trafficking?  In this sense, even if Prof. Hathaway is right, that anti-THB law has been used to promote border control laws in destination countries, that does not matter here from a protection perspective because those needing international protection have, despite apparent legal obstacles, ended up in a foreign country.  They have probably been trafficked there.  The border controls have not stopped this.  All that said, the more likely obligation of the destination State will probably be subsidiary/complementary protection.

A Response to Anne Gallagher by Jean Allain

by Jean Allain

[Dr. Jean Allain is a Reader in Public International Law at the School of Law, Queen’s University Belfast and author of The Slavery Conventions: The Travaux Préparatoires of the 1926 League of Nations Convention and the 1956 United Nations Convention (2008) and “The Definition of Slavery in International Law” 52 Howard Law Journal 239 (2009)]

There is nothing like a ‘response’ piece to give readers a stark sense of the open schisms with regard to an issue of law. Anne Gallagher’s piece in the most recent edition of the Virginia Journal of International Law does just that, taking on James Hathaway’s overarching critique of the legal regime of human trafficking.  I would invite readers to consider both pieces, as they are well-written and researched, giving a sense of the meta-narrative of contemporary legal thought on human trafficking by two leading experts.  For my part, I wish to consider but one basis of the Gallagher’s critique of Hathaway’s piece: the definition of slavery in international law.
Gallagher takes issue with the definition of slavery being put forward by Hathaway as “‘any form of dealing with human beings leading to the forced exploitation of their labor’, including ‘the exercise of any or all of the powers attaching to the right of ownership over a person’”; stating that the first elements (re: “any form of dealing…their labor”) “remains unsupported in international law.”  I accept that conclusion, but it should be recognised that when Hathaway drafted his piece, he was not privy to the material on which Gallagher stakes her claim that the “expansionist interpretation, given wide currency through a series of UN reports, has now been rejected.”  That material is my 2008 The Slavery Conventions.

In April 2008, I was contacted by the Australian Human Rights and Equality Commission (HREOC), which was looking to intervene in a case, and asked if I might assist.  I provided them with a copy of the galley proofs of my book, as The Slavery Conventions, which had yet to be published.  In May, the online newspaper, The Australian stated that, “Brett Walker SC, the counsel for HREOC, quotes a book by a certain Monsieur Allain.”  Holding up the work in question, he says: ‘I understand I have the only copy in the country.’”   Published in June, the book is cited in the August 2008 case, before the Australian High Court, The Queen v. Tang which sets out for the first time in an authoritative manner that the definition of slavery in international law (re: ‘the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised’) applies in cases of both de jure but also de facto slavery.  It was in reading to The Queen v. Tang that I came across a citation for Hathaway’s piece.  As a result, Hathaway would not have been aware of The Slavery Conventions when drafting his piece.

I believe The Queen v. Tang delivered in August 2008 is a watershed for a legal consideration of slavery with the Hathaway and Gallagher pieces standing on either side of the divide.   Before August 2008, the most authoritative pronouncement on the definition of slavery in international law comes from the United Nations in the guise of the work of David Weissbrodt and Anti-Slavery International. It is this stream which Hathaway correctly follows. I might add here that I do not think Hathaway would be offended if I were to mention that I contacted him in November to congratulate him on his piece saying that it was one of the few works I had read which took the issue of slavery seriously.

And yet the Australian jurisprudence marks a shift in the understanding of slavery as defined by the 1926 Slavery Convention.  In 2007, the Court of Appeal of the Supreme Court of Victoria, Australia noted:

The understanding of the scope of the definition of slavery stated by Jean Allain is at odds with that of David Weissbrodt in his paper commissioned by the Office of the United Nations High Commissioner for Human Rights.  Weissbrodt concluded that the definition was intended to include the broader range of practices that had been addressed by the Temporary Slavery Commission of 1924, including debt bondage, serfdom, practices involving restrictions of liberty and personal control analogous to slavery, practices such as acquisition of women and girls in the guise of payment of dowry, and so forth.  It was not limited to chattel slavery, but required examination of the degree of restriction and control exercised over the person, rather than concentration on the criterion of ownership.

