A Transnational Human Rights Approach to Human Trafficking : Empowering the Powerless [1 ed.] 9789004311145, 9789004311138

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A Transnational Human Rights Approach to Human Trafficking

Studies in Intercultural Human Rights Editor-in-Chief Siegfried Wiessner St. Thomas University Board of Editors W. Michael Reisman (Yale University) Mahnoush H. Arsanjani (United Nations) Nora Demleitner (Hofstra University) Christ of Heyns (University of Pretoria) Eckart Klein (University of Potsdam) Kalliopi Koufa (University of Thessaloniki) Makau Mutua (State University of New York at Buffalo) Martin Nettesheim (University of Tübingen; University of California at Berkeley) Thomas Oppermann (University of Tübingen) Roza Pati (St. Thomas University) Herbert Petzold (Former Registrar, European Court of Human Rights) Martin Scheinin (European University Institute, Florence)

volume 8 This series offers path breaking studies in the dynamic field of intercultural human rights. Its primary aim is to publish volumes which offer interdisciplin­ ary analysis of global societal problems, review past legal responses, and develop solutions which maximize access by all to the realization of universal human aspirations. Other original studies in the field of human rights are also considered for inclusion. The titles published in this series are listed at brill.com/sihr

A Transnational Human Rights Approach to Human Trafficking Empowering the Powerless By

Yoon Jin Shin

leiden | boston

The Library of Congress Cataloging-in-Publication Data is available online at http://catalog.loc.gov LC record available at https://lccn.loc.gov/2017019548

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. issn 1876-9861 isbn 978-90-04-31113-8 (hardback) isbn 978-90-04-31114-5 (e-book) Copyright 2018 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner.

Contents 1 Introduction: Comprehending Human Trafficking as a Transnational Human Rights Problem 1 1 Overview 1 2 Human Trafficking as a Transnational Human Rights Problem 7 2 Analysis of Current Legal Institutional Responses: International and Regional Levels 14 1 International Level 14 2 Regional Level: Europe 56 3 Conclusion 66 3 Analysis of Current Legal Institutional Responses: National Level 69 1 The United States 69 2 Canada 86 3 Australia 93 4 Japan 100 5 European States 106 6 Conclusion 117 4 Case Study 1: South Korea 125 1 Introduction 125 2 Migration and Work of Filipina Entertainers in u.s. Camp Towns in South Korea 126 3 Complex Realities across Human Trafficking and Labor Migration 138 4 Analysis of Current Legal Responses 152 5 Conclusion 164 5 Case Study 2: Taiwan 166 1 Introduction 166 2 The Background of the Anti-Trafficking Framework in Taiwan 167 3 Case Study 174 4 Efficacy of the Anti-Trafficking Framework 201 5 Conclusion 220

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6 International Human Rights Law in the Context of Human Trafficking 222 1 Introduction 222 2 International Human Rights Law and Transnational Human Trafficking 223 3 The Right to Effective Remedies 254 4 Conclusion 271 7 Alternative Approaches and Remedies: A Transnational Human Rights Framework 273 1 Introduction 273 2 Previous Literature on Alternative Approaches 274 3 Shaping a New Framework 276 4 Concretizing Obligations, Rights and Remedies 288 5 Conclusion 304 Bibliography 307 Index 320

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Introduction: Comprehending Human Trafficking as a Transnational Human Rights Problem 1 Overview A Objectives of this Book* Human trafficking and the human exploitation it entails are among the gravest transnational problems of our world, a direct threat to human rights and dignity. International and national legal responses to the issue have grown exponentially over the last two decades. This book investigates how the current legal frameworks targeting human trafficking are constructed and operate in the contexts of globalization, migration, state interest/sovereignty, and human rights. Using extensive comparative research and in-depth case studies, the present work illuminates the complex realities experienced by the individuals affected by trafficking situations within a broader spectrum of global labor migration. The book critically evaluates whether the current anti-trafficking regime is achieving its purported goals of preventing human trafficking and protecting victimized individuals and their human rights. It examines how the self-interests of destination states have driven the relevant lawmaking processes and have negatively affected the individuals in the construction and implementation of the legal system. This project goes on to assess whether current international human rights law is capable of responding effectively to multiple transnational features of human trafficking, which differ markedly from traditional human rights cases. Finally, this book proposes an alternative framework, approaching human trafficking as a transnational human rights problem, with an eye toward empowering marginalized and victimized individuals living in the shadow of globalization. This transnational human rights framework, it will be argued, overcomes the drawbacks of the current anti-­trafficking regime as well as the limitations of the existing international human rights law. It proposes guiding principles and directions to reform the current framework and undertakes to articulate, in concrete terms, the meaning of human rights and remedies for affected individuals. * This book is an edited and updated version of this Author’s doctoral (J.S.D.) dissertation at Yale Law School, titled “Transnational Human Rights Lawmaking of Human Trafficking” (awarded the Ambrose Gherini Prize in 2015).

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004311145_002

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B Main Theses The international and national legal frameworks responding to human trafficking have developed into a transnational crime and immigration control regime, creating a structure that reinforces state power and control under the rhetoric of human rights. The construction of this regime has been largely driven by the interests of destination states facing threats to their sovereignty in the era of globalization and migration. The current anti-trafficking regime at the international and national levels prioritizes the needs of destination states over those of victims, empowering the states and disempowering the individuals the regime claims to protect. The alleged goal of preventing and combating human trafficking has provided destination states with an effective justification for demonizing private perpetrators and fortifying state border and immigration control, while allowing these states to evade their human rights obligations to victimized individuals. Further, this approach has enabled the states to avoid their own accountability for contributing to and benefiting from exploitation of vulnerable migrants. Under the anti-trafficking regime in most destination states, trafficking victims are placed in marginalized, subordinated, and precarious positions, with their status primarily depending on their usefulness as crime witnesses. Victims are often repatriated against their will and best interests in the name of protection. Victims’ role as rights holders in the human, civil, and labor rights contexts have been utterly disregarded, and states’ obligations to ensure victims effective remedies have been similarly neglected. Current national-level responses by destination states are in fact a direct implementation of the mandates and discretion prescribed by the international framework on human trafficking that those states have themselves created. The main approaches taken by the current anti-trafficking regime—criminal justice and immigration control—are incapable of addressing the complex, ambiguous, and diverse realities of trafficking victims, and fail to address the various rights violations victims experience in destination states. The current responses also have detrimental effects on the human rights and well-being of a broad scope of people. The anti-trafficking regime dichotomizes similarlysituated migrant individuals as either “victims to be protected” or “criminals to be punished.” Victims are narrowly identified and dealt with based on a stereotype of human trafficking rooted in a misleading conceptualization of the issue as “modern-day slavery.” Individuals whose human, civil, and labor rights are violated—but who are not recognized as trafficking victims in the criminal context—are excluded, discriminated against and even punished. Ironically, the current regime ultimately treats both groups the same by deporting the latter and repatriating the former, since these measures are not essentially different in their nature and consequences. By imposing unilateral treatment based

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on an oversimplified perception of victims, the current anti-trafficking regime erases and distorts the agency, diversity and real experience of the individuals concerned. Criminal justice and immigration control approaches, combined with victim treatment schemes subordinated to those foci, thus effectively empower destination states and disempower individuals. Transborder human trafficking lies in a domain in which the sovereignty and interests of destination states and those of individuals intersect with each other. However, the current legal framework has been dominantly shaped by destination states, leaving no room for victimized and marginalized individuals to participate—the interests of the former have trumped those of the latter. Existing international human rights law is regrettably weak and ineffective in addressing the multiple transnational challenges posed by human trafficking, thus reinforcing the anti-trafficking regime’s problematic moves. Under both anti-trafficking and international human rights regimes, human rights norms and agendas related to human trafficking ironically buttress state sovereignty, rather than restricting it. To develop a more effective framework to protect and promote the human rights of affected individuals, it is first necessary to comprehend human trafficking as a complex transnational human rights problem situated in a broader spectrum of global labor migration, and to recognize that the primary wrong to be rectified is not migration itself, but the various rights violations and abuses committed in destination states after the migration. An alternative ­transnational human rights framework is required in order to address this transnational human rights matter properly. The new framework rejects the current control-based approaches and unilateral repatriation policies, which only deprive victims of a venue to exercise their rights and seek remedies. Instead, it proposes comprehensive, integrated, and contextualized legal responses to empower victimized and vulnerable individuals with concrete rights and remedies to be realized through the legal systems of destination states. This recommendation envisages positive, forward-looking, and creative forms of remedies for victimized individuals, theorizing their right to stay and work in destination states. It emphasizes individuals’ subjectivity as migrants and as holders of human, civil, and labor rights, highlighting their role as central actors in the rights enforcement system as well as active participants in the lawmaking process. C Scope of Analysis, Terminology, and Methodology The main analytic focus of this book is the case of transborder human trafficking in adult individuals. Child trafficking, for which different approaches are required (typically using more straightforward eradication strategies), lies outside the scope of this discussion, as do domestic trafficking cases which do not

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involve transborder migration. The research encompasses both human trafficking for the purpose of sexual exploitation (often referred to sex trafficking) and trafficking for labor exploitation (abbreviated to labor trafficking). This project thus deals with the most complex cases of human trafficking: those involving adult individuals who cross borders, whose cases are situated in grey areas that overlap significantly with labor migration issues. This book uses the terms “trafficking victims,” “trafficked migrants,” “individuals/­persons in trafficking situations” and “individuals/persons affected by trafficking situations” interchangeably. Depending on the context, “victimized individuals” indicates either individuals victimized by trafficking situations or individuals whose rights are violated in their course of labor migration but who do not necessarily fit into the current definitions of trafficking victims. This book also uses “sex work” and “prostitution” interchangeably. “Labor migration” means “migration for the purpose of work,” regardless of the characteristics of work (sexual or non-sexual), as opposed to migration mainly for non-work purposes such as for marriage or family unification, or as refugees. This project employs diverse research methodologies. It closely examines international legal instruments and documents relevant to the subject, including their backgrounds and lawmaking processes. It analyzes domestic law and policy on human trafficking in nine individual states—including their legislation, internal rules, national action plans, government reports and statistics, judicial practice in actual cases as well as relevant materials produced by nongovernmental organizations. It also conducts in-depth case studies based on field research in two regions: South Korea and Taiwan. The author’s firsthand experience as a pro bono lawyer for migrant trafficking victims in South Korea for several years—working with actual clients, service providers and practitioners in the field—has provided important resources. A series of intensive meetings and interviews with relevant governmental and non-governmental actors in the two regions form an integral part of the case studies. D Structure of the Book The rest of this chapter examines the multiple dimensions of transnationality manifested in and around the concept of “transnational law” and identifies the unique and complex transnational nature of transborder human trafficking. This sets out a platform for assessing the current legal frameworks and for developing alternative approaches to human trafficking to effectively address it as a transnational human rights issue. Chapter 2 examines the past and present international and regional ­(European) legal frameworks responding to human trafficking. It also analyzes

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other closely-related international legal instruments, focusing on their implications for and limitations in addressing human trafficking and related human rights issues. The chapter first considers the earlier “White Slavery” framework, which was based on moralistic and paternalistic approaches toward women and prostitution and was limited in scope and inactive in function. It then investigates the nature and structure of the current international framework under the ctoc and the Trafficking Protocol and concludes that the regime has developed into a transnational crime and immigration control regime, not a human rights framework, squarely reflecting the concerns and interests of destination states. It demonstrates that the current international anti-­trafficking framework neither provides any rights for victims nor imposes any human rights obligations on states. The current framework instead mandates states to criminalize relevant offenses, fortify border control, and facilitate victim repatriation, the measures which reinforce preexisting control-based agendas of destination states. The chapter then examines other international frameworks closely related to human trafficking, including major human rights treaties, and investigates the reasons why those other instruments have been ineffective in addressing human rights violations related to human trafficking. The analyses in this chapter also reveal that the European framework is not essentially different from the international anti-trafficking regime, despite its claims to have adopted a human rights-based approach. Chapter 3 examines the structure and operation of anti-trafficking frameworks at the national level. It investigates how major destination states, ­including the United States, Canada, Australia and Japan, have built their ­domestic legal systems in response to human trafficking. It also examines three ­European states—the Netherlands, Belgium, and Italy—which have ­adopted what are considered to be the most advanced forms of trafficking ­victim ­support ­systems among existing models. This chapter explores how these states implement the mandates of the international trafficking regime ­examined in Chapter 2, examining how they have developed common trends (summarized as the “3P and 4R paradigm”), while retaining certain v­ ariations. Particular attention is paid to the rights, status and overall treatment of v­ ictims in each state, areas where the international framework allows broad ­discretions to individual states. This comparative study demonstrates that the destination states have actively discharged the mandates of international law by taking criminal justice and immigration control approaches as two major responses. Victim protection occupies only a marginalized position and is s­ ubordinated to those two approaches, which is indeed an exercise of discretion allowed by the international framework. The chapter provides two concluding observations: first, that the anti-trafficking frameworks at the international and ­national ­levels jointly

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constitute a transnational crime and immigration control regime; second, that this anti-trafficking regime empowers destination states and disempowers the victimized individuals the regime claims to protect. Chapters 4 and 5 present in-depth case studies of actual trafficking cases and examine the operations of relevant law and policies in practice. The cases of South Korea and Taiwan—major destination states in Asia—have not received the scholarly attention they deserve, so receive careful attention here. This field study illuminates the ambiguous, complex and diverse realities of victimized individuals—realities that cannot be properly recognized or responded to by the dichotomous and narrow crime and immigration law ­enforcement approaches. A further reason for selecting these regions is that the governments of South Korea and Taiwan exhibit contrasting attitudes toward the issue of human trafficking—the former is extremely reluctant and the latter is exceptionally active in implementing anti-trafficking law and policy. The research analyzes the problems of both cases and evaluates the efficacy of the current frameworks based on their actual impact on individuals and their effectiveness in preventing relevant human rights violations and guaranteeing remedies for victims. Chapter 6 examines what existing international human rights law has to offer in addressing human rights violations related to human trafficking and in constructing effective remedies for victimized individuals. The chapter investigates whether international human rights law, including treaties and theories, is capable of fully and properly addressing the multiple transnational aspects of human trafficking discussed in Chapter 1. The analysis reveals that the current international human rights regime is weak and ineffective in responding to the new challenges posed by human trafficking and in promoting the ­human rights of affected individuals. The discussion illuminates how the multi-­faceted transnationality of human trafficking reverses the traditional dynamics between human rights and state sovereignty, and demonstrates how the existing human rights norms, in the era of globalization and m ­ igration, ironically fortify and consolidate state sovereignty instead of individual sovereignty. It argues that monopolized state sovereignty over borders and immigration regulation, as acknowledged and respected by international human rights law, restricts and conditions the space for non-nationals to exercise their existing rights. The chapter also explores international law regarding the right to remedies for victims of human rights violations, and discusses its potential and limitations in constructing concrete meanings and methods of ­effective remedies for trafficking victims. The chapter concludes that due to its c­ urrent weakness and ineffectiveness, the international human rights regime is counterproductive in addressing the problem posed by the anti-trafficking regime: The two regimes jointly empower destination states and disempower individuals.

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Chapter 7 proposes an alternative framework to address human trafficking as a transnational human rights problem. The new framework places human rights of affected individuals at its center and aims to empower these individuals as comprehensive rights holders and as the principal actors of the system. The chapter sets out a set of primary principles and provides detailed directions to reform the current regime. It also diagnoses the central problem of the current decisionmaking process regarding human trafficking and envisions better ways to facilitate participation by victimized individuals in the lawmaking ­process. The chapter spells out the second and third dimensions of transnationality identified in Chapter 1 in the context of human trafficking, in order to address the transnational nature of this human rights problem more effectively. It undertakes to reconstruct human-rights-centered state obligations and to articulate the meanings and methods of effective remedies for victims in concrete terms, emphasizing the human, civil, and labor rights of the individuals. Lastly, it illustrates how these new approaches and remedies can actually be put into practice in the case of South Korea discussed in Chapter 4. 2

Human Trafficking as a Transnational Human Rights Problem

A On Transnationality The terms “transnational” and “transnational law” are gaining popularity among legal scholars and practitioners, either as a supplement or replacement for the conventional terms of “international” and “international law.” The terms have been favored for their potential capacity to highlight diverse manifestations of the law and legal events that the traditional terms cannot fully or accurately capture. Despite their increasing appeal, however, the use of these terms varies greatly between authors and contexts. The term “transnational law” has yet to achieve systemic and comprehensive conceptualization.1 This section identifies three distinct dimensions by which transnationality is manifested in relation to law and legal events, which have not been articulated by previous scholarship: (1) transnationality in the nature of factual events; (2) transnationality in the structure and operation of legal systems; and (3) transnationality in the process of lawmaking. After elaborating these three dimensions of transnationality, the discussion proceeds with identifying the unique transnational nature of the trafficking phenomenon in terms of the first dimension. 1 See, e.g., Peer Zumbansen, Transnational Law, in Elgar Encyclopedia of Comparative Law 738 (Jan M. Smits ed., 2006). While Zumbansen lists a range of aspects of transnational law, his survey does not fully achieve a systemic conceptualization of the term and its relevant phenomena.

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1) Transnationality in the Nature of Factual Events The term “transnational” is often used to describe the characteristics of relevant factual events, typically pointing to two different aspects of facts. One is the “actors’” side—when an event involves actors other than states, i.e., non-state actors. The other concerns the “action” of crossing borders—when things, human beings, acts, or effects of certain acts cross boundaries between states. Philip C. Jessup, arguably the first legal scholar to introduce this terminology (in his Storrs Lectures at Yale Law School in 1956), pointed out that “[t]ransnational situations, then, may involve individuals, corporations, states, organizations of states, or other groups,”2 and defined Transnational Law as “all law which regulates actions or events that transcend national frontiers.”3 Robert Keohane and Joseph Nye define “transnational interactions”—as ­opposed to inter-state interactions—as “the movement of tangible or intangible items across state boundaries when at least one actor is not an agent of a ­government or an intergovernmental organization.”4 Transnationality thus encompasses two different components: the concept of trans-“border” with actions of border crossings and the concept of trans-“national” with non-state, private actors involved. The terminology has also been adopted in the area of “transnational criminal law,” including relevant treaties governing “transnational crimes.” A ­transnational crime is an example of a factual event which possesses a ­transnational nature. Neil Boister mentions the above two aspects of transnationality in transnational crimes (although not clearly distinguishing the two conceptually) by pointing out that “transnational crimes are commonly characterized as private or non-governmental crimes, i.e., crimes committed by non-state actors”5 while at the same time defining transnational crimes as “criminal activities that have a cross-border nature.”6 The un Convention against Transnational Organized Crime (ctoc) provides that an offense is “transnational” if it meets one of the following conditions: (a) It is committed in more than one State; (b) It is committed in one State but a substantial part of its preparation, planning, direction, or control takes place in another State; (c) It is committed in one State but 2 Philip C. Jessup, Transnational Law 3 (1956). 3 Id. at 2. 4 Transnational Relations and World Politics xii (Robert O. Keohane & Joseph S. Nye eds., 1971). The authors use the term “transnational relations” to include transnational interactions and transnational organizations. Id. at xv. 5 Neil Boister, An Introduction to Transnational Criminal Law 4 (2012). 6 Id. at 3.

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involves an organized criminal group that engages in criminal activities in more than one State; or (d) It is committed in one State but has substantial effects in another State.7 This provision focuses on the border-crossing nature of the offenses concerned. Human trafficking, migrant smuggling, weapon and drug trafficking, money laundering, and terrorism are a few examples of transnational crimes. Other authors define “transnational criminal law” in a more limited manner, for example, as “any nation’s domestic criminal law which regulates actions or events that transcend national frontiers.”8 Two other aspects of transnationality in this first dimension have been neglected in the literature. With respect to the question of the actor, especially in the case of transnational crimes or human rights violations, focus is usually placed on the side of perpetrators—non-state actors such as organized criminal groups or transnational corporations; overlooked are the victims of those transnational offenses. As non-state rights holders, victimized individuals stand in greater need of attention. Another neglected transnational feature is the non-nationality of persons concerned. When the involved individuals, including victims and perpetrators, are non-nationals in a state where the relevant actions are committed, transnational legal dimensions come into play. The picture becomes even more complicated when the aspect of “actors” and that of “actions” are combined in a single transnational event—with n ­ on-national, non-state actors crossing borders between states. 2)

Transnationality in the Structure and Operation of the Legal System Transnational Law is not limited to the law that regulates transnational actions or events. The way that the legal system is structured and operates is another important dimension of transnationality in law. The framework of transnational criminal law (tcl) provides an illustrative example. While “international crimes” are generally criminalized by international law and prosecuted and tried under the jurisdiction of international criminal courts or tribunals,9 in tcl, international law mandates individual states to criminalize certain offenses of international concern as crimes under the domestic law of each 7 United Nations Convention Against Transnational Organized Crime art. 3, para. 2, Nov. 15, 2000, 2225 u.n.t.s. 209 [hereinafter ctoc]. 8 David Luban, Julie R. O’Sullivan & David P. Stewart, International and Transnational Criminal Law 3 (2010) (emphasis added). 9 E.g., Rome Statute of the International Criminal Court arts. 5–8, July 17, 1998, u.n. Doc. A/ CONF.189/9.

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state and to prosecute those crimes in its domestic criminal courts.10 At the same time, transnational cooperation between states for criminal law enforcement is emphasized and mandated by international law, as in the ctoc.11 While offenses are criminalized and prosecuted by domestic law, the grounds of ­criminalization are provided by international law. Criminal justice with respect to such crimes is thus enforced transnationally by coordination between international and national law as well as by transnational cooperation between states. While transnational events cross boundaries between states, transnational law cuts across and blurs the traditional boundaries between public and private international law as well as between international and national law.12 ­Jessup notes that in transnational law “[b]oth public and private international law are included, as are other rules which do not wholly fit into such standard categories.”13 Another oft-cited example of a transnational legal system would be the Alien Tort Claims Act (atca) in the United States.14 The atca has created a possibility for non-national victims of international norm violations committed outside u.s. territory to bring a tort claim to a u.s. court.15 It thus provides a mechanism for enforcing international norms through the domestic legal system by individuals’ initiatives. The transnational structure and operation of a legal system can materialize not only in a procedural aspect, but also in the context of substantive law. For example, an organic understanding of the relationship between international human rights law and constitutional law enables us to perceive c­ onstitutional rights and legal rights under domestic law as concretization and substantialization of abstract human rights norms.16 International and national law 10 11 12

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E.g., ctoc, supra note 7, arts. 5, 6, 8 & 23; see also Luban, O’Sullivan & Stewart, supra note 8, at 4. ctoc, supra note 7, arts. 1, 16–21 & 26–28; see also Luban, O’Sullivan & Stewart, supra note 8, at 5. Mathias Reimann, James C. Hathaway, Timothy L. Dickinson & Joel H. ­S amuels, Transnational Law: Cases and Materials 17–18 (2013); Harold Hongju Koh, Transnational Legal Process, 75 Neb. L. Rev. 181, 184 (1996). Jessup, supra note 2, at 2. Alien Tort Claims Act, 28 u.s.c. § 1350 (1789) (“The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”). However, the possibility of bringing a claim against a violation committed outside the United States has been significantly restricted since the u.s. Supreme Court decision ­Kiobel v. Royal Dutch Petroleum, 133 S. Ct. 1659 (2013). See generally Mattias Kumm, The Cosmopolitan Turn in Constitutionalism: On the ­Relationship Between Constitutionalism in and Beyond the State, in Ruling The World?

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can be construed as joint vehicles for a cooperative transnational enterprise aimed at achieving human rights and dignity across borders. This conception is distinguished from that taken by the atca regime, in which the source of substantive law is limited to a narrow scope of international law.17 As this book hopes to show, and indeed exemplifies, a substantive connection between different levels of laws can promote a transnational human rights framework in innovative ways. 3) Transnationality in the Lawmaking Process Transnationality has also become conspicuous in lawmaking processes in recent decades, with growing participation by diverse non-state actors in international and transnational lawmaking, including individuals and non-­ governmental organizations.18 Members of New Haven School have been pioneers in theorizing and prescribing a decisionmaking process of law and policy to produce authoritative decisions pursuing a world order of human dignity.19 W. Michael Reisman points out that the international lawmaking process, “a process of communication,”20 has been increasingly privatized and democratized by the participation of diverse non-state actors21 in “shaping

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20 21

Constitutionalism, International Law, and Global Governance (Jeffrey L. Dunoff & Joel P. Trachtman eds., 2008); Vicki Jackson, Constitutional Engagement in a Transnational Era (2013); Jeremy Waldron, Foreign Law and the Modern Ius Gentium, 119 Harv. L. Rev. 129 (2005). See Sosa v. Alvarez-Machain, 542 u.s. 692, 725 (2004) (“[C]ourts should require any claim based on the present-day law of nations to rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognized.”). See, e.g., Anne-Marie Slaughter, A Liberal Theory of International Law, 94 Am. Soc’y of Int’l L. 240 (2000); Julie Mertus, Considering Nonstate Actors in the New Millennium: Toward Expanded Participation in Norm Generation and Norm Application, 32 N.Y.U. J. Int’l L. & Pol. 537 (2000); Jordan J. Paust, The Reality of Private Rights, Duties and Participation in the International Legal Process, 25 Mich. J. Int’l L. 1229 (2004); Janet Koven Levit, Bottom-Up International Lawmaking: Reflections on the New Haven School of International Law, 32 Yale J. Int’l L. 393 (2007); Christiana Ochoa, The Individual and Customary International Law Formation, 48 Va. J. Int’l L. 119 (2007); Paul B. Stephan, Privatizing International Law, 97 Va. L. Rev. 1573 (2011); Jordan J. Paust, Nonstate Actor Participation in International Law and the Pretense of Exclusion, 51 Va. J. Int’l L. 977 (2011). E.g., Harold D. Lasswell & Myres S. McDougal, Jurisprudence for a Free Society (1992); W. Michael Reisman, The Quest for World Order and ­H uman Dignity in the Twenty-First Century: Constitutive Process and Individual Commitment (2012). Reisman, supra note 19, at 134–51. Id. at 155–67.

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­prescriptions,” encompassing the law “from extra-State sources.”22 Reisman sees contemporary international lawmaking as a more dynamic, fluid, and open process of norm generation than conventional international l­ awmaking, with transnational participants working through transnational routes.23 ­Harold Hongju Koh conceptualizes the dynamic lawmaking process across international and national law as a “transnational legal process,” in which new rules are cyclically emerging, being interpreted, being internalized, and being enforced24 by states and “transnational norm entrepreneurs.”25 Increasing transborder communications among lawmakers, judges, scholars and practitioners in different jurisdictions in interpreting and shaping their own domestic laws and jurisprudence are fostering another phase of transnational lawmaking.26 The foregoing section has attempted to systematize the concepts of “transnational” and “transnational law” by mapping three different dimensions in which transnationality manifests itself in terms of law and legal events. Among these three dimensions of transnationality, the next section focuses on the first dimension, examining the transnational nature of human trafficking and identifying the issue as a unique and complex transnational human rights problem. Human Trafficking as a Unique and Complex Transnational Human Rights Problem One setting commonly found in frequently-discussed international human rights cases involves a state violating the human rights of its nationals in its territory and international law intervening in a situation previously regarded as a “domestic matter.” In this case, the main perpetrator is a state, the victims are the state’s own nationals, and the acts of human rights violations happen within the territory of the state. A cross-border human trafficking case, with its three transnational aspects, inverts this model: (1) main perpetrators are usually non-state actors; (2) victims are non-nationals in destination states; (3) the acts involve the movement of human beings across state borders. Human B

22 Id. at 156. 23 Id. at 158. 24 Koh, supra note 12. 25 Harold Hongju Koh, The 1998 Frankel Lecture: Bringing International Law Home, 35 Hous. L. Rev. 623, 647–48 (1998). 26 See generally, Harold Hongju Koh, Why Transnational Law Matters, 24 Penn St. Int’l L. Rev. 745, 746 (2006); Judith Resnik, Law’s Migration: American Exceptionalism, Silent Dialogues, and Federalism’s Multiple Ports of Entry, 115 Yale L. J. 1564 (2006); Vicki J­ ackson, Constitutional Comparisons: Convergence, Resistance, Engagement, 119 Harv. L. Rev. 109 (2005); Anne-Marie Slaughter, A Global Community of Courts, 44 Harv. Int’l L.J. 191 (2003).

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trafficking is a unique human rights issue which possesses these three transnational features simultaneously and in intertwined ways. Transnational crimes of weapon smuggling, drug trafficking, or money laundering involve the movement of objects across borders by unlawful means; ­human trafficking involves the movement of human beings across borders. It essentially concerns global migration of people. In other transnational crimes, it is unclear precisely who are the victims of those offenses—the general public, perhaps, or a state negatively affected by those acts. In human trafficking, victims are individuals who cross borders and become subject to exploitation in destination states. Human trafficking is a serious human rights problem, not just a transnational crime. While the main perpetrators of human trafficking are mostly private actors, states are also implicated in the problem—often contributing to and benefiting from the phenomenon—which complicates the positions and roles of states in the picture.27 Transborder human trafficking is thus a unique, complex, and grave transnational human rights problem in the contemporary world of globalization and migration.

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The diverse positions and roles of destination states in human trafficking cases are further discussed in Chapter 7 Section 4.A.

chapter 2

Analysis of Current Legal Institutional Responses: International and Regional Levels 1

International Level

Before the Trafficking Protocol: Limited and Inactive AntiProstitution Framework 1) Overview Before the adoption of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (the Trafficking Protocol)1 in 2000, international instruments on human trafficking were limited in scope and inactive in function. The first relevant international treaty was the International Agreement for the Suppression of the White Slave Traffic adopted in 1904.2 The Agreement covered only the cross-border trafficking of women and girls for the purpose of prostitution, which it called “White Slave Traffic.” The main state obligations included detection of trafficking of this kind,3 coordination among states4 and repatriation of the concerned women to their country of origin.5 The Agreement did not require states to criminalize relevant acts. It provided that repatriation was for “those women and girls who desire it.”6 However, the Agreement possessed a moralistic and a­ bolitionist A

1 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime, Nov. 15, 2000, 2237 u.n.t.s. 319 [hereinafter Trafficking Protocol]. 2 International Agreement for the Suppression of the White Slave Traffic, May 18, 1904, 1 l.n.t.s. 83. The signatories were thirteen European states: Belgium, Denmark, France, ­Germany, Italy, the Netherlands, Norway, Portugal, Russia, Spain, Sweden, Switzerland, and the United Kingdom. 3 Id. art. 2. 4 Id. arts. 1, 3. 5 Id. arts. 3–4. 6 Id. art. 3. In this regard, the Agreement respected victims’ will better than the Trafficking Protocol, which, as discussed in the next section, only provides that repatriation shall be preferably voluntary. However, the Agreement also admitted that repatriation would be undertaken against those “who may be claimed by persons exercising authority over them.” Id. art. 3.

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­attitude toward prostitution, as reflected in its language: “procuring of women or girls for immoral purposes abroad” or “women and girls destined for an immoral life.”7 The subsequent instrument, the International Convention for the Suppression of the White Slave Traffic of 1910,8 mandated punishment of ­perpetrators9 and emphasized communication among states parties.10 Its scope was still limited to trafficking in women for “immoral purposes,” meaning prostitution.11 The International Convention for the Suppression of the ­Traffic in Women and Children adopted in 192112 added the acts of attempt and preparation as punishable offenses13 and mandated international cooperation on extradition of offenders.14 It also emphasized measures to detect trafficking at borders, including on emigrant ships.15 Regarding victim protection, the Convention obligated states to take measures on licensing and supervising employment agencies “to ensure the protection of women and children seeking employment in another country.”16 It also required states to exhibit warning notices to those women and children regarding trafficking and information about places for assistance.17 The subsequent International Convention for the Suppression of the Traffic in Women of Full Age18 (the 1933 Trafficking Convention) eliminated the element of means from the definition of punishable acts.

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Id. arts. 1–2. International Convention for the Suppression of the White Slave Traffic, May 4, 1910, 3 l.n.t.s. 278. Id. arts. 1–3. Article 2 of the Convention defines trafficking in adult women as: “Whoever, in order to gratify the passions of another person, has, by fraud, or by means of violence, threats, abuse of authority, or any other method of compulsion, procured, enticed, or led away a woman or girl over age, for immoral purposes, shall also be punished, notwithstanding that the various acts constituting the offence may have been committed in different countries.” Id. arts. 4, 6–7. Id. arts. 1–2. International Convention for the Suppression of the Traffic in Women and Children, Sept. 30, 1921, 9 l.n.t.s. 415. Id. art. 3. Id. art. 4. Id. art. 7. Id. art. 6. Id. art. 7. As discussed in the next section, Articles 6 and 7 of the Convention prescribe heavier and more detailed state obligations than the Trafficking Protocol regarding victim protection. International Convention for the Suppression of the Traffic in Women of Full Age, Oct. 11, 1933, 150 l.n.t.s. 431.

