Blog post written by Dr Vladislava Stoyanova (Lund University) a Senior Research Associate of the RLI, and forms part of a series of blog posts analysing the final draft (objective by objective) of the UN’s Global Compact for Safe, Orderly and Regular Migration.
UN Anti-Trafficking Protocol, Article 2: The purposes of this Protocol are: (a) To prevent and combat trafficking in persons, paying particular attention to women and children; (b) To protect and assist the victims of such trafficking, with full respect for their human rights; and (c) To promote cooperation among States Parties in order to meet those objectives.
Introduction
The Global Compact on Migration contained three main commitments concerning trafficking in human beings. The first one has a criminal law approach, i.e. investigation, prosecution and penalisation of the offence of trafficking in human beings. This is clearly reflected in the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons that imposes an international law obligation upon its State Parties to criminalise human trafficking. The second commitment is ‘discouraging the demand that fosters exploitation leading to trafficking.’ The third commitment is enhancing identification, assistance of and protection of migrants who have become victims of trafficking. As opposed to the first commitment, the last one is not reflected in binding legal norms incorporated in the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons. The latter contains only recommendations to this effect. (This weakness has been to a certain extent rectified at regional European level; see Stoyanova 2017). Therefore, identification, protection and assistance of migrants who have become victims of trafficking in human beings is still a weakness and states at a global level are yet to endorse binding commitments.
It is noteworthy that the Global Compact on Migration does not refer to the commitment of strengthening border control measures as a method of preventing trafficking in human beings. In contrast, Article 11(1) of the UN Anti-Trafficking Protocol formulates an obligation upon its State Parties to strengthen border controls, for which reason the Protocol has been an object of critique (Hathaway 2008; Gauci and Stoyanova 2018). In a much vaguer way, under Objective 10 the Global Compact on Migration formulates the action of monitoring irregular migration routes ‘which may be exploited by human trafficking networks to recruit and victimize smuggled or irregular migrants, in order to strengthen cooperation at bilateral, regional and cross-regional levels on prevention, investigation, and prosecution of perpetrators, as well, as on identification of, and protection and assistance to victims of trafficking in persons.’ It is positive that at least in the context of the Global Compact the strengthening of border control has not been justified with the humanitarian objective of preventing human trafficking. Empirically, it is questionable whether border controls reduce the risk of human trafficking (Gauci and Stoyanova 2018). In addition, enhancement of border control does imply that irregular border crossings are more difficult and dangerous, which might not only increase the risks to the migrants’ lives and well-being (Spijkerboer 2017), but can also make the services of human smugglers more expensive. The latter in turn prompts migrants to enter into exploitative arrangements for procuring illegal entries, which might actually amount to human trafficking (Bhoola 2016).
Still, in light of the recent policy developments particularly at the level of the EU, there is a reason to be concerned that states have committed to monitor irregular migration routes and to strengthen cooperation at bilateral, regional and cross-regional levels. In the rest of this post, I will argue that there are reasons for such concerns and we should carefully scrutinise the forging of such cooperation frameworks.
More specifically, the EU Member States have been applying forms of migration controls that are based on contracts with countries of origin and transit (COM(2016) 385 final; Malta Declaration 2017; COM(2017) 471, 6; COM(2016) 385, 15). This has been a development that fits within the external dimension of the EU migration policy and that aims to develop cooperation with third countries that are countries of origin and transit so that they themselves enhance their border controls and prevent transborder movement, including departures. (On the compatibility of these measures with the right to leave as protected by Article 12(2) of the ICCPR, see Guild and Stoyanova 2018.) More concretely, such forms of cooperation imply, for example, supporting and training the Libyan coast guards or provision of border control equipment and intelligent. In the EU policy documents these are justified with the need to save migrant’s lives and to combat human smuggling and human trafficking.
The problem with these forms of cooperation is that they reduce the possibilities for holding the supporting states (i.e. the European countries of destination) internationally responsible. The reasons for this reduction are at least two. First, the individuals affected by the measures are not within the territory of the European states, which in light of the jurisdiction threshold under human rights law, raises the question whether these states can be duty bearers that hold any obligations towards these individuals. These states certainly take measures (by, for example, funding the Libyan border guards) that affect migrants by, for example, preventing their departures and containing them in transit countries, where they are subjected to severe human rights law abuses, including slavery and human trafficking. However, it is disputable whether mere affectedness can trigger the constitution of these states as duty bearers under human rights law.
The second reason is that the causal relationship between the measures pursued by European states and any damage to interests protected by human rights law is more subtle (Giuffré and Moreno-Lax 2018, ‘contactless controls’). This complicates efforts to hold European states internationally responsible under human rights law for any harm sustained by the migrants that are affected by these measures.
The Future
As to the future, two challenges can be identified in light of the analysis above. First, ensuring that victims of trafficking are actually protected and assisted in destination states, including by being identified as victims. Second, destination states have to reconsider their policies towards and relationships with third-countries that are countries of origin and transit so that the former countries do not create conditions that are ultimately conductive to exposing individuals to slavery and human trafficking.
References
Jean-Pierre Gauci and Vladislava Stoyanova, ‘The Human Rights of Smuggled Migrants and Trafficked Persons in the UN Global Compacts on Migrants and Refugees’ 4(3) International Journal of Migration and Border Studies (2018).
Mariagiulia Giuffré and Violeta Moreno-Lax, ‘The Rise of Consensual Containment: From “Contactless Control” to “Contactless Responsibility” for Forced Migration Flows’, in Juss (ed), Research Handbook on International Refugee Law (Edward Elgar, 2018).
Elspeth Guild and Vladislava Stoyanova, ‘The Human Right to Leave any Country: A Right to be Delivered’ European Yearbook of Human Rights (2018).
James Hathaway, ’The Human Rights Quagmire of “Human Trafficking”’ 49(1) Virginia Journal of International Law (2008) 1.
Thomas Spijkerboer, ’Wasted Lives. Borders and the Right to Life of People Crossing Them’ 86 Nordic Journal of International Law (2017).
Vladislava Stoyanova, Human Trafficking and Slavery Reconsidered. Conceptual Limits and States’ Positive Obligations in European Law (Cambridge University Press, 2017).
Urmila Bhoola, Report of the Special Rapporteur on Contemporary Forms of Slavery, including its Causes and Consequences, A/HRC/33/46 (4 July 2016).
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