Read On! International Law/Human Trafficking

(Delighted to welcome back alumna Anne Gallagher, who contributes this Read On! guest post)

My thanks to IntLawGrrls for the opportunity to write about my book The International Law of Human Trafficking, published this month by Cambridge University Press.

This book has evolved out of more than a decade of writing and practice. It reflects experiences and insights from my working life as a UN official, as a teacher and scholar of international law, and as a practitioner in the field. It builds on my research of the past few years, which has included:

► A first-hand identification of the essential elements of an effective criminal justice response to trafficking, set forth in a 2008 article co-authored with Paul Holmes;

► A detailed legal commentary to the Principles and Guidelines on Human Rights and Human Trafficking that will be released by the United Nations shortly;

► A 2009 feature article, published in the Virginia Journal of International Law, which refutes James Hathaway’s critique of the international legal response to trafficking;

► A study, with IntLawGrrls' guest/alumna Elaine Pearson, of the legal and policy implications of shelter detention for victims of trafficking, published this year in Human Rights Quarterly and also the subject of a previous IntLawGrrls post; and

► A critical analysis of the first decade of the annual U.S. State Department Trafficking in Persons Reports, to be published in Human Rights Review in early 2011.

As I write in the introduction to my new book, The International Law of Human Trafficking is not a specialist treatise in the usual sense. More accurately, it represents an attempt to apply the science and tools of international law to a specific, contemporary issue. From this perspective it is as much about sources of international legal obligation, the formation of international law, the doctrines of responsibility, and theories of compliance, as it is about trafficking.

The book’s focus is essentially a problem-solving one: the international community has identified trafficking as a problem, and has decided that law will be used to structure and enable at least part of the solution to that problem. By providing a clear and organized explanation of the law as it is, the capacity of those who are in a position to use international law to hold states and others to account is hopefully strengthened.

Documented is what former UN High Commissioner for Human Rights Mary Robinson (left), in her review of my book, has called

the extraordinary developments of the past decade

that is, changes in laws, policies and practices that would have been unthinkable just a few short years ago.

The book concludes that these advances, while remarkable when viewed in historical perspective, are nevertheless fundamentally constrained in terms of both vision and effect. States are able to record relatively high and improving levels of conformity with international legal rules related to trafficking in large part because those rules, in the end, do not demand a great deal. The rules request, but do not compel, states to take positive action to address the root causes of trafficking, not least what the “thoroughly modern anarchist” Emma Goldman more than a century ago called

the merciless Moloch of capitalism that fattens on underpaid labour.

The rules acknowledge the link between trafficking and the massive labor migration that greases the wheels of the global economy, without requiring States to provide individuals with safe and legal avenues through which to move. They affirm the principle of nondiscrimination, without insisting that the rules, attitudes and practices that render women, children and migrants most vulnerable to trafficking-related exploitation be immediately and comprehensively dismantled.

It is currently possible for a state to find itself within the letter, if not the spirit of its international legal obligations merely by criminalizing trafficking, diligently investigating cases that come to its attention, cooperating with other States when requested, and taking at least some measures to support and protect identified victims. While my book has hopefully succeeded in fleshing out these basic obligations, it acknowledges that the obligations do not, even in expanded form, amount to terribly much. Like a commitment to halt anthropogenic climate change by imposing emission reductions that have, in truth, no hope of meeting that goal, there is a fatal gap between what is legally required of states and what is actually needed to reach the stated objective.

A genuine commitment to ending trafficking and related private exploitation requires us to both acknowledge and challenge the limitations of the contemporary international legal imagination.

Today's Guest Bloggers: Anne Gallagher and Elaine Pearson

It's IntLawGrrls' great pleasure to welcome as today's guest bloggers Dr. Anne Gallagher (left), Head of Operations for Equity International, a Geneva-based foundation that promotes ethical and lawful policing through technical and tactical training and other practical support to national police forces, and Elaine Pearson (below right), Deputy Director of the Asia Division of Human Rights Watch.
Anne is an international lawyer specialising in human rights and criminal justice. She served as a career U.N. official from 1992 to 2003; for the last 5 of those years she was Special Adviser on Human Trafficking to the High Commissioner for Human Rights. She continues to advise the United Nations on these matters and has, most recently, completed a legal commentary to the U.N. Principles and Guidelines on Human Rights and Human Trafficking.