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It also provided that trans-border acts of procuring adult women for immoral purposes should be punished regardless of the consent of the women.19 The Convention for the Suppression of the Traffic in Persons and of the ­Exploitation of the Prostitution of Others20 (the 1949 Trafficking Convention), the first Convention on trafficking under the United Nations system, was adopted to replace the four previous agreements discussed above.21 While the Convention extended the protected group from women to “persons,” it still limited its application to trafficking for the purpose of prostitution. Like the 1933 Trafficking Convention, the 1949 Trafficking Convention treated the consent of trafficked persons as meaningless in constituting criminal offenses.22 It also took an abolitionist approach to prostitution, requiring states parties to take measures to prevent prostitution23 and to abolish any kind of state regulatory system over prostitution.24 Like the previous conventions, the 1949 Trafficking 19

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Id. art. 1 (“Whoever, in order to gratify the passions of another person, has procured, enticed or led away even with her consent, a woman or girl of full age for immoral purposes to be carried out in another country, shall be punished, notwithstanding that the various acts constituting the offence may have been committed in different countries.”). Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, Dec. 2, 1949, 96 u.n.t.s. 271 [hereinafter 1949 Trafficking Convention]. The 1949 Trafficking Convention provides that it will supersede the provisions of the four previous instruments in the relations between their parties and the previous instruments will be deemed to be terminated when all the parties of those instruments become ­parties to the present Convention. Id. art. 28. Id. art. 1 (“The Parties to the present Convention agree to punish any person who, to g­ ratify the passions of another: (1) Procures, entices or leads away, for purposes of prostitution, another person, even with the consent of that person; (2) Exploits the prostitution of another person, even with the consent of that person.”). Id. art. 2 (“The Parties to the present Convention further agree to punish any person who: (1) Keeps or manages, or knowingly finances or takes part in the financing of a brothel; (2) Knowingly lets or rents a building or other place or any part thereof for the purpose of the prostitution of others.”); art. 16 (“The Parties to the present Convention agree to take or to encourage, through their public and private educational, health, social, economic and other related services, measures for the prevention of prostitution and for the rehabilitation and social adjustment of the victims of prostitution and of the offences referred to in the present Convention.”). The preamble of the Convention begins by stating, “prostitution and the accompanying evil of the traffic in persons for the purpose of prostitution are incompatible with the dignity and worth of the human person and endanger the welfare of the individual, the family and the community.” Id. art. 6 (“Each Party to the present Convention agrees to take all the necessary measures to repeal or abolish any existing law, regulation or administrative provision by virtue of which persons who engage in or are suspected of engaging in prostitution are subject

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Convention emphasized coordinating information among authorities25 and detecting trafficking at borders.26 It also required states parties to supervise employment agencies to prevent “persons seeking employment, in particular women and children, from being exposed to the danger of prostitution.”27 The victim treatment focused on rehabilitation28 and repatriation.29 On the other hand, the Convention provided for the principle of non-discrimination for foreign victims’ standing to legal proceedings concerning the offenses mentioned in the Convention.30 2) Evaluation The scope of application of these five earlier instruments was limited to trafficking in women for the purpose of prostitution. The “moral panic” of ­European states confronting the phenomenon of women in their states being procured for prostitution abroad was the major driving force behind this “White Slavery” regime.31 A moralistic and paternalistic attitude toward

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either to special registration or to the possession of a special document or to any exceptional requirements for supervision or notification.”). Id. arts. 14–15. Id. art. 17. Id. art. 20. Id. art. 16. The Convention mandated repatriation 1) when the persons desire repatriation, 2) when the persons “may be claimed by persons exercising authority over them,” or 3) when “expulsion is ordered in conformity with the law.” Id. art. 19. The Convention mandated states parties to “have declarations taken from aliens who are prostitutes” about their identity, civil status and offenders. Such information was to be communicated to the state of origin “with a view to their eventual repatriation.” Id. art. 18. Anne Gallagher points out that “while this article may assist in cross-border cooperation, it may also endanger/ frighten victims of trafficking who do not want officials in their home country to know of their whereabouts.” Anne T. Gallagher, The International Law of Human ­T rafficking 60 (2010). 1949 Trafficking Convention, supra note 20, art. 5. For further historical backgrounds and critiques of “white slavery conventions,” see Jo Doezema, Sex Slaves and Discourse Masters: The Construction of ­T rafficking 30–48 (2010); and Frederick K. Grittner, White Slavery: Myth, Ideology, and American Law (1990). See also Special Rapporteur on Violence Against Women, Its Causes and Consequences, Rep. on Trafficking in Women, Women’s Migration and Violence Against Women, ¶ 18, Comm’n on Human Rights, u.n. Doc. E/ CN.4/2000/68 (Feb. 29, 2000) (by Radhika Coomaraswamy) [hereinafter Special Rapporteur on Violence Against Women] (“Historically, anti-trafficking movements have been driven by perceived threats to the “purity” or chastity of certain populations of women, notably white women.”). For the relevant u.s. legislative history, see Jennifer M. Chacón,

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women and ­prostitution was the common background. While ­commentators regard these treaties as human rights frameworks,32 the treaties lack a key aspect necessary for being considered as such: individuals were not regarded as rights holders but objects of crimes and protection lacking an ability to consent, and without recognized rights or remedies. The treaties emphasized punishment of relevant acts and detection of offenses at borders; protection measures focused on paternalistic rehabilitation and repatriation of victims.33 Therefore, a more accurate categorization of the White Slavery regime would be an “international anti-prostitution framework.” The critique by the un Special Rapporteur on Violence against Women supports this evaluation: [T]he 1949 Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others arises out of a prohibitionist perspective and seeks to criminalize acts associated with prostitution, though not prostitution itself. The 1949 Convention has proved ineffective in protecting the rights of trafficked women and combating ­trafficking. The Convention does not take a human rights approach. It does not regard women as independent actors endowed with rights and reason; rather, the Convention views them as vulnerable beings in need of protection from the “evils of prostitution.” As such, the 1949 Convention does very little to protect women from and provide remedies for the human rights violations committed in the course of trafficking, thereby increasing trafficked women’s marginalization and vulnerability to human rights violations.34 This international anti-prostitution regime has been inactive and ineffective in function since the adoption of each treaty. The annual reporting obligation of states parties under the 1949 Trafficking Convention was neither observed nor enforced.35 With the adoption of the Trafficking Protocol in 2000, the 1949

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Misery and Myopia: Understanding the Failures of u.s. Efforts to Stop Human Trafficking, 74 Fordham L. Rev. 2977, 3014–15 (2006). E.g., Anne T. Gallagher, Human Rights and Human Trafficking: Quagmire or Firm Ground? A Response to James Hathaway, 49 Va. J. Int’l L. 789, 792–93 (2009). See Special Rapporteur on Violence Against Women, supra note 31, ¶ 25 (criticizing the provision on repatriation of the 1949 Trafficking Convention, which provided that repatriation could be conducted when ordered in conformity with domestic law of a state and allowed deportation of trafficked women, and provided that, upon deportation, women may be subject to detention and/or forced rehabilitation). Id. ¶ 22. Id. ¶ 26.

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Trafficking Convention is now considered to have fallen into ­desuetude.36 ­However, as discussed below, the current regime under the Trafficking P ­ rotocol has moved even farther away from being a human rights framework. The Current Anti-Trafficking Framework under the Trafficking Protocol: A Transnational Crime and Immigration Control Regime 1) Essential Nature and Main Purpose Since its adoption in 2000, the Trafficking Protocol has been the primary international legal instrument dealing with human trafficking. The Trafficking Protocol was adopted along with its mother convention—the un Convention against Transnational Organized Crime (ctoc)37 and the Protocol against the Smuggling of Migrants by Land, Sea and Air (the Smuggling Protocol),38 followed by the Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunition (the Firearms Protocol).39 The ctoc and the three Protocols constitute a regime of transnational criminal law.40 The title of the Trafficking Protocol, “to prevent, suppress and punish trafficking,” indicates the essential nature of the regime. The purpose of the ctoc is “to promote cooperation to prevent and combat transnational organized crime more effectively.”41 The Trafficking Protocol lists its purpose as: “(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 p ­ romote B

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Gallagher, supra note 29, at 62–63. United Nations Convention Against Transnational Organized Crime, Nov. 15, 2000, 2225 u.n.t.s. 209 [hereinafter ctoc]. Protocol Against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention Against Transnational Organized Crime, Nov. 15, 2000, 2241 u.n.t.s. 507 [hereinafter Smuggling Protocol]. Protocol Against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunition, Supplementing the United Nations Convention Against Transnational Organized Crime, May 31, 2001, 2326 u.n.t.s. 208 [hereinafter Firearms Protocol]. In the United National Treaty Collection databases, the ctoc and the three Protocols are classified into Chapter xviii, titled “Penal Matters,” not in Chapter 4 “Human Rights.” United National Treaty Collection, https://treaties.un.org/Pages/ParticipationStatus.aspx. See also Jennifer M. Chacón, Tensions and Trade-offs: Protecting Trafficking Victims in the Era of Immigration Enforcement, 158 U. Pa. L. Rev. 1609, 1618 (2010). On the development of the international regime of transnational criminal law, see Neil Boister, Transnational Criminal Law?, 14 Eur. J. Int’l Law 953 (2003). ctoc, supra note 37, art. 1.

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c­ ooperation among States Parties in order to meet those objectives.”42 The ­foremost purpose of the Protocol is to prevent and combat trafficking in persons. It is noteworthy that the second phrase mentions human rights in a relatively passive manner, without straightforwardly stating that the purpose of the Protocol is to protect or promote victims’ human rights. During the documentation process of the Protocol, only “prevention, investigation, suppression, punishment and combat” of trafficking were included in the purpose clause. Protection of victims was added only at the last round of negotiations.43 2) Primary State Obligations and Underlying Interests As of August 2016, 169 states have joined the Trafficking Protocol. It entered into force in December 2003, only three years after its adoption. The number of states parties and the speed of their increase are remarkable—similar to or surpassing major human rights treaties.44 As discussed below, the primary state obligations under the Trafficking Protocol are comprised of (1) criminalizing trafficking acts, (2) fortifying border control and relevant interstate cooperation and (3) facilitating repatriation of victims. These three pillars of the Protocol constitute the transnational control regime of crimes and borders.45 The main driving force for this fast-­developing transnational framework has been the anxiety of major destination states facing globalization and uncontrolled migration flows.46 Human rights of ­individuals suffering from or vulnerable to trafficking-related situations were 42 43

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Trafficking Protocol, supra note 1, art. 2. u.n. Office on Drugs and Crime, Travaux Préparatoires of the Negotiations for the Elaboration of the United Nations Convention Against Organized Crime and the Protocols Thereto 331–37 (2006). As of August 2016, the number of states parties of the International Covenant on Civil and Political Rights is 168 and the International Covenant on Economic, Social and Cultural Rights has 164 parties. For both Covenants, it took ten years for entry into force. The Convention on the Elimination of All Forms of Discrimination against Women has 189 states parties and took less than two years for entry into force. Anne T. Gallagher, Human Rights and the New un Protocols on Trafficking and Migrant Smuggling: A Preliminary Analysis, 23 Hum. Rts. Q. 975, 978 (2001) (“The convention is essentially an instrument of international cooperation—its purpose being to promote ­inter-state cooperation in order to combat transnational organized crime more ­effectively.”); Janie Chuang, Beyond a Snapshot: Preventing Human Trafficking in the Global Economy, 13 Ind. J. Global Legal Stud. 137, 147 (2006) (“Viewing trafficking as a border and crime control issue, governments seized the opportunity to develop a new international counter-trafficking law in the form of a trafficking-specific protocol to a new international cooperation treaty to combat transnational crime.”). The dynamics of state sovereignty/interests, migration, human rights and the trafficking regime are further discussed in Chapter 6.

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of marginalized concern, if not mere rhetoric. Anne Gallagher, who participated in the documenting process of the Trafficking and Smuggling Protocols as an adviser to the un High Commissioner for Human Rights, articulates the regime’s underlying driving force: While human rights concerns may have provided some impetus (or cover) for collective action, it is the sovereignty/security issues surrounding trafficking and migrant smuggling which are the true driving force behind such efforts. Wealthy states are increasingly concerned that the actions of traffickers and migrant smugglers interfere with orderly migration and facilitate the circumvention of national immigration restrictions.47 On the other hand, lobbying efforts by ngos during the documenting process concentrated on fighting over one question—whether prostitution is ­inherently exploitative and thus should be included in the definition clause without additional elements.48 The longtime feminist debate between the two irreconcilable perspectives on prostitution dominated the discussion, leaving little room to urge states to adopt more proactive human rights obligations. Meanwhile, the un High Commissioner for Human Rights and other un human rights bodies49 were the lone fighters for incorporating human rights approaches into the document.50 47 Gallagher, supra note 45, at 976. 48 See Id. at 984–86. The two groups delineated in the Trafficking Protocol drafting period: “International Human Rights Network” took an abolitionist approach and “Human Rights Caucus” advocated sex workers’ rights. Coalition Against Trafficking in Women (catw) is one of the most influential ngos in the former group, and Global Alliance Against the Trafficking in Women (gaatw) is the representative ngo in the latter. For the history and more detailed information of the debate by the two groups in adopting the Trafficking Protocol, see Gabrielle Simm, Negotiating the United Nations Trafficking Protocol: Feminist Debates, 23 Aust. Y.B. Int’l L. 135 (2004); Jo Doezema, Now You See Her, Now You Don’t: Sex Workers at the un Trafficking Protocol Negotiation, 14 Soc. & Legal Stud. 61 (2005); Jo Doezema, Who Gets to Choose? Coercion, Consent, and the un Trafficking Protocol, 10 Gender & Dev. 20 (2002); Barbara Sullivan, Trafficking in Women: Feminism and New International Law, 5 Int’l Feminist J. Pol. 67 (2003); Beverly Balos, Wrong Way to Equality: Privileging Consent in the Trafficking of Women for Sexual Exploitation, 27 Harv. Women’s L.J. 137 (2004); Janie Chuang, United States as Global Sheriff: Using Unilateral Sanctions to Combat Human Trafficking, 27 Mich. J. Int’l L. 437, 442–44 (2005). 49 Participating human rights bodies included the un High Commissioner for Refugees, unicef, the International Organization for Migration (iom), the un Children’s Fund and the Special Rapporteur on Violence against Women. 50 See Ad Hoc Comm. on the Elaboration of a Convention Against Transnational Organized Crime, Note by the Office of the United Nations High Comm’r for Human Rights, the

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The Trafficking Protocol first mandates states parties to criminalize the conduct of human trafficking under their domestic law,51 including the acts of attempt, accomplice and abetting.52 Then the main body of state obligations focuses on fortifying border control to prevent and detect human trafficking.53 The key obligations that the Protocol prescribes to states are essentially border security measures which have been used to crack down on unauthorized border crossings. For example, the Protocol requires cooperation between law enforcement authorities of states parties to identify individuals crossing borders without travel documents or with travel documents belonging to other persons.54 It also obligates interstate cooperation to identify “the types of travel document that individuals have used or attempted to use to cross an international border for the purpose of trafficking in persons”55 as well as the modus operandi used by organized criminal groups for trafficking, including recruitment and transportation of victims, and routes and links between engaged individuals.56 Under the title of border measures, Article 11 provides the main obligation of states: “Without prejudice to international commitments in relation to the free movement of people, States Parties shall strengthen, to the extent possible, such border controls as may be necessary to prevent and detect trafficking in persons.”57 The Article then prescribes more detailed obligations regarding commercial carriers to prevent transportation systems from being used for trafficking offenses58 and “to ascertain that all passengers are in possession of the travel documents required for entry into the receiving State.”59

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United Nations Children’s Fund and the Int’l Org. for Migration on the Draft Protocols Concerning Migrant Smuggling and Trafficking in Persons, u.n. Doc. A/AC.254/27 (Feb. 8, 2000) [hereinafter Ad Hoc Committee]; u.n. Office on Drugs and Crime, supra note 43, at 317–447. Trafficking Protocol, supra note 1, art. 5, para. 1 (“Each State Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences the conduct set forth in article 3 of this Protocol, when committed intentionally.”). Id. art. 5, para. 2. Id. arts. 9–13. See Gallagher, supra note 45, at 994 (“Border control is clearly at the heart of the protocol…. The principle emphasis of the protocol remains firmly on the interception of traffickers rather than the identification and protection of victims.”). Trafficking Protocol, supra note 1, art. 10, para. 1(a). Id. art. 10, para. 1(b). Id. art. 10, para. 1(c). These three obligations under Article 10 were adopted from the text proposed by the United States during the documenting process. u.n. Office on Drugs and Crime, supra note 43, at 397. Id. art. 11, para. 1 (emphasis added). Id. art. 11, para. 2. Id. art. 11, para. 3.

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The Protocol prescribes additional state obligations to prevent unlawful border crossings, including ensuring the quality, integrity and security of travel and identity documents issued by states in order to prevent falsification and unlawful creation, issuance, alteration and replication.60 The Protocol also emphasizes cooperation among states parties to carry out the above obligations.61 The above examination of the main purpose, background driving force and state obligations under the Trafficking Protocol confirms that the Trafficking Protocol is essentially a “transnational border control regime” coupled with criminalization of certain types of border crossings. The key mandates of the Protocol are measures which have already been used by destination states to crack down on unlawful migration. The international legal framework prescribes that states further strengthen these measures, now in the name of preventing and detecting human trafficking. This international regime created and driven by the interests of destination states empowers those states with greater justification for strengthening their authority and control over state borders. On the other hand, these states have agreed to impose few o­ bligations on themselves regarding the protection of victims or promotion of their human rights. The subsequent chapters of this book will discuss how these countermeasures produce detrimental impacts on relevant individuals’ well-being and human rights situations. 3) Position and Treatment of Individuals in Trafficking Situations a A Passive Position as Victims of Crimes The Trafficking Protocol identifies human trafficking as a transnational crime to be punished by states, designating the main position of individuals in trafficking situations as crime victims. The Trafficking Protocol refers to these ­individuals only as victims, while the Smuggling Protocol refers to the individuals concerned as migrants.62 The limited position of the individual under the Trafficking Protocol reflects the gendered context of its legislative history. ­Initially, the Protocol was proposed by the United States to address only the trafficking of women and children.63 It was later agreed that the Protocol should take on a gender-neutral form, while placing particular emphasis on “women and children,” as presented in the current title of the Protocol. Commentators note that the international legal framework on irregular migration under the 60 61 62 63

Id. art. 12(a)–(b). Id. art. 10, para. 3 & art. 13. Id. arts. 2, 6–8; Smuggling Protocol, supra note 38, art. 2 (using phrases “smuggling of migrants” and “smuggled migrants”). u.n. Office on Drugs and Crime, supra note 43, at 397.

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ctoc and the Trafficking and Smuggling Protocols assumes trafficked victims are women who lack autonomy to make decisions about their migration, while assuming smuggled migrants are men who are capable of undertaking dangerous border crossings.64 The disregarding of trafficking victims’ agency as migrants is written into the definition clause of the Trafficking Protocol, which states: “The consent of a victim of trafficking in persons to the intended exploitation set forth…shall be irrelevant where any of the means set forth…have been used.”65 The perception of victims as passive objects of crimes continues from the White Slavery Conventions. Jo Doezema points out that the discourse on trafficking in women in the late 1990s was rooted in the earlier white slavery paradigm in Western countries, which portrayed women as innocent and unwilling victims as a way for the states to oppress women’s agency and regulate their sexuality.66 Ratna Kapur criticizes the anti-trafficking framework by First World countries for reproducing a colonial imaging of “infantile” Third World women lacking capacity of self-determination.67 Kamala Kempadoo emphasizes the link between the victimization of women and the paternalistic antitrafficking approaches under the name of protection: The ability of the concept “victim” to rob the (feminized) individual of any notion of agency and subjectivity, and to ideologically locate the migrant woman and sex worker as helpless and pitiful, has strong implications for how change is imagined or taken up in policies and interventions. Victims, who by this definition are passive and child-like, are deemed incapable of undertaking any action, thus requiring “rescue” or “saving” from their circumstances by others who stand outside of the trafficking process and who, it is believed, “know best.”68

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Kamala Kempadoo, Introduction, in Trafficking and Prostitution Reconsidered: New Perspectives on Migration, Sex Work, and Human Rights vii– xxx (Kamala Kempadoo, Jyoti Sanghera & Bandana Pattanaik eds., 2012); Janie Chuang, Redirecting the Debate Over Trafficking in Women: Definitions, Paradigms, and Contexts, 11 Harv. Hum. Rts. J. 65, 86 (1998); Julia O. Davidson & Bridget Anderson, The Trouble With “Trafficking,” in Trafficking and Women’s Rights 21 (Christien van den ­Anker & Jeroen Doomernik eds., 2006). 65 Trafficking Protocol, supra note 1, art. 3(b). 66 Jo Doezema, Loose Women or Lost Women?: The Re-emergence of the Myth of White Slavery in Contemporary Discourses of Trafficking in Women, 18 Gender Issues 23 (1999). 67 Ratna Kapur, Erotic Justice: Law and the New Politics of Postcolonialism 97–176 (2005). 68 Kempadoo, supra note 64, at xxix.

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Reducing individuals in trafficking situations to passive and helpless v­ ictims and objects of crimes obstructs the possibility of recognizing and respecting the agency exercised in these individuals’ migration and work experiences, as well as their identity as migrants and workers. As discussed in the following sections, this limited perception of victims, combined with ­border-control-oriented responses, results in narrow and unilateral approaches to victim treatment. b Trafficking as Involuntary Movement of Persons The Trafficking Protocol is the first international document that provides a comprehensive definition of human trafficking. It defines human trafficking in adult persons as follows: “Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring 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 purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.69 The definition of human trafficking is comprised of three elements: act, means, and purpose. The act element of human trafficking can be summarized as “movement of persons”—recruitment, transportation, transfer, harboring or receipt. Unlike smuggling, one of the stipulated means must be used for the movement of persons and the act must be conducted for the purpose of exploitation. Because coercive, deceptive or abusive means of movement are required by the definition, migration of trafficking victims is regarded as involuntary, or not truly voluntary, while migration of smuggled migrants is deemed ­voluntary.70 Commentators also categorize trafficking as i­nvoluntary 69 70

Trafficking Protocol, supra note 1, art. 3(a) (emphasis added). See Chuang, supra note 48, at 445–46 (“By excluding consensual migration for prostitution from the trafficking definition, the states preserved the integrity of the distinction between migrant smuggling and trafficking.”); Kara Abramson, Beyond Consent, Toward Safeguarding Human Rights: Implementing the United Nations Trafficking Protocol, 44 Harv. Int’l L.J. 473, 495 (2003) (pointing out that a trafficking victim is regarded to have been “passively carried into trafficking channels against her own will”); Britta S.

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­migration, or even a type of forced migration.71 Many commentators emphasize the importance of distinguishing trafficking from smuggling, and of ­identifying trafficking victims among undocumented migrants.72 The relations between trafficking and smuggling become clearer when the wordings of the three Protocols adopted under the ctoc are compared. Migrants are smuggled, while victims and firearms are trafficked. Although the Firearms Protocol’s definition of trafficking73 is not exactly the same as that of the T­rafficking

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Loftus, Coordinating u.s. Law on Immigration and Human Trafficking: Lifting the Lamp to Victims, 43 Colum. Hum. Rts. L. Rev. 143, 166 (2011) (“In contrast to Palermo Protocol, which treats people who have been trafficked as ‘victims entitled to government protection and a broad range of social services,’ the Smuggling Protocol considers people who have been smuggled as willing participants in a criminal activity who should be given ‘humane treatment and full protection of their rights’ while being returned to their country of origin.”); Gallagher, supra note 32, at 790 (“[L]egal separation between (technically consensual, incidentally exploitative) migrant smuggling on the one hand, and (never consensual, always exploitative) trafficking on the other was generally considered to be a good thing.”). E.g., International Migration Law: Developing Paradigms and Key ­C hallenges (Ryszard Cholewinski, Richard Perruchoud & Euan MacDonald eds., 2007); Migration and International Legal Norms (Thomas Alexander Aleinikoff & Vincent Chetail eds., 2003). These books classify human trafficking as forced migration. E.g., Ilse van Liempt, Trafficking in Human Beings: Conceptual Dilemmas, in Trafficking and Women’s Rights, supra note 64, 27–28; Tom Obokata, Trafficking of Human Beings From a Human Rights Perspective: Towards a Holistic ­A pproach 21 (2006); see also Anne T. Gallagher, Recent Legal Developments in the Field of Human Trafficking: A Critical Review of the 2005 European Convention and Related Instruments, 8 Eur. J. Migration & L. 163, 166 (2006) (“The Trafficking Protocol (together with its sister instrument, the Migrant Smuggling Protocol) created, for the first time, a distinction between ‘innocent’ and ‘complicit’ victims of illegal migration practices. Implementation of the new distinction between trafficked persons and smuggled migrants has proved to be both difficult and controversial. The failure of either Protocol to provide guidance on the identification issue is a significant weakness. Experience is now showing that failings in the critical identification process inevitably compromise the object and purpose of any agreement on trafficking.”); Ad Hoc Committee, supra note 50, ¶ 10 (“It is clear that the strengthening of border controls is an important aspect of preventing trafficking. However, emphasis should be placed, in article 8, on measures to assist border authorities in identifying and protecting victims, as well as intercepting traffickers.”). Firearms Protocol, supra note 39, art. 3(e) (“‘Illicit trafficking’ shall mean the import, export, acquisition, sale, delivery, movement or transfer of firearms, their parts and components and ammunition from or across the territory of one State Party to that of another State Party if any one of the States Parties concerned does not authorize it in accordance with the terms of this Protocol or if the firearms are not marked in accordance with article 8 of this Protocol.”).

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­ rotocol, the premise of the term “trafficking” is unlawful transportation of an P object which does not possess physical or legally meaningful will. Trafficking deals with commodified objects erased of agency or subjectivity. On the other hand, smuggling is a business charging migrants for facilitating their willing border crossings. However, as demonstrated in Chapters 4 and 5, a simplified dichotomy of “voluntary smuggling” versus “involuntary trafficking” does not accurately reflect the reality of individuals experiencing abusive migration processes and exploitative consequences.74 This binary approach hinders more comprehensive and contextualized understanding of and responses to human trafficking. It simplifies a complex trafficking phenomenon into a crime of involuntary movement of persons, typically women, erasing the migration context from the issue and disregarding the agency of the individuals. This simplistic view leads to a unitary response to the problem: repatriation of victims. c Repatriation as a Primary Response When the law perceives human trafficking as involuntary or unwanted movement of persons, a logical response to trafficking would be to restore what, from this perspective, went wrong—the border crossing. The Trafficking Protocol mandates repatriation of victims as a primary victim treatment and prescribes state obligations to facilitate it.75 The Protocol places heavier duties on the part of sending states, requiring them to facilitate and accept the repatriation of victims “without undue or unreasonable delay.”76 Upon destination states’ request, sending states are obligated to verify whether a victim is their national or permanent resident, without undue or unreasonable delay.77 “In order to facilitate the return of a victim” without proper documentation, sending states are required to issue necessary travel documents upon 74

75 76 77

Since the documenting process of the two Protocols, several critiques have expressed concern about such a binary distinction. Chacón, supra note 31, at 3010; Gallagher, supra note 32, at 792 (pointing out the “uncritical acceptance of the strange legal fiction…that ‘trafficking’ and ‘migrant smuggling’ are two completely different crimes involving helpless, virtuous victims on the one side and foolish or greedy adventurers, complicit in their own misfortune, on the other”). These authors indicate overlapping realities between the two practices and the difficulty of discerning one from the other. Gallagher, supra note 32, at 817 (“As a result, states were required to disregard the reality that both trafficking and migrant smuggling are processes that are often interrelated and almost always involve shifts, flows, overlaps, and transitions.”). Trafficking Protocol, supra note 1, art. 8. Id. art. 8, para. 1. Id. art. 8, para. 3.

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the request of ­destination states.78 On the other hand, destination states bear little burden. The only consideration is that these states take “due regard for the safety of that person and for the status of [relevant] legal proceedings.”79 Importantly, the Protocol provides that the return of victims “shall preferably be voluntary.”80 It thus allows destination states to proceed with repatriation against a victim’s will. According to the Interpretative Notes by the Ad Hoc Committee, “the words ‘shall preferably be voluntary’ are understood not to place any obligation on the State Party returning the victims.”81 The Trafficking Protocol mentions the possibility of trafficking victims’ remaining in destination states, but in particularly weak language. It provides that “each State Party shall consider adopting legislative or other appropriate measures that permit victims of trafficking in persons to remain in its territory, temporarily or permanently, in appropriate cases.”82 When taking such measures, states should “give appropriate consideration to humanitarian and ­compassionate factors.”83 Destination states only need to “consider” taking measures for victims’ temporary stay in their territories. The travaux préparatoires of the Trafficking Protocol reveals the underlying concerns of destination states: “Most delegations were concerned that the protocol might i­ nadvertently become a means of illicit migration if States parties were obliged to adopt legislation permitting victims to remain in the countries to which they were trafficked.”84 States parties thus do not have any obligations to provide victims with alternatives to repatriation and possess exclusive authority to decide on repatriation, including its enforcement against the victims’ will. Sending states bear a duty to accept repatriation decisions by destination states without undue delay. These prescriptions on repatriation of victims are located under 78 79 80 81

82 83 84

Id. art. 8, para. 4. Id. art. 8, para. 2. Id. (emphasis added). u.n. Office on Drugs and Crime, supra note 43, at 388 (citing the Interpretative Notes for the Official Records (travaux préparatoires) of the Negotiation of the United Nations Convention Against Transnational Organized Crime and the Protocols Thereto, ¶ 73, u.n. Doc. A/55/383/Add.1 (Nov. 3, 2000)). Trafficking Protocol, supra note 1, art. 7, para. 1 (emphasis added). Id. art. 7, para. 2 (emphasis added). u.n. Office on Drugs and Crime, supra note at 43, at 380. While the Special Rapporteur on Violence against Women and the un High Commissioner on Human Rights (unhchr) proposed in the documenting process the need for a provision of temporary residency for victims, their cause for the proposal was mainly limited to the merit of offering temporary stay in order to encourage victims’ participation in criminal procedures and to facilitate prosecution and punishment of traffickers. Id. at 378–79.

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Part 2 of the Protocol, titled “Protection of victims of trafficking in persons.” The provisions predominantly reflecting the preference and interests of destination states ironically constitute the center of the victim protection part of the Protocol.85 On the other hand, victims do not have any rights to claim upon their repatriation. As discussed in the following section, the mandatory language for facilitating repatriation contrasts with the much softer tone on other victim assistance measures to be considered by destination states.86 d Assistance and Protection as Weakest Elements Assistance and protections for victims staying in destination states are the weakest part of the Trafficking Protocol. All relevant measures are listed in nonobligatory language. For example, states are required to protect the privacy and identity of victims only “in appropriate cases and to the extent possible.”87 States should provide victims with information on relevant legal proceedings and assist victims’ views and concerns to be considered in criminal proceedings “in appropriate cases.”88 States need to “consider” implementing measures 85

86 87 88

In the documenting process, the unhchr argued that “safe and, as far as possible, voluntary return must be at the core of any credible protection strategy for trafficked persons. A failure to include provision for safe and (to the extent possible) voluntary return would amount to little more than an endorsement of the forced deportation and repatriation of victims of trafficking. When trafficking occurs in the context of organized crime, such an endorsement presents an unacceptable safety risk to victims.” See Ad Hoc Comm., Note by the Office of the United Nations High Comm’r for Human Rights, the United Nations Children’s Fund and the Int’l Org. for Migration on the Draft Protocols Concerning Migrant Smuggling and Trafficking in Persons, ¶ 20, u.n. Doc. A/AC.254/16 (June 1, 1999). It is notable that even the unhchr admits the possibility that repatriation could be processed against the victim’s will. In May 2002, the unhchr submitted the Recommended Principles and Guidelines for Human Rights and Human Trafficking to the un Economic and Social Council. Principle 11 of this document provides that “trafficked persons shall be offered legal alternatives to repatriation in cases where it is reasonable to conclude that such repatriation would pose a serious risk to their safety and/or to the safety of their families.” u.n. High Comm’r for Human Rights, Recommended Principles and Guidelines on Human Rights and Human Trafficking: Rep. of the u.n. High Comm’r for Human Rights to the Economic and Social Council, u.n. Doc. E/2002/68/Add.1 (May 20, 2002). In other words, even to the unhchr, “safe repatriation” is considered as a principal measure for trafficked persons, and remaining in a destination country is considered only as an exception when a serious safety risk is expected upon the return of trafficked persons. The Ad Hoc Committee submitted the same opinion. u.n. Office on Drugs and Crime, supra note at 43, at 383. Trafficking Protocol, supra note 1, art. 6. Id. art. 6, para. 1. Id. art. 6, para. 2.

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“in appropriate cases” for physical, psychological and social recovery of victims, including housing, counseling, medical assistance, and opportunities for employment, education and training.89 States only have to “endeavor” to provide physical safety for victims.90 Regarding remedies for victims, the Protocol adopts an ambiguous wording that states “shall ensure that its domestic legal system contains measures that offer victims of trafficking in persons the possibility of obtaining compensation for damage suffered.”91 The Protocol does not acknowledge any specific rights of victims with regard to assistance measures or remedies.92 Under this framework, states parties do not bear any obligation to provide assistance or protection for victims or to grant them any rights. This means that states can make victim protection and assistance measures “conditional and qualified.”93 As examined in Chapter 3, most destination states choose this path and provide victims with limited assistance measures conditional on victims’ cooperation with criminal procedures against traffickers. 4) The Status of Human Rights In the Trafficking Protocol, the term “human rights” appears three times, ­mostly in passing or in a passive tone. As mentioned, the purpose clause ­mentions human rights not as a direct purpose, but only as a factor to ­consider. The term human rights is listed as one of the contents of training for law ­enforcement ­officials.94 Lastly, the term is mentioned in the saving clause.95 As a ­transnational crime and border control instrument, the ­Trafficking Protocol includes human rights in a marginalized way, as a value to take into account 89 90 91 92

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Id. art. 6, para. 3. Id. art. 6, para. 5. Id. art. 6, para. 6 (emphasis added). During the drafting process, unicef and the iom expressed concern about the term “in appropriate cases” in the Protocol’s provisions on victim assistance and protection, asserting that such a qualification is unnecessarily restrictive and not in accordance with international human rights law. See Ad Hoc Committee, supra note 50, ¶ 7. Gallagher, supra note 29, at 83. During the drafting process of the Trafficking Protocol, the unhchr argued for a provision that upon the identification of an individual as a trafficked person, protection and assistance provisions of the Protocol would become immediately applicable. This suggestion was not adopted. See u.n. Office on Drugs and Crime, supra note 43, at 379. Trafficking Protocol, supra note 1, art. 10, para. 2. Id. art. 14, para. 1 (“Nothing in this Protocol shall affect the rights, obligations and responsibilities of States and individuals under international law, including international ­humanitarian law and international human rights law and, in particular, where applicable, the 1951 Convention and the 1967 Protocol relating to the Status of Refugees and the principle of non-refoulement as contained therein.”).

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when ­pursuing the main purpose of combatting trafficking. Human rights, which are often at odds with law enforcement measures, are located in an ancillary and subsidiary position under the Trafficking regime—and so are the victims. One example indicating the secondary position of human rights is the rejection of the non-prosecution principle. The Protocol does not guarantee victims safety from prosecution for the acts they engaged in under the influence of trafficking. Gallagher notes that “the reluctance of the Ad-Hoc Committee on this issue was no doubt due to a fear of unwarranted use of the ‘trafficking defense’ and a resulting weakening of states’ ability to control both prostitution and migration flows through the application of criminal sanctions.”96 While the Trafficking Protocol emphasizes rigid border security measures, it pays little attention to what happens within destination states’ territories— i.e., to the various human rights violations and exploitation that trafficked persons experience after they cross borders. Serious human rights violations related to human trafficking are committed mostly at exploitative workplaces, not before or during border crossings. The only provision which touches this issue states that “States Parties shall adopt or strengthen legislative or other measures, such as educational, social or cultural measures, including through bilateral and multilateral cooperation, to discourage the demand that fosters all forms of exploitation of persons, especially women and children, that leads to trafficking.”97 However, this provision does not directly address the problem of exploitation and human rights violations. It only targets reducing the demand side (e.g., buyers of prostitution) via general and indirect approaches. While the Trafficking Protocol provides a long and detailed list of state obligations to detect unlawful border crossings and to facilitate repatriation, it pays little attention to how destination states should prevent and redress human rights violations and exploitation of migrants—the main purpose and consequences of human trafficking. The Protocol’s focus on border crossing and not on exploitation is indeed found in its definition of human trafficking. It mandates states to criminalize only the act of movement of persons, not exploitation or human rights violations against those migrants.98 Exploitative labor practices can hardly be identified in advance at the border;99 there, states can 96 Gallagher, supra note 45, at 990–91. 97 Trafficking Protocol, supra note 1, art. 9, para. 5. 98 Id. art. 3(a) (“‘Trafficking in persons’ shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of....”). 99 Interpretative Notes of the Trafficking Protocol in part acknowledges the difficulty to detect human trafficking at borders: “Victims of trafficking in persons may enter a State legally only to face subsequent exploitation, whereas in cases of smuggling of migrants,

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detect only unauthorized border crossings. The types of acts the Protocol mandates states to criminalize support the criticism that the Protocol’s underlying purpose is to enhance states’ control over unauthorized migration flows under the pretext of preventing human trafficking and protecting victims. As the primary, specialized international legal framework on human trafficking, the Trafficking Protocol functions as de facto lex specialis in relation to other international instruments that can be applied to trafficking situations. The framework constitutes a transnational crime and border control regime, providing enhanced leverage and legitimacy for destination states to control their borders and migration flows and to criminalize and punish individual perpetrators. As repatriation is taken as a primary protection measure, victim support is marginalized. Upholding human rights of victims or addressing human rights violations and exploitation committed in the territories of destination states is outside the concern of the Protocol. While destination states do not bear any additional human rights obligations under this regime, they attain greater justification for enforcing rigid immigration regulations. Under the name of promoting international cooperation, sending states are mandated to accept and follow the decisions by destination states regarding repatriation. The current trafficking regime has been built based on the self-interests of destination states and has successfully gained global appeal in a short span of time. Since the human rights of individuals have been excluded from the focus of the Trafficking Protocol, victims need to resort to other existing international legal frameworks. C Relevant International Legal Instruments This section examines other international legal frameworks which bear closer relevance to human trafficking. It explores each framework’s implications for the Trafficking Protocol regime as well as the potential and limitations of each framework for addressing human trafficking in the human rights context. 1) An Ironic Binary between Trafficking and Smuggling Protocols As discussed, while the ctoc framework regards both human trafficking and smuggling as unlawful movements of persons that states parties aim to combat and prevent, it perceives the two as distinct and contrasting phenomena. The illegal means of entry are more generally used. This may make it more difficult for common carriers to apply preventive measures in trafficking cases than in smuggling cases and legislative or other measures taken in accordance with this paragraph should take this into account.” u.n. Office on Drugs and Crime, supra note 43, at 409 (quoting Interpretative Notes).

