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1.Introduction

     Human trafficking is a complex issue that
affects nearly every part of the world, with human trafficking organizations
particularly prominent in Asia, former Soviet countries, Mexico, Balkans and NigeriaFO1 .
A recent CNN report
FO2 about
the sale of African migrants as slaves in Libya has thrust human trafficking
back into the limelight of public discourse, inciting outrage, protests and international
condemnation.  

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Article 3, paragraph (a) of the
Protocol to Prevent, Suppress and Punish Trafficking in Persons defines
Trafficking in Persons as the recruitment, transportation, transfer, harboring
or receipt of persons, by means of the threat or use of force or other forms of
coercion, of abduction, of fraud, of deception, of the abuse of power or of a
position of vulnerability or of the giving or receiving of payments or benefits
to achieve the consent of a person having control over another person, for the
purposes of exploitation. Exploitation shall include, at a minimum, the
exploitation of the prostitution of others of other forms of sexual
exploitation, forced labor or services, slavery or practices similar to
slavery, servitude or the removal of organs.FO3 

      Human trafficking is one of the
fastest-growing and most profitable global criminal industries, second only to
drug trafficking 1,
however in contrast to drug traffickers, relatively few human traffickers have
faced incarceration for their crimesFO4 
and almost none have lost the income obtained from trafficking operations,
resulting in the high-profit low risk human trafficking system that exists today.
In 2012, President Obama described human trafficking as ‘modern slaveryFO5 ‘.
 According to Dr. Bales, there are more
slaves now2012 than at any other time in history2. Contrary to popular opinion,
the number of slaves in the world is not decreasing, but increasing.

     Human rights law has long recognized that
human beings cannot be sold. According to former UN Secretary-General, Kofi
Annan, “Slavery was, in a very real sense, the first international human rights
issue to come to the
foreFO6 .3” The 1926 Convention to
Suppress the Slave Trade and Slavery is one of the earliest human rights conventions.
The state obligation to eliminate slavery is one of only two human rights that
have been classified by the International Court of Justice as an erga omnes norm;FO7 
that is, a responsibility that states owe to the international community as a
whole. Human rights law, from near-conception, has rejected practices that
constitute human trafficking 4
and condemns it as a serious human rights violation that undermines a multitude
of human rights 5
 such as the right to freedom of movement,
the right not to be submitted to slavery, servitude, forced labor or bonded
labor, the right to liberty and security, the right to just and favorable
conditions of work, the right to an adequate standard of living, to name a fewFO8 .

 

This makes widespread
human trafficking issue, as well as the lack of progress to curb it very dishearteningFO9 ,
especially for human rights activists. the International Labor Organization,
there are still more than 20 million slaves around the world today—about double
the number of people in bondage during the transatlantic slave trade.FO10 

2.    
Reason for existing human trafficking

Human trafficking is not
simply a result of globalization, but part of the dark side of globalization process
itself 6. In the era of
globalization, socio-economic disparities play a significant role in as
trans-national human trafficking generally occurs from poorer to wealthier
nations. Economic need also increases the vulnerability and sense of
desperation of potential victims. Mexican traffickers, known as “coyotes,” take
advantage of desperate situations of existing poverty and hardship in Mexico –
the prevalent origin country of trafficking victims in the United States 7 – and promise safe passage
to a new life in the United States 8.

 

Human trafficking is
prevalent in many destination countries due to the very high standard of
living. The desire to obtain goods and services at the cheapest cost
perpetuates the demand for the nearly cost-free labor supplied by trafficking
victims. As long as a demand for sex, agricultural labor, domestic servants,
and construction remains high and inelastic, human trafficking would remain an
attractive venture for criminal organizations.

Trafficking victims can
be anywhere from farms, factories, restaurants, nail salons, subway peddlers,
homes, strip clubs
to a street corner FO11 9.There is a substantial
market for peoples of all genders and all ages 10.

3.    
Current Approaches

In 2003, The Protocol to
Prevent, Suppress and Punish Trafficking in Persons, especially Women and
Children which supplements the 2000 UN Convention against Transnational
Organized Crime. Parties subject to the protocol must take action to punish
traffickers, aid their victims and grant victims residency – temporary or
permanent – in the destination countries. The protocol was designed as a law
enforcement tool, unlike other treaties that mainly function as motivation for
state self-improvement King,
“International Law and Human Trafficking.”. As of December
2017, 122 countries have ratified this protocol in a global effort to curb
human trafficking.

