Transnational Crime and Human Rights

Responses to Human Trafficking in the Greater Mekong Subregion

Susan Kneebone, Julie Debeljak

• Publisher: Routledge
• Year: 2012
• ISBN:
  9781136336331
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

Transnational Crime and Human Rights offers an evaluation of the responses to the transnational crime of human trafficking and governance of the issue through a case study of the Greater Mekong Subregion (GMS), which comprises Cambodia, the People's Republic of China, Lao People's Democratic Republic, Myanmar, Thailand, and Viet Nam. The book analyses the international and national legal policy frameworks and the role of governments, international and national non-governmental institutions, and regional processes in responding to trafficking issues in the GMS. The book is based on the findings of a three year study conducted in the region, involving interviews with more than 60 individuals from relevant organizations and agencies, and examines the social, political and historical factors, including gender and age, labour exploitation and migration which form the background to human trafficking in the GMS. The authors consider issues of competing mandates, and gaps in strategies for protection and conclude with a discussion of broader lessons to be learned from the GMS situation and suggestions for future governance strategies in the fight against trafficking.

1 The discourse on trafficking

Transnational criminal justice and human rights

Over the last century policy responses to human trafficking, both globally and more recently in the Greater Mekong Subregion (‘GMS’), have been shaped by two main narratives: the prostitution of women and children, and labour migration. Each narrative has been created in the context of international migration, which increased exponentially in scale in the latter part of the twentieth century, coinciding with heightened awareness of the problem of human trafficking. Out of these narratives a number of specific trafficking discourses have emerged, including transnational organised crime, the rights of migrant workers, and women’s and children’s rights. Several broader discourses are interwoven into and cut across the trafficking discourses, including human rights, security – both ‘border security’ as a response to ‘illegal’ migration and ‘human security’¹ – and feminism. In this context, where the language of the response is often charged with emotional or moral connotations, such as equating trafficking with ‘modern-day slavery’, ‘the global sex industry’, the conflation of trafficking with prostitution and exploitation of women from the ‘third world’, the challenge is to unravel the often overlapping or competing discourses. This is necessary to determine how discourses have shaped policy responses on the one hand and how the discourses have been shaped in turn by such responses. That is the challenge which is confronted in this book, by using the example of responses to trafficking in the GMS.

This book will analyse how the discourses developed around the two main narratives, prostitution and labour migration (both globally and in the GMS), who has led them, whether they are grounded in reality, and how they are reflected in policy responses in the GMS. In this context, ‘discourse’ means more than statements or debate. For this purpose, both Michel Foucault’s idea of discourse as a process of ‘discoursing’ or rational ‘discursive formation’,² and Jürgen Habermas’ concept of discourse, which is linked to communication that is oriented toward reaching a common understanding or consensus,³ are applied. These ideas will be used as tools to analyse responses to trafficking in the GMS. This will involve considering the roles of organisations and their mandates, and of regional initiatives and structures which in the GMS provide a strong foundation for the development of regional discourse and discourses.

Foucault’s discussion of discourse is useful for understanding how the discourse on human trafficking developed over the last century and especially during the last two decades, with certain dominant voices and themes (such as feminism, ‘border’ security and transnational organised crime), and why others (for example human rights, especially the rights of migrant workers and children’s rights) have had less voice. The associated views of Foucault on ‘biopolitics’ and ‘governmentality’ are relatively well known in the trafficking context.⁴ In particular, through these concepts Foucault helps us to understand how the feminism, security and transnational organised crime discourses came to dominate above others in this context. By contrast, Habermas’ concept, which focuses on discourse as the means to clarify contentious ‘validity claims’, is useful to aid understanding of the processes which led to anti-trafficking responses and for evaluating the governance and compliance mechanisms that are the features of such responses. In other words, both Foucault and Habermas provide a framework to understand anti-trafficking responses and to critique the competing discourses.

In this chapter, the current profile of global anti-trafficking responses is summarised in order to illustrate the significance of competing discourses on trafficking, namely transnational organised crime and human rights. The global governance structure of trafficking as it both reflects and affects the ‘discursive formation’ of responses to human trafficking at the global level is then described. In the final section of the chapter, Foucault’s and Habermas’ ideas about discourse, which are applied to evaluate responses to human trafficking in this book, are explained in more detail.