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key irony of this binary approach is that the two Protocols are not so different in their prescriptions of countermeasures. Both Protocols first mandate states to criminalize relevant acts in their domestic law,100 and then focus on border control and compulsory return of migrants. Article 11 of the Trafficking Protocol, titled Border measures, is identical to Article 11 of the Smuggling Protocol with the same title. Article 12 (Security and control of documents) and Article 13 (Legitimacy and validity of documents) of the Trafficking Protocol are also exactly the same as Articles 12 and 13 of the Smuggling Protocol. Article 8 (Repatriation) of the Trafficking Protocol and Article 18 (Return of smuggled migrants) of the Smuggling Protocol coincide in most parts. The primary treatment of relevant individuals under the two Protocols is essentially the same: trafficking victims are repatriated101 and smuggled migrants are returned.102 The two processes are not different in nature since both can be undertaken against individuals’ wills. The Smuggling Protocol does not provide exceptions for compulsory return, other than the principle of non-refoulement mentioned in the saving clause. The Trafficking Protocol mentions the possibility of temporary or permanent stay in destination states, but adopting such a policy is at the sole discretion of those states.103 As discussed earlier, even though the Trafficking Protocol suggests certain assistance measures which are not provided in the Smuggling Protocol, none of them are obligatory—states only need to consider them.104 Therefore, the ctoc regime takes an ironic approach to trafficking and smuggling. The current framework first distinguishes the two as ­contrasting phenomena, but tackles them using the same measures. The regime ­conceptually and structurally separates the two overlapping migration p ­ henomena, then imposes essentially the same countermeasures—criminalizing relevant acts, fortifying border control and returning individuals concerned. While the trafficking framework might appear to pay closer attention to the human rights of individuals, a parallel comparison with the smuggling framework as conducted in this part of the chapter only highlights the ­crime-and-immigration-control-centered nature of the Trafficking Protocol. 100 101 102 103

Trafficking Protocol, supra note 1, art. 5; Smuggling Protocol supra note 38, art. 6. Trafficking Protocol, supra note 1, art. 8. Smuggling Protocol, supra note 38, art. 18. Trafficking Protocol, supra note 1, art. 7 (“[E]ach State Party shall consider adopting legislative or other appropriate measures that permit victims of trafficking in persons to remain in its territory, temporarily or permanently, in appropriate cases.”) (emphasis added). 104 Id. art. 6, para. 3.

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2) A Weak Connection with the Conventions on Migrant Workers a ilo Conventions on Migrant Workers Developing international law on workers’ rights and protection has been led by the International Labor Organization (ilo). Two ilo Conventions specifically address the issue of labor migration and the right and status of migrant workers: the Convention Concerning Migration for Employment (the 1949 ilo Convention)105 and the Convention Concerning Migrations in Abusive ­Conditions and the Promotion of Equality of Opportunity and Treatment of Migrant Workers (the 1975 ilo Convention).106 The 1949 ilo Convention does not mention trafficking or smuggling of migrants. Its concerned group is “a migrant for employment,” defined as “a person who migrates from one country to another with a view to being employed otherwise than on his own account and includes any person regularly admitted as a migrant for employment.”107 The Convention’s two main foci are (i) to provide migrants with accurate information about employment and immigration;108 and (ii) to guarantee lawfully residing immigrants equal treatment with national workers in terms of important employment rights and conditions, ­including remuneration, the right to join trade unions, accommodation, and social security.109 In most cases, trafficking victims would fit into the definition of “migrants for employment” under the Convention because they “migrate from one country to another with a view to being employed,” 105 Convention Concerning Migration for Employment, July 1, 1949, 120 u.n.t.s. 71 ­[hereinafter 1949 ilo Convention]. 106 Convention Concerning Migrations in Abusive Conditions and the Promotion of ­Equality of Opportunity and Treatment of Migrant Workers, June 24, 1975, 1120 u.n.t.s. 323 ­[hereinafter 1975 ilo Convention]. 107 1949 ilo Convention, supra note 105, art. 11, para. 1. It excludes frontier workers, shortterm entry of members of the liberal professions and artistes, and seamen. Id. para. 2. 108 Id. art. 2 (“Each Member for which this Convention is in force undertakes to maintain, or satisfy itself that there is maintained, an adequate and free service to assist migrants for employment, and in particular to provide them with accurate information.”); id. art. 3, para. 1 (“Each Member for which this Convention is in force undertakes that it will, so far as national laws and regulations permit, take all appropriate steps against misleading propaganda relating to emigration and immigration.”). 109 Id. art. 6, para. 1 (“Each Member for which this Convention is in force undertakes to apply, without discrimination in respect of nationality, race, religion or sex, to immigrants lawfully within its territory, treatment no less favourable than that which it applies to its own nationals in respect of the following matters.”). The “following matters” include: remuneration, membership of trade unions and benefits of collective bargaining, accommodation, social security, employment taxes, dues or contributions and legal proceedings relating to the matters referred to in the Convention.

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except in rare cases of trafficking by means of force or abduction. The Convention’s emphasis on ensuring migrants have accurate information about their immigration and employment is particularly meaningful, since the majority of trafficking cases are facilitated by deceptions about the types and conditions of employment and immigration options available for aspirational migrants. The equal treatment clause is also of critical importance to migrant workers vulnerable to discrimination and exploitation. This principle, however, is limited in scope: it applies only to lawfully residing migrant workers, whereas many trafficking victims hold irregular immigration status. The 1949 ilo Convention also suffers from a low ratification rate. As of June 2017, 49 states have ratified the Convention.110 The 1975 ilo Convention made remarkable progress in including undocumented migrant workers under its protection and in specifically mentioning trafficking. Commentators evaluate the Convention as adopting a rights-based approach.111 Its preamble confirms that “labor is not a commodity” and emphasizes the aim to “promote equality of opportunity and treatment of migrant workers.” Article 1 proclaims that each member states “undertakes to respect the basic human rights of all migrant workers”112 The Convention specifically provides that undocumented migrant workers have equal rights regarding past employment, including remuneration, social security and other benefits.113 The Convention provides broader protection to migrant workers who lawfully reside in a state. It requires states to guarantee these workers equal opportunity and treatment in employment, social security, trade union, cultural rights and individual and collective freedoms.114 At the same time, the Convention adopts a regulatory stance over labor migration in general and especially in restricting irregular migration. Its preamble emphasizes “the need to avoid the excessive and uncontrolled or unassisted increase of migratory movements because of their negative social and 110 Notably during 1950s, several destination states joined the Convention, including Belgium (1953), France (1954), Germany (1959), Italy (1952), the Netherlands (1952), New Zealand (1950), Norway (1955), and the uk (1951). Spain and Portugal joined in 1967 and 1978 ­respectively. The Convention is still active, joined by new member states in 2000s, including Albania (2005), Armenia (2006), Kyrgyzstan (2008), Madagascar (2001), Republic of ­Moldova (2005), Montenegro (2006), Philippines (2009), Serbia (2000), and Tajikistan (2007). 111 Gallagher, supra note 29, at 166–68; Ryszard Cholewinski, The Rights of Migrant Workers, in International Migration Law, supra note 71, at 263. 112 1976 ilo Convention, supra note 106, art. 1 (emphasis added). 113 Id. art. 9, para. 1. 114 Id. art. 10.

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human consequences.” The Convention then explicitly mentions the need to eliminate “illicit and clandestine trafficking in labor.” Part 1 of the Convention, titled “Migration in Abusive Conditions” prescribes state obligations to detect and prevent unauthorized movement and employment of migrants.115 Article 5 specifically mentions trafficking of migrant workers, providing, “One of the purposes of the measures taken under Articles 3 and 4 of this Convention shall be that the authors of manpower trafficking can be prosecuted whatever the country from that they exercise their activities.”116 The Convention approaches trafficking as a type of illicit clandestine movement of migrants for employment that should be suppressed and prosecuted. No additional rights or protection measures are stipulated for trafficked migrant workers. However, since trafficked migrants are basically migrant workers covered by the Convention, they can enjoy the rights and protection provided in the Convention.117 It bears significance for many trafficking victims that the Convention mandates equal treatment concerning workers’ past employment regardless of their immigration status. Yet, the Convention shows even lower ratification status than the 1949 Convention. As of June 2017, only 23 states have ratified the 1975 ilo Convention.118 The ilo Conventions on migrant workers have not developed in close ­connection with the issue of human trafficking. However, individuals trafficked abroad by means of deception about their employment can fit into the category of “migrants for employment” or “migrant workers” under each Convention. The information provisions of the 1949 Convention and the equal 115 Id. art. 2, para.1 (“Each member…shall systematically seek to determine…illegally employed migrant workers…and…any movements of migrants for employment…contravening relevant international…instruments…or national laws or regulations.”). Article 3 provides: “Each member shall…(a) to suppress clandestine movements of migrants for employment and illegal employment of migrants, and (b) against the organisers of illicit or clandestine movements of migrants for employment…, and against those who employ workers who have immigrated in illegal conditions....” Article 6, paragraph 1 states: “Provision shall be made under national laws or regulations for the effective detection of the illegal employment of migrant workers and for the definition and the application of administrative, civil and penal sanctions....” 116 Id. art. 5. 117 The 1975 Convention defines “migrant worker” in Article 11 (“migrant worker means a person who migrates or who has migrated from one country to another with a view to being employed otherwise than on his own account and includes any person regularly admitted as a migrant worker”), which is almost the same wording as the 1949 Convention’s definition of “a migrant for employment.” 118 Among member states are a few destination states, including Italy (1981), Norway (1979), Portugal (1978), and Sweden (1982).

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treatment provisions of the 1975 Convention can be particularly meaningful in guaranteeing stronger rights and protections for migrants in trafficking situations. Participation of destination states is critical to realizing the Conventions’ promises. However, the prospect of more destination states joining is low.119 b Convention on the Protection of the Rights of All Migrant Workers The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families120 (cmw) is the most recent and comprehensive human rights instrument for migrant workers. Like the 1975 ilo Convention, it protects undocumented migrant workers, while acknowledging broader rights for migrant workers with regular immigration status. Its preamble importantly recognizes the particular vulnerability of undocumented migrant workers, and the need to advance fundamental human rights of “all migrant workers,” in order to reduce the demand for labor by the undocumented.121

Application to Human Trafficking

The Convention’s relation to human trafficking needs further examination. Its preamble specifically mentions human trafficking: Bearing in mind that the human problems involved in migration are even more serious in the case of irregular migration and convinced therefore that appropriate action should be encouraged in order to prevent and eliminate clandestine movements and trafficking in migrant workers, while at the same time assuring the protection of their fundamental human rights.... 119 See Paul de Guchteneire & Antoine Pécoud, Introduction: The un Convention on M ­ igrant Workers’ Rights, in Migration and Human Rights: The United Nations ­C onvention on Migrant Workers’ Rights 12 (Ryszard I. Cholewinski, Paul de ­Guchteneire & Antoine Pécoud eds., 2009). 120 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, Dec. 18, 1990, 2220 u.n.t.s. 3 [hereinafter cmw]. 121 Id. pmbl. (“[b]earing in mind that the human problems involved in migration are even more serious in the case of irregular migration,…[c]onsidering that workers who are non-documented or in an irregular situation are frequently employed under less favourable conditions of work than other workers and that certain employers find this an ­inducement to seek such labour in order to reap the benefits of unfair competition,… [c]onsidering also that recourse to the employment of migrant workers who are in an irregular situation will be discouraged if the fundamental human rights of all migrant workers are more widely recognized”).

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The cmw perceives trafficking in migrant workers as a type of irregular migration to prevent and eliminate. As a human rights instrument, the cmw adopts clearer language on human rights than the Trafficking Protocol: “assuring the protection of their fundamental human rights.” It is notable that the cmw uses the term “trafficking in migrant workers.” It may suggest that the Convention recognizes human trafficking in the context of labor migration—a perspective that the Trafficking Protocol lacks. However, the above paragraph in the preamble is the only place human trafficking is referenced in the Convention. Article 1 states that the Convention is applicable to all migrant workers and their families. The Convention defines a “migrant worker” as “a person who is to be engaged, is engaged or has been engaged in a remunerated activity in a State of which he or she is not a national.”122 One possible argument for denying application of the cmw to trafficking victims is based on the definition clause “engaged in a remunerated activity.”123 However, most migrant victims of trafficking should be regarded as migrant workers by default: They are migrant workers working in the worst conditions with little remuneration. Their poor remuneration is due to the unlawful embezzlement by their employers. This only signals the need for more protection for these migrants’ human and labor rights. Gallagher adopts the same perspective: While not all migrant workers have been trafficked, many trafficked persons are migrant workers in the very real sense that they have left their homes in search of gainful employment in another country. To deny that such a person is a migrant worker, and therefore to exclude him or her from any added value provided by the Convention, would appear to go against the Convention’s inclusive approach.124 Article 11, which provides for migrant workers’ right not to be held in slavery, servitude or forced labor,125 reflects the inclusive nature of the Convention. The Committee on Migrant Workers also frequently mentions human ­trafficking 122 Id. art. 2, para. 1. 123 Gallagher suggests two possible arguments against its application to trafficking victims. One is that “remunerated activity” may not cover prostitution, forced marriage and begging, which are a few of the end purposes of human trafficking. The other is that “to identify such practices as ‘work’ may obscure their fundamentally exploitative character and alter the direction of the debate regarding the need for their elimination.” Gallagher, supra note 29, at 171. 124 Id. 125 cmw, supra note 120, art. 11.

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i­ssues in its concluding observations on member states126 and recommends that states parties include trafficking issues in their periodic reports.127 On the other hand, Gallagher suggests a possible interpretation against the cmw’s application to human trafficking: that the Convention intentionally excluded human trafficking from its scope due to “the recent development of a specific and comprehensive international instrument covering the situation of trafficked persons,” which is the Trafficking Protocol.128 Such an interpretation is problematic, since the Convention was adopted a decade earlier than the Trafficking Protocol, and at the time of drafting the cmw, there was no functioning international legal instrument on human trafficking. Moreover, as discussed in this chapter, the Trafficking Protocol is specific, but is not a comprehensive framework. The cmw is an international human rights instrument, while the Trafficking Protocol is a transnational crime and migration control framework. The two frameworks possess different nature and purposes, which means that one cannot replace the other, and the Trafficking Protocol cannot be lex specialis to the cmw.

cmw’s Implications for Human Trafficking

Most rights stipulated under the cmw are those already acknowledged by ­existing international human rights instruments. The cmw articulates and concretizes these rights in the context of labor migration and migrant ­workers’ situations.129 Among the rights the cmw recognizes for all migrant workers, those particularly relevant to trafficking victims include: the right not to be 126 See Carla Edelenbos, Committee on Migrant Workers and Implementation of the icrmw, in Migration and Human Rights, supra note 119, at 105–09. 127 u.n. Comm. on the Protection of the Rights of All Migrant Workers and Members of their Families, Guidelines for the Periodic Reports to be Submitted by States Parties under ­Article 73 of the Convention, ¶ 5(g), u.n. Doc. CMW/C/2008/1 (May 22, 2008) (requesting states parties to provide information about “[s]pecific procedures that have been put in place in order to deal with mixed migratory flows, in particular to establish the special protection needs of asylum-seekers and victims of trafficking”). 128 Gallagher, supra note 29, at 171 n.162. 129 In this regard, Gallagher assesses the cmw as “more a tool of advocacy than a source of substantive rights additional to those already secured through the more widely accepted international human rights treaties.” Gallagher, supra note 29, at 176. Paul de G ­ uchteneire and Antoine Pécoud comment that except for a few new rights such as the right to transfer remittances or access to information on the migration process, the Convention “mostly offers a more precise interpretation of human rights in the case of migrant workers.” De Guchteneire and Pécoud, supra note 119, at 8. The rights to access information on migration and employment and to transfer remittances are in fact already provided by the ilo 1949 Convention.

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subject to slavery, servitude, or forced labor;130 the right to liberty and security of person;131 the right to effective protection by the states parties against violence, physical injury, threats and intimidation;132 the right against confiscation or destruction of identity, travel or residence documents;133 the right against collective expulsion and the right to wages and other existing entitlements upon expulsion;134 the right to treatment no less favorable than that enjoyed by nationals in respect of remuneration, conditions of work, or terms of employment;135 and the right to join trade unions.136 Notably, the Convention stipulates the important principle that “migrant workers are not deprived of any rights…by reason of any irregularity in their stay or employment. In particular, employers shall not be relieved of any legal or contractual obligations, nor shall their obligations be limited in any manner by reason of such irregularity.”137 The Convention also provides a list of additional rights recognized only for documented migrant workers, including the right to be fully informed about their admission, stay and employment in destination states; the liberty of movement and freedom to choose residence in destination states; the right to “form” associations and trade unions; the right to participate in public affairs in accordance with national law; the right to equal treatment with nationals in access to education, vocational guidance, ­training and ­services, housing, social and health services, taxation related to employment, ­protection against dismissal, unemployment benefits and access to a­ lternative employment in case of loss of work; the right to transfer remittance; and the right to freely choose remunerated activities subject to l­imitations in ­categories and occupational qualifications.138 As the Convention does not ­specifically deal with the case of human trafficking, migrant workers who are v­ ictimized by 130 131 132 133 134 135

cmw, supra note 120, art. 11, paras. 1–2. Id. art. 16, para. 1. Id. art. 16, para. 2. Id. art. 21. Id. art. 22, paras. 1, 6, 9. Id. art. 25, para. 1. Such conditions of work include overtime, hours of work, weekly rest, holidays with pay, safety, health, and termination of the employment relationship. Id. art. 25, para. 1(a). The terms of employment include minimum age of employment and restriction on home work. Id. art. 25, para. 1(b). 136 Id. art. 26. Other important rights include the right to social security (but only if an applicant meets the requirement provided by the legislation of the states) and the right to emergency medical care. Id. arts. 27–28. 137 Id. art. 25, para. 3. 138 Id. pt. iv (Other Rights of Migrant Workers and Members of their Families who are ­Documented or in a Regular Situation), arts. 36–56.

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t­ rafficking ­situations and who do not hold regular immigration status would not be eligible for the above rights.139 While enumerating these rights, the cmw still confirms that the Convention does not affect states parties’ exclusive authority to govern the admission of migrant workers.140 In the absence of an international human rights framework specifically designed for trafficking victims, the cmw is the most comprehensive and detailed international human rights instrument applicable to addressing the situations of trafficking victims. As discussed, trafficking victims are migrant workers working in the most abusive situations and in the greatest need of human and labor rights protection. The Convention’s inclusiveness and ­the particular attention paid to undocumented migrant workers and the anti-discrimination principle hold significant potential for trafficking victims. In this regard, Paul de Guchteneire and Antonie Pécoud evaluate the Convention as “more complementary than redundant” to preexisting international human rights instruments.141 While the Convention contains limitations, it is d­ esirable to be more proactive in applying its norms to the cases of human trafficking, with participation by destination states.

Disconnection between International Frameworks on Migration and Trafficking

As of August 2016, only 48 states have joined the Convention, with no participation by major destination states. The complete absence of destination states in the cmw regime shows a remarkable contrast with their vigorous leadership in building the trafficking regime. Why do destination states seem to care so much about trafficked persons in terms of the CTOC, while showing complete indifference to the same group in the context of the cmw? These ­opposite attitudes toward the overlapping groups of individuals illuminates that the two regimes serve clearly different purposes and interests. The trafficking regime takes a criminal justice approach with emphasis on border control, and is ­receiving enthusiastic responses from destination states around the globe. The cmw adopts a ­human rights-oriented framework, and has been utterly unpopular among those states. 139 This contingency is, however, subject to further inquiry since in many cases trafficking victims do not have a choice, leverage, or sufficient information regarding their immigration process and status. 140 cmw, supra note 120, art. 79 (“Nothing in the present Convention shall affect the right of each State Party to establish the criteria governing admission of migrant workers and members of their families.”). 141 De Guchteneire & Pécoud, supra note 119, at 19.

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The low ratification rate of the cmw also contrasts with the high ratification status of other major international human rights treaties. The states that played an active role in adopting those international human rights instruments have been silent in the case of the cmw.142 While other human rights treaties tend to target human rights situations in less developed countries, the cmw is the only human rights treaty primarily concerned with the human rights practices of destination states in the developed world. Moreover, the Convention governs the rights of migrant workers—the disempowered and marginalized non-nationals in those states. De Guchteneire and Pécoud diagnose that the Convention’s rights-based approach itself appears to be a burden to destination states, even though the Convention in fact imposes few new obligations beyond preexisting human rights treaties.143 As the international legal frameworks on human trafficking and labor ­migration/migrant workers’ rights have developed separately, a perspective that fully comprehends human trafficking in the context of global labor migration has been absent.144 Migrant victims of human trafficking, once identified, have received minimal recognition of their status and rights as migrant ­workers.145 At the same time, critics point out that the rigid anti-trafficking regime has driven attention from broader human rights problems suffered by migrant workers in general.146 The cmw is the international framework that provides the most detailed and useful principles to prevent labor exploitation of trafficking victims and enhance their human and labor rights situations. However, several obstacles exist as discussed in this section. The regime does not work effectively due to the separation between labor migration and human trafficking in legal perception as well as in legal practice. Participation by destination states, the place where most of the serious human and labor rights violations are committed with regard to human trafficking, is absent. Without an effort to approach the relevant issues of human trafficking in the context of global labor migration, the trafficking regime thus far has continued to c­ ling to the rhetoric of “slavery.” 142 Id. at 1, 14 & 25. 143 Id. at 19 (“[T]he fact that the philosophy of the convention is not the one that is prevalent among governments generates an almost structural skepticism towards it.”). 144 Gallagher diagnoses a few reasons for this disconnection. One is that, until recently, law on human trafficking focused on trafficking for the purpose of prostitution, which has not been recognized as “work” in many countries. The other is that exploitation often happens in invisible and private spheres. Gallagher, supra note 29, at 166. 145 Id. (“[T]he rights of trafficked persons as workers—migrant or otherwise—have rarely been articulated or pursued.”). 146 De Guchteneire & Pécoud, supra note 119, at 24.

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3) The Slavery Conventions and the Forced Labor Conventions a The Slavery Conventions Human trafficking is popularly referred to as “modern day slavery.” This section examines whether such representation is theoretically sound beyond its rhetorical appeal. Conceptually, slavery and human trafficking lie in different domains. H ­ uman trafficking encompasses a broader and more multi-faceted p ­ henomenon than slavery. It is instructive here to revisit the definition clause of the ­Trafficking Protocol: “Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring 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 purpose of exploitation. ­Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.147 The definition of human trafficking is comprised of three elements—acts, means and purpose. Slavery is listed as one of the examples of exploitation, which is the purpose element of trafficking. The end purpose of trafficking— exploitation—includes much broader and diverse practices than slavery, such as sexual exploitation, forced labor, practices similar to slavery, servitude and the removal of organs. The act of trafficking is “moving a person.”148 Since exploitation is a purpose element, the definition of trafficking does not require an actual incidence of exploitation. It suffices if an actor had a purpose of exploitation at the moment of moving a person. Trafficking and slavery are thus located in different dimensions.149 However, quite a few commentators simply 147 Trafficking Protocol, supra note 1, art. 3(a) (emphasis added). 148 Anne T. Gallagher, Using International Human Rights Law to Better Protect Victims of Trafficking: The Prohibitions on Slavery, Servitude, Forced Labor, and Debt Bondage, in The Theory and Practice of International Criminal Law: Essays in ­H onor of M. Cherif Bassiouni 399 (Leila Nadya Sadat & Michael P. Scharf eds., 2008) ­(“Trafficking is now widely agreed to be a process of moving people, within and (especially) between countries for the express purpose of exploiting them. In the case of adults, this will necessarily involve some form of deception or coercion.”). 149 See id. at 419 (“[T]he definition does not seem to leave room for the possibility that trafficking itself is a form of slavery: slavery is identified as one of several end-purposes for which a person may be trafficked.”).

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equate trafficking with slavery without legal analysis.150 Such practices have been misinformed by and also reinforce the misleading catchphrase “modernday slavery.” The definition of slavery is provided by the League of Nations 1926 Slavery Convention (the 1926 Slavery Convention)151 as “the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.”152 This definition still remains valid. Slavery is distinguished from forced labor, servitude or slavery-like practice.153 The Trafficking Protocol lists each of these practices in the definition clause. International legal frameworks on slavery and human trafficking have evolved separately. The two Slavery Conventions154 make no reference to human trafficking and have not been used to address trafficking issues. No evidence supports that customary international law on slavery has expanded to encompass the contemporary phenomenon of trafficking apart from the definition of the 1926 Slavery Convention.155 Therefore, “modern-day slavery” is not a legal term.156 The phrase may have political utility by drawing public attention to the problem of human trafficking.157 However, presenting the issue in such a sensational manner can ­engender misunderstanding about the real experiences of victims, which in 150 See id. at 412–16 (discussing the literature that equates trafficking and slavery). 151 1926 Slavery Convention, Sept. 25, 1926, 60 l.n.t.s. 253. 152 Id. art. 1(1). Article 1(2) defines “slave trade” as including “all acts involved in the capture, acquisition or disposal of a person with intent to reduce him to slavery; all acts involved in the acquisition of a slave with a view to selling or exchanging him; all acts of disposal by sale or exchange of a slave acquired with a view to being sold or exchanged, and, in general, every act of trade or transport in slaves.” 153 See, e.g., the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, Apr. 30, 1956, 266 u.n.t.s. 3 [hereinafter 1956 Slavery Convention]; the International Covenant on Civil and Political Rights art. 8, Dec. 16, 1966, 999 u.n.t.s. 171 [hereinafter iccpr]. 154 1926 Slavery Convention, 1956 Slavery Convention. 155 Gallagher, supra note 32, at 810. 156 See Gallagher, supra note 148, at 423 (“[A] ‘contemporary form of slavery’…while perhaps important in rhetorical terms, is without particular legal significance.”). 157 Gallagher names a group of commentators who are eager to label trafficking as slavery as “expansionist” and “moral and political crusaders.” Gallagher, supra note 32, at 798. Leading commentators in this group include Kevin Bales and Siddharth Kara. E.g., ­K evin Bales, Disposable People: New Slavery in the Global Economy (2004); Kevin Bales & Ron Soodalter, The Slave Next Door: Human Trafficking and Slavery in America Today (2009); Kevin Bales, Zoe Trodd & Alex Kent Williamson, Modern Slavery: The Secret World of 27 Million People

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turn produces inadequate responses to the problem. It also increases the risk of excluding victimized individuals from protection when they do not neatly fit into the stereotypical image of slavery. The equation of trafficking with slavery erases one of the most important aspects of contemporary human trafficking: Unlike slavery, human trafficking rarely involves forced movement of people. Most victimized individuals wanted to migrate and work abroad.158 The “modern slavery” approach denies essential elements of human rights and “personhood”—the agency, desire and autonomy of individuals. It removes the migration context from human trafficking and flattens the experience of migrant individuals with an oversimplified and misleading conceptualization of slavery. The absolute abolitionist approach against conventional slavery is not directly applicable to contemporary trafficking situations because human trafficking is a much more complex phenomenon closely intertwined with global labor migration, which cannot and should not be eliminated. In sum, human trafficking is a much broader and more multi-dimensional concept than slavery. Slavery is one of the end-purposes or consequences of human trafficking. Based on this clear understanding, the role of the Slavery Conventions can be read into the contemporary context. When human trafficking is committed for the purpose of slavery or results in a slavery situation, both legal frameworks on slavery and trafficking may work together to address the process and the consequences of the problem. b ilo Forced Labor Conventions The two ilo Conventions on forced labor—Convention Concerning Forced or Compulsory Labor159 (the 1930 Forced Labor Convention) and Convention Concerning the Abolition of Forced Labor160 (the 1957 Forced Labor ­Convention)—do not specifically mention human trafficking, and neither have been invoked to address trafficking situations.161 Forced or compulsory (2009); Siddharth Kara, Sex Trafficking: Inside the Business of Modern Slavery (2009). 158 Empirical evidence for this fact will be provided in Chapters 4 and 5. 159 Convention Concerning Forced or Compulsory Labour, June 28, 1930, 39 u.n.t.s. 55 [hereinafter 1930 Forced Labor Convention]. As of August 2016, 178 states have ratified this Convention. 160 Convention Concerning the Abolition of Forced Labour, June 25, 1957, 320 u.n.t.s. 291 [hereinafter 1957 Forced Labor Convention]. As of August 2016, 175 states have ratified this Convention. 161 Gallagher, supra note 148, at 429. Gallagher notes that the reluctance in identifying sex work as labor is one of the reasons for this disconnection. She also points out that the fact that violators are usually private actors in human trafficking also contributes to the low

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labor is defined as “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.”162 As forced labor is one of the listed end-purposes of human trafficking under the Trafficking Protocol, these Conventions could be invoked in a case of human trafficking resulting in forced labor. The 1930 Forced Labor Convention is explicit in its applicability to private practice of forced labor.163 The 1957 Convention has only two substantive articles164 and does not mention its applicability to private practice. Gallagher notes that its applicability can be inferred by Article 1, which obligates member states to suppress “any form of” forced or compulsory labor.165 However, reading the substance of ­Article 1 renders this interpretation questionable: the provision limits the scope of prohibited forced labor to five categories, all of which are practices assumed to be performed by states.166 The 1930 Forced Labor Convention could be more utilization of existing international human rights treaties and the Forced Labor Conventions in addressing the trafficking issues. She also mentions the complexity of human trafficking and the lack of enough substance of international human rights law to apply to “real life” issues as possible reasons for the low utilization. See id. at 401. 162 1930 Forced Labor Convention, supra note 159, art. 2, para.1. 163 Id. art. 4 (“1. The competent authority shall not impose or permit the imposition of forced or compulsory labour for the benefit of private individuals, companies or associations. 2. Where such forced or compulsory labour for the benefit of private individuals, companies or associations exists at the date on which a Member’s ratification of this Convention is registered by the Director-General of the International Labour Office, the Member shall completely suppress such forced or compulsory labour from the date on which this Convention comes into force for that Member.”). Articles 5 and 6 also indicate that the Convention prohibits private practice of forced or compulsory labor. 164 1957 Forced Labor Convention, supra note 160, art. 2 (“Each Member of the International Labour Organisation which ratifies this Convention undertakes to take effective measures to secure the immediate and complete abolition of forced or compulsory labour as specified in Article 1 of this Convention.”). See note 166 for the provision of Article 1 of the Convention. 165 Gallagher, supra note 148, at 424. 166 1957 Forced Labor Convention, supra note 160, art. 1 (“Each Member of the International Labour Organisation which ratifies this Convention undertakes to suppress and not to make use of any form of forced or compulsory labour: (a) as a means of political coercion or education or as a punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system; (b) as a method of mobilising and using labour for purposes of economic development; (c) as a means of labour discipline; (d) as a punishment for having participated in strikes; (e) as a means of racial, social, national or religious discrimination.”).

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d­ irectly invoked to address trafficking cases involving forced labor.167 Both Conventions show high ratification rates, with more than 170 states parties. While the Conventions impose obligations on states parties to suppress and abolish forced or compulsory labor,168 they do not stipulate rights or assistance measures for individuals experiencing the situation of forced labor. The ­Conventions thus form a “suppression” regime, rather than a human rights framework. The scope of the Conventions is also limited to forced or compulsory labor as defined, and is thus not fully capable of addressing the diverse purposes and consequences of human trafficking. The following section examines three major human rights treaties closely related to human trafficking, all of which have achieved high ratification rates, for their implications and limitations in addressing human rights issues related to human trafficking. 4) Major International Human Rights Treaties a iccpr The provision most relevant to human trafficking in the International ­Covenant on Civil and Political Rights (iccpr) is Article 8, which provides for the right not to be held in slavery, servitude, forced or compulsory labor.169 The ­Trafficking Protocol enumerates all these practices as example purposes of ­human trafficking.170 The Human Rights Committee has paid attention to human trafficking. In General Comment on Article 3,171 the Committee requested states parties to 167 Nicola Piper & Margaret Satterthwaite, Migrant Women, in International ­M igration Law, supra note 71, at 247 (“[T]he whole range of human rights treaties contain provisions concerning labor exploitation and servitude, for example, which could be usefully brought to bear in the trafficking arena.”). 168 1930 Forced Labor Convention, supra note 159, art. 1, para. 1 (“Each Member of the International Labour Organisation which ratifies this Convention undertakes to suppress the use of forced or compulsory labour in all its forms within the shortest possible period.”); 1957 Forced Labor Convention, supra note 160, art. 2. 169 iccpr art. 8 (“1. No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited. 2. No one shall be held in servitude. 3. (a) No one shall be required to perform forced or compulsory labor....”). 170 Trafficking Protocol, supra note 1, art. 3 (“Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs”). 171 Human Rights Comm., General Comment No. 28: Equality of Rights Between Men and Women (Article 3), u.n. Doc. CCPR/C/21/Rev.1/Add.10 (Mar. 29, 2000).

