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The International Law of Human Trafficking

The International Law of Human Trafficking

Author: Anne T. Gallagher
Publisher: Cambridge University Press
ISBN: 9781107624559
Published In: May 2012
Format: Paperback , 596 pages
Jurisdiction: International ? Disclaimer:
Countri(es) stated herein are used as reference only

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Although human trafficking has a long and ignoble history, it is only recently that trafficking has become a major political issue for states and the international community and the subject of detailed international rules. Anne T. Gallagher calls on her direct experience working within the United Nations to chart the development of new international laws on this issue. She links these rules to the international law of state responsibility as well as key norms of international human rights law, transnational criminal law, refugee law and international criminal law, in the process identifying and explaining the major legal obligations of states with respect to preventing trafficking, protecting and supporting victims, and prosecuting perpetrators. This is a timely and groundbreaking work: a unique and valuable resource for policymakers, advocates, practitioners and scholars working in this new, controversial and important field.

• The first-ever comprehensive survey and analysis of the international law of human trafficking, incorporating transnational criminal law, human rights, refugee law and international criminal law

• Written by a practitioner who was directly involved in the drafting process for the major trafficking treaties and policy instruments and who has worked with legislators and criminal justice officials on this issue in more than forty countries

• Balances a rigorous academic approach with a clear, lucid style that ensures the book is accessible to non-lawyers and non-specialists