Other international
efforts to address human trafficking are the Palermo ProtocolFO12 , UN Global Initiative to Fight Human
Trafficking (UN.GIFT) and the U.S. Department of State’s Trafficking in Persons
(TIP) Report on most countries.FO13 

Majority of current
state- and regional-level policies do not typically approach trafficking as a
human rights issue11, but rather as an issue
of prostitution, border control, or organized crime, which detrimentally
impacts the rights of trafficked persons by making them secondary to another
policy objective. Human trafficking is approached as a crime against states,
rather than one against individual victims. In Hungary, NGOs have reported that
some victims who refused to testify against their traffickers were detained by
police for crimes against sexual moralsFO14 12.

In the United States,
which is both an origin and destination country for trafficking victims13, the Trafficking Victims
Protection Act (TVPA) was introduced in 2000. The approach adopted in the
United States focuses on prosecution and criminal justice, rather than actions
to prevent trafficking. Victim protection and aid becomes secondary. Many of
the provisions in the TVPA seek to protect the witness primarily so that law
enforcement can successfully prosecute the case, for example, T-visas, include
access to social services, healthcare, and medical programs, are given only if
victims can provide evidence and agree to co-operate with authorities. Some
activist criticize this approach, stating that “helping those at risk/focus on
the needs of victims has less appeal as rescuing victims after they have been
trafficked.14”

At the time of the TVPA’s
drafting (late 19th and early 20th century), trafficking for sex was the
dominant discourse, which attracted a lot of sympathy and resonance with the
public. The ideology is based on public perception of the other
forms of trafficking. FO15  Domestic, construction and farm work, however
exploitative the conditions, are all still perceived as morally acceptable
sectors of work, whereas sex work is not15.FO16  “Funding follows heartstrings”16.The act was drafted with
normative views of sexuality and gender, that drastically narrows the
widely-held definition of a trafficking victim17. In the United States,
over 50 percent of trafficked individuals are involved in other form of
trafficking outside commercial sex work18.

 Human rights scholars have criticized the TVPA
for its disproportionate focus on involuntary sex work, rather than other forms
of forced labor19.
 In theory, all victims’ rights are
equal, however sex trafficking has been sensationalized in media. The resulting
hierarchy of victims creates a stereotypical narrative of the undeserving male
illegal alien worker versus the moreFO17  deserving blameless poor girl brought in
for sex work against her will20. With the existing
system, many victims are missing out on the protections of the laws in place,
as they are overlooked by the US government. The current system rids non-ideal
trafficked victims of the available aid. It also ignores the overlap that can
exist between these separated trafficking forms as some forced domestic workers
are also forced to partake in sexual activity, regardless of gender.

4.    
ProblemsFO18 

     Without the creation of legislation that
reinforces and implements these international provisions at a domestic level.
UNODC and IOM have both acknowledged that the real problem has been domestic
compliance and enforcement. Without the ability to enforce, a country’s laws
are pointless. Effective prosecution of traffickers requires time, resources,
and energy. Limited resources, as well as, weak political institutions can
hinder proper policing mechanisms and enforcement of anti-trafficking laws, thus
creating an extremely vulnerable environment where traffickers are relatively
free to operate with little worry of repurcussion.

The complex nature of
human trafficking means that there is a wide range of relevant treaties and the
problem can be considered from multiple perspectives. According to Haddadin and
Klímová-Alexander, treaties dealing with slavery and the slave trade; forced
labor; child labor; the rights of women; the rights of children, migrant
workers, and persons with disabilities, as well as more general treaties
dealing with civil and political rights or economic, social, and cultural
rights, are all applicable to trafficking21. On the international
stage, there are inconsistences among countries on what constitutes human
trafficking, which makes collaboration difficult for countries 22.

Presently, governments
and international agencies are making important policy decisions based on very
few substantial analysis of the problem.

     The definition of trafficking held by
state agencies, as well as service providers is crucial, as these two groups
play a significant role of defining the criteria of identifying a genuine trafficking
victim, as well as the protections that a victim is entitled to. The current
approach employed by many world governments fosters the mischaracterization of
victims as prostitutes or illegal immigrants23. This criminalization
deters victims from coming forward and can increase leverage of traffickers
since traffickers frequently take the victims’ travel documents and use the
threat of deportation keep victims from reporting to the police. Further
victimization of victims through state and regional policies can raise
additional human rights concerns that ultimately encourage trafficking
activities.

Concerning this issue,
the United States faces a cultural problem because some Americans citizens view
human trafficking solely as “problem of illegal immigrants.” It is naïve to believe
that illegal migration can be stopped in our increasing globalized world, which
is marked by huge disparity of wealth and opportunity coupled with stringent
migration control that afford practically no possibility for legal entry of low-skill
level workers for whom there is obvious demand. Anti-trafficking regulations,
in the form of border strengthening, are more likely to increase the risk of
human smuggling and trafficking, as more people seek the services of
professional smugglers due to the increased challenge of migration, thus they
become even more vulnerable to exploitation if they cannot afford to higher
cost of smuggling.