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report their practices concerning trafficking of women and children.172 The Committee has often dealt with the issue of trafficking in its concluding observations at periodic monitoring sessions over the member states. The Committee states that the inaction of states parties in prosecuting traffickers and protecting victims of human trafficking constitutes a violation of Article 8.173 172 Id. ¶ 12 (“Having regard to their obligations under article 8, States parties should inform the Committee of measures taken to eliminate trafficking of women and children, within the country or across borders, and forced prostitution. They must also provide information on measures taken to protect women and children, including foreign women and children, from slavery, disguised, inter alia, as domestic or other kinds of personal service. States parties where women and children are recruited, and from which they are taken, and States parties where they are received should provide information on measures, national or international, which have been taken in order to prevent the violation of women’s and children’s rights.”). The Center for Civil and Political Rights also recommends that ngos report on states parties’ practices on human trafficking in relation with Article 8 and Article 3. Center for Civil and Political Rights, un Human Rights Committee Participation in the Reporting Process: Guidelines for NonGovernmental Organizations 41–42 (2015). Regarding Article 8, the Center recommends ngos to report information on trafficking, including legislation, prosecutions, penalties, compensation for victims, criminalization of victims, identification of victims, protection and assistance, including rehabilitation for victims, targeting of those using the services of trafficked persons as well as the traffickers, involvement of authorities in trafficking, training programmes for professionals in the field, and measures to ensure women engaged in prostitution are not subjected to contemporary forms of slavery, including debt bondage. Id. 173 For example, in Concluding Observations on the Philippines in 2012, the Committee states: “The Committee is concerned at reports of continued cases of trafficking in persons, which mainly affect women and children (arts. 3, 8 and 24). The State party should take all necessary measures to ensure that victims of trafficking in persons are provided with medical, psychological, social and legal assistance. Protection should be provided to all witnesses and victims of trafficking so that they may have a place of refuge and an opportunity to give evidence against those held responsible. The State party should also continue to reinforce international cooperation as well as existing measures to combat trafficking in persons and the demand for trafficking. It should also devout sufficient ­resources to investigations of cases of trafficking in persons by identifying those responsible, prosecuting them and imposing penalties that are commensurate with the seriousness of the acts committed.” Human Rights Comm., 106th Sess., Oct. 15–Nov. 2, 2012, u.n. Doc. CCPR/C/PHL/CO/4 (2012). In Concluding Observations on Kenya, the Committee stated: “While welcoming the adoption of the Counter Trafficking in Persons Act of 2010, the Committee is concerned at continuing reports of trafficking in persons for labour, sexual exploitation and for body parts, particularly of people with albinism (arts. 6, 7 and 8). The State party should continue to strengthen its efforts to eradicate trafficking in persons by raising awareness among the public and relevant stakeholders,

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While the first Optional Protocol to the iccpr allows individuals to bring a claim to the Committee,174 thus far no case related to human trafficking has been filed based on Article 8 of the Covenant.175 The iccpr can play a more active role in addressing trafficking cases since its provision (Article 8) covers several end purposes listed under the Trafficking Protocol. However, limitations exist. The iccpr covers practices that entail extreme deprivations of freedom such as slavery, servitude and forced labor. It does not reach other forms of labor exploitation with more complex and diverse manifestations. Since the Covenant focuses on the freedom and liberty aspects of human rights, it places emphasis on eliminating targeted p ­ ractices rather than on improving victims’ life and work conditions and opportunities after the abolition of such practices. As discussed in later chapters, a ­freedom-oriented approach to human trafficking tends to confine its resources to ­“rescuing victims and punishing offenders.” The Human Rights Committee’s concluding observations on state practice also focus on urging prosecution and punishment of perpetrators, while displaying a narrow perspective on assistance for victims.176 The Committee regards the need to protect victims with a focus on securing evidence for prosecuting offenders and only briefly mentions ensuring compensation, without paying attention to a broader range of necessary arrangements to improve victims’ overall human rights situations.177 Given these limitations, the potential for more proactive and comprehensive protections for trafficking victims may be found in the icescr framework. b icescr The International Covenant on Economic, Social and Cultural Rights (icescr) enumerates a list of rights important for preventing and redressing human rights violations related to human trafficking. Those rights include: the right to

174 175

176 177

particularly in the hospitality industry, regarding the problem of trafficking in persons. Furthermore, the State party should vigorously pursue efforts aimed at ensuring that alleged perpetrators are prosecuted and, if convicted, punished with appropriate sanctions, and that the victims are adequately compensated.” Human Rights Comm., 105th Sess., July 9–27, 2012, u.n. Doc. CCPR/C/KEN/CO/3 (2012). Optional Protocol to the International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 u.n.T.S 302. Individual communication cases brought to the Human Rights Committee can be searched at Centre for Civil and Political Rights, Individual Communication: Database on Decisions, http://www.ccprcentre.org/individual-communications/decisions-search/. See supra note 173. See supra note 173.

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work freely chosen and accepted;178 the right to just and favorable ­conditions of work, including fair wages and equal pay for equal work, decent living, safe and healthy working conditions, equal opportunity for promotion, rest, holiday and reasonable working hours;179 the right to an adequate standard of living, including adequate food, clothing and housing;180 and the right to the highest attainable standard of physical and mental health.181 The Committee on Economic, Social and Cultural Rights (icescr Committee) provides a set of guidelines requesting that states parties include the following information in their periodic reports on their practices to address human trafficking: (a) Whether there is legislation in the State party that specifically criminalizes trafficking in persons and the mechanisms in place to monitor its strict enforcement. Also indicate the number of reported trafficking ­cases from, to and through the State party, as well as the sentences imposed on perpetrators; and (b) Whether there is a national plan of action to combat trafficking and the measures taken to support victims, including medical, social and legal assistance.182 These guidelines emphasize imposing strict law enforcement measures against perpetrators while mentioning victim assistance in a secondary and limited manner. They show no meaningful difference from the approaches taken by the Trafficking Protocol or the Human Rights Committee. The icescr Committee seems unaware of the importance of the above-listed Covenant rights to improving the working and living conditions of trafficking victims and preventing abusive practices by employers. The icescr framework indeed provides a useful platform for empowering individuals vulnerable to trafficking and subsequent exploitation and for bringing structural changes to destination states through enforcing relevant state obligations on social and economic rights. If all migrant workers are guaranteed the stipulated social and economic rights, 178 International Covenant on Economic, Social and Cultural Rights art. 6, Dec. 16, 1966, 999 u.n.t.s. 3 [hereinafter icescr]. 179 Id. art. 7. 180 Id. art. 11. 181 Id. art. 12. 182 Comm. on Econ., Soc. & Cultural Rights, Guidelines on Treaty-Specific Documents to be Submitted by States Parties Under Articles 16 and 17 of the International Covenant on Economic, Social and Cultural Rights, ¶ 41, u.n. Doc. E/C.12/2008/2 (Mar. 24, 2009).

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especially the rights related to employment under the Covenant, there will be little room for the purpose of human trafficking—exploitation—to persist, which will minimize motivations for trafficking acts. However, the perception of the Committee is captured by a criminal justice approach, similar to the other international instruments. The Committee frequently discusses human trafficking issues in its concluding observations on states parties’ practice. While it mentions victim ­protection, it has not specifically indicated the need to guarantee the victims’ social and economic rights. For example, the Committee expressed its concern about Moldova for being a country of origin and transit for human trafficking, its low prosecution rate, and its lack of support programs for victims.183 It recommended that Russia strengthen measures to combat trafficking in women and children and sexual exploitation of children, to address the root causes and to adopt comprehensive anti-trafficking law.184 To Yemen, the Committee expressed concern about the large-scale trafficking in women and children within and from its territory and recommended the state strengthen measures to combat trafficking in women and children, to prosecute traffickers and to support the rehabilitation and reintegration of victims.185 As shown above, the Committee has focused on the trafficking of women and children, especially for sexual exploitation.186 While emphasizing the prosecution of perpetrators, the Committee regards the “rehabilitation and reintegration of victims into original society” as the main purpose of protection measures.187 The Committee has not made a move to apply the Covenant’s 183 Comm. on Econ., Soc. & Cultural Rights, Rep. on the Forty-sixth and Forty-seventh Sessions, ¶ 126, u.n. Doc. E/2012/22, E/C.12/2011/3 (2012). 184 Id. ¶ 169. 185 Id. ¶ 246. 186 E.g., Comm. on Econ., Soc. & Cultural Rights, Rep. on the Twenty-second and Twenty-third Sessions, ¶¶ 109, 121, 134, 345, 415, 424, 507, u.n. Doc. E/2001/22, E/C.12/2000/21 (2001); Comm. on Econ., Soc. & Cultural Rights, Rep. on the Twenty-fifth, Twenty-sixth and Twentyseventh Sessions, ¶¶ 317, 492, 510, 524, 551, 561, u.n. Doc. E/2002/22, E/C.12/2001/17 (2002); Comm. on Econ., Soc. & Cultural Rights, Rep. on the Forty-second and Forty-third Sessions, ¶¶ 170, 204, 301, 384, 423, u.n. Doc. E/2010/22, E/C.12/2009/3 (2010). See also Comm. on Econ., Soc. & Cultural Rights, Rep. on the Forty-fourth and Forty-fifth Sessions, ¶¶ 97, 204, 282, u.n. Doc. E/2011/22, E/C.12/2010/3 (2011) (expressing concern on labor trafficking other than sex trafficking). 187 E.g., Comm. on Econ., Soc. & Cultural Rights, Rep. on the Twenty-fifth, Twenty-sixth and Twenty-seventh Sessions, supra note 186, ¶ 561 (“It…recommends the strengthening of measures to allow the return, rehabilitation and reintegration into society of trafficked women.”); see also Comm. on Econ., Soc. & Cultural Rights, Rep. on the Fortieth and Fortyfirst Sessions, ¶¶ 244, 283, u.n. Doc. E/2009/22, E/C.12/2008/3 (2009).

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­specific rights, especially rights related to employment, to the case of human trafficking. On December 2008, the un General Assembly adopted the ­Optional Protocol to the icescr,188 which provides for individual communication procedures; the Protocol entered into force in May 2013. It remains to be seen whether this mechanism can animate the role of the Covenant to prevent and redress human rights violations related to human trafficking through initiatives and participation by victims. c cedaw The Convention on the Elimination of All Forms of Discrimination against Women (cedaw) is one of two international human rights treaties which specifically mention human trafficking, along with the Convention on the Rights of the Child. Article 6 of the cedaw provides: States Parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women.189 A basic limitation of the cedaw is that its coverage is limited to trafficking in women. Further, the above provision indicates its focus on sex trafficking or exploitation of prostitution. Janie Chuang points out that the travaux préparatoires of the cedaw indicates that the drafters intended the term “all forms of traffic” to mean only trafficking for prostitution.190 However, the natural reading of the provision does not limit the purpose of trafficking, nor does the interpretation by the Committee on the Elimination of Discrimination against Women (the cedaw Committee).191 Another limitation of the provision is its brief and abstract wording on state obligations—to “take all appropriate measures…to suppress all forms of traffic.” It does not provide any concrete state obligations or guidance to prevent and redress human rights violations related to human trafficking. The Convention does not provide any rights, protection or remedial measures specifically for trafficking victims. It is thus helpful to examine the practices of the cedaw Committee. 188 Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, g.a. Res. 63/117, u.n. Doc. A/RES/63/117 (Dec. 10, 2008). 189 Convention on the Elimination of All Forms of Discrimination Against Women art. 6, Dec. 18, 1979, 1249 u.n.t.s. 13 [hereinafter cedaw]. 190 Janie Chuang, Article 6, in The un Convention on the Elimination of All Forms of Discrimination Against Women: A Commentary 176 (Marsha A. Freeman, Christine Chinkin & Beate Rudolf eds., 2012). 191 Id. at 177–78.

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The cedaw Committee regularly addresses trafficking issues in their monitoring sessions regarding Article 6. However, like the icescr Committee, the cedaw Committee focuses on trafficking for prostitution and emphasizes “rehabilitation and reintegration” as an important goal of victim assistance.192 In its General Recommendation No. 19, the Committee recommends states parties to include in their periodic reports “preventive and rehabilitation measures that have been taken to protect women engaged in prostitution or subject to trafficking and other forms of sexual exploitation.”193 For example, in monitoring sessions over individual states, the Committee recommended that Chile “increase the number of state-run temporary shelters for women and girls victims of trafficking and provide them with adequate protection and assistance, including through social rehabilitation and reintegration programmes.”194 The Committee advised Togo to “address the root causes of prostitution of women and girls, including poverty, in order to eliminate the vulnerability of w ­ omen and girls to sexual exploitation and trafficking” and to “undertake e­ fforts for the rehabilitation and social reintegration of victims.”195 The Committee asked Jamaica to “strengthen measures to prevent and effectively respond to incidents of transnational and internal trafficking and sexual exploitation, including through…the establishment of specific support and rehabilitation programmes for victims.”196 The Committee recommended Mexico to “systematically compile disaggregated data and analysis on trafficking in women, with a view to formulating a comprehensive strategy that includes measures of prevention, prosecution and punishment of offenders, as well as improved measures to rehabilitate victims.”197 On the other hand, the Committee’s General Recommendation No. 26 on women migrant workers intentionally did not deal with human trafficking ­issues, offering an explanation below: 192 Id. at 173. 193 Comm. on the Elimination of Discrimination Against Women, General Recommendation No. 19: Violence Against Women, ¶ 24(h), u.n. Doc. A/47/38 (1992) [hereinafter cedaw Committee]. 194 cedaw Committee, Concluding Observations on the Fifth and Sixth Periodic Reports of Chile, ¶ 23, u.n. Doc. CEDAW/C/CHL/CO/5–6 (Nov. 12, 2012). 195 cedaw Committee, Concluding Observations on the Sixth and Seventh Periodic Reports of Togo, ¶ 25, u.n. Doc. CEDAW/C/TGO/CO/6–7 (Nov. 8, 2012). 196 cedaw Committee, Concluding Observations of the Committee on the Elimination of Discrimination Against Women: Jamaica, ¶ 24, u.n. Doc. CEDAW/C/JAM/CO/6–7 (Aug. 6, 2012). 197 cedaw Committee, Concluding Observations of the Committee on the Elimination of Discrimination Against Women: Mexico, ¶ 21, u.n. Doc. CEDAW/C/MEX/CO/7–8 (Aug. 7, 2012).

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This general recommendation deals only with the work-related situation of women migrants. While it is a reality that in some instances women migrant workers may become victims of trafficking due to various degrees of vulnerability they face, this general recommendation will not address the circumstances relating to trafficking. The phenomenon of trafficking is complex and needs more focused attention. The Committee is of the opinion that this phenomenon can be more comprehensively addressed through article 6 of the Convention which places an obligation on States parties “to take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women.” The Committee emphasizes however, that many elements of the present general recommendation are also relevant in situations where women migrants have been victims of trafficking.198 As indicated in the above explanation, the Committee recognizes the link between labor migration and human trafficking. It also understands the complexity of the trafficking phenomenon. However, the Committee has not yet elaborated its views on trafficking issues in a form of general recommendation with regard to Article 6.199 The cedaw is the only international human rights treaty which specifically stipulates a state obligation regarding trafficking in adult persons. Although its practice has focused on sex trafficking and victim support for rehabilitation and reintegration, the cedaw Committee has been relatively active in monitoring state practices on human trafficking. Commentators note that the gender-based violence approach and the anti-discrimination framework of the cedaw have the potential to present a meaningful platform for addressing ­human rights issues related to trafficking.200

198 cedaw Committee, General Recommendation No. 26, at 3 n.4, u.n. Doc. CEDAW/C/2009/ WP.1/R (Dec. 5, 2008). 199 E.g., cedaw Committee, General Recommendation No. 28, u.n. Doc. CEDAW/C/GC/28 (Dec. 16, 2010). On the core obligations of states parties under Article 2 of the cedaw, trafficking is very briefly mentioned twice in paragraph 21 (regarding equal rights of girls) and paragraph 31 (as one of particularly vulnerable groups to legal discrimination). 200 Chuang, supra note 190, at 172 (“[T]he Convention’s identification of trafficking as a problem rooted in discrimination is an important paradigm for exploring the root causes of the phenomenon and for identifying specific rights and state obligations.”); see also ­G allagher, supra note 29, at 196; Janie Chuang, Beyond a Snapshot: Preventing Human Trafficking in the Global Economy, 13 Ind. J. Global Legal Stud. 137 (2006).

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Regarding the individual communication process under the Optional Protocol to the cedaw,201 one case was filed in relation to human trafficking, but was dismissed for failing to exhaust domestic remedies.202 The individual communication processes under human rights treaties possess common limitations: decisions of relevant bodies are not legally binding, and individuals cannot bring claims against private perpetrators. Given these limitations, the next section explores the potential relevancy of the international criminal court system to the case of human trafficking. 5) The icc System While the Rome Statute of the International Criminal Court203 (icc) specifically mentions human trafficking, it requires cautious reading. Trafficking appears in the provision on “crimes against humanity,”204 one of the prosecutable crimes under the jurisdiction of the icc. Article 7 paragraph 1 of the Statute lists the acts of “crimes against humanity,” including enslavement. Paragraph 2 defines enslavement as “the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children.” Some commentators interpret this clause as newly adding human trafficking into the definition of slavery provided by the 1926 Slavery Convention;205 however, this interpretation is incorrect. First, the Rome Statute defines enslavement in ­exactly the same manner as does the 1926 Slavery Convention: the exercise of “any or all of the powers attaching to the right of ownership over a person.” Second, the provision states that enslavement “includes the exercise of such power in the course of trafficking in persons” (emphasis added). It does not simply include the practice of trafficking as a form of enslavement. It only points out the fact that enslavement, which is the exercise of powers attaching to the right of ownership, can occur in the course of trafficking.206 201 Optional Protocol to the Convention on the Elimination of Discrimination Against ­Women, g.a. Res. 54/4, u.n. Doc. A/54/4 (Oct. 6, 1999). 202 Zhen Zhen Zheng v. The Netherlands, Communication No. 15/2007, cedaw Comm., u.n. Doc. CEDAW/C/42/D/15/2007 (Oct. 27, 2008). 203 Rome Statute of the International Criminal Court, July 17, 1998, u.n. Doc. A/CONF.189/9 [hereinafter Rome Statute]. 204 Id. art. 7. 205 E.g., Kevin Bales & Peter T. Robbins, No One Shall Be Held in Slavery or Servitude: A Critical Analysis of International Slavery Agreements and Concepts of Slavery, 2 Hum. Rts. Rev. 18, 21–23 (2001). 206 Jean Allain agrees with this interpretation, stating “the definition of enslavement (not slavery) found in the Rome Statute does not add trafficking as an additional type of s­ lavery,

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The Elements of Crime, a nonbinding interpretative guideline of the Rome Statute, explains the elements of “enslavement,” one of which is: “The perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty.”207 Its footnote states: It is understood that such deprivation of liberty may, in some circumstances, include exacting forced labour or otherwise reducing a person to a servile status as defined in the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of 1956. It is also understood that the conduct described in this element includes trafficking in persons, in particular women and children.208 Here, trafficking is suggested as an example of conduct that can constitute enslavement. However, the basic requirement is still “exercising of powers attaching to the right of ownership over persons.” It leads to the conclusion that not all trafficking cases falls under the jurisdiction of the icc: the case must e­ ntail the practice of enslavement. No trafficking-related case has been brought to the icc to date. Another obstacle preventing trafficking cases from reaching the Court is the requirement that a crime should be “committed as part of a widespread or systematic attack directed against any civilian population.”209 Fundamentally, the icc is a criminal justice system against perpetrators, not a human rights framework for victims. 2

Regional Level: Europe

A The eu Directives of 2011 and 2004 In April 2011, the European Union adopted a new Directive for member states setting out the standard of actions on human trafficking (the 2011 eu but the opposite: the Statute acknowledges that slavery is but one possible c­ omponent part of the definition of trafficking.” Jean Allain, Book Review, 20 Int’l J. Refugee L. 228, 231 (2008) (reviewing Kevin Bales, Understanding Global Slavery: A Reader (2005)). 207 Int’l Criminal Court, Elements of Crimes, art. 7(1)(c) (2011). 208 Id. at 6 n.11. This paragraph is repeated in its explanation of the elements of “crime against humanity of sexual slavery” (Rome Statute art. 7, para. 1(g)) and “war crime of sexual ­slavery” (Rome Statute art.8, para. 2(b)(xxii), para. 2(e)(vi)). 209 Rome Statute art. 7, para. 1.

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­Directive), which replaces the earlier Council Framework Decision.210 The 2011 eu Directive emphasizes criminalizing all forms of trafficking practices and sets the minimum sentences for relevant offenses.211 Its preamble states that “[t]rafficking in human beings is a serious crime, often committed within the framework of organised crime” and “[p]reventing and combating trafficking in human beings is a priority for the Union and the Member States.”212 On the other hand, the Directive recognizes human trafficking as “a gross violation of fundamental rights”213 and claims itself to adopt an “integrated, holistic, and human rights approach.”214 At the same time it states that one of the aims of victim protection is “to encourage [victims] to act as witnesses in criminal proceedings against the perpetrators.”215 Providing articles on victim assistance represents clear progress made by the 2011 eu Directive as compared with the earlier framework, which contained only penal provisions. The Directive states that victim assistance and support should be provided “irrespective of his or her willingness to act as a witness.”216 However, this part of the Directive requires careful examination. Article 11 paragraph 3 provides: Member States shall take the necessary measures to ensure that assistance and support for a victim are not made conditional on the victim’s willingness to cooperate in the criminal investigation, prosecution or trial, without prejudice to Directive 2004/81/ec or similar national rules.217 If read without the last phrase, this provision appears to take a revolutionary approach. It stipulates that victim support and assistance should not be made conditional on a victim’s willingness to cooperate with criminal procedures 210 Directive 2011/36/EU, of the European Parliament and of the Council of 5 April 2011 on Preventing and Combating Trafficking in Human Beings and Protecting Its Victims, and Replacing Council Framework Decision, 2002/629/JHA, 2011 o.j. (L 101) [hereinafter 2011 eu Directive]. 211 Relevant articles of the 2011 eu Directive include: art. 2 (Offences concerning trafficking in human beings), art. 3 (Incitement, aiding and abetting, and attempt), art. 4 (Penalties), art. 5 (Liability of legal persons), art. 6 (Sanctions on legal persons), art. 7 (Seizure and confiscation), art. 9 (Investigation and prosecution), art. 10 (Jurisdiction). European Commission classifies the Directive as criminal law. 212 2011 eu Directive, supra note 210, pmbl., para. 1. 213 Id. 214 Id. pmbl., para. 7. 215 Id. pmbl., para. 14. 216 Id. pmbl., para. 18. 217 Id. art. 11, para. 3 (emphasis added).

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against perpetrators. If so, it is a repudiation of the dominant practices of most destination states discussed in Chapter 3. However, the conditional clause that the provision is to be applied without prejudice to the Directive 2004/81/ EC (the 2004 eu Directive)218 minimizes the provision’s actual significance. ­Article 11 paragraph 1 of the 2011 eu Directive states that victim support measures are to be provided “for an appropriate period of time after the conclusion of criminal proceedings.” Other than these provisions, the 2011 eu Directive does not stipulate the terms of victims’ stay in destination states. Therefore, the duration and conditions of victim assistance measures are subject to the prescription of the 2004 eu Directive. The 2004 eu Directive defines its purpose as “to define the conditions for granting residence permits of limited duration, linked to the length of the relevant national proceedings, to third-country nationals who cooperate in the fight against trafficking in human beings or against action to facilitate illegal immigration.”219 The Directive stipulates the conditions and durations of trafficking victims’ stay in destination states while not preventing member states from taking more favorable measures for victims.220 It applies to adult victims,221 irrespective of the unlawfulness of their entry to the territory of a member state. One of the main state obligations under the Directive is to ensure a “reflection period” to the individuals concerned. The objective of this period is to allow them time to “recover and escape the influence of the perpetrators of the offences so that they can make an informed decision as to whether to cooperate with the competent authorities.”222 The individuals are not subject to expulsion during the period and have access to assistance measures under Article 7 of the Directive.223 Article 7 lists assistance measures available to individuals before they receive a residence permit (during the reflection period or while awaiting authorities’ decision on the residence permit). The list includes emergency medical treatment, safety measures, interpretation services and free legal aid.224 218 Council Directive 2004/81/EC on the Residence Permit Issued to Third-Country Nationals Who are Victims of Trafficking in Human Beings or Who Have Been the Subject of an Action to Facilitate Illegal Immigration, Who Cooperate with the Competent Authorities, 2004 o.j. (L 261) [hereinafter 2004 eu Directive]. 219 Id. art. 1. 220 Id. art. 4. 221 Id. art. 3, para 3. 222 Id. art. 6, para. 1. The duration and starting point are subject to national law. Id. 223 Id. art. 6, para. 2. 224 Id. art. 7.

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The Directive clarifies that the reflection period does not create any entitlement to further residence in destination states.225 In addition, the Directive allows member states to terminate the reflection period for reasons of public policy or national security, or if a state finds that the individual has “actively, voluntarily and on his/her own initiative renewed contact with the perpetrators.”226 In deciding on the issuance of the residence permit after the reflection period, the Directive mandates that member states consider three factors: i) the opportunity presented by prolonging the person’s stay in a member state for investigations or judicial proceedings; ii) whether the concerned person has shown a clear intention to cooperate; and iii) whether the concerned person has severed all relations with suspected traffickers.227 All these three conditions must be fulfilled in order to issue the permit.228 The minimum period of the residence permit is six months, renewable.229 The residence permit provides employment-related assistance. The Directive obligates member states to enact rules to authorize holders of the residence permit to have access to the labor market, to vocational training and education.230 ­Member states are free to decide the conditions and procedures for issuing work authorization.231 The Directive also emphasizes the importance of programs for individuals’ “recovery of a normal social life” and “preparation of their assisted return to their country of origin.”232 Regarding the renewal and withdrawal of the residence permit, the Directive mandates that the residence permit shall not be renewed “if the conditions of Article 8(2) cease to be satisfied or if a decision adopted by the competent authorities has terminated the relevant proceedings.”233 This means that victims must leave the country when they cease to cooperate with criminal procedures; when their cooperation becomes unnecessary; or when they resume relations with offenders. The Directive reiterates these requirements when stipulating the cases in which the residence permit may be withdrawn:234

225 226 227 228 229 230 231 232 233 234

Id. art. 6, para. 3. Id. art. 6, para. 4. Id. art. 8, para. 1. Id. art. 8, para. 2. Id. art. 8, para. 3. Id. art. 11, para. 1. Id. art. 11, para. 2. Id. art. 12, para. 1. Id. art. 13, para. 1. Id. art. 14.

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(a) if the holder has actively, voluntarily and in his/her own initiative ­renewed contacts with those suspected of committing the offences r­ eferred to in Article 2(b) and (c); or (b) if the competent authority believes that the victim’s cooperation is ­fraudulent or that his/her complaint is fraudulent or wrongful; or (c) for reasons relating to public policy and to the protection of national ­security; or (d) when the victim ceases to cooperate; or (e) when the competent authorities decide to discontinue the proceedings The 2004 eu Directive thus makes clear that the residence permit for trafficking victims is to be granted only for criminal justice purposes. Victims must cooperate with the investigation and the prosecution of suspected traffickers in order to attain a temporary residence permit after the reflection period, and the duration of their stay is contingent on their availability and usefulness for criminal proceedings. The preamble of the 2011 eu Directive is helpful for bridging the 2011 and 2004 Directives. While it acknowledges that “a person should be provided with assistance and support…irrespective of his or her willingness to act as a witness,” the following paragraph clarifies the limited meaning of this “­ unconditional” victim assistance: In cases where the victim does not reside lawfully in the Member State concerned, assistance and support should be provided unconditionally at least during the reflection period. If, after completion of the identification process or expiry of the reflection period, the victim is not considered eligible for a residence permit or does not otherwise have lawful residence in that Member State, or if the victim has left the territory of that Member State, the Member State concerned is not obliged to continue providing assistance and support to that person on the basis of this Directive.235 Therefore, under the eu anti-trafficking framework, victim support measures are unconditional only during the reflection period. After the reflection period, the residence permit is granted based on the usefulness and willingness of victims to serve as crime witnesses, at the discretion of authorities. The duration 235 2011 eu Directive, supra note 210, pmbl., para. 18.

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of a residence permit is contingent on relevant judicial proceedings and can be revoked at any time if the victim ceases to act as a faithful witness. Accordingly, victim assistance and protection measures available during the residence permit are also conditional. Thus, Article 11 paragraph 3 of the 2011 eu Directive has only a limited meaning. Other provisions of the 2011 eu Directive also confirm the centrality of the criminal justice purpose in offering victim support measures. Article 11 paragraph 1 states, “Member states shall…ensure that assistance and support are provided to victims before, during and for an appropriate period of time after the conclusion of criminal proceedings.”236 The duration “after the conclusion of criminal proceedings” is undefined and at the discretion of states parties. The preamble suggests the situations in which prolonged assistance for victims would be necessary: Where necessary, assistance and support should continue for an appropriate period after the criminal proceedings have ended, for example if medical treatment is ongoing due to the severe physical or psychological consequences of the crime, or if the victim’s safety is at risk due to the victim’s statements in those criminal proceedings.237 This indicates that a victim’s stay after criminal procedures is permitted only in exceptional cases, usually for serious medical or safety reasons. Therefore, the eu anti-trafficking regime is essentially a criminal law enforcement regime, which allows little room for upholding victims’ human and labor rights independently from the criminal justice context. Despite the complexity and diversity of rights violations that victims experience, the status of trafficking victims is simply reduced to crime witnesses. Except during the ­reflection period, the availability of residence permit and assistance ­measures depends on the victims’ usefulness for criminal procedures. The regime does not ­acknowledge the right of victims to stay in destination states in order to seek and attain r­ emedies in the civil and labor rights contexts. In

236 The minimum support measures during this period include: “standards of living capable of ensuring victims’ subsistence through measures such as the provision of appropriate and safe accommodation and material assistance, as well as necessary medical treatment including psychological assistance, counselling and information, and translation and interpretation services where appropriate.” Id. art. 11, para. 5. 237 Id. pmbl., para. 18.

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this ­regard, the r­ eflection period, the residence permit, and the existing limited assistance measures c­ onstitute a scheme of facilitating prosecution against traffickers through ­securing cooperative witnesses, rather than a framework for providing effective human rights protection and remedies for victimized individuals. The primary criminal justice agenda of destination states limits, conditions, and subordinates the status, needs, and rights of the individuals. Therefore, the eu anti-trafficking framework under the 2011 and 2004 eu ­Directives is far from taking “an integrated, holistic, and human rights approach” as it claims. B 2005 Council of Europe Trafficking Convention The Council of Europe Convention on Action against Trafficking in Human Beings238 (the Council of Europe Trafficking Convention) is regarded as incorporating a more proactive human rights perspective than the Trafficking Protocol.239 Its preamble recognizes that “trafficking in human beings constitutes a violation of human rights and an offence to the dignity and the integrity of the human being.”240 It acknowledges “the need to prepare a comprehensive international legal instrument focusing on the human rights of victims of trafficking.”241 The Convention lists as one of its purposes “to protect the human rights of the victims of trafficking,” along with preventing and combating trafficking and promoting international cooperation.242 It states that “each party shall promote a human rights-based approach and shall use gender mainstreaming and a child-sensitive approach” in taking prevention measures against trafficking.243 It stipulates the “non-discrimination principle” in employing measures to protect and promote the rights of victims.244 The Explanatory Report of the Convention clarifies that this principle applies to those who are unlawfully residing in a destination state as well.245

238 Council of Europe Convention on Action Against Trafficking in Human Beings, May 16, 2005, c.e.t.s. No. 197 [hereinafter Council of Europe Trafficking Convention]. 239 Gallagher, supra note 29, at 114–15. 240 Council of Europe Trafficking Convention, supra note 238, pmbl. 241 Id. 242 Id. art. 1, para.1. 243 Id. art. 5, para. 3. 244 Id. art. 3. 245 Explanatory Report to the Council of Europe Convention on Action Against Trafficking in Human Beings para. 62 [hereinafter Explanatory Report], http://conventions.coe.int/ treaty/en/reports/html/197.htm.

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The assistance measures under the Convention focus on aspects of recovery246 and safety.247 Victims lawfully residing in a member state have access to additional assistance,248 the labor market, and vocational training and education.249 The individuals who are recognized as victims of trafficking will still not be eligible for these measures if not holding lawful immigration status for various reasons, including non-cooperation with criminal law enforcement. The Convention mandates that states parties adopt a minimum 30 days’ “recovery and reflection period” for victims to decide whether to cooperate with authorities for further stay.250 During this period, victims are entitled to minimum assistance measures provided in Article 12.251 After the reflection period, the Convention provides that a state shall issue a renewable residence permit on either or both of the following conditions: 1) when “the competent authority considers that their stay is necessary owing to their personal situation”; 2) when “competent authority considers that their stay is necessary for the purpose of their co-operation with the competent authorities in investigation or criminal proceedings.”252 The first condition is a clear advance in incorporating a victim-centered approach when compared with the 2004 eu Directive which requires victim’s cooperation as a condition for issuing a residence permit. However, adopting the first condition is not obligatory for states parties. It is not a breach of the Convention if a member state incorporates only the second

246 Council of Europe Trafficking Convention, supra note 238, art. 12, para. 1 (“Each Party shall adopt such legislative or other measures as may be necessary to assist victims in their physical, psychological and social recovery.”) It states assistance measures should include at least minimum standards of living, including accommodation, psychological and material assistance; access to emergency medical treatment; translation and interpretation services; counseling and information, in particular regarding their legal rights and available services; assistance to enable their rights and interests to be presented and considered at appropriate stages of criminal proceedings against offenders; and access to education for children. 247 Id. art. 12, para. 2 (“Each Party shall take due account of the victim’s safety and protection needs.”). 248 Id. art. 12, para. 3 (“In addition, each Party shall provide necessary medical or other assistance to victims lawfully resident within its territory who do not have adequate resources and need such help.”). 249 Id. art. 12, para. 4 (“Each Party shall adopt the rules under which victims lawfully resident within its territory shall be authorised to have access to the labour market, to vocational training and education.”). 250 Id. art. 13, para. 1. 251 Id. art. 13, para. 2. See supra notes 246. 252 Id. art. 14, para. 1 (emphasis added).

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condition into its legislation regarding a residence permit.253 Moreover, “personal situation” is a vague term, granting state authorities broad discretion.254 As to the non-renewal and withdrawal of residence permits, the Convention grants full discretion to member states in setting the conditions.255 The ­Convention does not recognize victims’ need or right to stay in a destination state to seek and attain remedies for the rights violations they have suffered in that state.256 This neglect is inconsistent with Article 15, which stipulates victims’ right to compensation from traffickers.257 Moreover, the provisions on the residence permit contradict Article 12 paragraph 6, which states that “[e]ach Party shall adopt such legislative or other measures as may be necessary to ensure that assistance to a victim is not made conditional on his or her willingness to act as a witness.” The Explanatory Report recognizes this problem to a limited extent, but does not address it further: Some Parties may decide—as allowed by Article 14—to grant residence permits only to victims who cooperate with the authorities. Nevertheless, paragraph 6 of Article 12 provides that each Party shall adopt such legislative or other measures as may be necessary to ensure that assistance to a victim is not made conditional on his or her willingness to act as a witness.258 The Report does not address the fact that after the refection period, victim assistance measures are available only when a victim acquires a residence permit and that most states would make victims’ cooperation with criminal 253 Explanatory Report, supra note 245, para. 182 (“The aim of these requirements is to allow Parties to choose between granting a residence permit in exchange for cooperation with the law-enforcement authorities and granting a residence permit on account of the victim’s needs, or indeed to adopt both simultaneously.”). 254 Id. para. 184 (“The personal situation requirement takes in a range of situations, depending on whether it is the victim’s safety, state of health, family situation or some other factor which has to be taken into account.”). 255 Council of Europe Trafficking Convention, supra note 238, art. 14, para. 3 (“The non-­ renewal or withdrawal of a residence permit is subject to the conditions provided for by the internal law of the Party.”). 256 See also Gallagher, supra note 29, at 120. 257 Council of Europe Trafficking Convention, supra note 238, art. 15, para. 3 (“Each Party shall provide, in its internal law, for the right of victims to compensation from the perpetrators.”). It is impractical that victims attain compensation without presence and participation in the relevant legal procedures. 258 Explanatory Report, supra note 245, para. 169.

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­ rocedures as a condition for the residence permit, as allowed by Article 14 p paragraph 1.259 It leads to the conclusion that victims would have to cooperate with criminal proceedings in order to be eligible for the residence permit and the following assistance measures. Such a consequence contradicts the mandate of Article 12 paragraph 6, but is ironically allowed by Article 14 paragraph  1. The background for adopting this victim treatment scheme is explicated by the Explanatory Report. The Report notes that the reflection period “is likely to make the victim a better witness: statements from victims wishing to give evidence to the authorities may well be unreliable if they are still in a state of shock from their ordeal.”260 Concerning the reason to adopt the residence permit system, the Report states: [I]f the victims continue to live clandestinely in the country or are removed immediately they cannot give information for effectively combating the traffic. The greater victims’ confidence that their rights and ­interests are protected, the better the information they will give. ­Availability of residence permits is a measure calculated to encourage them to cooperate.261 The Report clarifies that the purpose of the victim treatment scheme under the Convention is to secure better cooperation from victims for prosecuting perpetrators. It contradicts the human rights approach that the Convention claims to adopt. Provisions regarding the repatriation of victims confirm the Convention’s nature. Most repatriation-related provisions of the Convention are adopted from the Trafficking Protocol. When a victim does not receive a residence permit for failing to cooperate with law enforcement authorities, the victim becomes subject to repatriation. Like the trafficking Protocol, the Convention emphasizes the obligation of sending states to “facilitate and accept” victims’ return “without undue or unreasonable delay.”262 Repatriation only needs to be preferably voluntary.263 The Convention provides that upon return 259 260 261 262

See supra text accompanying note 252. Explanatory Report, supra note 245, para. 174. Id. para. 181. Council of Europe Trafficking Convention, supra note 238, art. 16, para. 1; see also id. art. 16, para. 4 (“In order to facilitate the return of a victim who is without proper documentation,…the receiving Party shall agree to issue, at the request of the receiving Party, such travel documents or other authorisation as may be necessary to enable the person to travel to and re-enter its territory.”). 263 Id. art. 16, para. 2.

