Keep framing human trafficking within human rights

Enrique Restoy, PhD, [email protected]; [email protected]

The recent passing of the Nationality and Borders Act 2022 in the UK is another symptom of the current tendency of governments to framing human trafficking as a criminal issue and entangling responses to trafficking with governments’ anti-immigration policies. But human trafficking and modern slavery are first a foremost violations of the human rights of victims and survivors that states are legally and morally obligated to protect and fulfil.

June 2022

Freedom from Slavery has been subject to global consensus as a human rights concern from the very conception of the modern International Relations architecture. The 1948 Universal Declaration of Human Rights already stated: “No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms”.

In 1956, the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery was designed to intensify national and international efforts towards the abolition of all forms of modern slavery, always within the frame of international human rights law.

Subsequent conventions of the International Labour Organisation and regional human rights treaties have further codified the prohibition of slavery, forced labour and practices akin to slavery. Slavery is expressly prohibited by the African Charter on Human and People’s Rights, the American Convention on Human Rights, and the European Convention on Human Rights.

The most important international legal instrument that frames most states’ policies to end modern slavery is the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Palermo Protocol). The protocol aims to protect and assist the victims of such trafficking, with full respect for their human rights, prevent and combat trafficking, and promote cooperation among states.

This consideration of modern slavery and human trafficking within international human rights law has two crucial characteristics: 1. the responsibility of the state as the main bearer of the obligation to respect, protect and fulfil the human rights of people at risk, victims and survivors; and 2. the holistic focus on victims and survivors’ realisation of the full corpus of human rights to which they are entitled.

Yet, there are many manifestations of the impact that modern slavery and human trafficking have on societies and economies. Among the most prominent ones: 1. Slavery is a crime and a security threat, 2. Cross-border human trafficking is closely connected to migration and forcer displacement, 3. Forced labour in the supply chain of products and services is a dilemma for consumers and producers, and 4. Slavery is exacerbated by inequalities, poverty and marginalisation.

Approaches to each of these manifestations should combine to provide a comprehensive framework to end modern slavery and uphold the human rights of people at risk of being trafficked, victims and survivors.

Yet, when it comes to the framing of policies to end slavery, governments are increasingly adopting approaches that move further away from human rights rather than reinforcing them. The Nationality and Borders Act 2022 in the UK is a prime example of such shift.

These approaches risk some or all of the following: 1. moving the focus away from the victims and survivors; 2, depriving victims and survivors or some of the rights to which they are entitled; 3. diminishing the responsibility of states to protect all of these rights; and 4. Introducing contradicting policies in relation to modern slavery.

There are examples, including in the UK, of all these four risks manifesting themselves across the board which the reframing under human rights could contribute to address:

1.????The criminal justice approach. For Britton and Dean, the majority of trafficking policies, funding, and government programing across the globe continue to be conflated with national security, law enforcement, and the prevention of criminal activity. Although in most countries, victim assistance is not dependent on the existence of a criminal investigation, such provision often hinges on their co-operation with the criminal justice system. The framing of slavery as a criminal issue places the emphasis on persecuting as many perpetrators as possible and not so much on attending the needs of survivors, who may have their reasons not collaborate with the criminal justice system due to trauma or fear of retaliation.

The criminal justice approach risks turning against victims of human trafficking themselves. The 2022 UK Nationality and Borders Act states that victims can be disqualified from support if they are considered a ‘threat to public order’, for instance if they have criminal convictions. However, many victims of human trafficking are exploited for the sole reason of committing a criminal offence, for example, people deprived of their freedom and forced to steal or sell drugs. This provision reliefs the state of its responsibility to protect the human rights of victims of trafficking.

2.????The anti-immigration approach. According to Kaneti, in many states ‘trafficking is viewed primarily in the framework of criminality and (illegal) migration; there is little emphasis on human rights – either in terms of prevention or support to trafficked persons”. This leaves states to “take advantage of their international commitment to execute an alternative agenda – develop legislation that criminalizes the crossing of international borders”. The UK Nationality and Borders Act provides for a set time frame for foreign victims to claim for asylum or other protections and fully disclose the traumatic details of their exploitation. Failing this, these victims are likely to be considered and treated as illegal migrants. Such provision also undermines the responsibility of the state to fulfil the human rights of victims of trafficking.

3.????The supply and demand approach in supply chains. Forced and bonded labour can be found in many part of the global supply chain of products we consume. For many companies, monitoring the labour practices of suppliers can be difficult, especially when governments in the locations where these suppliers operate are unwilling or unable to enforce labour laws. Increasingly, industries have introduced voluntary schemes to audit and certify that their supply chains are free of slavery. The 2015 UK Modern Slavery Act obliges bigger companies to report what efforts they are undertaking to eliminate slavery from their supply chain. However, the act does not oblige companies to take any action. The UK 2022 Modern Slavery Bill still focuses on reporting requirements with voluntary action by companies.

Evidence of the ?effectiveness of voluntary self-regulated approaches is weak as there is generally low compliance. Some governments are now considering more stringent monitoring requirements. For example, the European Union is introducing mandatory human rights and environmental due diligence that includes companies’ efforts to deal with slavery in their supply chains.

There is also increased emphasis from governments running massive 'sensitisation' campaigns among the general public which in reality put the greatest responsibility on consumers to look for slave-free products every time they go shopping.

Both consumer-responsibility and voluntary self-regulation by companies are a clear departure from the human rights approach to modern slavery. They exonerate governments from their responsibility to uphold the human rights of those working in the supply chain, to ensure employers comply with such obligations, and to avoid that products or services that may be produced through slavery be legally available for consumers to purchase.

4.??The Human security and public health approaches. Human security encompasses the cross-cutting challenges to the survival, livelihood and dignity of people. It calls for people-centred, comprehensive, context-specific and prevention-oriented responses that strengthen the protection and empowerment of all people. The ultimate goal of human security is a world free from fear, want and indignity.

According to Johnson, human trafficking poses a threat to human security by challenging the rule of law, societal peace, and the welfare state. Human security provides a much more holistic approach to the issue, incorporating the personal and societal elements of modern slavery. It also confers agency and empowers victims and survivors. However, human security as such is not codified in international law and is devoid of the compliance mechanisms that the international human rights architecture disposes to bring governments to account for their international legal obligations.

Public health is a relatively new approach to modern slavery. It puts an emphasis on prevention and considers this as a problem that affects the whole of society. It also looks at the multiple and long term impact on the wellbeing of victims and survivors as well as the root causes of vulnerability to trafficking, including inequality. However, public health policies are part of the social protection measures that governments may choose to provide, moving away from the obligatory nature of the legal responsibility of the state to protect and promote all the human rights to which victims and survivors are entitled.

The various approaches mentioned earlier have important merits, but if they do not reinforce each other, they can compete with and undermine each other. If governments established a clear hierarchy of norms whereby the human rights framework was paramount, these approaches could combine effectively to end modern slavery while upholding all the rights, needs and voices of victims and survivors.

?It takes however, courage and a clear determination from governments and law makers to uphold their human rights legal responsibilities towards people at risk of modern slavery, victims and survivors, and align anti-slavery policies with the original international human rights frame. These obligations must take precedence over immigration control, economic or commercial growth or criminal conviction targets.