Preface	xiii
Table of Cases	xv
Table of Treaties and Other International Instruments	xxiii
Table of Common Abbreviations	lvii
Introduction	1
1. The International Legal Definition	12
1.1. History of a Definition	13
1.2. The 2000 Definition of Trafficking	25
1.2.1. Key Issues During the Drafting Process	25
1.2.2. The “Action” Element	29
1.2.3. The “Means” Element	31
1.2.4. The “Purpose” Element	34
1.3. Post-2000 Developments	42
1.4. The Scope and Limits of the Definition	47
2. The International Legal Framework	54
2.1. A Brief History of Trafficking in International Human Rights Treaty Law	54
2.1.1. Trafficking and White Slavery	55
2.1.2. The 1949 Trafficking Convention	58
2.1.3. The CEDAW Convention	64
2.1.4. The Convention on the Rights of the Child and Its Optional Protocol	65
2.2. Trafficking in Transnational Criminal Law	68
2.2.1. The Organized Crime Convention	74
2.2.2. The Trafficking Protocol	77
2.2.3. The Migrant Smuggling Protocol	89
2.3. Regional Legal Agreements	95
2.3.1. European Union Instruments	96
2.3.1.1.EU Framework Decision on Combating Trafficking (2002)	96
2.3.1.2.EU Council Directive on Short-Term Residency Permits	100
2.3.1.3.Proposal for a Replacement to the 2002 Framework Decision (2009–2010)	103
2.3.2. The Council of Europe Convention against Trafficking	110
2.3.3. The SAARC Convention	127
2.4. Nontreaty Aspects of the International Legal Framework	132
2.4.1. Customary Law, Jus Cogens, and Trafficking	132
2.4.2. Secondary and Subsidiary Sources of International Law	136
2.4.3. The “Soft” Law of Trafficking	138
3. Specific Legal Issues	144
3.1. Trafficked Persons as Noncitizens	144
3.1.1. Human Rights Protections for Noncitizens	145
3.1.2. A Note on Trafficking and Statelessness	158
3.2. Trafficked Persons as Migrants and Migrant Workers	159
3.2.1. Right to Leave and Return	160
3.2.2. Trafficked Persons as Migrant Workers	165
3.3. Trafficking and Slavery	177
3.3.1. The Definition and Indicia of Slavery	179
3.3.2. Trafficking as Slavery?	189
3.4. Trafficking as a Form of Discrimination and Violence against Women	191
3.5. Trafficking and Asylum	197
3.5.1. Trafficking and the Right to Seek and Receive Asylum	198
3.5.2. Trafficking as the Basis of a Claim for Refugee Status	199
3.5.3. Conclusion on Trafficking as a Basis for Asylum	205
3.5.4. A Note on Trafficking and Internal Displacement	208
3.6. Trafficking in International Humanitarian Law and International Criminal Law	209
3.6.1. Sexual Violence and Other International Crimes Related to Trafficking	210
3.6.2. Trafficking as a Crime Against Humanity	214
4. State Responsibility for Trafficking	218
4.1. A General Theory of International Responsibility	219
4.2. State Responsibility for Violations of International Law Associated with Trafficking	222
4.2.1. Requirement of Attribution	223
4.2.2. Requirement of a Breach of Obligation	230
4.3. State Responsibility for Trafficking-Related Breach of Obligations Originating in the Conduct of Private Persons or Entities	235
4.3.1. Implications of the General Rule of Nonattribution of Private Conduct	235
4.3.2. Moving Beyond the General Rule: State Responsibility to Prevent, Protect, and Respond	236
4.3.3. Identifying Violations Giving Rise to Responsibility: The Due Diligence Standard	241
4.3.4. Conclusion: The Primacy of the Primary Rules	248
4.4. Consequences of a Finding of State Responsibility	251
4.4.1. The Obligations of Cessation and Reparation	251
4.4.2. Consequences Attached to Serious Breaches of Peremptory Norms	256
4.5. Invocation of Responsibility	259
4.5.1. General Rules Governing Invocation of Responsibility	259
4.5.2. Rules Governing Invocation of Responsibility for Violations of Human Rights Norms	264
4.5.3. Countermeasures	266
4.6. A Note on Legal Responsibilities of International Organizations, Private Individuals, and Private Entities	269
4.7. Summary of the Key Principles of State Responsibility Relevant to Trafficking	272
5. Obligations of Protection and Support	276
5.1. Rapid and Accurate Victim Identification	278
5.1.1. The Importance of Identification	278
5.1.2. An Obligation to Identify Victims	280
5.2. No Prosecution or Detention of Victims	283
5.2.1. Prosecution for Status Offenses	284
5.2.2. Detention of Trafficked Persons	288
5.3. Protection and Support for Victims	297
5.3.1. Separating Protection and Support from Victim Cooperation	298
5.3.2. Protection from Further Harm	301
5.3.3. Privacy and Protection from Further Harm	303
5.3.4. Physical and Psychological Care and Support	305
5.3.5. Consular Access and Support	310
5.3.6. Noncoercion in the Provision of Care and Support	313
5.4. Legal Assistance, Participation, and the Right to Remain	315
5.4.1. Legal Information, Support, and Participation	315
5.4.2. Protection and Support for Victim-Witnesses	317
5.4.3. Right to Remain	320
5.5. The Rights and Needs of Child Victims	323
5.5.1. Identification of Child Victims	324
5.5.2. Applying the “Best Interests” Principle	327
5.5.3. Protection and Support for Trafficked Children	329
5.6. Conclusions on Obligations of Protection and Support	336
6. Obligations Related to Repatriation and Remedies	337
6.1. Repatriation of Victims	338
6.1.1. The Standard of Safe and Preferably Voluntary Return	339
6.1.2. Entitlement to Return	344
6.1.3. Expulsion, Due Process, and the Obligation of Non-refoulement	346
6.1.4. Repatriation and Legal Proceedings	349
6.1.5. Alternatives to Repatriation	351
6.1.6. Reintegration of Victims	352
6.2. Access to Remedies	354
6.2.1. Obligation to Remedy Violations of Human Rights Law	355
6.2.2. Right to a Remedy for Violence against Women	360
6.2.3. The Right to a Remedy in the Specific Context of Trafficking	362
6.2.4. Standards and Forms of Remedy	364
6.2.5. Information and Other Means of Accessing Remedies	368
7. Obligations of an Effective Criminal Justice Response	370
7.1. The Obligation of Criminalization	371
7.1.1. The Conduct to be Criminalized	373
7.1.2. Exercise of Criminal Jurisdiction	379
7.2. Effective Investigation, Prosecution, and Adjudication	382
7.2.1. Practical Application of the Due Diligence Standard	382
7.2.2. Gender in the Investigation, Prosecution, and Adjudication of Trafficking Cases	389
7.2.3. Rights of Suspects and the Right to a Fair Trial	391
7.3. Effective and Proportionate Sanctions	392
7.3.1. Obligation to Impose Sanctions	392
7.3.2. The Standard: “Effective and Proportionate” Sanctions	395
7.3.3. Aggravated Offenses and Previous Convictions	396
7.4. Asset Confiscation and Use of Confiscated Assets	400
7.4.1. Obligation to Seize and Confiscate Proceeds of Trafficking	401
7.4.2. Using Confiscated Assets to Compensate or Support Victims	403
7.5. International Cooperation	404
7.5.1. Obligations Related to Extradition	404
7.5.2. Mutual Legal Assistance in Trafficking Cases	410
7.5.3. Informal Cooperation	412
8. Obligations to Prevent Trafficking and Respond Lawfully	414
8.1. Prevention through Addressing Vulnerability	415
8.1.1. A Legal Obligation to Address Vulnerability to Trafficking	416
8.1.2. Addressing Vulnerability Related to Inequality and to Poverty	418
8.1.3. Addressing Vulnerability Related to Discrimination and to Violence against Women	423
8.1.4. Addressing the Special Vulnerabilities of Children	427
8.1.5. Addressing Increases in Vulnerability in Conflict and Postconflict Situations	430
8.2. Prevention through Addressing Demand	432
8.2.1. Understanding Demand in the Context of Trafficking	432
8.2.2. Is There an International Legal Obligation to Address Demand for Trafficking?	434
8.3. Prevention through Addressing Corruption and Complicity	442
8.3.1. An Obligation to Address Trafficking-related Corruption	443
8.3.2. Practical Application of the Due Diligence Standard	447
8.3.3. Due Diligence in Preventing Trafficking-related Corruption by International Officials	449
8.4. Obligation to Respond Lawfully	453
8.4.1. Obligation to Avoid Violations of Established Rights When Responding to Trafficking	453
8.4.2. Obligation to Ensure Antitrafficking Measures Do Not Violate the Prohibition on Discrimination	456
9. Issues of Compliance, Implementation, and Effectiveness	461
9.1. Compliance Theories and Variables	461
9.2. Formal Compliance Mechanisms under the Specialist Treaties	466
9.2.1. The Organized Crime Convention and Trafficking Protocol	466
9.2.2. The European Trafficking Convention	473
9.3. Promoting Compliance through the International Human Rights System	477
9.4. Unilateral Compliance Machinery: The U.S. Evaluation and Reporting System	480
9.5. Transnational Compliance Networks	486
9.5.1. Criminal Justice Networks	489
9.5.2. Human Rights Networks	492
9.6. Improving Compliance: Issues and Prospects	496
Epilogue	499
Select Bibliography	505
Index	529