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of victims, states shall pay “due regard for the rights, safety and dignity of that person and for the status of any legal proceedings related.”264 However, as in the Trafficking Protocol, such abstract and weak language is not capable of deterring decisions of repatriation from being made against victims’ will and needs. The Convention also obligates member states to operate repatriation programs, focusing on “reintegration of victims into the society of the State of return” to avoid re-victimization.265 Regarding prevention measures against trafficking, the Convention adopts almost the same provisions as the Trafficking Protocol, focusing on strengthening border control and enhancing security and control of travel documents.266 Chapters 4267 and 5268 of the Convention provide detailed provisions on criminalization, investigation, prosecution and judicial proceedings of traffickingrelated offenses. The Convention is more advanced than the Trafficking Protocol in adopting victim assistance measures (such as the reflection period and the residence permit) and in at least acknowledging the importance of taking a human rights approach.269 However, considering the focus and limitations of the Convention as discussed above, it is essentially a criminal justice regime and not a human rights framework. 3 Conclusion This chapter examined the past and present international and regional legal responses to human trafficking, as well as other relevant international legal frameworks for their implications and limitations in addressing human trafficking and related human rights issues. The past trafficking framework was based on moralistic and paternalistic approaches toward women and prostitution. It had been limited in scope and inactive in function. The current international framework of human trafficking under the ctoc and the Trafficking Protocol has developed into a transnational crime and immigration control 264 Id. 265 Id. art. 16, para. 5. 266 Id. art. 7 (Border measures), art. 8 (Security and control of documents) & art. 9 (Legitimacy and validity of documents). 267 Id. arts. 18–26 (Substantive criminal law). 268 Id. arts. 27–31 (Investigation, prosecution and procedural law). 269 Gallagher assesses the Conventions as a human rights instrument, calling it a “revolutionary way of thinking” for the Convention to view human trafficking itself as a human right violation. Gallagher, supra note 29, at 126–27.

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regime, driven by the interests of destination states. Under this framework, victims do not have any rights, and states do not bear any human r­ ights-related obligations. Criminalizing relevant offenses, fortifying border control, and facilitating victim repatriation are the main state obligations. These do not ­impose much of a burden on destination states, but instead effectively support preexisting immigration control agendas of these states. The international framework on migrant smuggling has been adopted separately from the trafficking framework based on the binary conceptualization of the two phenomena. However, both regimes adopt essentially the same countermeasures and treatment of individuals. Smuggling and trafficking are hard to distinguish in reality and overlap in one important respect: individuals’ desire to migrate and work abroad. The ilo Conventions on migrant workers provide several important rights and state obligations for trafficking victims, but suffer from low ratification rates. The cmw is the most detailed and comprehensive human rights framework for migrant workers. Most trafficking victims fit into the definition of migrant workers under the Convention. However, obstructions exist in practice, including a general lack of perceptions to understand human trafficking in the context of global labor migration and to recognize trafficking victims as migrant workers, as well as the absence of participation by destination states. The modern-day slavery conception of human trafficking is misleading and inaccurate, from both legal and human rights perspectives: Slavery and human trafficking are distinct legal concepts located in different legal dimensions. Framing trafficking as modern-day slavery produces misrepresentative stereotypes of human trafficking which erase the agency and autonomy of trafficking victims exercised throughout their labor migration experiences. The ilo Forced Labor Conventions can work together with the trafficking regime if human trafficking results in forced or compulsory labor. However, both frameworks have limitations as “suppression regimes” that do not provide any rights for victims. The iccpr, icescr and cedaw have applicable and important provisions for human trafficking cases although limitations exist in each instrument. The iccpr framework tends to focus on the freedom and liberty aspects of the problem, paying less attention to improving the actual living and working conditions of victims in addition to rescuing them. The icescr provides a list of rights capable of making a significant contribution to preventing and redressing human and labor rights violations experienced by present and potential trafficking victims. However, the icescr Committee has yet to vitalize this potential, taking an approach similar to the Human Rights Committee by focusing on prosecution of perpetrators and rehabilitation and repatriation of victims. The cedaw contains a specific provision on human trafficking, but it is too brief and abstract to

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mandate meaningful human rights obligations for member states. The possibility of human trafficking cases falling under the jurisdiction of the icc is very limited. Both the eu Directives and the Council of Europe Convention claim to adopt human rights approaches. However, a thorough examination of these frameworks reveals that their essential nature is not different from that of the Trafficking Protocol. Available victim assistance measures, including the reflection period, the residence permit, and entailed services, are designed mainly in order to obtain victims’ statements to facilitate criminal procedures against perpetrators who committed illicit border crossings of migrants. The availability, conditions, and duration of victim support are contingent on victims’ willingness and utility as crime witnesses. Victims do not have the right to stay in destination states to exercise their civil and labor rights or to seek remedies i­ndependently from criminal procedures. These regimes can hardly be assessed as human rights frameworks. The examination undertaken in this chapter suggests the need to develop a comprehensive and concrete human-rights-centered framework for trafficking victims, to be implemented in destination states. The primary rules of state obligations provided under the Trafficking Protocol and the regional framework in Europe need significant reform and improvement. Given that aim, it is first necessary to investigate the current practices of destination states at the national level and their relations with the international framework.

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Analysis of Current Legal Institutional Responses: National Level Chapter 2 examined how the current international legal framework on human trafficking under the ctoc and the Trafficking Protocol has developed into a transnational crime and border control regime—one which squarely reflects the concerns and interests of destination states while not providing any meaningful rights or remedies for victimized individuals. This chapter examines the structure and operation of anti-trafficking frameworks at the national level. It investigates how major destination states, including the United States, Canada, Australia and Japan, have constructed their domestic legal systems in response to human trafficking. It also considers three European states—the Netherlands, Belgium and Italy—whose trafficking victim support systems are thought to be the most advanced among existing models. This chapter analyzes how these states have implemented the mandates of the international trafficking regime examined in Chapter 2, and further explores the common trends among and variations between the approaches in these states. This chapter devotes particular attention to the rights, status, and overall treatment of victims in each state—a matter for which the international framework allows broad discretion to individual states. Analysis of the treatment of victims focuses on the possibilities and conditions for temporary or permanent residence in the destination states, victims’ rights and assistance measures, and the availability of remedies outside the context of criminal justice procedures. 1

The United States

A Overview The United States has been a vigorous leader in the global campaign to combat human trafficking since its adoption of the Trafficking Victims Protection Act (tvpa)1 in 2000. In 2001, the u.s. government launched a unilateral, global-scale monitoring mechanism through the State Department’s annual Trafficking in Persons Reports (tip Reports) on each state’s practice ­regarding 1 The Trafficking Victims Protection Act of 2000, 22 u.s.c. §§ 7101–7110 (2000) [hereinafter tvpa].

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human trafficking.2 The u.s. anti-trafficking framework famously adopts the “3P p ­ aradigm”—Prevention, Prosecution, and Protection—that the u.s. ­government has been actively promoting worldwide.3 In line with the Trafficking Protocol, the United States has built a “combat” regime against human trafficking, which sets “bringing traffickers to justice” as its primary goal.4 The “prosecution” pillar of the 3P paradigm calls for criminalizing trafficking-related offenses in domestic law with heightened minimum sentences as well as undertaking vigorous investigation and prosecution.5 The tvpa, and the subsequent Reauthorization Acts (tvpras),6 define human trafficking as a crime, criminalize relevant actions, and raise the penalties for existing crimes.7 Since the adoption of the tvpa, numerous 2 For critiques on the us anti-trafficking policy through the unilateral tip monitoring and sanction system, see Janie Chuang, The United States as Global Sheriff: Using Unilateral Sanctions to Combat Human Trafficking, 27 Mich. J. Int’l L. 437 (2006); Anne T. Gallagher, Improving the Effectiveness of the International Law of Human Trafficking: A Vision for the Future of the us Trafficking in Persons Reports, 12 Hum. Rts. Rev. 381 (2011). 3 Office to Monitor and Combat Trafficking in Persons, The 3Ps: Prevention, Protection, Prosecution, Dep’t of State, http://www.state.gov/j/tip/3p/index.htm (“The ‘3P’ paradigm— prevention, protection, and prosecution—continues to serve as the fundamental framework used by governments around the world to combat human trafficking. The United States also follows this approach, reflected in … (Palermo Protocol) and the United States’ Trafficking Victims Protection Act (tvpa).”; “The u.s. Department of State’s Office to Monitor and Combat Trafficking in Persons employs diplomatic, economic, political, legal, and cultural tools to advance the ‘3P’ paradigm worldwide.”). 4 22 u.s.c. § 7101(a) (“The purposes of this division are to combat trafficking in persons, a contemporary manifestation of slavery whose victims are predominantly women and children, to ensure just and effective punishment of traffickers, and to protect their victims.”); 22 u.s.c. § 7101(b)(14) (“Existing legislation and law enforcement in the United States and other countries are inadequate to deter trafficking and bring traffickers to justice, failing to reflect the gravity of the offenses involved. No comprehensive law exists in the United States that penalizes the range of offenses involved in the trafficking scheme. Instead, even the most brutal instances of trafficking in the sex industry are often punished under laws that also apply to lesser offenses, so that traffickers typically escape deserved punishment.”); see also Dep’t of State, Trafficking in Persons Report: June 2012, at 9, 14, 24, 25, 31 & 42 (2012). 5 Office to Monitor and Combat Trafficking in Persons, supra note 3. 6 Trafficking Victims Protection Reauthorization Act of 2003, Pub. L. No. 108–93 (2003); Trafficking Victims Protection Reauthorization Act of 2005, Pub. L. No. 109–64 (2005); William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. No. 110–457 (2008); and Violence against Women Reauthorization Act of 2013, Pub. L. No. 113–4 (2013). 7 The tvpa defines severe forms of trafficking in persons as “(A) sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age; or (B) the recruitment, harboring, ­transportation, provision, or obtaining of a person for labor or services, through the use of

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g­ overnmental ­organizations, specialized agencies and units have been created, all of which are coordinated by the President’s Interagency Task Force to Monitor and Combat Trafficking in Persons, and the Office to Monitor and Combat Trafficking in Persons.8 This Task Force focuses on identifying, investigating, and prosecuting human trafficking cases, and on developing and implementing specialized training for government officers in law enforcement sectors.9 The 2013 tip ­Report clarifies that “Human trafficking is first and foremost a crime, so it is appropriate that law enforcement agencies lead most trafficking interventions.”10 The Attorney General must report to Congress every year regarding u.s. law enforcement’s progress in combatting trafficking crimes.11 The u.s. State Department also requests that foreign governments report their annual statistics on criminal law enforcement and improve their investigation and prosecution practices with respect to trafficking crimes.12 This criminal-justice-centered framework downplays the role of labor law enforcement, subordinating it to criminal law enforcement. The u.s. ­Department of Labor has been marginalized within the u.s. anti-trafficking regime despite its potentially important role in guaranteeing trafficking victims’ human and labor rights.13 The following excerpt from the tip Report

force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery.” 22 u.s.c. § 7102. 8 22 u.s.c. § 7103 (Interagency Task Force to Monitor and Combat Trafficking); see also Dep’t of Justice, Attorney General’s Annual Report to Congress and Assessment of u.s. Government Activities to Combat Trafficking in Persons Fiscal Year 2011, at 5–30 (2013). 9 The u.s. criminal justice approach emphasizes vigorous “victim identification” as its starting point for intervention. Since the adoption of the tvpa, numerous training programs and governmental resources have been devoted to enhancing law enforcement authorities’ capacity for identifying trafficking victims and cases. See id. at 6–8. The 2013 tip Report set victim identification as the government’s top agenda, alleging that a huge number of unidentified victims in the u.s. and worldwide call for stronger law enforcement efforts by states. Dep’t of State, Trafficking in Persons Report: June 2013, at 2, 8–13 (2013). 10 Dep’t of State, supra note 9, at 10 (2013). 11 22 u.s.c. § 7103(d)(7). 12 22 u.s.c. § 7106(b)(1) (“After reasonable requests from the Department of State for data regarding investigations, prosecutions, convictions, and sentences, a government which does not provide such data, consistent with the capacity of such government to obtain such data, shall be presumed not to have vigorously investigated, prosecuted, convicted or sentenced such acts.”). 13 The expected role to be played by labor inspectors is limited to identifying trafficking victims in order to arrest and punish suspected traffickers. See, e.g., Dep’t of State, supra note 9, at 15.

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d­ emonstrates the stance of the u.s. government regarding the enforcement of labor standards and criminal justice: Approaches to combating forced labor that rely solely on compliance with labor standards can be weak because these approaches fail to punish those responsible for trafficking. While administrative sanctions are effective for deterring some labor violations, forced labor must be punished as a crime, through vigorous prosecutions.14 In its official statement on the 3P paradigm, the u.s. government emphasizes its efforts to initiate public awareness campaigns for the “prevention” of human trafficking.15 However, in practice, border security and immigration law enforcement constitute an integral part of the prevention pillar of the 3Ps.16 This approach is indeed consistent with the mandate by the un Trafficking Protocol, which obligates states parties to take rigid border control measures to detect and prevent human trafficking. Among many relevant government agencies, the Department of Homeland Security (dhs) plays a central role in carrying out u.s. anti-trafficking strategies.17 Under the dhs, the u.s. ­Customs and Border Protection (cbp) is responsible for detecting suspicious border crossings and identifying potential trafficking cases and victims on the front lines. The cbp claims, “With more than 42,000 frontline cbp officers and ­Border Patrol agents protecting nearly 7,000 miles of land border and 327 ports of entry—including official crossings by land, air, and sea—cbp is uniquely situated to deter and disrupt human trafficking.”18 u.s. Immigration 14 15 16

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Dep’t of State, Trafficking in Persons Report: June 2007, at 30 (2007). See Office to Monitor and Combat Trafficking in Persons, supra note 3. See Global Alliance Against Traffic in Women, Collateral Damage, The Impact of Anti-Trafficking Measures on Human Rights Around the World 252 (2007) (“Instead of addressing root causes (e.g. by enhancing immigration and labor law protections or decriminalizing prostitution), the us approach has been to focus on border interdiction strategies.”). The Department of Homeland Security has led the “Blue Campaign” to coordinate its component agencies to “fight against” human trafficking and to raise public awareness. About the Blue Campaign, Dep’t of Homeland Sec., http://www.dhs.gov/blue -­campaign (“The Blue Campaign is the unified voice for the u.s. Department of Homeland Security’s (dhs) efforts to combat human trafficking. Working in collaboration with law enforcement, government, non-governmental and private organizations, the Blue Campaign strives to protect the basic right of freedom and to bring those who exploit human lives to justice.”). Border Security: Human Trafficking, u.s. Customs & Border Prot., https://www.cbp .gov/border-security/human-trafficking.

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and ­Customs Enforcement (ice) is now charged with investigating transborder human trafficking cases as a federal crime.19 The Federal Law Enforcement Training ­Center provides law enforcement officials with specialized training programs on identifying and investigating trafficking cases. Since the mid-1990s, the u.s. government has continuously fortified its border security efforts, rapidly expanding budgets and increasing human resources in this area.20 Targeting the southern borders in particular, the number of border regulation enforcement cases continues to break records year after year.21 Since the u.s. government condemns human trafficking as a threat to civil and national security,22 detecting and preventing trafficking has been one of the main grounds for intensifying government actions on border control.23 An attempt to connect human trafficking with border security is conspicuous also in a recent move toward immigration law reform, including through the Border Security, Economic Opportunity, and Immigration Modernization Bill (S. 744), which called for increased state power over border control.24 Prevention of human trafficking constituted an important part of the bill.25 19

Immigration and Customs Enforcement [hereinafter ice] is involved in arresting perpetrators, rescuing victims and tracking trafficking organization’s assets and profits. See What We Do: Human Trafficking, ice, http://www.ice.gov/human-trafficking/ (“Human trafficking is one of the most heinous crimes that ice investigates.”). 20 See Jennifer M. Chacón, Tensions and Trade-offs: Protecting Trafficking Victims in the Era of Immigration Enforcement, 158 U. Pa. L. Rev. 1609, 1610–11 (2010). 21 Id. at 1618–19, 1639. 22 See, e.g., John Kerry’s remark, “Ending modern slavery must remain a foreign policy priority. Fighting this crime wherever it exists is in our national interest. Human trafficking undermines the rule of law and creates instability. It tears apart families and communities. It damages the environment and corrupts the global supply chains and labor markets that keep the world’s economies thriving.” Dep’t of State, supra note 9, Foreword; see also Dep’t of State, supra note 14, at 5, 33. 23 Chacón, supra note 20, at 1637–40. Chacón introduces a remark by the Secretary of the Department of Homeland Security at the Stop Human Trafficking Symposium held in 2008, which demonstrates how the prevention of human trafficking works as a justification for broad border and immigration control and crackdowns on unlawful migration: “[T]he line between so-called voluntary migration and human trafficking is not a very bold line …. Therefore, by cracking down on illegal migration, we are actually cracking down on the kind of network activity, which actually facilitates human trafficking and victimization, as well.” Id. at 1638. 24 The bill was introduced by Senator Charles E. Schumer (d-ny) to the u.s. Senate of the 113th Congress (2013–2014) on Apr. 16, 2013 and passed the Senate on June 27, 2013, but was not passed by the House. http://thomas.loc.gov/cgi-bin/bdquery/z?d113:s.744:. 25 See the bill Title iii Interior Enforcement Subtitle F (Prevention of Trafficking in Persons and Abuses Involving Workers Recruited Abroad) and Subtitle I, https://www.govtrack .us/congress/bills/113/s744; for a critique of this bill and u.s. immigration policy on their

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The tvpa and subsequent tvpras stipulate four minimum standards and twelve criteria that the u.s. government applies in monitoring other states’ practices regarding human trafficking and determining the application of sanctions. These standards highlight the law-enforcement-centered nature of the u.s. anti-trafficking regime. All four minimum standards and most of the twelve criteria urge other states to vigorously pursue criminal justice against traffickers.26 The criteria also emphasize that states should encourage victims to assist in the investigation and prosecution of trafficking offenses.27

negative implications for human trafficking, see Ana Avendaño & Charlie Fanning, Immigration Policy Reform in the United States: Reframing the Enforcement Discourse to Fight Human Trafficking and Promote Shared Prosperity, 2 Anti-Trafficking Rev. 97 (2013). 26 The relevant statutory text is reproduced below: (a) Minimum standards (1) The government of the country should prohibit severe forms of trafficking in persons and punish acts of such trafficking. (2) For the knowing commission of any act of sex trafficking involving force, fraud, coercion, or in which the victim of sex trafficking is a child incapable of giving meaningful consent, or of trafficking which includes rape or kidnapping or which causes a death, the government of the country should prescribe punishment commensurate with that for grave crimes, such as forcible sexual assault. (3) For the knowing commission of any act of a severe form of trafficking in persons, the government of the country should prescribe punishment that is sufficiently stringent to deter and that adequately reflects the heinous nature of the offense. (4) The government of the country should make serious and sustained efforts to eliminate severe forms of trafficking in persons. (b) Criteria (1) Whether the government of the country vigorously investigates and prosecutes acts of severe forms of trafficking in persons, and convicts and sentences persons responsible for such acts,…. (4) Whether the government of the country cooperates with other governments in the investigation and prosecution of severe forms of trafficking…. (5) Whether the government of the country extradites persons charged with acts of severe forms of trafficking…. (7) Whether the government of the country vigorously investigates, prosecutes, convicts, and sentences public officials, including diplomats and soldiers, who participate in or facilitate severe forms of trafficking…. 22 U.S.C. § 7106 (Minimum standards for the elimination of trafficking). 27 22 u.s.c. § 7106(b)(2) (“Whether the government of the country protects victims of severe forms of trafficking in persons and encourages their assistance in the investigation and prosecution of such trafficking, including provisions for legal alternatives to their removal to countries in which they would face retribution or hardship, …”).

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The ­provisions also stress heightened border monitoring to detect human trafficking, with a correspondingly expanded role for law enforcement agencies.28 B Victims’ Rights and Status For the “protection” pillar of the 3P paradigm, the u.s. framework establishes the “3Rs”—rescue, rehabilitation, and reintegration—as the main components of victim protection. Since reintegration presupposes “repatriation” of victims to their home countries, the u.s. victim protection scheme in fact consists of “4Rs.” Under the 3Ps and 4Rs framework, migrant trafficking victims in the United States are eligible for certain types of assistance and benefits. However, these measures are conditional and limited. This section examines how trafficking victims’ rights and status in the u.s. are constructed in relation to the approaches discussed above, which center on criminal justice and immigration control. The u.s. anti-trafficking project emphasizes the importance of the first R—rescue—, which is often phrased in terms of “liberating victims.”29 Rescue activities first require vigorous victim identification efforts.30 The tip report articulates the u.s. government’s view on the importance of intervention by law enforcement agencies for identifying and rescuing victims: While some victims of human trafficking are able to escape from involuntary servitude, many more are not able to break free on their own. They need help. Help often comes in the form of a raid by law enforcement on 28 22 u.s.c. § 7106(b)(6) (“Whether the government of the country monitors immigration and emigration patterns for evidence of severe forms of trafficking in persons and whether law enforcement agencies of the country respond to any such evidence in a manner that is consistent with the vigorous investigation and prosecution of acts of such trafficking, …”). 29 See, e.g., Dep’t of State, supra note 9, at 4; Dep’t of State, supra note 14, at 13. The Department of Health and Human Services, the leading department to support trafficking victims in the u.s., initiated the “Rescue and Restore Victims of Human Trafficking” campaign as part of its Anti-Trafficking in Persons program. http://www.acf.hhs.gov/ programs/orr/resource/about-rescue-restore. 30 Office to Monitor and Combat Trafficking in Persons, supra note 3 (“Identifying victims is a critical first step in ensuring they can receive the support and resources they need. ­Proactive identification efforts and training for first responders are of paramount importance to a government’s ability to combat human trafficking. After identification, ­governments should make the rights and needs of victims a priority to ensure that protection efforts restore a survivor’s dignity and provide an opportunity for a safe and ­productive life.”).

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the place where victims are held against their will. Victims of involuntary servitude in a labor situation are rescued, for example, through raids on sweatshops or searches of homes exploiting domestic servants. Victims of sex trafficking are rescued through raids on brothels and other places where commercial sexual exploitation occurs, such as massage parlors, karaoke bars, and strip clubs. The u.s. Government views rescues as an integral part of the law enforcement response to trafficking in persons. Rescues identify, gain access to, and protect victims while uncovering evidence for the prosecution of traffickers and their accomplices.31 The next R following a rescue is “rehabilitation,” or “restoring the victim’s life.”32 Temporary residence permits for foreign victims and relevant federal benefits and services constitute the main components of victim protection provided during the period between rescue and repatriation. 1) Temporary Residence Permit Immigration arrangements provide a platform for supporting migrant victims of human trafficking, especially for those who would otherwise be undocumented. Under the u.s. framework, a victim’s temporary residence is possible primarily through the T-visa, U-visa, or Continued Presence systems. The u.s. framework does not provide a reflection period as in the European model. Adult trafficking victims must meet four requirements to be eligible for a T-visa which allows them to stay in the u.s. for up to four years with a work permit.33 First, a person should be determined by the Secretary of Homeland Security to be a victim of a severe form of trafficking;34 second, a victim should be physically present in u.s. territory; third, a victim must have complied with “any reasonable request for assistance” in the investigation or prosecution of trafficking cases, unless she is unable to cooperate with the request due to physical or psychological trauma;35 and lastly, it must be determined that a victim would suffer extreme hardship involving unusual and severe harm upon removal.36 T-visa status is revoked if the victim “has unreasonably refused to 31 32

Dep’t of State, supra note 14, at 30. See the “Rescue and Restore Victims of Human Trafficking” campaign by the Department of Health and Human Services, supra note 29. 33 8 u.s.c. § 1101(a)(15)(T). By the amendment in 2005, the maximum term was extended from three to four years. 8 c.f.r. § 214.11(p) (2014). 34 See note 7 for the definition of severe forms of trafficking in persons. 35 The tvpa of 2000 required victims to have actually assisted with law enforcement. The tvpra of 2003 modified this requirement and adopted the latter clause. 36 These four conditions are stipulated in 8 u.s.c. § 1101(a)(15)(T).

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cooperate with the investigation or prosecution.”37 Victims holding T-visas are eligible to apply for permanent residency if they meet the following conditions: A victim has been present in the u.s. at least for three years ­continuously, ­including the continuous period during the investigation or prosecution; the victim has been of good moral character since the issuance of a T-visa; the victim has complied with any reasonable request for assistance in the investigation or prosecution; and the victim would suffer extreme hardship involving unusual and severe harm upon removal from the United States.38 A U-visa is intended mainly for aliens who are victims of violent crimes, including trafficking. To be eligible for a U-visa, a victim must possess information about one of the stipulated criminal activities and “have been, is b­ eing or is likely to be helpful” for law enforcement authorities to investigate or prosecute the criminal activity.39 The application must be filed with a “U Nonimmigrant Status Certification” signed by a law enforcement authority.40 The maximum term of the visa is four years.41 A U-visa can be revoked if a certifying authority withdraws the certification.42 Continued Presence (cp) may be granted to a person when a federal law enforcement officer files an application stating that the person is a victim of a severe form of trafficking and may be a “potential witness” to such trafficking, and the Secretary of Homeland Security regards it necessary for the victim to remain in the u.s. in order “to facilitate the investigation and prosecution.”43 Victims are not eligible to apply for cp on their own behalf. cp is permitted for one year, with the possibility of renewal when necessary to pursue investigation or prosecution.44 By the tvpra of 2008, a victim who is eligible for cp and has filed a civil action is permitted to stay in the u.s. until the action 37 8 c.f.r. § 214.11(s)(1). 38 8 u.s.c. § 1255(l)(1); Green Card for a Victim of Trafficking, ice, http://www.uscis.gov/ green-card/other-ways-get-green-card/green-card-victim-trafficking-t-nonimmigrant. 39 8 u.s.c. § 1101(a)(15)(U). The stipulated crimes include rape; torture; trafficking; incest; domestic violence; sexual assault; abusive sexual contact; prostitution; sexual exploitation; stalking; female genital mutilation; being held hostage; peonage; involuntary ­servitude; slave trade; kidnapping; abduction; unlawful criminal restraint; false imprisonment; blackmail; extortion; manslaughter; murder; felonious assault; witness tampering; obstruction of justice; perjury; and fraud in foreign labor contracting. 8 u.s.c. § 1101(a)(15) (U)(iii). 40 8 c.f.r. § 214.14(c)(2)(i). 41 8 c.f.r. § 214.14(g)(1). 42 8 c.f.r. § 214.14(h)(2)(i)(A). 43 22 u.s.c. §7105(c)(3)(A)(i). 44 ice, Tool Kit for Prosecutors 14 (2011).

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is ­concluded.45 However, a federal law enforcement official must first file the above-mentioned cp application, which means victims must prove themselves useful witnesses for criminal procedures.46 Filing a civil action is not an independent ground for issuing a cp permit. cp for civil actions can be revoked if “the alien has failed to exercise due diligence in pursuing such action.”47 A victim can be deported regardless of the proceedings of a civil suit if a victim is an “inadmissible” alien under the stipulated categories.48 The analysis above indicates that trafficking victims’ status in the United States is constructed within the criminal justice framework. The primary purpose for allowing temporary residence for victims is to facilitate the investigation and prosecution of suspects. The willingness and usefulness of victims to serve as crime witnesses is decisive for eligibility, as is the duration of their stay in the United States. Seeking remedies for rights violations and abuses is not an independent ground for attaining even a temporary residence permit. This immigration regulation scheme, which is conditioned by and subordinated to criminal justice purposes, not only encourages but in fact forces victims who would otherwise face repatriation to cooperate with investigations. Temporary residence is therefore neither a right nor a remedy for victims, but an administrative immigration arrangement serving the state’s prosecutorial needs and interests. The last requirement of the T-visa deserves more attention. Even if a victim cooperates with the investigation, she is not eligible for the visa if no “extreme hardship” is anticipated upon her removal. This requirement indicates that the u.s. anti-trafficking framework treats a victim’s temporary residence as a rare exception, framed not only under the criminal justice framework, but also as part of the broader immigration control regime. The tvpa of 2000 clearly reveals the hierarchal relationship between victim protection and immigration law enforcement.49 Statistics show that T-visas have been made available only to a limited number of victims. From 2002 to 2015, a total of 5,380 trafficking victims were issued 45 22 u.s.c. §7105(c)(3)(A)(iii) (“The Secretary shall permit an alien described in clause (i) who has filed a civil action under Section 1595 of title 18 to remain in the United States until such action is concluded.”). 46 ice, supra note 44, at 14. 47 22 u.s.c. §7105(c)(3)(A)(iii). 48 22 u.s.c. §7105(c)(3)(A)(iv). 49 See also tvpa of 2000 Pub. L. No. 106–386 (2000) § 107(e) (“Nothing in this section, or in the amendments made by this section, shall be construed as prohibiting the Attorney General from instituting removal proceedings … for conduct committed after the alien’s admission into the United States, or for conduct or a condition that was not disclosed to the Attorney General prior to the alien’s admission …”).

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T-visas—384 issuances a year on average—,50 which is far below the annual cap of 5,00051 and much less than the total number of trafficking victims estimated by the government.52 These statistics indicate that the current temporary residence system does not provide victims with effective platforms for support and protection. 2) Victim Assistance Foreign victims of severe forms of trafficking are eligible for the same federally-funded benefits and services as refugees in the United States, if these victims are certified as such by the Department of Health and Human Services (hhs).53 For certification, an adult victim must be “willing to assist in every reasonable way in the investigation and prosecution of severe forms of trafficking in persons or is unable to cooperate with such a request due to physical or psychological trauma.”54 A victim seeking certification must also have made a bona fide application for a T visa or must be “a person whose continued presence in the United States the Secretary of Homeland Security is ensuring in order to effectuate prosecution of traffickers.”55 A certification in the latter case remains effective only “for so long as the Secretary of Homeland Security determines that the continued presence of such person is necessary to effectuate prosecution of traffickers in persons.”56 Assistance for trafficking victims is mainly limited to support for urgent basic needs, including housing, food stamps, Supplemental Nutrition Assistance Program benefits, cash assistance, emergency medical care, and physiological counseling and legal support if applicable.57 Support for securing jobs or for seeking remedies for rights violations are absent. Even this basic assistance is contingent on a victim’s actual or expected contribution to the government’s 50

Data Set: Form I-914 Application for T Nonimmigrant Status, Dep’t of Homeland Security, http://www.uscis.gov/tools/reports-studies/immigration-forms-data/ data-set-form-i-914-application-t-nonimmigrant-status. 51 8 u.s.c. § 1184. 52 tvpa states “Approximately 50,000 women and children are trafficked into the United States each year.” 22 u.s.c. § 7101(b)(1). In 2004, the u.s. government estimated that ­approximately 14,500 to 17,500 trafficking victims are brought into the United States each year. Dep’t of Justice et al., Assessment of u.s. Activities to Combat ­T rafficking in Persons 5 (2004). 53 22 u.s.c. § 7105(b)(1). 54 22 u.s.c. § 7105(b)(1)(E)(i). 55 Id. 56 22 u.s.c. § 7105(b)(1)(E)(ii). 57 Services Available to Victims of Human Trafficking, Dep’t of Health and Human ­S ervices, http://www.acf.hhs.gov/sites/default/files/orr/traffickingservices_0.pdf.

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criminal law enforcement activities. The total number of adult victims who received certifications for victim assistance from hhs between 2001 and 2012 is 3,142—averaging 261 per year—58 which is even more limited than T-visa issuance.59 The Attorney General’s Annual Reports to Congress show that no notable efforts have been made to improve the victim assistance system.60 Only those who have received a temporary residence permit as trafficking victims are eligible to work in the United States.61 This means that only those victims who cooperate with criminal law enforcement agencies (or are unable to cooperate due to trauma, a rarely acknowledged case) can work lawfully. Other than granting an employment permit, the u.s. anti-trafficking regime pays scant attention to supporting victims with job searches or training, and similarly minimal attention is paid to protecting victims’ employment-­related rights. In contrast to the government’s criminal and immigration law enforcement activities, on which the government collects and publishes extensive official statistics, no data is collected or reported regarding employment support for trafficking victims—e.g., how much funding is allocated for job trainings and searching assistance for trafficking victims, or how many victims have actually secured jobs in the United States after having been identified as trafficking victims.62 While the tip Reports acknowledge the importance of compensation for victims’ past work under trafficking situations,63 the Reports disregard victims’ urgent need to attain new work opportunities for the present and the future. 58

Dep’t of Justice, Attorney General’s Annual Report to Congress and ­A ssessment of u.s. Government Activities to Combat Trafficking in ­P ersons Fiscal Year 2012, at 15 (2014). 59 The Personal Responsibility and Work Opportunity and Reconciliation Act of 1996 (Pub. L. 104–193, 110 Stat. 2105) deprived non-citizens of access to federal government benefits. Id. at 13. After depriving general migrant workers of overall benefits, the anti-trafficking regime allows only a limited list of benefits to the limited scope of victims who fit the strict conditions for a T-visa or cp. 60 For example, regarding the government recommendation for the Year 2011 to “examine the efficacy of federally funded services provided to victims of trafficking who have received certification,” Attorney General reported that no measures have been identified taken to implement this recommendation in the relevant year. Dep’t of Justice, supra note 8, at 9. 61 8 u.s.c. § 1101(i)(2) (“The Secretary of Homeland Security shall, during the period the alien is in lawful temporary resident status under that subsection, grant the alien authorization to engage in employment in the United States and provide the alien with an “employment authorized” endorsement or other appropriate work permit.”). 62 See, e.g., Dep’t of Justice, supra note 8, at 52. 63 E.g., Dep’t of State, supra note 4, at 28.