In that case, the Supreme Court of Victoria concluded that, “in final analysis, it is unnecessary to resolve the dispute between Allain and Weissbrodt.”  However, in August 2008, with The Queen v. Tang, the High Court of Australia did, in fact, resolve that dispute; using my research from the League of Nations Archives to demonstrate that the definition as set out the 1926 Slavery Convention has not been expanded to include lesser servitudes, but is to be read in such a manner as to include both situations of legal ownership of a person (which would bring to mind the Trans-Atlantic Slave Trade, but see the contemporary finding of chattel slavery in the 2008 Mani v. Niger case before the ECOWAS Community Court of Justice – and my case note in the April 2009 edition of American Journal of International Law); but also de facto slavery.  To understand what this distinctions means, consider the analogy to the drug dealer: he cannot make a claim before a judge against the theft of his heroin – he does not ‘own’ the heroin in law— but can still be found to exercises powers of ownership over his drugs, such as possession, if brought before a court of law.  In the same manner, a person may not – in law – own another human being, but she could exercise powers attaching to ownership – such as buying or selling a person in a de facto manner.

One must understand that where issues of slavery, human exploitation, and the law are concerned, there has been very little serious scholarship – both Hathaway and Gallagher – bring some much needed rigour to the area.  But much work still needs to be done and the field is evolving quickly.  For instance, the interchangeable use of the terms ‘practices similar to slavery’ and ‘slavery-like practice’ is – in law – wrong.  The first of these is a term of law, the ‘practices similar to slavery’ being those items set out in the 1956 Supplementary Convention as servitudes to be suppressed (i.e., debt bondage, serfdom, servile marriage and child exploitation); whereas ‘slavery-like practice’ is a term of art, coined at the height of the decolonisation process to apply to apartheid and colonialism but which never found its way into the corpus of international law.  In counter-distinction, the difference between ‘practices similar to slavery’ found in the 1956 Supplementary Convention and ‘servitude’ as found in international human rights instruments (see the ICCPR, the ECHR, the ACHR), should be understood as a false one; one brought on by the unwillingness of the negotiating States of the 1956 Convention to commit to ending servitude forthwith despite the Universal Declaration call to do exactly that (see my forthcoming “On the Curious Disappearance of Human Servitude from General International Law”, 11 Journal of the History of International Law 25 (2009)).  I expect the terrain of human exploitation in law to be re-drawn over the next few years in ways that it has not been throughout the twentieth century.

Hathaway’s consideration is state of the art at its time; while Gallagher’s critique, some six to eight months later, bringing into the equation an emerging narrative which takes slavery – in law – back to first principles and seeks to build an understanding of slavery in the shadow of the human right of an accused to know the charges against him. That narrative has yet to run its course and may challenge some of the elements of Gallagher’s own piece in the same way she challenges Hathaway’s work.  Beyond the Hathaway and Gallagher pieces, contemporary legal issues of slavery, trafficking and human exploitation have been left, on the whole, to a less than rigorous consideration of the law.  In so doing it raises the question of the regime of human rights as the best place to deal with such issues; as the twentieth century has demonstrated the failure to adequately deal with the prohibition against slavery as a human right.  Whereas the establishment of the International Criminal Court and the UN and European trafficking conventions, all products of the twenty-first century, have already done more within a criminal law paradigm to advance the jurisprudence and the agenda of anti-slavery and the fight against human exploitation than anything seen under the auspice of international human rights law.

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

by Anne Gallagher

[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.

Virginia Journal of International Law, Vol. 49-4: Online Symposium

by The Editors of the Virginia Journal of International Law

The Virginia Journal of International Law is delighted to continue its partnership with Opinio Juris this week in this online symposium featuring three articles and two essays recently published by VJIL in Vol. 49:4, available here. Today, Dr. Anne T. Gallagher, Head of Operations of Equity International, Technical Director of Asia Regional Trafficking in Persons Project, and former UN Adviser on Trafficking, will discuss her article Human Rights and Human Trafficking: Quagmire or Firm Ground? A Response to James Hathaway. On Tuesday, Professor CarrieLyn Donigan Guymon, Adjunct Professor, Golden Gate University School of Law, will discuss her article The Best Tool for the Job: The U.S. Campaign to Freeze Assets of Proliferators and their Supporters. On Wednesday, Professor Lisa J. Laplante, Visiting Assistant Professor, Marquette University Law School, will discuss her article Outlawing Amnesty: The Return of Criminal Justice in Transitional Justice Schemes. On Thursday, Professor Mark Tushnet, William Nelson Cromwell Professor of Law, Harvard Law School, will discuss his essay The Inevitable Globalization of Constitutional Law. On Friday, Nigel Purvis, President of Climate Advisers, will discuss his essay The Case for Climate Protection Authority.