'In The International Law of Human Trafficking, Dr Anne Gallagher uses her unique position as a scholar and practitioner to chart the extraordinary developments of the past decade. This carefully researched and well-written book provides a comprehensive and accessible insight into a new, complex but vital area of international law. It affirms the central place that international law, including human rights law, must play in any solution to the age-old problem of private exploitation. I recommend it to all those involved in working against trafficking and supporting the victims of this illegal and inhuman trade.' Mary Robinson, former President of Ireland (1990–7) and former United Nations High Commissioner for Human Rights (1997–2002)

'Dr Gallagher's expertise in this field, particularly in the area of criminal justice responses to trafficking, is recognized and deeply appreciated throughout the ASEAN region. … This meticulously researched book confirms her position as a leading international legal authority on the issue. While scholarly in approach, the book is straightforward in structure and clear in expression. It reflects an acute understanding of the politics of human trafficking and of the significant challenges involved in securing effective national implementation of international norms. The International Law of Trafficking is a valuable reference for policy makers, practitioners and all those working to end impunity for trafficking offences and to secure justice for those who have been trafficked.' Dr Surin Pitsuwan, Secretary General, Association of South East Asian Nations (ASEAN)

'Anne Gallagher has been a key player in analyzing, drafting, promoting, and critiquing the international legal order that has emerged over the past decade to address the previously long-neglected phenomenon of human trafficking. This authoritative book combines meticulous legal scholarship with deep insight into the key challenges that must be addressed in the years ahead.' Philip Alston, John Norton Pomeroy Professor of Law, New York University School of Law

'With an estimated 2 million women in sexual bondage in half the countries of the world, it is high time for the international community to pay attention to this human tragedy. The trafficking flow goes on while most governments at best only rhetorically deal with this manifestation of crime. Books like this one serve an important purpose in making the phenomenon better known and showing how international legal instruments and mechanisms are available, though by no means adequate and efficient. This is both an important legal contribution and one that addresses a significant human problem.' M. Cherif Bassiouni, Distinguished Research Professor of Law Emeritus and President Emeritus, International Human Rights Law Institute, DePaul University

'Trafficking in human beings is a modern form of slavery. Today, however, this issue does not raise the same level of concern as other serious human rights violations. In her remarkable in-depth analysis of international legal obligations to counter human trafficking, Dr Anne T. Gallagher clearly demonstrates that human trafficking is a gross violation of human rights, and comprehensively illustrates where State responsibilities lie. Her reflection on a wide range of international tools to respond to this crime, enriched by her authoritative experience, also provides valuable guidance to accessing the current challenges and possible responses. Her work enables us to understand that even anti-trafficking action could compromise the rights and dignity of trafficked persons, and that a human rights based approach is therefore essential to assess and establish an effective anti-trafficking strategy.' Dr Maria Grazia Giammarinaro, OSCE Special Representative and Co-ordinator for Combating Trafficking in Human Beings