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In sum, the victim support mechanisms under the u.s. anti-trafficking framework are limited in content, and are subordinated to the state’s criminal justice enterprise. Under this framework, victim protection and support are not the rights of victims, but are predominantly measures to secure victims as healthy and stable witnesses.64 When even basic assistance is conditional on victims’ cooperation with law enforcement activities, the victim protection program functions not only as an inducement for victims’ cooperation, but also as a threat to victims who would otherwise face removal. This victim treatment scheme is far from taking a “rights-based” or a “victim-centered approach” as claimed by the u.s. government.65 The remaining steps of the 4Rs are repatriation and reintegration. The u.s. government supports the Return, Reintegration and Family Reunification Program for Victims of Trafficking run by the International Organization for Migration (iom), which aims to assist and facilitate the return of trafficking victims to their home countries.66 Like the un Trafficking Protocol, the u.s. anti-­trafficking policy prioritizes expedited repatriation of victims as a goal of victim protection. The policy accordingly emphasizes reintegrating victims to their home countries.67 The above-examined requirements for attaining T-­visas, ­U-visas, and cps indicate that alternatives to repatriation are exceptional, conditional, and discretionary, and are structured to serve the government’s interests rather than victims’ needs. The u.s. State Department also counsels other states to repatriate victims who do not cooperate with criminal proceedings.68 Under these conditions, victims are left with only two options: cooperate in the prosecution of their brokers/employers, or leave the country ­immediately. Repatriation under this framework is not inherently different from deportation, except for the fact that victims may stay in a shelter instead of a detention center and may receive a flight ticket home.69 The ­repatriation policy of the u.s. anti-trafficking regime highlights the regime’s fundamental orientation toward criminal and immigration law enforcement, which, ironically, is implemented in the name of victim protection. 64 65 66 67

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See Dep’t of Justice, supra note 8, at 45–51. The alleged victim-centered approach is further discussed in the next section. See Dep’t of Justice, supra note 8, at 17, 21–22, 52–53. See, e.g., 22 u.s.c. § 7101(b)(18) (“Additionally, adequate services and facilities do not exist to meet victims’ needs regarding health care, housing, education, and legal assistance, which safely reintegrate trafficking victims into their home countries.”). See Dep’t of State, supra note 14, at 36–37. See Dep’t of Justice, supra note 8, at 52–53 (“For trafficked persons who do not wish to avail themselves of T visa benefits, the program also works to ensure their safe return to and reintegration in home communities.”).

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3) The So-Called Victim-Centered Approach Despite the limitations and drawbacks of the u.s.’s victim protection framework, the u.s. government alleges that its anti-trafficking regime adopts a “victim-centered” or even a “rights-based” approach.70 For example, the dhs claims that it “uses a victim-centered approach to combating human trafficking, which places equal value on the identification and stabilization of victims, as well as the investigation and prosecution of traffickers.”71 The State Department calls the u.s. victim protection programs “comprehensive victim support packages” in line with those of Belgium and Italy.72 The Department proudly declares that the victim-centered approach is guiding the u.s. implementation of the 3P paradigm.73 However, the 3P paradigm, centering on criminal and immigration law enforcement, is hardly compatible with a victim-centered approach. Providing victims with some benefits during criminal procedures does not of itself make the regime “victim-centered.” The following paragraph in the tip ­Report reveals the limited view of the u.s. government on this issue: Placing the victim at the center of the prosecution means considering the rights, needs, and requests of the person who has been trafficked before, during, and after an investigation and prosecution. In practice, this approach gains the trust and cooperation of the victim. It begins when a victim is identified and continues through initial steps to establish physical safety and meet the victim’s “immediate” needs. The victim-centered approach helps prevent secondary victimization that can occur when individuals or agencies do not treat the victim with appropriate sensitivity or, even worse, behave in a heavy-handed manner that resembles the coercive methods of traffickers, risking re-traumatization.74 As stated in this paragraph, the u.s. trafficking victim protection scheme is built around criminal procedures. It demonstrates a passive and narrow understanding of victim protection, limited to victims’ physical safety and immediate needs, and the prevention of re-victimization during criminal p ­ rocedures. 70 71 72 73

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E.g., Dep’t of State, supra note 4, at 8–9, 13; Dep’t of Justice, supra note 8, at 32; Dep’t of State, supra note 9, at 8. Blue Campaign: A Victim-Centered Approach, Dep’t of Homeland Sec., http://www .dhs.gov/blue-campaign/victim-centered-approach. Dep’t of State, supra note 9, at 19. Id. (“They need to know precisely what steps to take when they recognize modern slavery, and those specific methods and procedures should follow the victim-centered approach that guides all effective anti-trafficking efforts in accordance with the 3P paradigm.”). Id.

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The phrase “placing the victim at the center of the prosecution” exposes the u.s. framework’s inability to envision a victim-centered approach outside the umbrella of the criminal justice regime. The statement also reveals that the victim treatment scheme aims to gain victims’ “trust and cooperation” for law enforcement.75 A criminal justice regime in which victim assistance remains primarily as a facilitator of the state’s prosecutorial agenda can hardly be reconciled with a victim-centered, rights-based approach.76 A victim-­centered approach is one which fully recognizes and responds to victims’ actual needs. For an approach to be properly rights-based, it is essential to guarantee victims effective ways to exercise their human and legal rights and the right to remedies outside the criminal context. Otherwise, vigorous victim identification and rescue projects can do little good to the individuals concerned. C Modern Slavery Framing and Human Rights Rhetoric Chapter 2 discussed the inaccuracy and misleading effects of depicting human trafficking as modern-day slavery. The u.s. government has been the leading proponent of this catchphrase.77 The moral impetus of “abolition” and “emancipation” agendas rooted in the u.s. history of slavery and accompanying discourse underpins the contemporary anti-trafficking regime. Beyond the moral appeal of the modern-day slavery catchphrase, the u.s. anti-trafficking regime finds its legal ground in the Thirteenth Amendment of the u.s. Constitution.78 By invoking the Constitution, the u.s. government seeks to inject legal 75

See also Dep’t of State, supra note 14, at 36 (“The tvpa gives us a victim-centered approach to address trafficking, combining anti-crime and human rights objectives. Without adequate protection for victims, efforts to address trafficking crimes are unlikely to be effective.”). 76 See Office to Monitor and Combat Trafficking in Persons, supra note 3 (“A victim-centered prosecution that enables a survivor to participate in the prosecution is integral to protection efforts.”). 77 E.g., 22 u.s.c. § 7101(b)(1) (“As the 21st century begins, the degrading institution of slavery continues throughout the world. Trafficking in persons is a modern form of slavery, and it is the largest manifestation of slavery today.”). 78 The tvpa also grounds itself in the Declaration of Independence: “[T]he Declaration of Independence, recognizes the inherent dignity and worth of all people. It states that all men are created equal and that they are endowed by their Creator with certain unalienable rights. The right to be free from slavery and involuntary servitude is among those unalienable rights. Acknowledging this fact, the United States outlawed slavery and involuntary servitude in 1865, recognizing them as evil institutions that must be abolished. Current practices of sexual slavery and trafficking of women and children are similarly abhorrent to the principles upon which the United States was founded.” 22 u.s.c. § 7101(b)(22).

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significance to this term and to claim greater legitimacy of the government’s ­anti-trafficking enterprise. The modern slavery framework is coupled with the characterization of human trafficking as a serious human rights issue. This combination provides moral and normative justifications for state intervention. Below are several quotes from u.s. political leaders’ remarks on human trafficking, all of which resort to the rhetoric of modern slavery and human rights: I’m talking about the injustice, the outrage, of human trafficking, which must be called by its true name—modern slavery.79 By coordinating our response across Federal agencies, we are working to protect victims of human trafficking with effective services and support, prosecute traffickers through consistent enforcement, and prevent human rights abuses by furthering public awareness and addressing the root causes of modern slavery. The steadfast defense of human rights is an essential part of our national identity, and as long as individuals suffer the violence of slavery and human trafficking, we must continue the fight.80 Here and around the world, trafficking in persons destroys lives. It threatens communities. It creates instability. It undermines the rule of law. And it is a horrendous assault on our most dearly held values of freedom and basic human dignity. We, along with every nation, bear the responsibility to confront modern slavery by punishing traffickers and helping survivors get their lives back on track.81 Over the coming months we will celebrate the 150th anniversary of the Emancipation Proclamation, … In 1865, … the Congress passed and the states ratified as the 13th Amendment to the Constitution President ­Lincoln’s commitment that “neither slavery nor involuntary servitude shall exist in the United States.”… Yet, despite the adoption of ­treaties and laws prohibiting slavery, the evidence nevertheless shows that many men, women, and children continue to live in modern-day slavery through the scourge of trafficking in persons … Because we have not yet realized a world free from modern slavery, that commitment remains

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Dep’t of State, supra note 9, at 7 (quoting President Barack Obama). Barack Obama, Presidential Proclamation: National Slavery and Human Trafficking Prevention Month, Proclamation No. 9074, 3 c.f.r. 214 (Dec. 31, 2011) (proclaiming January 2014 as National Slavery and Human Trafficking Prevention Month). Dep’t of State, supra note 9, at 21 (quoting Secretary of State John Kerry).

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r­ elevant ­today, and leads us to consider what abolition means in the face of modern-day slavery.82 Human trafficking is a violation of the human body, mind and spirit. For this vile practice to be taking place in a country that the world looks to as a beacon of freedom … is a terrible irony and an utter tragedy.83 The voices of survivors—whether calling from the past or ringing out in a courtroom in 2012—are a sad reminder that the struggle against modern-day slavery is a long fight still not won. They are a reminder that if governments shirk their responsibility to bring traffickers to justice and to help victims on their road to recovery, the intolerable yoke of modernday slavery will persist. As we strive to deliver on the promise of freedom, let us vow together that survivors’ stories will not be forgotten and that their lessons will guide us forward.84 Two hundred years ago, the British Parliament outlawed the trans A ­ tlantic slave trade, culminating a decades-long struggle led by William Wilberforce. Trafficking in persons is a modern-day form of slavery, a new type of global slave trade…. Today we are again called by conscience to end the debasement of our fellow men and women. As in the 19th century, committed abolitionists around the world have come together in a global movement to confront this repulsive crime. President George W. Bush has committed the United States Government to lead in combating this serious 21st century challenge, and all nations that are resolved to end human trafficking have a strong partner in the United States …. Defeating human trafficking is a great moral calling of our day. Together with our allies and friends, we will continue our efforts to bring this cruel practice to an end. Thank you for joining the new abolitionist movement.85 These remarks show a clear tendency of u.s. policymakers to appeal to the moral notions of “modern-day slavery” and human rights as a way of asserting the urgency and legitimacy of government interventions. The power of this rhetoric, coupled with its alleged constitutional ground, enables the current 82 83

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Hillary Rodham Clinton, Foreword to Dep’t of State, supra note 4. Alberto Gonzales, Remarks at the National Conference on Human Trafficking (Oct. 3, 2006) (transcript available at http://www.justice.gov/archive/ag/speeches/2006/ag _speech_061003.html). Luis CdeBaca, Foreword to Dep’t of State, supra note 4. Condoleezza Rice, Foreword to Dep’t of State, supra note 14.

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u.s. anti-trafficking regime to be carried out with greater presumed justification and less scrutiny over its actual impact on the individuals concerned. As discussed in Chapter 2, and as will be demonstrated in Chapters 4 and 5, framing human trafficking as “modern-day slavery” does not accurately capture the reality of the individuals affected by trafficking situations. The flawed ­stereotypes and narrow focus on the “freedom” aspect of the problem can result in inadequate responses to the matter which may do more harm than good. 2 Canada A Overview The Canadian anti-trafficking framework also adopts the 3P paradigm.86 Like the United States, the Canadian government emphasizes the criminal aspect of human trafficking and the government’s concerted effort to “bring traffickers to justice.”87 The Criminal Code of Canada was amended in 2005 to criminalize a broad range of human trafficking offenses,88 while the 2001 Immigration and Refugee Protection Act criminalizes transborder trafficking in persons.89 The 86

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Canada ratified the un Trafficking Protocol in 2002. Canada’s National Action Plan included references to “partnership,” which is an element of the 4 pillars of its anti-­trafficking framework along with the other three Ps. See Gov’t of Can., National Action Plan to Combat Human Trafficking 1 (2012) (“Canada was among the first countries to ratify the United Nations Protocol …. Our efforts are guided by this Trafficking Protocol and seek to prevent trafficking from occurring, protect victims of human trafficking, bring its perpetrators to justice and build partnerships domestically and internationally.”). Eighteen federal government departments and agencies compose a Human Trafficking Taskforce (succeeding the Interdepartmental Working Group on Trafficking in Persons), led by Justice Canada and Public Safety Canada. Id. at 17 (“The Government of Canada will build on current efforts to bring traffickers to justice and to strengthen the criminal justice system’s responses to this crime.”). Criminal Code, r.s.c. 1985, c. C-46 s. 279.01 (Trafficking in persons) stipulates that “[e]very person who recruits, transports, transfers, receives, holds, conceals or harbours a person, or exercises control, direction or influence over the movements of a person, for the purpose of exploiting them or facilitating their exploitation is guilty of an indictable offence” and that the person is liable to imprisonment for five years to life when kidnapping, aggravated (sexual) assault or death is involved (in other cases, imprisonment for four to 14 years). Transborder trafficking in persons is defined as “knowingly organiz[ing] the coming into Canada of one or more persons by means of abduction, fraud, deception or use or threat of use of force or coercion.” Immigration and Refugee Protection Act, s.c. 2001, c. 27 s. 118(1). An act of “organizing” includes recruitment, transportation, receipt and harboring of persons. Id. s. 118(2).

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federal government established a specialized investigation team focusing on human trafficking cases, composed of the Royal Canadian Mounted Police, the Canada Border Services Agency and local police. The Canadian government has also expended efforts to develop training programs for law enforcement officers dealing with trafficking cases.90 With respect to prevention, the Canadian National Action Plan lays out the government’s initiatives to raise public awareness of human trafficking.91 ­However, as in the United States, border control and immigration law enforcement play an important role.92 Part 3 of the Immigration and Refugee ­Protection Act, titled “Enforcement,” punishes smuggling of migrants as well as trafficking in persons.93 Constance MacIntosh points out that this legislative practice indicates that the Canadian anti-trafficking regime treats human trafficking “as a matter of law enforcement and not human rights.”94 Criminalizing both trafficking and smuggling under Canadian immigration law suggests the state perceives that the key unlawfulness of trafficking lies in violating border security, and not with violating human rights.95 MacIntosh notes that while the Canadian legal system actively discharged the mandates of the Trafficking Protocol in its criminal justice and law enforcement aspects, Canadian policymakers chose not to adopt human rights support measures, adoption of which falls under state discretion.96 The following part takes a closer look at how the status, rights and treatment of trafficking victims are constructed under the Canadian framework on human trafficking. 90

Gov’t of Can., supra note 86, at 17 (“Since 2008, the Royal Canadian Mounted Police’s Human Trafficking National Coordination Center has coordinated awareness raising sessions that have been provided to over 39,000 officials from law enforcement, government and non-government organizations and the public on human trafficking, Canada’s laws and how to assist victims.”). 91 Id. at 11. 92 For a critical analysis of the Canadian anti-trafficking system, see Constance MacIntosh, Assessing Human Trafficking in Canada: Flawed Strategies and the Rhetoric of Human Rights, 1 Intercultural Hum. L. Rev. 407 (2006). 93 The Immigration and Refugee Protection Act stipulates $1 million fine or life imprisonment for human trafficking offenses (s.118) and smuggling of 10 persons or more (s.117). Smuggling fewer than 10 persons is subject to $500,000 fine or no more than 10 years of imprisonment for a first-time offender, and $1 million or no more than 14 years of imprisonment for a second-time offender. 94 MacIntosh, supra note 92, at 414. 95 See id. at 417 (“The lack of substantive distinction between smugglers and traffickers is indicative of Canada’s punishment of those who facilitate unlawful entry into the country, regardless of the circumstances or the motives upon entering.”). 96 Id. at 414–15.

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B Victims’ Rights and Status 1) Temporary Resident Permit Canada adopted a temporary resident permit (trp) system for trafficking victims in 2006, based on the Immigration and Refugee Protection Act (irpa) and the manual for the trp (hereinafter, the Manual) drafted by Immigration, Refugees and Citizenship Canada (ircc).97 The trp is a temporary immigration arrangement issued as an exception to removal under Canadian immigration regulations.98 Trafficking victims, who comprise one of the categories eligible for a trp, can apply for a short-term trp valid for up to 180 days.99 Whether victims have been referred by ngos or by law enforcement agencies, ircc officers make a final decision regarding the identification of victims and the issuance of trps. This permit does not require victims to cooperate with criminal law enforcement authorities. This is a clear difference from the temporary residence system of the United States, a difference which the Canadian government emphasizes.100 However, the trp is issued only for a short period, and for a different purpose than its u.s. counterpart: It is intended to give victims a “reflection period,” as in the European model.101 The Manual specifies the purposes of this period, including “to provide a period of reflection for the suspected victim of human trafficking to consider their options for returning home or to allow time to decide if they wish to assist in the investigation of the trafficker or in criminal proceedings against the trafficker,”102 and “to facilitate the participation of the suspected [victims] in the investigation or prosecution of an alleged human trafficking offence in Canada.”103 The other purposes of the reflection period are to recover from trauma and from the influence of the traffickers.104 97

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Temporary Resident Permits (trps): Considerations Specific to Victims of Human Trafficking, Immigration, Refugees and Citizenship Can., http://www.cic.gc.ca/english/ resources/tools/temp/permits/victim.asp [hereinafter Manual]. See Temporary Resident Permit, Immigration, Refugees and Citizenship Can., http://www.cic.gc.ca/english/resources/tools/temp/permits/. When first adopted in May 2006, a trp for trafficking victims was valid for up to 120 days. In June 2007, the maximum period was extended to 180 days. The Canadian government’s website states: “In Canada, you do not have to testify against your trafficker to get temporary or permanent resident status.” (emphasis in the original text), Protection and Assistance for Victims of Human Trafficking, Gov’t of Can., http://www.cic.gc.ca/english/information/applications/trp.asp. See Manual, supra note 97, Short-term trp. Id. Id. Id. (“to allow the suspected victims of human trafficking to recover from physical and/ or mental trauma; to allow the suspected victims of human trafficking to escape the

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Although a trp is designed as a reflection period, meaning victims’ cooperation is not listed as a requirement, the Canadian Council for Refugees (ccr) points out that trps are not easily issued if no investigation or prosecution is initiated.105 The earlier version of the Manual stated that officers should issue or extend trps “with caution and only in special circumstances.”106 The ccr notes that the possibility of denying extension is higher if relevant criminal procedures are discontinued.107 Victims are exempted from application fees for their initial trps,108 but must pay a $200 fee for the extension, which can be a considerable burden for many victims.109 If an extension is not granted, victims must leave Canada. The maximum period of 180 days does not provide enough time for victims to secure a job or a stable life. Under certain circumstances, a longer-term trp, for a maximum of three years, may be issued. While the longer-term trp does not have stipulated conditions for issuance under law, the trp Manual specifies two factors to consider when ircc officers exercise their discretion on the issuance: “whether it is reasonably safe and possible for the victims to return to and to re-establish a life in the country of origin or last permanent residence”; and “whether the victims are needed, and willing, to assist authorities in an investigation and/or in criminal proceedings of a trafficking offence.”110 A longer-term trp is therefore similar to a T-visa of the United States in that victims’ utility as witnesses and their safety upon return are primary factors for consideration. The ccr points out that the victim cooperation factor is often prioritized over the safety f­ actor in i­ nfluence of traffickers so that they can make an informed decision on a future course of action”). 105 Canadian Council for Refugees, Temporary Residence Permit: Limits to Protection for Trafficked Persons 2 (2013), http://ccrweb.ca/sites/ccrweb.ca/ files/temporary-resident-permit-report.pdf. Canadian Council for Refugees is a representative umbrella ngo with member organizations supporting refugees and vulnerable migrants in Canada. 106 Citizenship and Immigration Can., IP1 Temporary Resident Permit, s. 5.7. With a nuance discouraging the issuance of the permit, the earlier manual stated that the officers should consider the following fact: “A temporary resident permit is a document that can carry privileges greater than those accorded to visitors, students and workers with temporary resident status. It allows application inland for a work or study permit, and may give access to health or other social services.” Id. 107 Canadian Council for Refugees, supra note 105, at 3. 108 Manual, supra note 97. 109 The Canadian Council for Refugees points out that it is difficult for victims to earn enough during 180 days to be able to pay the fee. Canadian Council for Refugees, supra note 105, at 5. 110 Manual, supra note 97 (Ministerial Instructions).

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practice, functioning as a “de facto requirement.”111 The ccr also notes critically that “[r]equiring cooperation is inconsistent with government policy claiming that victims of trafficking are not required to testify against their trafficker to gain temporary or permanent resident status.”112 Other options, such as refugee protection claims or applications for humanitarian and compassionate consideration, are also discretionary and limited.113 Permanent residence is available only to those trafficking victims who have been granted longer-term trps for at least three years, at the discretion of ircc officers.114 A residence permit for trafficking victims in Canada is thus basically a short-term, exceptional, and discretionary immigration arrangement, and in practice is subordinated to the criminal justice purpose of the state. It is far from being a legal right or a stable platform for the exercise of rights by trafficking victims.115 A trp is issued for those without valid immigration status. Trafficking victims with other lawful visas, such as Temporary Foreign Workers visas, must either immediately relinquish their original visas or wait until their visas 111 Canadian Council for Refugees, supra note 105, at 3. 112 Id. 113 Manual, supra note 97 (Other Measures Available); see also MacIntosh, supra note 92, at 420 (“The practice of offering residency for humanitarian grounds is highly discretionary and only granted if the Minister of Immigration ‘is of the opinion that it is justified by humanitarian and compassionate considerations … taking into account the best interests of a child directly affected, or by public policy considerations.’ In practice, the term ‘humanitarian and compassionate’ is interpreted to mean that the applicant must demonstrate the return to their state of nationality would result in a hardship which is ‘unusual, excessive, or undeserved and the result of circumstances beyond control.’”). 114 Manual, supra note 97 (Interview) (“If permanent residence in Canada is determined to be the best course of action, officers may consider issuing a trp for a sufficient period of time in case and until the person becomes a permanent resident.”). For critiques on Canadian practice regarding permanent residency for trafficking victims, see Canadian Council for Refugees, supra note 105, at 4 (“Immigration officers have been providing inconsistent information regarding the amount of time required for trafficked persons to receive permanent residence…. This affects the way survivors of trafficking plan for their life and move towards recovery and stability.”). See also the case on Canadian Council for Refugees, supra note 105, at 5 (discussing Thai workers who were told by immigration officers that they would be eligible for permanent residence, and therefore relinquished their valid status as Temporary Foreign Workers to apply for trps as trafficking victims instead, but had their trps renewals rejected and were told to leave Canada since the criminal investigation of their cases was over). 115 From the beginning of the trp system for trafficking victims in May 2006, trps had been issued to only 102 foreign victims of human trafficking as of December 2013. Public Safety Can., National Action Plan to Combat Human Trafficking: 2013– 2014 Annual Report on Progress 9 (2014).

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expire in order to apply for a trp.116 Migrant workers victimized by human trafficking thus have to choose which immigration stream to follow: that of documented migrant workers or that of trafficking victims.117 However, due to the limitations and drawbacks discussed above, short and discretionary trps would not provide the victims with sufficient incentive to give up their other valid worker visas. If their original work visa expires, victims have no other options but to apply for a trp, without a guarantee of issuance. Even if migrant workers with lawful work visas suffered trafficking situations during their visa stay, the current legal system does not allow their work visas to be renewed or extended for that reason. Accordingly, even if victimized migrant individuals are officially identified as trafficking victims, their immigration statuses in Canada are still not secured and remain unpredictable. Neither their original work visas nor the trp provide effective platforms for addressing the rights violations they have suffered in Canada. 2) Victim Assistance Victims with a trp valid for at least 180 days can apply for a work permit.118 Victims with a valid trp may be eligible for temporary health care service under the Interim Federal Health Program.119 Other assistance measures are mainly 116 Manual, supra note 97, (Ministerial Instruction) (“If the victims of human trafficking has existing immigration status through another program, the officers may consider not issuing a trp until the current status has lapsed.”); see also Canadian Council for ­R efugees, supra note 105, at 3–4 (“Where a trafficked person already has an immigration status, such as Temporary Foreign Worker, Live-in Caregiver, or visitor status, the person will either have to renounce their current legal status or wait until it expires in order to be considered for a trp, with no guarantee that they will be issued one.”; “In some cases, this means that a trafficked person must make a difficult choice between a 180-day trp (with no guarantees of extending their stay in Canada beyond that) or remaining on a visa with longer term potential rights in Canada (such as Live-in Caregiver, which is a pathway to permanent residence, or a tfw visa which may be valid for a longer period than 180 days).”). 117 The earlier version Manual made it clear that “[t]emporary resident permits should not be used to restore the temporary resident status of a visitor, student or worker when their status has expired.” Citizenship and Immigration Can., IP1 Temporary ­R esident Permit, s. 2. 118 Manual, supra note 97 (Work Permits). A separate application for a work permit (fee-­ exempted) is required in addition to a trp application. Id. 119 Interim Federal Health Program Policy, Immigration, Refugees and Citizenship Can., http://www.cic.gc.ca/english/department/laws-policy/ifhp.asp. Victims who are able to pay for their own health care services or covered by a private or public health care plan are not eligible for the Program. Id.

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limited to emergency service and the services which are available to crime victim-witnesses in general.120 The earlier manual stated that “[t]he new measures have been carefully designed so that only bona fide victims of human trafficking will benefit from them.”121 The abuse of trafficking victim status is a major concern for a destination state like Canada when designing temporary stay permits and associated victim assistance measures. On the other hand, the Canadian government has recently made certain progress in recognizing the link between the treatment of migrant workers and human trafficking. The government acknowledges the importance of ensuring that employers abide by the terms of employment contracts.122 The 2011 amendment to the Immigration and Refugee Protection Regulations increased general protection for temporary foreign workers.123 The National Action Plan also states that the government will enhance employer monitoring practice.124 In June 2012, the Jobs, Growth, and Long-term Prosperity Act amended the ­Immigration and Refugee Protection Act to enhance the capacity of the ircc and Employment and Social Development Canada to enforce employer ­compliance under the temporary foreign worker program.125 However, major contributing factors to migrant labor exploitation remain unaddressed. The Canadian Council for Refugees points out that the inflexibility of the Temporary Foreign Worker Program—which does not allow migrant workers to change employers—contributes to exploitation of migrant workers and is also associated with migrants’ becoming undocumented and their subsequent deportation.126 The Council also notes that since there is no guarantee that 120 See Help and Protection for Victims, Justice Can., http://www.justice.gc.ca/eng/cj-jp/ tp/help-aide.html. 121 Citizenship and Immigration Can., IP1 Temporary Resident Permit, s. 4. 122 Gov’t of Can., supra note 86, at 15 (“Since 2010, Citizenship and Immigration ­Canada and Human Resources and Skills Development Canada have taken steps to improve protections for temporary foreign workers and reinforce employer compliance with program requirements. In April 2011, regulatory changes were implemented to the broader ­Temporary Foreign Worker Program that, among other provisions, improves the ­assessment of job offer genuineness, and would deny program access to employers who do not abide by the terms of their job offers.”). 123 See Regulations Amending the Immigration and Refugee Protection Regulations, SOR/2013–245, http://www.gazette.gc.ca/rp-pr/p2/2014/2014-01-01/html/sor-dors245-eng .php. 124 Gov’t of Can., supra note 86, at 15–16. 125 Jobs, Growth, and Long-term Prosperity Act, s.c. 2012, c. 19. Employment and Social ­Development Canada is renamed from Human Resources and Social Development ­Canada in 2014. 126 Canadian Council for Refugees, supra note 105, at 2.

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migrant workers without regular immigration status would be recognized as trafficking victims, the workers cannot easily report to authorities the abuses they experience at workplaces.127 3 Australia A Overview In 2014, the Australian government launched its National Action Plan to ­Combat Human Trafficking and Slavery 2015–19.128 The government recognizes human trafficking as both a serious crime and a major human rights violation.129 In 2003, the government established an anti-trafficking framework which employed the 3P paradigm, coordinated by the Interdepartmental ­Committee on Human Trafficking and Slavery.130 At the same time, the government sets out its own version of the “four pillars” to combat human trafficking: Prevention and Deterrence; Detection and Investigation; Prosecution and Compliance; and Victim Support and Protection.131 Australia ratified the un Trafficking Protocol in 2005. Like the frameworks of the United States and Canada, the Australian anti-trafficking framework emphasizes criminal justice responses by the 127 Id. 128 Austl. Gov’t, National Action Plan to Combat Human Trafficking and Slavery 2015–19 (2014), http://www.ag.gov.au/CrimeAndCorruption /HumanTrafficking/ Documents/Trafficking-NationalActionPlanToCombatHumanTraffickingAndSlavery 2015-19.pdf. 129 Attorney-General’s Dep’t, Human Trafficking, http://www.ag.gov.au/­ CrimeAndCorruption/HumanTrafficking/Pages/default.aspx (“Human trafficking, slavery and slavery-like practices such as servitude, forced labour and forced marriage are complex crimes and a major violation of human rights. Globally, human trafficking is one of the biggest sources of income for organised crime and causes untold damage to millions of lives.”). Human trafficking is classified under the “Crime and Corruption” section of the Attorney General’s Department website. 130 Anti-People Trafficking Interdepartmental Committee, Trafficking in Persons: The Australian Government Response January 2004–April 2009, at iii (2009) [hereinafter Interdepartmental Committee] (“Australia’s anti-people trafficking strategy, which was established in 2003, is founded on three equally important needs: to do as much as we can to prevent people trafficking; to prosecute offenders; and to provide support to victims of trafficking, including by protecting their human rights.”). The Interdepartmental Committee on Human Trafficking and Slavery was renamed from the Anti-People Trafficking Interdepartmental Committee in 2012. 131 Austl. Gov’t, supra note 128, at 19.

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g­ overnment, as indicated in the above “four pillars.” These measures range from comprehensive criminal codification of trafficking crimes to intensive detection and investigation efforts led by the Australian Federal Police, to the development of regular training programs for officers in criminal and immigration law enforcement sectors, to enhanced prosecution practice by the Commonwealth Director of Public Prosecutions.132 With the 2013 amendment, the Criminal Code expanded the scope of crimes related to human trafficking, under the titles of “slavery and slavery-like conditions”133 and “trafficking in persons and debt bondage.”134 The government clarifies that “[s]ecuring prosecutions is a key objective of the Australian Government strategy to combat human trafficking and slavery.”135 The Australian government also has been proactive in international cooperation with sending states to facilitate prosecution of perpetrators across borders.136 The statistics, however, indicate that the government law enforcement effort has yet to result in corresponding effectiveness. According to government data as of June 2015, only 17 people have been convicted of trafficking-related crimes.137 The Australian government perceives human trafficking as “a complex form of transnational organized crime,” which it recognizes as “significant national security threat.”138 The national security concern relating to transnational organized crimes led the Australian government to directly link trafficking problems with the matters of border control and law enforcement. The government states that “[o]pportunities to traffic people into, or exploit people within, ­Australia are limited because of our strong migration controls, geographic isolation and high degree of regulation, compliance and enforcement.”139 132 See Interdepartmental Committee, Trafficking in Persons: The Australian Government Response 1 July 2013–20 June 2014, at 11–26 (2014). 133 Criminal Code Act 1995 div 270. The Act criminalizes offenses of servitude and deceptive recruiting for labor and services, with detailed and comprehensive definition clauses. Id. divs 270.4, 270.6. 134 Id. div 271. 135 Interdepartmental Committee, supra note 132, at 21. 136 Id. at 19, 23–26, 64–66. 137 Interdepartmental Committee, Trafficking in Persons: The Australian Government Response 1 July 2014–30 June 2015, at 27 (2015). Between 2003 and June 2015, the Australian Federal Police received 588 referrals of human trafficking and slavery-related offenses. Id. 23. 138 Interdepartmental Committee, Trafficking in Persons: The Australian Government Response 1 July 2011–30 June 2012, at 25 (2012). 139 Austl. Gov’t, Australian Government Strategy to Combat Human Trafficking and Slavery Whole-of-Government Performance Management Reporting January–June 2013, at 1 (2013).

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­Combating human trafficking is an important part of the Department of Immigration and Border Protection (dibp)’s agenda aiming for “the reduction of irregular migration through enhancing migration management and border security.”140 The government has also taken proactive actions to prevent human trafficking in coordination with sending states in the Middle East and the Asia-Pacific region, including dispatching specialist immigration officers to those states and providing capacity building programs and technical assistance for local law enforcement officers.141 The programs are mainly intended to enhance immigration agencies’ ability to detect fraudulent travel documentation at borders and to prevent irregular border crossings—which the Australian government regards as major prevention measures against human trafficking.142 The dibp maintains overseas posts in major sending states in the Asia-Pacific region with the purpose of preventing potential traffickingrelated migration into Australia.143 When signing the Trafficking Protocol, the ­Australian government made a declaration reiterating its prioritization of border control: “The Government of Australia hereby declares that nothing in the Protocol shall be seen to be imposing obligations on Australia to admit or retain within its borders persons in respect of whom Australia would not otherwise have an obligation to admit or retain within its borders.” B Victims’ Rights and Status The Australian anti-trafficking framework carries out victim protection schemes based on the People Trafficking Visa Framework and the Support for Trafficked People Program (Support Program). 1) The Visa Framework As with Canada, Australia’s anti-trafficking framework provides trafficking victims with a reflection period under the Human Trafficking Visa Framework, which underwent reforms in January 2016. Under the new visa system, a Bridging F Visa (bfv) is issued for a 90-day period to non-citizens who are identified by the Australian Federal Police as suspected trafficking victims and who do

140 141 142 143

Interdepartmental Committee, supra note 132, at 66. Id. at 62–63. Id. Id. at 63–64. The Department of Immigration and Border Protection has dispatched ­Senior Migration Officers in Thailand, China, South Korea and the Philippines. Australia also actively engages in the Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime. Id. at 4, 9 & 54.

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not have other valid immigration status.144 Since this is a short-term reflection period visa, no cooperation with law enforcement is required. Holders of bfvs are not allowed to work.145 Initially a bfv had been issued only for 30 days, and victims were required to leave Australia if they were not willing to assist with the investigation and prosecution.146 In July 2009, the term was extended to 45 days with more flexibility in renewal: a second-time bfv of another 45 days could be issued for victims who were willing but unable to assist with law enforcement (including those who were suffering from medical conditions such as trauma).147 The conditions for extension were thus limited, and the decision was discretionary.148 When the period of a bfv expired, the previous visa framework allowed temporary residency only for those victims who were able and willing to assist in criminal investigation and prosecution.149 This permit was called a Criminal Justice Stay Visa (cjsv). The issuance of a cjsv needed to be requested by the police and its duration was contingent on the necessity of victims’ presence for relevant criminal procedures.150 With a cjsv, a victim was allowed to work and could access assistance under the Support Program.151 If a victim already held another type of visa, the cjsv was not issued. In January 2016, a cjsv was

144 Migration Act 1958 s 72; Migration Regulations 1994 div 2.5, para 2.20. 145 Anti-Slavery Australia, Factsheet: Visa Options for Trafficked People 1, http://www.antislavery.org.au/images/stories/Factsheets/09%20-%20Visa%20options %20for%20trafficked%20people.pdf. 146 Austl. Gov’t, Factsheet: 2009 Changes to Australian Government ­A nti-People Trafficking Strategy 2–3 (2009), http://www.ag.gov.au/Crime­ AndCorruption/HumanTrafficking/Documents/FactsheetChangestoAusGovAnti­ PeopleTraffickingStrategy-English.pdf. 147 Id. at 3. 148 Id. See also, Visas for Victims, The University of Queensland TC Beirne School of Law, Human Trafficking Working Group, https://law.uq.edu.au/research/­ research-activities/human-trafficking/visas#ref4 (“In the 2011 Mission to Australia, the un Special Rapporteur on trafficking in persons, especially women and children, Joy Ngozi Ezeilo noted that the second Bridging F Visa was in reality only granted where victims can evidence extreme emotional trauma. Her suggestion that an automatic 90 day period of reflection would be more in keeping with Article 6 of the Trafficking in Persons Protocol is reflected in the new arrangements.”). 149 Interdepartmental Committee, supra note 132, at 33. 150 Id. (“A cjsv allows the holder to remain in Australia for as long as their presence is ­required for the administration of criminal justice.”). 151 Id.