In 2003 Anne was appointed to head an intergovernmental initiative, under the Australian Aid program, that aimed to develop more effective criminal justice responses to human trafficking within and between countries of South East Asia. The project works directly with ASEAN and its member states to promote criminal justice approaches that work to end impunity for traffickers and to secure justice for persons who have been trafficked.

Anne has taught as institutions iincluding the NATO Staff College, the European Institute for Human Rights, and universities in Australia, Finland, Switzerland and Thailand. Her publications focus on policing, human rights, women’s rights and human trafficking. Cambridge University Press will publish her book International Law of Human Trafficking later this year.

Like Anne, Elaine also has special expertise in issues related to human rights, human trafficking, and migration. She has published in periodicals including The Nation. As Deputy Director of Human Rights Watch's Asia Division, she supervises work across Asia, especially South East Asia, Nepal and North Korea. Elaine has lived and worked in Asia for 6 years, in cities including Bangkok, Hong Kong, and Kathmandu. Prior to joining Human Rights Watch in 2007, she worked as a consultant to various institutions, among them the International Labour Organization, the U.N. Development Fund for Women, and Oxfam. She led the first Trafficking Program at Anti-Slavery International in London, was advocacy officer for the Global Alliance Against Traffic in Women. She graduated in law from Murdoch University in Australia.

In their guest post below, Anne and Elaine discuss Detention of Trafficked Persons in Shelters: A Legal and Policy Analysis, their study, prepared under the auspices of ARTIP, the Asia Regional Trafficking in Persons Project, of the practice by which some countries hold victims of human trafficking in shelter custody.

Heartfelt welcome!

On the detention of trafficking victims

(Our thanks to IntLawGrrls for the opportunity to contribute this guest post.)

In countries around the world it is common practice for victims of trafficking who have been ‘rescued’ or who have escaped from situations of exploitation to be placed and detained in public or private shelters. The term ‘detention’, as used in this context, refers to a very specific situation in which the individual concerned is unable to leave the facility if and when she or he chooses to. In some cases, shelter detention is a short-term measure that may be prompted by concerns about victim well-being or safety. In the most egregious situations, victims can be effectively imprisoned in such shelters for months, even years.
Our Study, Detention of Trafficked Persons in Shelters: A Legal and Policy Analysis, considers the international legal aspects of victim detention in shelters and weighs up the common justifications for such detention from a legal, policy and practical perspective. It is based on both desk research of shelter practices in a number of countries and more direct exposure to shelters through field-based research undertaken principally in South East Asia.
This Study is divided into two parts.

First Part
This part analyzes the international legal framework, and concludes that routine detention of victims or suspected victims of trafficking in public or private shelters violates a number of fundamental principles of international law and is, therefore, to be considered prima facie unlawful.
Failure of the State to act to prevent unlawful victim detention by public or private agencies invokes the international legal responsibility of that State. Victims may be eligible for remedies, including compensation, for this unlawful detention. In certain situations, the State may be able to successfully defend victim detention in shelters on a case-by-case basis with reference to, for example, criminal justice imperatives, public order requirements or victim safety considerations. The internationally accepted principles of necessity, legality, and proportionality should be used to evaluate the validity of any such claim. Application of these principles would most likely only support a claim of lawful detention in relation to a situation where detention is administered as a last resort and in response to credible and specific threats to a victim’s safety.

Second Part
This part considers the practical and strategic implications of the various policy arguments that are advanced in favour of victim detention. It asks:
► Can victims consent to their own detention?
► Is it indeed true that detention provides the only – or even the best chance of delivering much needed support and protection to victims of trafficking?
► Is it reasonable to cite the overwhelming reliance on victim testimony in human trafficking cases as grounds for ensuring these witnesses be prevented from disappearing?
► Should the situation be different for victims who lack legal migration status?
These questions are framed and responded to with particular reference to documented shelter practices in two countries of South East Asia: Cambodia and Thailand.

Conclusion
With only minor caveats, the Study concludes that in addition to their weak legal value, the arguments advanced in favour of victim detention are largely devoid of practical or strategic value.