This page intentionally left blank The International Law of Human Trafficking Although human trafficking has a long and ignoble history, it is only recently that traf- ficking has become a major political issue for States and the international community and the subject of detailed international rules. This book presents the first-ever comprehensive and in-depth analysis of the inter- national law of human trafficking. 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 support- ing victims, and prosecuting perpetrators. This is a timely and groundbreaking work: a unique and valuable resource for policy makers, advocates, practitioners, and scholars working in this new, controversial, and important field. Dr. Anne T. Gallagher is recognized as a leading authority on the international legal and policy aspects of human trafficking. She served as a career UN official from 1992 to 2003, including as Adviser on Human Trafficking to the High Commissioner for Human Rights, Mary Robinson, whom she represented in negotiations for the Organized Crime Convention and its Protocols on Trafficking and Migrant Smuggling. Dr. Gallagher oversaw the development of the UN Recommended Principles and Guidelines on Human Rights and Human Trafficking and was founding Chair of the United Nations Inter-Agency Group on Trafficking and Migrant Smuggling. She continues to advise the United Nations on these issues, her most recent assignment being the preparation of a detailed legal commentary on the UN Recommended Principles and Guidelines. Dr. Gallagher has worked directly with criminal justice agencies and legislatures on trafficking in more than forty countries and is currently a technical adviser to the Association of Southeast Asian Nations (ASEAN) and its Member States. A scholar as well as a practitioner, she has taught international law and human rights law at uni- versities and academic institutions in Europe, Asia, and Australia and has published widely on human rights (including women’s rights), criminal justice, and trafficking. The International Law of Human Trafficking Anne T. GAllAGher cambridge university press Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo, Delhi, Dubai, Tokyo, Mexico City Cambridge University Press 32 Avenue of the Americas, New York, ny 10013-2473, usa www.cambridge.org Information on this title: www.cambridge.org/9780521191074 © Anne T. Gallagher 2010 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2010 Printed in the United States of America A catalog record for this publication is available from the British Library. Library of Congress Cataloging in Publication data Gallagher, Anne, High Commissioner. The international law of human trafficking / Anne T. Gallagher. p. cm. Includes bibliographical references and index. isbn 978-0-521-19107-4 (hardback) 1. Human trafficking. 2. Human trafficking – Prevention – International cooperation. I. Title. k5258.g35 2010 345′.025–dc22 2010030167 isbn 978-0-521-19107-4 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third-party Internet Web sites referred to in this publication and does not guarantee that any content on such Web sites is, or will remain, accurate or appropriate. Mais on ne se bat pas dans l’espoir du succès. Edmond Rostand, Cyrano de Bergerac (1897) (Act V, Scene 6) [O]ur experience of the revolutionary transformation of national societies has been that the past conditions the future but that it does not finally and inescapably determine it. We have shown that we can think ourselves out of the social jungle. Philip Allott, Eunomia: New Order for a New World (Oxford, Oxford University Press, 2001) (p. xxxii) Contents Preface page 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 vii viii Contents 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