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­removed from the trafficking visa framework in Australia. Under the new system, a victim’s initial bfv can be renewed if the victim assists in criminal justice processes and only for the duration of the relevant criminal process.152 When victims’ cooperation is no longer needed in criminal procedures, the only possibility for those victims to extend their stay is to apply for a Referred Stay Visa (previously called a Witness Protection Trafficking Visa),153 which is a permanent residence permit. To be eligible, victims must meet two conditions. First, victims must have assisted with and made a contribution to the investigation or prosecution of human trafficking related offenses. Secondly, the Minister of Immigration and Citizenship must officially recognize that victims would be in danger upon return to their home countries.154 This is essentially a witness protection visa issued for those who have served as witnesses in ­Australian criminal procedures and face danger as a result. Issuable cases are limited, because even if victims have contributed to criminal justice procedures, they must also prove a foreseeable danger upon removal. The preceding examination shows that the design of the Australian visa framework for trafficking victims centers on achieving the criminal justice purposes of the state. Like the states examined previously, the residence permit system in Australia does not provide trafficking victims with a legal right or an effective platform to seek remedies for the rights violations they experienced in the state. Jennifer Burn, Director of Anti-Slavery Australia, echoes this point: In reality, however, investigation and criminal prosecution took precedence over the other pillars. The Government’s primary focus was on achieving successful prosecutions … rather than on the needs of the victim. Under the Government’s Action Plan, prevention and victim support was secondary to the prosecution process. This was particularly evident in the trafficking visa framework, where the provision of victim support was made contingent on the victim’s ability to assist a criminal investigation. In short, the Government’s Action Plan characterized trafficking as 152 Human Trafficking Visa Framework (htvf), Guide to Social Security Law, Austl. Gov’t, http://guides.dss.gov.au/guide-social-security-law/9/1/2/130; Anti-Slavery Australia, supra note 145, at 1. 153 The visa was renamed by the 2016 reforms, “intended to address civil society concerns that existing visa titles may be stigmatising for trafficked people.” Interdepartmental Committee, supra note 137, at 2. 154 Migration Regulations 1994 div 2.2, para 2.07AK; Interdepartmental Committee, supra note 132, at 33.

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a law enforcement problem, failing to recognize that it is fundamentally a human rights violation.155 Reflecting the fact that the issuance of these residence permits is conditional and discretionary, the statistics indicate the system has not worked successfully for the protection and support for trafficking victims. From 2004 to 2015, a total of 239 bfvs, 211 cjsvs, and 144 wptvs have been issued.156 2) Victim Assistance The Support for Trafficked People Program (the Support Program) is a victim protection program under the Australian government’s anti-trafficking framework. An individual suspected of being a trafficking victim should be first ­referred to and officially identified by the Australian Federal Police as a trafficking victim in order to enter the Support Program.157 Until June 2009, the victim support program had limited its assistance exclusively to those who held either a specific trafficking victim visa or a witness visa issued for those who return to Australia to testify.158 Victims who held other valid visas, such as work visas, had to relinquish their visas and enter into the People Trafficking Visa Framework in order to receive assistance.159 This meant that trafficking victims with valid immigration status could not receive any victim support unless they gave up their original status as migrant workers and cooperated with criminal justice procedures, thereby converting to an unstable and conditional status as trafficking victims. Since July 2009, the Support Program became available for trafficking victims holding any kinds of valid Australian visas.160 However, assistance is not available for victims who do not have other valid visas and are not eligible for the Human Trafficking Visa Framework. These victims must leave the country. The actual delivery of service under the Support Program has been contracted to the Red Cross and is administered by the Department of Social S­ ervices.161 155 Jennifer Burn, Human Rights Protections and Victim Support for Trafficked Women in A ­ ustralia, in Nat’l Human Right Comm’n of Korea, Seoul International Conference Against Human Trafficking in Migrant Women 129 (2010). 156 Interdepartmental Committee, supra note 137, at 40. 157 Id. at 32. 158 Austl. Gov’t, supra note 146, at 2. 159 Id. 160 Id. 161 Support for Trafficked People Program, Department of Social Services, https://www .dss.gov.au/women/programs-services/reducing-violence/anti-people-trafficking -strategy/support-for-trafficked-people-program.

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For victims with initial bfvs, available services are focused on ­basic needs (referred to as the Assessment Stream).162 Those cooperating with criminal justice procedures are eligible for additional support, including assistance to obtain employment and training (categorized as the Justice Support Stream).163 Statistics from 2005 to 2015 show that a total of 273 individuals entered the Support Program, which averages 27 individuals per year.164 Like its Canadian counterpart, the Australian government recognizes a link between the treatment of migrant workers and human trafficking. The National Employment Standards (nes), based on the Fair Work Act 2009, s­ tipulates minimum labor standards for all workers in Australia.165 Jennifer Burn points out that most trafficking victims in Australia hold legitimate work visas, and that it is difficult to identify trafficking victims among migrant workers.166 Implementing labor standards without discrimination is thus critical in protecting trafficked and exploited migrant workers. The criminal standard for proving offenses of slavery or forced labor is excessively high, meaning that it cannot 162 Interdepartmental Committee, supra note 137, at 33. The support measures include: case management support; secure accommodation; a living allowance for the purchase of essentials such as clothing and toiletries; access to health care, including ­counselling; access to interpreters; and access to legal services and migration advice. By the 2016 reform, victims with bvfs became eligible for the Adult Migration English ­Program. Id. at 2. 163 The support measures include: Special Benefit, Rent Assistance and Health Care cards administered by Centrelink; assistance with securing longer-term accommodation; assistance to purchase essential furniture and household items; access to Medicare and the Pharmaceutical Benefits Scheme; access to legal services and interpreters; assistance to obtain employment and training (including English language training) if desired; links to social support; and case management support. Another stream, which the Australian government calls a “Temporary Trial Support Stream,” is for trafficked victims who have left the country, but who need to return to Australia to assist with investigation and prosecution. These victims can get short-term accommodation and a weekly living and food allowance, but are not allowed to work. Id. at 33–34. 164 Id. at 35. 165 The National Employment Standards became effective as of January 2010. The Standards are comprised of ten minimum standards for all employees in the national workplace ­relations system. See Fair Work Ombudsman, Visa Holders and Migrant Workers: Workplace Rights and Entitlements Fact Sheet, https://www.fairwork .gov.au/how-we-will-help/templates-and-guides/fact-sheets/rights-and-obligations/ visa-holders-and-migrant-workers-workplace-rights-and-entitlements. 166 Jennifer Burn, supra note 155, at 128 (“Identifying and protecting all victims of trafficking, regardless of the form of the exploitation, is an ongoing challenge. This is especially difficult as most trafficked people in Australia are migrant workers, holding genuine travel documents, and appropriate visas with permission to work.”).

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cover all serious labor exploitation and rights violation cases.167 H ­ owever, the Fair Work Ombudsman (fwo)—an agency created by the Fair Work Act to help implement the Act with the power to investigate wage underpayment and workplace discrimination—does not have authority to deal with trafficking cases. When the fwo finds suspected trafficking cases in the course of its duties, it must refer the cases to the Australian Federal Police. At this point, such cases are entered into the criminal law enforcement track.168 Doubts have been raised about another recent practice of sanctioning and regulating employers, regarding its effectiveness in deterring trafficking and labor exploitation. The 2007 amendment to the Migration Act of 1958 criminalizes the act of allowing or referring “unlawful non-citizens” to work as well as the act of allowing or referring a non-citizen for work in breach of a visa condition.169 These legal arrangements could harm the situations of migrant workers without valid visa status, by driving them underground and into more abusive labor conditions. However, the Australian government includes this amendment as part of its law enforcement efforts against trafficking in persons.170 4 Japan A Overview While Japan is a popular destination state in Asia for migrants from other Asian states, the Japanese government has traditionally adopted a nationalist anti-immigration policy. The Japanese government has not been proactive in adopting anti-trafficking and victim protection policies, although it has adopted National Action Plans on human trafficking every five years since 2004. 167 No Slavery Australia, Relevant Law and Policy, http://www.noslaveryaustralia.com/­ resources/policy/ (“In the context of trafficking and slavery, these provisions are vital in empowering exploited persons in Australia with the rights and protections needed in order to access meaningful justice. It is often very difficult to prove the high threshold required to constitute one of the slavery offences, and without a stand-alone offence of forced labour, the fwa is one of the few remaining avenues for people who have been exploited in Australia to seek redress.”). 168 Australian Federal Police, Anti-Human Trafficking Community Resource 27, https://www.ag.gov.au/CrimeAndCorruption/HumanTrafficking/­Documents /Anti-HumanTraffickingCommunityResource.pdf. 169 Migration Act 1958, divs 245AB(1), 245AC(1), 245AD(1) & 245AE(1). The Act makes each offense an aggravated crime if a worker has been exploited. 170 Interdepartmental Committee, supra note 138, at 17.

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Japan has neither ratified the un Trafficking Protocol nor adopted comprehensive anti-trafficking legislation.171 Japan has ranked in Tier 2 in u.s. tip Reports since 2001, except in 2004 when it was placed even lower in the Tier 2 Watch List. Although the Penal Code of Japan was amended in 2005 to criminalize trafficking-related offenses, it defined them in the narrowest way possible: acts of kidnapping or of “buying and selling of persons.”172 Japan’s Immigration ­Control and Refugee Recognition Act also defines human trafficking in the same manner: “kidnapping, buying or selling of persons for the purpose of profit, indecency or threats to a person’s life or body, or delivering, receiving, transporting or hiding such persons who have been kidnapped, bought or sold.”173 These definitions cover only the forms of trafficking which occur relatively rarely, as compared with other forms of trafficking facilitated by deception or abuse of power or vulnerability. With the 2004, 2009 and 2014 National Action Plans, the Japanese government set up three pillars of government action responding to human trafficking: prevention, eradication, and protection of victims.174 For prevention and eradication of human trafficking, the Plans set out vigorous law enforcement measures against unlawful border crossings and undocumented aliens as main responses. In terms of prevention, the Plans employ two main strategies: (1) “prevention of trafficking in persons by thorough immigration control” or “preventing potential victims from entering the country,” and (2) “thorough management of residence status.”175 In implementing the first strategy, the ­Japanese government straightforwardly equates the prevention of human trafficking with the prevention of unlawful migration into Japan. The 2014 171 A Bill of Law on Prevention of Trafficking in Persons and Protection of Victims of Trafficking in Persons was submitted to the House of Representatives in 2005, but has not passed the legislature since then. 172 Keihō [Pen. C.], Act No. 45 of 1907, amended by Act No. 54 of 2007, Ch. 33 (Crimes of Kidnapping and Buying or Selling of Human Beings). 173 Shutunyūkoku Kanri Oyobi Nanmin Nintei Hō [Immigration Control and Refugee Recognition Act], Cabinet Order No. 319 of 1951, amended by Act. No. 113 of 2014, art.2. 174 Ministerial Meeting Concerning Measures Against Crimes, Japan’s 2014 Action Plan to Combat Trafficking in Persons (2014) [hereinafter 2014 Action Plan]; Ministerial Meeting Concerning Measures Against Crimes, Japan’s 2009 Action Plan to Combat Trafficking in Persons (2009) [hereinafter 2009 Action Plan]; see also Ministry of Foreign Affairs, Japan’s Actions to Combat Trafficking in Persons (2007) (reiterating the 2004 National Action Plan) [hereinafter 2004 Action Plan]. 175 2014 Action Plan, supra note 174, at 4; 2009 Action Plan, supra note 174, at 4–5.

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Action plan lists “thoroughly strict immigration control; strict examination of visas; improvement of the wide-area network; and strengthening of measures against forged documents” as major prevention measures against human trafficking.176 The 2004 Action Plan listed “strengthening immigration control; ensuring security of travel-related documents; reviewing visas for ‘entertainers’; and countermeasures against false marriages” as measures for the same purpose.177 The Japanese government has intensified its visa screening and information communication systems to detect suspicious visa applications and has fortified visa interview processes in main sending states.178 The government has also dispatched officials to airports in countries where “many illegal entrants to Japan are known to originate.”179 Japan is also in the process of implementing advanced identification verification procedures, including installing video microscopes at major international airports in Japan and adopting a next generation electronic passport system.180 To implement the second strategy for preventing human trafficking—­ thorough management of residence status—the Japanese government targets foreigners who have already entered and reside in Japan. The government again conflates prevention of trafficking with crackdowns on undocumented or fraudulent stays of aliens. The 2014 Action Plan sets out “prevention of trafficking in persons involving disguised or illegal stays through strict residence management; strict control of illegal employment; promotion of active public relations and raising awareness for prevention of illegal employment” as primary countermeasures.181 The 2004 Action Plan listed “reviewing residence status for ‘entertainers’; countermeasures against false marriages; measures to prevent illegal employment; and measures to prevent prostitution.”182 ­Female migrants in the entertainment industry183 and those holding suspected marriage visas have been particular targets of raids which lead to deportation.184 The Japanese government has also initiated rigid crackdowns on the 176 2014 Action Plan, supra note 174, at 5. 177 2004 Action Plan, supra note 174, at 2. 178 2009 Action Plan, supra note 174, at 5. These sending countries include the Philippines and Thailand, and the interviews particularly target young women visa applicants. See also 2004 Action Plan, supra note 174, at 3. 179 2009 Action Plan, supra note 174, at 5. 180 Id. at 4–5; 2014 Action Plan, supra note 174, at 5–6. 181 2014 Action Plan supra note 174, at 6. 182 2004 Action Plan, supra note 174, at 2. 183 For a sociological study of migrant female entertainers in Japan, see Rhacel Parreñas, Illicit Flirtations: Labor, Migration, and Sex Trafficking in Tokyo (2011). 184 2004 Action Plan, supra note 174, at 5.

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e­ mployment of undocumented migrant workers in the name of “preventing trafficking in persons through action against illegal employment.”185 A notable change introduced in the 2014 Action Plan is an agenda of “prevention of trafficking in persons for the purpose of labor exploitation.” Measures for this purpose ­include “improvement of Technical Intern Training Programs; provision on legal protection to foreign technical interns; strict enforcement of labor standards-­related laws and regulations; and raising awareness of employers.”186 It remains to be seen whether this new agenda will bring any substantive changes in the near future. For the agenda of eradication, the 2014 Action Plan emphasizes “thorough control” of prostitution, sexual exploitation of children, and “vicious employers and brokers,” led by the Law Enforcement Task Force against Trafficking in Persons; and “crime control across borders” by international cooperation.187 The 2004 Action Plan listed eradication strategies, including “criminalizing trafficking in persons by revising the Penal Code; implementing thorough crackdown; promoting information exchange on travel documents, etc.; and enhancing coordination with and promoting information exchange among investigating authorities of foreign countries.”188 Under the title of “elimination of trafficking in persons,” the government stated that it would undertake thorough crackdowns on criminal organizations; prostitution, especially around adult entertainment businesses; unlawful employers and brokers; and transnational crimes.189 However, there have not been any noticeable improvement in law enforcement, especially in prosecuting or sanctioning employers engaged in labor exploitation.190 In sum, the measures taken by the Japanese government in the name of preventing and eradicating human trafficking are little more than rigid crackdowns on unauthorized border crossings and on stays and employment of undocumented migrants, to be carried out by immigration and criminal 185 Id. 186 2014 Action Plan, supra note 174, at 6–8. The Technical Intern Training Program of Japan has been accused as a route of labor trafficking and foreign labor exploitation. See, e.g., Dep’t of State, Trafficking in Persons Report: June 2016, at 217–20 (2016). 187 2014 Action Plan, supra note 174, at 9–11. 188 2004 Action Plan, supra note 174, at 2. 189 Id. at 5–7. 190 Dep’t of State, supra note 9, at 212–13. Rigid crackdown on prostitution and “entertainer” visas since 2004 is identified as a main cause of the increase in fraudulent use of marriage visas since around the same year. For relevant statistics, see 2004 Action Plan, supra note 174, at 3.

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law ­enforcement. With the new agenda of combating human trafficking, the Japanese government has enabled itself to fortify its long-standing anti-­ immigration policy. B Victims’ Rights and Status Since Japan has not adopted any legislative measures regarding the protection of trafficking victims, its treatment of victims is conducted at the policy level. Like many other destination states, Japan has set up a three-step scheme: victim identification, temporary protection, and repatriation.191 If a relevant ­governmental agency identifies suspected trafficking victims, it reports the case to the police or the Immigration Bureau. According to the 2009 Action Plan, trafficking victims without valid immigration status may be granted a special stay permit in Japan.192 However, specific terms and conditions for the permit are not stipulated in official documents, and the issuance of such a permit is at the discretion of the government on a case-by-case basis.193 The 2014 Action Plan implies that temporary stay of victims is permitted mainly for criminal justice purposes, a stay which can create a burden for victims.194 The Women’s Consultation Offices in Japan are in charge of temporary protection of trafficking victims in coordination with the police and the Immigration Bureau. However, available victim assistance is limited.195 Japan does not operate dedicated shelters for trafficking victims.196 Migrant trafficking victims 191 2014 Action Plan, supra note 174, at 11–12. 192 2009 Action Plan, supra note 174, at 9. 193 Id. at 10. The Action Plan only states: “The goj [Government of Japan] will also examine the circumstances causing victims to stay in the country longer and consider establishing necessary protection policies. In addition, the goj will respect the wishes of victims who cannot return to their home countries and institutions concerned will cooperate with each other to provide necessary support while giving consideration to their reasons, languages, etc.” Id. 194 2014 Action Plan, supra note 174, Annex: Methods to Deal with Trafficking in Persons (“If the protection period for a victim is expected to be prolonged for a medium or long time due to criminal procedures, the investigative organization should give the victim and the relevant administrative agency protecting the victim a full explanation about the criminal procedures and prospects for the investigation to the extent that is possible to reduce the victim’s mental burden.”). 195 Id. (“support them during protection according to their conditions, including the following: the provision of clothing, food, and residence; consideration for their living rooms and bathing; consideration for food; establishment of a night guard system; appointment of necessary interpreters; provision of counseling, medical care, and the like.”); 2009 ­A ction Plan, supra note 174, at 5. 196 Dep’t of State, supra note 186, at 218.

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are provided with partial medical coverage.197 A work permit may be granted during a victim’s temporary stay, but is not guaranteed. The 2009 Action Plan mentioned victims’ eligibility to work in an extremely weak manner: “goj will grant a status of residence that allows [victims] to work if it is deemed necessary after comprehensively examining individual circumstances.”198 The 2014 Action Plan shows some progress, stating that “[i]f a victim cannot return to the home country, the Immigration Bureau should give the victim a status of residence which allows employment if the need arises, respecting the victim’s intention and comprehensively taking into consideration the victim’s situation.”199 This change seems to reflect the criticism raised by the u.s. State Department’s 2013 tip Report that trafficking victims are rarely allowed to work during their stay in Japan.200 However, this statement also confirms that a work permit is not a right for trafficking victims, but a discretionary decision by the government. Like the policies in other destination states, Japan’s anti-trafficking policy sets repatriation as the final goal of victim treatment.201 Japan has adopted the iom’s agenda of “voluntary repatriation and reintegration,” and has supported the Organization’s “Voluntary Return and Reintegration Assistance” program for trafficking victims since 2005.202 The iom Japanese branch’s primary activity with respect to human trafficking is assisting in the repatriation of victims.203 The 2009 Action Plan states that the Japanese government will work closely with the iom and foreign embassies to “create an environment to smoothly repatriate victims of trafficking in persons to their home countries,” to help them “integrate into their local communities,” and to “ensure 197 198 199 200

Dep’t of State, supra note 9, at 213. 2009 Action Plan, supra note 174, at 11. 2014 Action Plan, supra note 174 (Annex: Methods to Deal with Trafficking in Persons). Dep’t of State, supra note 9, at 213 (“While victims were encouraged to participate in the investigation and prosecution of their traffickers, they were not allowed to work during those processes. Because victims cannot work during that period unless they obtain a different visa status, only 27 victims provided limited assistance to police and most chose to repatriate before their trials began. No trafficking victims received long-term residency visas during the reporting period, although such immigration benefits were legally available to persons identified as trafficking victims who fear returning to their home country.”). 201 2004 Action Plan, supra note 174, at 5, 7; 2014 Action Plan, supra note 174, at 12. 202 2004 Action Plan, supra note 174, at 7. 203 See Naoko Hashimoto, Return and Reintegration Assistance in Japan, in Chunjin Kim & Int’l Migration Org., International Seminar on Laws and Institutions for Trafficking Victims Protection 95 (2011).

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the safety of victims in their home countries.”204 The 2014 Action Plan reiterates that proper supports will be provided for victims’ social reintegration and prevention of re-victimization.205 Although the policy claims to support “voluntary” or “smooth” repatriation of victims, the agenda is misleading since the framework does not offer reliable alternatives to repatriation when victims do not want to or cannot return to their home countries. Under this scheme, emphasizing victims’ reintegration and prevention of re-victimization runs a risk of serving merely as a justification for deportation and prevention of re-migration. 5

European States

A The Netherlands Following the mandates of the eu Directives and the Council of Europe Convention on human trafficking, it is common for European states to grant a “reflection period” for trafficking victims, which varies from 30 days to six months.206 The Dutch anti-trafficking framework, through the so-called “B9 Guidelines,” offers a reflection period of a maximum of three months for possible victims of trafficking who do not hold valid immigration status.207 The main purpose of this period is to allow victims a certain amount of time to decide whether to assist with criminal justice proceedings.208 As discussed below, since victims without other valid visas must leave the state if not cooperating with criminal law enforcement, the reflection period mainly means postponing deportation for the time being.209 The National Rapporteur of the Netherlands on human trafficking agrees that the reflection period is phrased 204 2009 Action Plan, supra note 174, at 11. 205 2014 Action Plan, supra note 174, at 12. 206 National Rapporteur on Trafficking in Human Beings and Sexual V ­ iolence Against Children [hereinafter National Rapporteur], Human Trafficking: Ten Years of Independent Monitoring 51 (2010). 207 Vreemdelingencirculaire 2000 [Aliens Act Implementation Guidelines 2000] Ch. B8(3) [hereinafter Aliens Act Implementation Guidelines]. Through the amendment in June 2013, the text of the B9 Guidelines on trafficking victims has been moved to Ch. B8(3) of the Aliens Act Implementation Guidelines without major changes in content. This chapter refers to this text as the “B9 Guidelines,” following the common terminology to date. 208 National Rapporteur, Human Trafficking: Seventh Report from the ­N ational Reporter 160 (2009). 209 Id. (“The deportation of the victim from the Netherlands is postponed during the r­ eflection period.”) (emphasis added).

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as “a favor rather than a right.”210 Victims are not allowed to work during this three-month period.211 After the reflection period expires, a one-year residence permit is available for those victims who decided to cooperate with the investigation or prosecution of suspected traffickers.212 Victims must either press charges against ­suspects or otherwise assist with criminal proceedings to stay beyond the reflection period.213 Through the 2008 amendment of the B9 Guidelines, a residence permit was made renewable for up to three years if a relevant criminal case is still pending.214 The residence permit expires when a prosecutor decides not to prosecute the case, or when criminal court decisions become final and non-appealable. Victims are allowed to work during the temporary residence period without having to apply for a separate work permit.215 The B9 Guidelines (prior to the 2013 amendment) stated the reason for employing the temporary residence permit system: “It is vital for the investigation and prosecution that victims who press charges or otherwise cooperate should remain available to the public prosecution service for a longer period of time.”216 The B9 Guidelines grant the same residence permit to nonvictim witnesses who report or testify about trafficking cases.217 The Dutch National Action Plan 2011–2014 reiterates the purpose of this system: “The B9 Regulation allows victims and witnesses to stay in the Netherlands in order to ­facilitate the criminal investigation and prosecution.”218 These statements provide a straightforward indication that the Dutch anti-trafficking framework treats trafficking victims mainly as crime witnesses, and temporary residence 210 Id. at 161. 211 Id. 212 Vreemdelingenbesluit 2000 [Aliens Decree 2000] art. 3.48 (providing special conditions for the grant of a residence permit to victims who have reported an offense or who are otherwise cooperating in a human trafficking investigation or prosecution) [hereinafter Aliens Decree]; Aliens Act Implementation Guidelines, supra note 207, Ch. 8(3). 213 National Rapporteur, supra note 208, at 159. As of December 2010, victims who cannot testify due to serious threats or for medical or psychological reasons became eligible for this temporary residence permit. However, the National Rapporteur points out that this exception rarely applies in practice. National Rapporteur, Trafficking in Human Beings: Ninth Report of the Dutch National Reporter 133 (2013). 214 National Rapporteur, supra note 208, at 159, at 166. 215 Aliens Act Implementation Guidelines Ch. B9(7) (before amended in 2013). 216 See also National Rapporteur, supra note 208, at 160. 217 Aliens Act Implementation Guidelines, supra note 207, Ch. 8(3). 218 Task Force on Human Trafficking, Action Plan 2011–2014: Strengthening the Integrated Approach to Tackling Trafficking in Human Beings 21 (2011).

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­ ermits are granted for the purpose of securing the participation of the witness p in order to pursue the criminal justice purpose of the state. Filing a complaint with the Labor Inspectorate about labor rights violations, including labor exploitation or breach of employment contracts, does not suffice as a ground for ­issuing a temporary residence permit,219 nor does the fact that a victim is seeking remedies in civil procedures.220 The B9 Guidelines and the relevant Aliens ­Decree impose no obligation on the government to issue a residence permit for the victims who meet the conditions, but merely grant the government the authority to do so.221 As with the other destination states examined so far, a temporary residence permit is structured not as a right for victims to claim in order to seek and attain remedies, but as an administrative immigration arrangement to secure crime witnesses. If a temporary residence permit expires, a victim must leave the Netherlands. The regulation allows a few exceptions, as in the case of victims eligible for a continued residence permit on “non-temporary humanitarian grounds.”222 Such a case can arise when criminal cases against traffickers end in convictions,223 since the conviction of traffickers may cause a safety risk to victims upon their return home.224 Victims must leave the Netherlands if the case they cooperated in did not result in the conviction of traffickers. The other exception is when a victim has stayed with a B9 temporary residence permit for more than three years.225 The regulation recognizes that such a relatively long 219 National Rapporteur, supra note 208, at 164. The National Rapporteur points out that “[o]btaining a residence permit might, however, be of greater importance to them than having the perpetrator(s) caught and tried. In fact, they may have no interest at all in having the perpetrators caught and tried because of the risks involved.” Id. at 177. 220 While Dutch law allows victims to claim for compensation within the criminal procedures, it is a limited option only for the victims whose criminal case is prosecuted before the court. Id. at 134. 221 Aliens Act Implementation Guidelines Ch. B9(1) (before amended in 2013). See also ­N ational Rapporteur, supra note 208, at 160 n.3. 222 Aliens Decree 2000, supra note 212, art. 3.51 lid 1 sub h. 223 Aliens Act Implementation Guidelines, supra note 207, Ch. B9(12). Under the original Aliens Act Implementation Guidelines, the conviction had to be made on human trafficking crimes, and no other crimes. By the amendment in 2008, the scope was expanded to include a case when a conviction was made on other crimes than trafficking if human trafficking charges were part of the indictment. National Rapporteur, supra note 206, at 54. 224 Aliens Act Implementation Guidelines Ch. B16(7) sub a (before amended in 2013). 225 Aliens Act Implementation Guidelines, supra note 207, Ch. B9(12). This situation can occur when the final court decision is still pending or is made more than three years after the B9 residence permit was issued. National Rapporteur, supra note 208, at 175.

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stay could itself constitute a humanitarian ground.226 When either of these two conditions is not met, the regulation allows a possibility that a victim may apply for the permit citing exceptional humanitarian grounds—such as risk of retaliation or prosecution in their home countries, or the absence of possibilities for social reintegration.227 After five years of continued residence, a victim can apply for permanent residence.228 These possible cases of extended stay certainly reflect advanced aspects of the victim protection policy in the Netherlands. However, limitations exist. In order to be eligible for continued stay, victims first should receive a B9 permit, meaning that they must cooperate with criminal law enforcement. The continued residence permit is inherently subordinated to a criminal justice framework, with exceptional humanitarian considerations added on. The Dutch anti-trafficking framework is thus no exception in prioritizing repatriation of victims unless they are needed and willing to participate in criminal procedures. A perspective that would view trafficking victims as holders of civil and labor rights is absent. Existing critiques of the Dutch repatriation policy are limited to concerns about victims’ safety upon return to their home countries, while ignoring unfulfilled remedies for the rights violations they have suffered in the Netherlands.229 Efforts to enhance international partnership are also focused on cooperation with sending states to ensure and facilitate repatriation of victims.230 Moreover, the Dutch government has recently turned its focus from fighting trafficking to “combat[ing] against the abuse of temporary residence permits.” The National Action Plan 2011–2014 sets up a “fight against” abuse of temporary residence permits as its main goal of actions in the sector of immigration regulation.231 The Dutch government has been holding expert meetings specifically 226 227 228 229 230

Aliens Act Implementation Guidelines Ch. B16(7) sub b (before amended in 2013). Aliens Act Implementation Guidelines, supra note 207, Ch. B9(12). National Rapporteur, supra note 208, at 173. See National Rapporteur, supra note 206, at 56. In 2008, the Dutch government (in coordination with iom Nederland) has set up referral mechanisms with Benin and Nigeria for the reception of repatriated victims. The Netherlands financially supports projects in Bulgaria and Romania to improve victim reception systems in those countries. Id. 231 Task Force on Human Trafficking, supra note 218, at 20–22. Out of seven action goals in the sector of immigration law, four are concerning to prevent the abuse of the residence permit system, including “a working party … in order to investigate … how abuse of the regulation can be prevented”; “collect[ing] signs of abuse of applications for residence permits and shar[ing] this information with the relevant chain partners in order to prevent and combat the abuse”; and “a round-table conference … to further discuss the

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to discuss strategies for preventing false or hopeless applications and deterring the abuse of its immigration system by undocumented migrants.232 The government has shown substantially less concern about the absence of protections for the trafficking victims who do not meet the conditions set by the current residence and support system. The National Rapporteur points out that a number of undocumented migrants in detention centers are being deported without a proper opportunity to be recognized as trafficking victims and to apply for B9 residence permits.233 The Rapporteur also notes that exploitation suffered by migrant workers outside the sex industry is not easily recognized as human trafficking.234 The Rapporteur expresses a concern that the Dutch government (Ministry of Immigration and Integration) regards its treatment of “unlawful aliens” and the fight against human trafficking as separate policy areas.235 The concern about the abuse of the immigration system for trafficking victims necessitates more rigid victim identification practices. This increases the chances of victimized migrants being excluded from support programs, enlarging a gap in rights protection. B Belgium The Belgian anti-trafficking framework offers potential trafficking victims a reflection period of 45 days, which is much shorter than the equivalent in the Dutch framework.236 During this period, victims are asked to decide whether to file a complaint (or make a statement to law enforcement agencies against offenders) or to return to their home countries.237 Victims may receive b­ asic

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question in what way the fight against the abuse of residence permit procedures can be optimized.” Id. 21–22. See National Rapporteur, supra note 208, at 176–81; National Rapporteur, supra note 206, at 47–49. National Rapporteur, supra note 206, at 52, 53. National Rapporteur, supra note 208, at 117. National Rapporteur, supra note 206, at 52. Wet betreffende de toegang tot het grondgebied, het verblijf, de vestiging en de verwijdering van vreemdelingen [Law Relating to the Access to the Territory, Residence, Establishment and Removal of Foreigners] of Dec. 15, 1980, Belgisch Staatsblad [Official Gazette of Belgium], Dec. 31, 1980, 14584 (as amended Sept. 15, 2006), art. 61/2, para. 2 [hereinafter Aliens Act]. Center for Equal Opportunities and Opposition to Racism, Trafficking in and Smuggling of Human Beings Report 2007, at 63 (2008) [hereinafter ceoor] (“This period of reflection must allow the victim to find the necessary peace of mind and to decide whether they would like to make statements against the people who exploited them or to prepare to return to their country of origin.”). The ceoor’s antitrafficking related function has been succeeded by Myria, the Belgian Federal Migration

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social assistance, but only when they break all contacts with traffickers. V ­ ictims are not allowed to work during this period.238 A reflection period can be terminated if a victim has renewed ties with perpetrators.239 After the reflection period, a temporary residence permit for up to three months may be granted if a victim meets three conditions:240 First, a victim must break off contact with suspected offenders; second, a victim must receive guidance from a specialized support center for trafficking victims; and lastly, a victim must cooperate with judicial authorities for the investigation and prosecution of offenders, either by filing a criminal complaint or by making a statement. Only a victim who satisfies all three requirements can receive official status as a “trafficking victim,” which grants access to victim services provided under the framework. The temporary residence permit may be extended if necessary for investigation and criminal proceedings.241 These conditions reveal a paternalistic characteristic of the Belgian framework, in addition to the common requirement of victims’ cooperation with criminal law enforcement. Officially identified trafficking victims are placed under compulsory referral to and supervision by specialized victim support centers.242 Only these centers are eligible to apply for the issuance and renewal of temporary residence permit on behalf of victims while victims themselves are not allowed to file an application.243 Moreover, temporary stay permits can be terminated at any time if a victim re-initiates contact with offenders or does not follow the guidance of the support centers.244 Due to the cooperation requirement, the centers usually try to “convince” victims to make statements to law enforcement authorities.245 The Center for Equal Opportunities and

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Centre—an independent public body dealing with migration, rights of foreigners, and human smuggling and trafficking. Myria, 2013 Annual Report of the Independent Rapporteur on Human Trafficking 74 (2014); see also Together Against Trafficking in Human Beings: Member States—Belgium, European Commission, http://ec.europa.eu/anti-trafficking/ content/nip/belgium. Aliens Act, supra note 236, art. 61/2, para. 3. Id. art. 61/3, para. 1. Aliens Act, supra note 236, art. 61/3, para. 2 & art. 61/4, para. 1. Currently there are three certified specialized victim support centers in Belgium (­ Pag-Asa, Sürya, and Payoke). These centers have been authorized and funded by the government since 1995 to provide assistance and protections for trafficking victims. European Commission, supra note 238. Aliens Act, supra note 236, art. 61/3, para. 3. See ceoor, Trafficking in and Smuggling of Human Beings 15th Annual Report 94–105, 119, 121–23 (2013).

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Opposition to Racism (ceoor, now replaced by Myria) reported that many victims did not wish to be in direct contact with specialized centers.246 In sum, temporary residence for trafficking victims under the Belgian framework is significantly short (three months in principle, which is renewable only for criminal justice purposes), and the status of victims is subordinated not only to a criminal justice regime, but also to a paternalistic victim support system. During the temporary residence period, the specialized support centers provide victims with shelters, psycho-social and medical assistance, and legal aid.247 Victims have access to job training and the labor market in Belgium ­during this period.248 While a victim can file a civil action for compensation during their temporary residence, this does not constitute an independent ground for issuing a residence permit.249 Alternatively, victims may request compensation within criminal proceedings. However, this is an option available only for the victims whose cases have been brought to court.250 The ceoor report points out that actual compensation is rarely obtained even in criminal proceedings because offenders often claim insolvency.251 Since the term of the residence permit is only three months and the possibility of its renewal is unpredictable, the temporary residence system in Belgium hardly provides trafficking victims a reliable platform for securing decent jobs or seeking remedies. The inability to plan for more than three months at a time hinders victims from leading a physically and psychologically stable life during their stay. This scheme indicates that the Belgian framework is no exception in treating victimized individuals mainly as disposable beings valued only for their usefulness in terms of the state’s prosecutorial interests. After a temporary residence permit expires, there are two situations where a victim may be eligible for continued residence for an indefinite period.252

246 Id. at 121. According to the ceoor report, many suspected victims, particularly in the cases of labor exploitation, are reported to disappear after the intervention by the firstline services. Id. at 119. 247 ceoor, supra note 237, at 65. 248 Id. However, victims need to apply for a separate work visa. 249 See ceoor, supra note 245, at 49–53. The specialized centers are authorized to take legal actions as a civil party in their own names or on behalf of victims. If a relevant criminal case is pending, the civil procedure for compensation is usually suspended until the judgment of the relevant criminal case is issued. Id. 250 Id. at 53. 251 ceoor, supra note 237, at 83. In this regard, the Report notes that compensation needs to be directly allocated from confiscated assets of offenders by a court order. 252 Aliens Act, supra note 236, art. 61/5.