 

5.    
Alternative Approaches

a.      Immigration
Reform

Some
experts24 call for more a
comprehensive reform of United States immigration policy so that more people
can come to the United States legally, instead of putting themselves at risk.
There is also advocacy for promotion of T-visas. About a thousand T-Visas are
annually distributed, which is vastly disproportionate to the number of
trafficking victims that enter the United States. This reform would focus on those
people who are vulnerable and desperate to gain a better livelihood, like
refuges, therefore those who are most vulnerable are those who reap the greatest
benefit from the new policy.

Apart from the partisan
backlash likely to ensue as a result of the recommendation, this approach does
not eliminate the harmful stereotype of the authentic trafficking victim. Criteria
would need to be established order to determine who is vulnerable and who is
not.

b.     Economic
Approach

6.    
Moving Forward: The Promising Human Rights
Approach

     While prevalent approaches have enabled
the punishment of traffickers, they have not necessarily reduced global
trafficking activity. This implies that simply approaching trafficking as a
criminal activity is not sufficient. Popular media and political narratives exclude
many of the victims of trafficking and often fail to acknowledge the underlying
socioeconomic factors that make people vulnerable to it. In order to better
protect victims and prevent future trafficking, the human rights lens should be
used as a tool in the fight to eradicate human trafficking, rather than simply
a constraint to be managed.FO19 

       A
human rights framework for addressing trafficking calls upon international
human rights standards, which have been normalized since the 1948 drafting of
the Universal Declaration of Human Rights. Even states that are not party to
the United Nations Convention against Transnational Organized Crime and its
related protocols have a duty to uphold the rights of trafficked persons under
provisions in the Universal Declaration of Human Rights. There are two existing
documents on the treatment of trafficking victims that draw from this concept: “Human Rights Standards for
the Treatment of Trafficking Persons” and the “Recommended Principles and Guidelines on
Human Rights and Human Trafficking.” They were created to ensure that
trafficked persons were treated as victims rather than as criminals, however
they have not be enforced on any wide-scale.

The human rights approach
can also be viewed as the victim-based approachFO20  since it involves placing victims at the center
of anti-trafficking policies by prioritizing the protection of their human
rights. In this approach, all victims are granted equal protection regardless
of age, gender or field of labor25. This approach uses methods
that restore victims’ humanity and reintegrates them into society, so that they
feel protected, rather than persecuted. Critical victim representation and
identification at all levels of law enforcement and service provision are required
in order to strengthen the capacities of victims to claim their rights. States’
obligations stem from the well-established principle of due diligence, which
means that States have the responsibility to respect, protect, and fulfill the
rights of all individuals, including victims of trafficking26.FO21 

A human-rights framework
calls for increased awareness in both origin and destination countries.
Citizens should understand that victims of human trafficking should be seen and
treated as victims that deserve concern and aid.

     Human rights are
obligations of the state to individuals. In the case of human trafficking that
is trans-national, the question of which state has the obligation to uphold the
rights of victims arises. The 2003 Trafficking Protocol necessitates that
destination countries must take action to “grant victims temporary or permanent
residence within the countryFO22 ,” which appears to place a fair amount of
the duty on the destination country that may be more equipped with the
resources to properly aid victims than the origin country. The Trafficking
protocol, however specifies that the origin country must receive their
trafficked citizens back without unwarranted delay27.
A state will be held accountable for the acts of private persons when its
ability to influence an alternative, more positive outcome can be established.
In such cases, the source of state obligation is the failure of the State to
take measures to prevent or respond in accordance with the required human
rights standard28. It can
be concluded that both origin and destination countries, as well as transit
countries as in the case of Libya have obligations in trans-national human
trafficking cases. These nations can form coalitions, with the aim of increasing
bilateral coordination in to …, for example, as the worls largest importer, the United
States imports FO23 goods
made with labor from virtually every part of the world, making the United
States one of the world’s most desired trade partner. The United States can
leverage trade to push other nations to meet human rights standards29,
thus encouraging greater anti-trafficking

 

 

7.    
Recommendations:

 

 

Increased
focus on socio-economic rights, particularly the right to adequate standard of
living, would address the structural factors and governance issues30 that are often
characteristic of origin countries an enable trafficking to occur such as social
inequality, corruption, poverty.

 

The
current stand-still in the fight against human trafficking calls for a shift in
the current framework, however pragmatic political balance must be struck as
rights promotion must take place in a manner that does not undermine other
governmental priorities, for example, putting victim-based approach might
promote fake trafficking cases that are solely cases smuggling and illegal
migration.

     Credible data collection
methods and more reliable estimates to better inform reccomdations and policy for
different regions

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