Transnational criminal justice and human rights

Two preliminary observations can be made a decade after the creation of the United Nations Convention against Transnational Organized Crime (‘ CTOC ’) in late 2000,⁵ and the two Protocols which supplement it (‘ CTOC framework’): the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children⁶ (the ‘ Trafficking Protocol ’) and the Protocol Against the Smuggling of Migrants by Land, Sea and Air (the ‘ Migrant Protocol ’).⁷ First, the new anti-trafficking framework has not had the intended impact of removing ‘impunity’ for traffickers.⁸ As elaborated below and in this book, this result stems from a combination of factors including: lack of empirical research, lack of accurate statistical data, and inconsistent approaches to criminalising trafficking and to identification of trafficked persons. Secondly, it is evident from the experience of industrialised ‘receiving’ countries that the trafficking issue is far more complex than initially envisaged by policy-makers. For example, in Canada, the United Kingdom and Australia, governments have realised that, despite the introduction of anti-trafficking laws and policies that comply with the CTOC framework, the ‘victims’ of trafficking remain largely invisible. Each has recently introduced new measures to recognise and address the protection needs of victims of trafficking within their jurisdictions in an attempt to better incorporate them into the fight against trafficking.⁹

Moreover, the prediction made by some commentators that a focus on trafficking would exacerbate anti-immigration responses to international migration¹⁰ has proven to be an accurate reality.¹¹ A decade later, it is clear that the effects of the anti-trafficking framework on international migration are substantial.¹² In addition, over the last decade the anti-trafficking push has had an overly gendered focus, which not only marginalises the position of children and potentially distorts the response to all trafficked women, but also leaves other groups and categories of trafficked persons, such as men and boys, domestic workers and labour migrants, out of the picture. Further, there is a need to take into account evidence of new types of trafficking, such as exploitative adoptions of children, and foetus trafficking.

Trafficking in persons is perceived today as an aspect of transnational organised crime associated with the phenomenon of ‘irregular’ or ‘illegal’ international migration.¹³ The creation of the CTOC framework in late 2000 reflected the growing concerns of the international community about trafficking of persons and migrant smuggling, as do the two supplementary Protocols. The main feature of the framework is its focus upon criminal justice and cooperation between states, although there is reference to human rights seemingly as an afterthought.¹⁴ The purpose of the CTOC is to promote interstate cooperation for effectively combating transnational organised crime.¹⁵ Although it recognises victims of trafficking as persons with ‘inherent rights’,¹⁶ the thrust of the framework draws attention to its provenance in criminal justice. States signing up to CTOC are required to legislate trafficking offences.¹⁷ Additionally, the United States is the self-appointed watchdog of compliance, with its annual Trafficking in Persons (TIP) reports employing a ‘name and shame’ technique which has a serious impact on the level of foreign aid granted to developing countries. As a result, at a formal level, there is a high level of compliance amongst states, including the countries in the GMS.

Anne Gallagher has recently given us a candid account of how the international community met in the late 1990s to ‘hammer out, as quickly as possible, an international cooperation agreement on transnational organized crime’.¹⁸ She says:

A decade later, it is necessary to acknowledge that there is no way the international community would have a definition and an international treaty on trafficking if this issue had stayed within the realms of the human rights system.¹⁹

The appearance of CTOC as an instrument of criminal justice is strengthened by the fact that the custodian of the Trafficking Protocol is the United Nations Office on Drugs and Crime (‘UNODC’), whose mission is to contribute to the achievement of security and justice by making the world safer from crime, drugs and terrorism. Through its Global Programme against Trafficking in Human Beings (‘GPAT’ – launched by UNODC in conjunction with the UN Interregional Crime and Justice Research Institute in 1999), UNODC is strongly focused on the criminal justice aspects of trafficking in persons. The United Nations Global Initiative to Fight Human Trafficking (UN.GIFT) was formally launched in March 2007 by UNODC, and made possible by a generous grant from the United Arab Emirates. The global problem of trafficking is monitored through the Conference of Parties to the CTOC and the UN.GIFT programme.²⁰

However, although the CTOC was not intended to be a human rights instrument, it was intended to preserve existing entitlements. Thu...