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One applicable situation is when offenders have been convicted in c­ riminal ­procedures based on human trafficking provisions. The other is when a prosecutor or a “labor auditor” has retained in a legal brief that the acts by defendants constitute trafficking offenses (even if the defendants were not convicted). The first condition is similar to the Dutch model; the second is a policy unique to Belgium, which allows the possibility of continued residence for more individuals than in the first case. However, immigration authorities possess final discretion in issuing the permit.253 Cases have been reported in which victims were returned even though the second condition was met, when relevant criminal cases did not result in conviction.254 C Italy The Italian anti-trafficking framework does not provide an official reflection period for trafficking victims. Instead, victims may be granted a stay permit for three months (renewable once), during which time victims can access a shortterm protection program (“the Article 13 program”) adopted in 2003.255 This program provides victims with housing, social assistance, and medical service, but does not allow them to work.256 After the Article 13 program terminates, victims may be granted an “Article 18 permit” under Italian immigration law.257 The Article 18 permit is a six-month temporary residence permit issued on humanitarian grounds for those who have suffered severe abuse or exploitation and face danger due to escaping from their situations or making statements against their traffickers.258 This residence permit may be renewed for one year or longer if required for criminal 253 European Commission, supra note 238. 254 Id. 255 Together Against Trafficking in Human Beings: Member States—Italy, European ­C ommission, http://ec.europa.eu/anti-trafficking/content/nip/Italy. 256 Misure contro la tratta di persone [Measures Against Trafficking in Human Beings], Legge 11 agosto 2003, n. 228, art. 13 (Launching of a special support program for the victims of the offences envisaged by Articles 600 and 601 of the Codice penale). The program is managed by the Interministerial Committee for the Implementation of Article 13. 257 Testo unico delle disposizioni concernenti la disciplina dell’immigrazione e norme sulla condizione dello straniero [Immigration Consolidation Act], Decreto Legge 25 luglio 1998, n. 286, art. 18 (Residence permits for social protection grounds) [hereinafter Immigration Consolidation Act]. 258 Id. art. 18, para. 1. The same paragraph states the purpose of this permit as “enabling the foreign citizen to escape from the situation of abuse and conditioning perpetrated by the criminal organization and to participate in a social assistance and integration program.” Id.

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justice purposes.259 There are two types of paths that victims with the Article 18 permit may follow. One is the Judicial Path, in which a victim must cooperate with criminal law enforcement authorities. The other is the Social Path, in which victims have access to assistance if an accredited ngo or local social service authorities submits a statement on behalf of the victim.260 The Social Path, which does not require victims’ cooperation with criminal proceedings, is a unique and advanced feature of the Italian anti-trafficking framework.261 However, the duration of the Article 18 permit is short (six months), and victims who have entered the Social Path can be requested to testify for investigation or prosecution if a prosecutor finds that the relevant case constitutes a crime.262 The Article 18 permit can be revoked if a victim “drops out from the social programs” or “engages in behavior which is incompatible with the program’s goals,” or when “the other conditions that initially warranted the issuance of the residence permit should no longer apply.”263 With the Article 18 permit, victims can access a range of assistance, including housing, social and psychological counselling, heath care services, legal assistance, and education and vocation-related support.264 Victims can attend vocational training or can directly access the job market, assisted by the ­program with job searching.265 However, like the Belgian model, the Italian victim protection program also possesses a paternalistic feature. As mentioned above, once identified and granted the Article 18 permit, victims are obligated to participate in the victim support programs run by the ngos and local authorities. Victims lose their residence permit if they do not follow the supervision of the program. 259 Id. art. 18, para. 4. 260 Associazione On the Road, The Italian System of Assistance and Integration of Victims of Trafficking in Human Beings 4, http://ec.europa .eu/anti-trafficking/sites/antitrafficking/files/the_italian_system_of_assistance_and _integration_of_victims_of_trafficking_in_human_beings_en_1.pdf. 261 Associazione On the Road explains the reasons for adopting the social path as follows: “This is because some victims do not have relevant information about the criminal organization; or the criminals have already been prosecuted; or “simply” because, at the beginning, they are too scared for their own or their relatives’ safety to press charges.” Id. 262 Id. (“It is possible that, due to the statutory obligation of accusation on the part of the Questura [police headquarters] when a notitia criminis is found, also a person within the social path is asked to testify, but not at the very beginning.”). 263 Immigration Consolidation Act, supra note 257, art. 18, para. 4. 264 Associazione On the Road, supra note 260, at 3. 265 Id. at 5.

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The Article 18 permit may be renewed or converted to another type of residence permit in two circumstances that are not directly related to criminal justice purposes. This is the most distinctive aspect of the Italian trafficking victim protection framework. First, if a victim is employed at a regular job at the time when the Article 18 permit expires, the permit may be renewed for the duration of the employment contract.266 Second, if a victim is enrolled in an official educational institution, her residence permit may be converted into a residence permit for educational purposes.267 A victim in either case may ultimately apply for permanent residence.268 Thus, if a victim first follows the social path of the Article 18 permit and then falls into one of these two categories, the victim may be able to stay in Italy for an extended period without participating in criminal procedures. However, critics have pointed out that it is not easy for trafficking victims, especially non-eu citizens, to secure a lawful and stable job in Italy, so chances for renewing their temporary residence permit or applying for permanent residency are substantially limited.269 It is also not common for trafficking victims to be enrolled in official educational institutions. Therefore, the six month Article 18 permit is not likely to be extended except when necessary for law enforcement purposes. The Italian victim support program assists victims with returning to their countries of origin. The Italian branch of the iom runs a “Voluntary Repatriation Program” in cooperation with the Ministry of Interior. However, the victim repatriation policy under the anti-trafficking framework needs to be assessed alongside the government’s general policy against unlawful migration. Like many other destination states, the Italian government executes rigid crackdowns on and an expedited deportation policy against “­illegal migrants,” while at the same time implementing the trafficking victim protection framework. Crucially, the targeted groups of these two streams of intervention—­undocumented migrants subject to crackdowns and trafficking victims identified protection—overlap with each other significantly. This apparent contradiction in government policies becomes easier to understand when considering the fact that the final step of the trafficking victim protection scheme—repatriation—is not essentially different from deportation. For 266 267 268 269

Immigration Consolidation Act, supra note 257, art. 18, para. 5. Id. Associazione On the Road, supra note 260, at 8. Rosa Raffaelli, The European Approach to the Protection of Trafficking Victims: The Council of Europe Convention, the eu Directive, and the Italian Experience, 10 German l.j. 205, 218 (2009).

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example, the Italian government concluded “re-admission” agreements with several popular sending states, including Albania, Romania and Nigeria, which aim for immediate expulsion of nationals of those states who unlawfully stay in Italy.270 The Italian government at the same time launched initiatives such as the “Development of a Transnational Referral Mechanism for Victims of Trafficking between Countries of Origin and Destination” and projects for “enhancing the cooperation to fight trafficking in human beings from Nigeria to Europe.”271 These international efforts by the Italian government are mainly aimed to ensure and expedite repatriation of trafficking victims in cooperation with sending states. Both streams of policies thus in fact facilitate the processes of returning “unwanted aliens.” As discussed in the next section, rigid immigration law enforcement and repatriation policies lead to adverse effects in the human rights situations of trafficking victims and may aggravate the phenomenon of human trafficking.272 Even the u.s. tip Report criticizes the Italian immigration policy as detrimental to its victim protection agendas: ngos remain concerned that the government’s focus on the expedited return of illegal migrants and foreign women in street prostitution resulted in trafficking victims not being identified by authorities and therefore being treated as law violators and being penalized for unlawful acts committed as a direct result of being trafficked … During the reporting period, the government continued to implement anti-immigration security laws and policies resulting in fines for illegal migrants and their expedited expulsion from Italy. Further, in November 2010, the government approved a security package that provides for the return of foreign women in prostitution found on the street in violation of rules adopted by local authorities. Local and international experts continue to voice concerns that this commitment to expedited expulsion has prevented law enforcement authorities from adequately identifying potential victims of trafficking.273

270 See European Commission, supra note 255. 271 See id. 272 See Associazione On the Road, supra note 260, at 9 (“[T]he implementation of a repressive strategy through continuous police raids and forced repatriation do not favour the accomplishment of the aims set by the law. In many cases, in fact, when stopped or deported, victims are not informed of their right to access a social assistance and integration programme.”). 273 Dep’t of State, Trafficking in Persons Report: June 2011, at 202–03 (2011).

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6 Conclusion A Summary Analysis Below is a summary analysis of victim protection frameworks of each state examined in this chapter. In five out of the seven analyzed states, a reflection period is available ­during which victims are not required to cooperate with law enforcement. However, the period is short (six months in the longest cases), and victims are not allowed to work during this period (except in Canada with short-term trps). Most of all, a reflection period may function as a threat for victims with limited choices between cooperation and deportation. In all cases except for the “social path” in Italy, temporary residence permits after the reflection period require victims’ cooperation with criminal law enforcement authorities. In most cases its duration is contingent on relevant criminal procedures and on victims’ usefulness as crime witnesses. In many states, victims with valid work visas must relinquish their original visas in order to receive temporary residence permits as trafficking victims. Importantly, no states allow victims’ original visas to be extended or renewed, regardless of the exploitation victims have suffered during their work period with those visas. A temporary residence permit can be less appealing than regular work visas since the conditions of the issuance are strict and durations are unpredictable. Temporary residence under the dominant anti-trafficking frameworks is far from being a legal right or remedy for victims, but rather an exceptional administrative arrangement to preserve victim-witnesses for criminal procedures. Victims are allowed to work while holding temporary residence permits in all states (though this is not fully guaranteed in Japan). However, the right to work is conditional, since its prerequisite—a temporary residence permit— is conditional as discussed. Since the period of residence is mostly short and unstable, it is not easy for victims to secure decent jobs during their stay. The lists of available victim support and services in each state are similar to one another, mainly limited to housing assistance, medical care, counseling, and legal services. The European states have established more systemized victim support systems with specialized centers, but at the same time tend to demonstrate a paternalistic character with mandatory supervision policies. In all states, assistant measures are available only for identified trafficking victims with valid immigration status or for bona fide applicants for a trafficking victim status, which means in most cases the assistance is conditional on victims’ cooperation with criminal law enforcement. No system entitles victims to seek remedies in civil and labor rights contexts independently of the criminal justice regime. Entirely lacking is a perspective which would view an entitlement

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to stay and work in a destination state as a right, a remedy, or a platform to seek remedies. No approaches are found in the states examined that treat victims as rights-holders in an independent and comprehensive manner. In most states, repatriation is regarded as an optimal final step of victim treatment. It is misleading for states to emphasize the voluntariness in their repatriation policies, since most states do not provide practical alternatives to repatriation. While continued residence options in the Netherlands (available after a stay of more than three years with temporary residence permits) and in Italy (available if employed for regular jobs or enrolled in official educational institutions) are noteworthy, the likelihood of victims meeting these requirements is low. A trafficking victim protection scheme may appear at odds with a rigid border control and immigration policy that criminalizes unauthorized border crossings and punishes undocumented migrants, since the targeted populations of the two streams of policies significantly overlap. However, major destination states regard fortifying border and immigration law enforcement as a major strategy for preventing and combating human trafficking, and impose repatriation as an ultimate victim protection measure. A closer look at the anti-trafficking framework thus reveals that the framework is part of the broader immigration regulation regime of destination states, which is delicately intertwined with a criminal justice framework. Concluding Evaluation: Empowering Destination States, Disempowering Victimized Individuals This chapter examined national legal institutional responses to human trafficking by individual destination states. As discussed in Chapter 2, international law on human trafficking under the ctoc and the Trafficking Protocol m ­ andates three main state obligations: criminalizing relevant conduct, fortifying border control, and facilitating repatriation of victims. The destination states examined in this chapter have actively discharged these mandates through the ­3P-4R paradigm. The dominant model of a national anti-­trafficking framework is built on two major pillars: criminal justice and immigration control. Victim protection occupies only a marginalized position and is subordinated to those two pillars. However, according to the Trafficking Protocol, victim protection is an area in which individual states can exercise broad discretion. As analyzed in Chapter 2, the Trafficking Protocol does not prescribe any state obligations regarding victims’ rights and protection. The examination of the current antitrafficking regimes at the international and national levels in Chapters 2 and 3 leads to two concluding observations. First, the anti-­trafficking frameworks at the international and national levels together constitute a transnational crime and migration control regime. More precisely, the regime shapes a t­ ransnational B

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legal framework for controlling transnational crimes and transborder migration. Ultimately, this anti-trafficking regime empowers destination states and disempowers the victimized individuals the regime claims to protect. The discussion below elaborates on the second point. First, the criminal justice approach empowers states and disempowers individuals. The anti-trafficking regime constitutes transnational criminal law (tcl), with intertwined roles of international and national law. International law obligates individual states to criminalize trafficking-related acts through their domestic criminal law. It provides states with the international-lawgrounded authority to fortify their state power to stretch law enforcement against new forms of crimes and relevant individuals, including suspects and victims. Targeted perpetrators are mostly private actors without affiliation to state organs. Powerful states like the United States have proactively led the tcl regime building, including producing the ctoc and the Trafficking Protocol.274 Neil Boister points out that a tcl regime is generated to empower and extend state sovereignty and control, especially by powerful states, to strengthen law enforcement power to defend their state interests.275 The tcl regime not only justifies state actions aimed at reinforcing interventions against concerned criminal acts, but even obligates such actions. Oscillating across the ambiguous lines between trafficking, smuggling, and abusive labor m ­ igration, the trafficking regime provides states with additional legal grounds and ­justification for arresting, investigating and prosecuting individuals involved in a broad scope of migration processes in the name of combating the crimes of human trafficking. Moreover, the criminal justice approach tends to simplify the complex transnational phenomenon of human trafficking into episodic criminal acts by individual perpetrators. This approach diverts attention away from the structural factors in the economic, immigration and labor systems of destination states that contribute to prevalent human exploitation at various levels.276 274 See also James Sheptycki, Law Enforcement, Justice and Democracy in the Transnational Arena: Reflections on the War on Drugs, 24 Int’l J. Sociology L. 61 (1996) (discussing the influence of the u.s. government on the adoption of the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances). 275 See Neil Boister, Transnational Criminal Law?, 14 Eur. J. Int’l Law 953, 960 (2003) (“[P]rimary aim of the system is the domestic social order of certain powerful states, law enforcement effectiveness tends to predominate over values like international legality, at the expense of legitimacy.”). 276 See Janie Chuang, Beyond a Snapshot: Preventing Human Trafficking in the Global Economy, 13 Ind. J. Global Legal Stud. 137, 138 (2006) (“Most legal frameworks address trafficking as an act (or a series of acts) of violence, with the perpetrators to be punished and the victims to be protected and reintegrated into society. While such responses might

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Demonizing private actors enables destination states to avoid their own responsibility for the problem. In parallel, the criminal justice approach disempowers the individuals victimized by human trafficking and related rights violations. Within a criminal justice framework that fosters an adversarial setting between a state and perpetrators, victims are situated in a sidelined position. The analysis in this chapter shows that the status of victims and the availability of assistance measures in most destination states are conditional on the individuals’ usefulness as victim-witnesses for criminal procedures. A perspective that recognizes these victims as rights-holders hardly exists. Victims are not the central concern of the framework, but at best the most useful witnesses for states’ prosecutorial purposes. This structure conceptualizes victimized individuals in a narrow, fixed and flattened manner, and marginalizes and subordinates their position to the criminal justice regime. As the case studies in Chapters 4 and 5 demonstrate, the criminal justice approach is not capable of properly understanding and responding to victimized migrant individuals’ diverse and complex experiences, needs, and interests. The framework focuses on whether or not the suspects are prosecutable, rather than whether the victims have experienced rights violations. The current system does not allow victimized individuals to exercise their rights in the human, civil, and labor rights contexts, nor does it enable them to seek and attain remedies for the violations of those rights outside the criminal context. Moreover, a criminal justice regime offers its limited benefits only to a narrow scope of victimized individuals. This is due not only to oversimplified victim stereotypes often held by law enforcement authorities, but also to the very nature of criminal law. Since criminal law adopts the strictest standards of statutory interpretation and evidentiary rules, the regime leaves behind the individuals who have been victimized in the context of human, civil, and labor rights, but who are not recognized as victims in criminal justice procedures for various reasons.277 Under the trafficking framework, the migrants who have experienced rights violations but have not been identified as trafficking victims in the criminal context are not only denied protection and assistance measures. They also face penalty and deportation if not holding valid immigration status. The criminal-justice-centered trafficking regime thus in various ways empowers the destination states while disempowering the affected individuals. account for the consequences of trafficking, they tend to overlook its causes-that is, the broader socio-economic conditions that feed the problem.”). 277 See Maggy Lee, Trafficking and Global Crime Control 2, 81 (2011) (discussing “the contingent meanings of victimhood that are produced and negotiated through the narrow lens of criminal justice and migration compliance”).

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Second, the border and immigration control approach aggravates this problematic empowering/disempowering phenomenon while failing to achieve its claimed goal. The prevention pillar of the anti-trafficking regime facilitates the self-empowering project of destination states to fortify their sovereignty over state borders and migrant populations. International law on human trafficking has effectively justified these initiatives by making them legal obligations under the treaty—the Trafficking Protocol. In parallel, the policy claiming to prevent trafficking by strengthening border control disempowers individuals. Numerous critics point out that restrictive border policies do not deter—but in fact facilitate—human trafficking and irregular migration, by making potential migrants more dependent on trafficking and smuggling networks and more vulnerable to underground, dangerous and abusive forms of migration.278 The resulting increase in human trafficking and irregular migration in turn justifies more rigid border and immigration control, creating a vicious cycle that reproduces both human trafficking and stricter immigration policies. In short, the current regime wrongly uses the cause of human trafficking as a main countermeasure to prevent it. Moreover, it is highly unlikely that immigration officers would be able to identify trafficking victims at borders since the purpose of human trafficking—exploitation—is mostly realized at workplaces after the migrants cross borders.279 Furthermore, while human trafficking often happens through unauthorized migration routes or with fraudulent use of travel documentation, numerous migrants holding regular work visas experience situations of human trafficking and labor exploitation, as will be discussed in Chapters 4 and 5. However, destination states have expended minimal effort to monitor working and living conditions in workplaces with a high number of migrant workers, in contrast to their vast investment in border security.280 Under this framework dominated by criminal and immigration law enforcement approaches, the victim protection agenda often functions only as 278 See Antoine Pécoud & Paul de Guchteneire, International Migration, Border Controls and Human Rights: Assessing the Relevance of a Right to Mobility, 21 J. Borderlands Stud. 69 (2006); Chacón, supra note 20; Bridget Anderson, Us and Them?: The Dangerous Politics of Immigration Control (2013); Karen E. Bravo, Free Labor! A Labor Liberalization Solution to Modern Trafficking in Humans, 18 Transnat’l L. & Contemp. Probs. 545, 547, 597–98 (2009); Catherine Dauvergne, Making People Illegal: What Globalization Means for Migration and Law 72 (2008); James Gray Pope, A Free Labor Approach to Human Trafficking, 158 U. Pa. L. Rev. 1849, 1868–69; see also Saskia Sassen, Losing Control?: Sovereignty in an Age of Globalization 74 (1996). 279 See Chacón, supra note 20, at 16. 280 See Bridget Anderson, Where’s the Harm in That? Immigration Enforcement, Trafficking, and the Protection of Migrants’ Rights, 56 Am. Behavioral Scientist 1241, 1254 (2012).

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a c­ over for states to pursue their interests in crime and immigration control. The comparative study conducted in this chapter shows that the victim treatment scheme of most destination states centers on victim identification and rescue, temporary stay for criminal procedures, and repatriation. By e­ mphasizing identification of trafficking victims among similarly situated vulnerable migrants, and at the same time firmly preserving the “criminalizing immigration” regime as a default,281 destination states exercise enhanced power to decide the destiny of migrant individuals between victims and criminals. Many ­critiques point out that the victim rescue missions often work only as crackdowns on employment of undocumented migrants, as bluntly demonstrated by the Japanese policy.282 Workplace raids conducted in the name of discovering and rescuing trafficking victims and community campaigns to report suspected trafficking cases, often only result in arrest and deportation of massive number of undocumented migrant workers.283 During the temporary stay between rescue and repatriation, victims are utilized as crime witnesses with uncertain duration and terms of residence. Limited support measures exist, and these are provided mainly for attaining victims’ cooperation with ­criminal procedures, rather than for remedying the rights violations victims have suffered. Most destination states adopt repatriation as a primary and ultimate step of victim protection and as a “­remedy” for the victims. Since repatriation is in principle directed when ­victims’ usefulness as crime witnesses is over and can be conducted against victims’ will and  needs, it is essentially not different from deportation.284 Thus, “rescue 281 See generally, Governing Immigration Through Crime: A Reader (Julie A. Dowling & Jonathan Xavier Inda eds., 2013); David Bacon, Illegal People: How Globalization Creates Migration and Criminalizes Immigrants (2008); David Alan Sklansky, Crime, Immigration, and Ad Hoc Instrumentalism, 15 New Crim. L. Rev. 157 (2012); Ingrid V. Eagly, Prosecuting Immigration, 104 Nw. U. L. Rev. 1281 (2010). 282 See Janie A. Chuang, Rescuing Trafficking From Ideological Capture: Prostitution Reform and Anti-Trafficking Law and Policy, 158 U. Pa. L. Rev. 1655, 1715–18 (2010); Aziza Ahmed & Meena Seshu, We Have the Right Not To Be “Rescued”…: When Anti-Trafficking Programmes Undermine the Health and Well-Being of Sex Workers, 1 Anti-Trafficking Review 149, 153–56 (2012); Gretchen Soderlund, Running From the Rescuers: New u.s. Crusades Against Sex Trafficking and the Rhetoric of Abolition, 17 Nat’l Women’s Studies Ass’n J. 64 (2005); Dina Francesca Haynes, (Not) Found Chained to a Bed in a Brothel: Conceptual, Legal, and Procedural Failures to Fulfill the Promise of the Trafficking Victims Protection Act, 21 Geo. Immigr. l.j. 337, 349–52 (2007); Parreñas, supra note 183, at 175; Julia O’Connell Davidson, Will the Real Sex Slave Please Stand Up?, 83 Feminist R. 4, 10 (2006). 283 Anderson, supra note 280, at 1254; Pécoud & de Guchteneire, supra note 278, at 2. 284 See Anne T. Gallagher, The International Law of Human Trafficking 338 (2010). Maggy Lee criticizes the narrow focus of victim protection measures, stating, “While repatriation, rehabilitation and reintegration programmes are designed to be

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and ­repatriation” is often little more than a pretext for crackdowns on unlawful border crossings and on employment of undocumented migrants, and deportation of those migrants. The Trafficking Protocol sustains and supports this structure by positioning repatriation as a primary victim treatment and obligating states to facilitate it. Over the last seventeen years, destination states have built up a transnational crime and immigration control regime across international and national levels, re-defining the old phenomenon of labor migration and exploitation of vulnerable migrants with the new name of human trafficking. This recent process of transnational regime building has been implemented with remarkable speed and breadth among destination states around the globe, empowering the destination states and disempowering the individuals the states claim to protect. This development was made possible by two major background structures. First, as discussed in Chapter 2, destination states have constructed both international and national anti-trafficking regimes with an eye towards addressing their own concerns and interests regarding global migration flows. Thus, the primary rules under international law (the Trafficking Protocol) do not restrict, but on the contrary, reinforce state power and sovereignty. Second, with the rhetoric of human rights and moral connotations attached to human trafficking issues, the destination states were able to expedite regime building and implementation. The public appeal of the notion of trafficking as modernday slavery or as a serious human rights issue has obscured the actual nature and impact of the countermeasures adopted by destination states. In sum, the dominant model of the anti-trafficking framework at the national level, centering on the 3P and 4R paradigm, is a straight implementation of the state obligations and discretion mandated and allowed by the international law on human trafficking. The international and national anti-trafficking regimes jointly empower destination states and further disempower vulnerable and victimized migrant individuals. The analysis provided in this chapter shows that the anti-trafficking frameworks in most destination states impose a unilaterally-designed victim treatment scheme, based on oversimplified assumptions about trafficking victims

i­nclusive, critics argued they are often shaped by short-term, narrowly focused policy concerns and by assumptions of what trafficked victims should want rather than what they may actually need. In the process, victims who do not want to be ‘rescued’ and repatriated or who seek alternative forms of support (for example, financial assistance) are silenced and marginalised.” Lee, supra note 277, at 79. See also Marie Segrave, Sanja Milivojevic & Sharon Pickering, Sex Trafficking: International Context and Response 190–92 (2009).

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c­ oupled with misleading stereotyping fostered in part by the “modern-day slavery” catchphrase. The regimes pay scant attention to individuals’ actual needs and rights. The next two chapters will explore the diverse and complex nature of the experiences of individuals situated at the intersection of labor migration and human trafficking. The chapters will further investigate the efficacy of the current anti-trafficking frameworks examined in Chapters 2 and 3 as applied in real cases, and will explore the impacts of these frameworks on the individuals’ human rights and well-being.

chapter 4

Case Study 1: South Korea* 1 Introduction This chapter conducts an in-depth case study of the complex legal situation of vulnerable migrants located at the intersection of human trafficking and labor migration—Filipina “entertainers” working in u.s. military camp towns in South Korea. This study presents narratives from the field and the analysis of relevant legal systems and practices useful for evaluating the efficacy of the current anti-trafficking regime discussed in Chapters 2 and 3. The findings of the research illuminate the ambiguous, complex and diverse realities of ­victimized and vulnerable migrant individuals, which cannot be adequately addressed by the approaches centering on crime and immigration law enforcement. South Korea is one of the least active destination states in implementing the anti-trafficking framework, although the state has adopted the relevant laws. This research investigates the reasons why the legal system does not work for the benefits of the individuals it is supposed to serve, and reveals how the law instead aggravates and reproduces the migrants’ multiple predicaments and vulnerabilities: The dichotomous law deprives the marginalized migrants of proper legal status, rights, and remedies, failing to recognize them either as trafficking victims or as migrant workers. The findings highlight the inadequacy of the current regime’s flattened perception and indiscriminate treatment of trafficking victims, in particular the repatriation policy, which does little to address the various rights violations that the migrants experience. Section 2 of this chapter investigates the migration processes of Filipina entertainers through the entertainer visa system in Korea, their life and work under abusive conditions in u.s. military camp towns’ “foreigner-only clubs,” and the reasons why the majority of the entertainers are enduring their current situations. Section 3 examines these entertainers’ complex situations through the lenses of human trafficking and labor migration. It sets out five different groups of Filipina entertainers for analysis, based on their prior e­ xpectations

* An earlier version of this chapter has been published as a separate article: Yoon Jin Shin, Human Trafficking and Labor Migration: The Dichotomous Law and Complex Realities of Filipina Entertainers in South Korea and Suggestions for Integrated and Contextualized Legal Responses, 48 VAND. J. TRANSNAT’L L. 753 (2015).

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004311145_005

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about their jobs and current desires after migration. This section demonstrates that victimhood and agency, as well as the vulnerability and aspirations ­co-exist within individual migrants’ multi-layered experiences. It also ­illuminates the diversity among these entertainers. Section  4 investigates the current legal ­responses of the Korean government. It analyzes the ways in which the legal system and practices effectively deny migrant entertainers’ legal status and rights either as trafficking victims or as migrant workers, and how the law successfully marginalizes them as “unlawful foreign hostesses.”1 The findings in this section offer insight into why the current anti-trafficking regimes around the globe are doing such a poor job. This study also critically analyzes actual decisions by Korean courts and prosecutors in criminal cases brought by migrant entertainers against their employers. The section then evaluates the responses of Korea in terms of its human rights obligations and responsibilities. The Author’s first-hand experience in the field, working as a pro bono lawyer with My Sister’s Home—the only ngo in Korea specializing in supporting migrant entertainers in u.s. military camp towns—provided critical foundations for this study. This experience included: providing legal counseling for clients and staff, assisting them in filing legal claims, participating in actual investigation procedures by the police and prosecutors, meeting with entertainers’ employers, visiting recruiting agencies and the Korean Embassy in the Philippines, and interviewing relevant government officials in both states. The Conclusion discusses the adequacy of the current anti-­trafficking regime in addressing the victimized migrants’ complex and diverse situations and the implications of this case study for shaping a better framework. 2

Migration and Work of Filipina Entertainers in u.s. Camp Towns in South Korea

A Overview of the Migration Process 1) Figures Every year, more than four thousand foreigners enter South Korea with “art and entertainer” (E-6) visas.2 E-6 visas are issued with three subcategories: artists, or entertainers who will appear in the media (E-6-1); entertainers who 1 2

1 For the meaning of a hostess used in this chapter, see note 19 and the text accompanying note 27. 2 See Table 1.

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will perform in tourist establishments, including tourist hotels, tourist restaurants, and “foreigner-only entertainment establishments” (E-6-2);3 and ­sportspersons (E-6-3). Since 2004, women from the Philippines have ­dominated the E-6-2 c­ ategory. As of June 2014, 5,086 foreigners reside in Korea with E-6 visas.4 Among them, 82.7% (4,207) are staying with E-6-2 visas, among whom 85.6% (3,602) are women.5 Among those women holding E-6-2 visas, 85.7% are from the Philippines (3,089).6 Under the Korean immigration law, every E-61 and E-6-2 visa applicant must receive a “recommendation of performance” from the Korea Media Rating Board before applying for a visa.7 In 2013, the Board issued 1,850 recommendations for E-6-2 categories, among which 75.1% were for performing in “foreigner-only entertainment establishments” (hereinafter foreigner-only clubs).8 A foreigner-only club is a form of adult entertainment bar business requiring permission of the government to operate, defined as “a business operating facilities suitable for foreigners, with a license for an entertainment bar ­business…to serve customers alcoholic beverages or other foods and provide them with singing and dancing performances to watch or facilities for dancing.”9 As of 2010, 348 foreigner-only clubs were operating in Korea, concentrated in u.s. military camp towns, while a much smaller number are located in ­shipbuilding areas where a number of high-income foreign engineers reside.10 As is easily inferable from the immigration statistics cited above, the dominant ­majority of migrant entertainers working in foreigner-only clubs are women 3 4 5 6 7 8 9 10

3 4

5 6 7

8 9

10

In this chapter, entertainers mean those who hold E-6-2 visas. Korea Immigration Service, Monthly Statistics of June 2014, http://www.moj .go.kr/HP/COM/bbs_003/ListShowData.do?strNbodCd=noti0097&strWrtNo=141&strAns No=A&strOrgGbnCd=104000&strRtnURL=IMM_6070&strAllOrgYn=N&strThisPage=1&s trFilePath=imm/. Id. Id. The Korea Media Rating Board is a semi-governmental entity commissioned by the the Ministry of Culture, Sports and Tourism. The Immigration Control Act requires E-6-1 and E-6-2 visa applicants to attain the Board’s “performance recommendations” as a prerequisite for visa applications. Korea Media Rating Board, 2013 Yearbook 360 (2014). Enforcement Decree of the Tourism Promotion Act, Presidential Decree No. 23790, May 14, 2012, art. 2, para. 1.6(c) (translated in Statutes of the Republic of Korea, http:// elaw.klri.re.kr/kor_service/lawView.do?hseq=28365&lang= ENG). Ministry of Culture, Sports and Tourism, The Census on Basic Characteristics of Tourism Establishment 2009, at 32 (2011).

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from the ­Philippines.11 Almost all of these Filipina entertainers entered Korea with ­singer visas.12 Table 1

Number of entrants with E-6 Visas.a

Year E-6 Total E-6 Female E-6 Philippine E-6 Philippine E-6 Russian (number (number (number of Female (num- Female (numof E-6-2) of E-6-2) E-6-2) ber of E-6-2) ber of E-6-2) 2013 2012 2011 2010 2009 2008 2007 2006 2005 2004 2003 2002 2001 2000 1999 1998 1997

4,368 4,162 (1,787) 3,655 4,183 4,577 4,845 4,185 4,518 4,759 3,943 4,640 6,452 8,586 7,044 4,486 2,105 2,211

2,420 2,383 (1,420) 1,854 2,505 2,996 3,052 2,617 2,740 3,111 2,498 3,376 5,062 6,971 5,578 3,392 1,345 1,228

1,609 1,735 (1,319) 1,319 2,002 2,505 2,332 2,048 1,900 2,381 2,215 1,375 1,208 2,051 1,849 1,225 898 926

1,441 1,496 (1,154) 1,075 1,762 2,254 2,001 1,679 1,530 2,011 1,854 1,022 840 1,599 1,334 876 630 571

56 90 (30) 80 79 132 122 188 296 338 166 1,691 3,039 3,518 3,163 1,812 406 261

a Korea Immigration Service, Yearly Statistics, 1997–2013, http://www.moj.go.kr/HP/COM/ bbs_003/BoardList.do?strNbodCd=noti0096&strOrgGbnCd=104000&strFilePath=imm/&str RtnURL=IMM_6050&strNbodCdGbn=&strType=&strAllOrgYn=N.

11 12

11

12

In 2011, 1,983 foreign entertainers (E-6-2) were recommended to perform in Korea by the Korea Media Rating Board. Among them, 90.5% (1,794) were from the Philippines. Korea Media Rating Board, 2011 Yearbook 309 (2012). In 2010, 2,570 foreign entertainers ­(E-6-2) were recommended, among whom 92.8% (2,340) were from the Philippines. Korea Media Rating Board, 2010 Yearbook 330 (2011). While the Korea Media Rating Board does not produce gender specific data; the gender ratio can be inferred from immigration statistics. For example, as of June 2014, migrants from the Philippines residing with E-6-2 ­visas were 3,411, among whom women were 90.5% (3,089). Korea ­I mmigration ­S ervice, supra note 4. All clients of My Sister’s Home stated there were no migrant entertainers from countries other than the Philippines in their clubs, nor were there male entertainers. In this chapter, the term Filipina entertainers refers to women from the Philippines with E-6-2 visas working at foreigner-only clubs in Korea.

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2)

Migration through the Entertainer Visa System into the Sex Industry The recruitment, migration, and employment process of Filipina entertainers to work in foreigner-only clubs in Korea is standardized through the e­ ntertainer visa system. The process is conducted with close coordination ­between ­local ­recruitment agencies in the Philippines, “worker dispatching agencies” in ­Korea,13 owners of foreigner-only clubs, and the Korean government. In the majority of cases from My Sister’s Home, local recruiters in the Philippines approached young women, who are often single mothers or breadwinners, in their villages. The recruiters promise them jobs as singers in u.s. military camp towns in Korea and a decent salary. Some women contact recruitment agencies themselves after seeing the agencies’ advertisements on the street or on the Internet. An aspiring female entertainer first needs to pass a “singing audition” at a recruitment agency in the Philippines, where a Korean employer, a so-called promoter who runs a “worker dispatching agency” (hereinafter a dispatching agency), flies from Korea to choose Filipinas to work for him. If the applicant is selected, the local agency makes and sends a video recording of her singing performance to the Korean agency, which then submits it to the Korean Media Rating Board to obtain its performance recommendation. Many applicants receive a certain period of training from the local agencies before video recording while living in a confined dormitory. To apply for the Board’s recommendation, an applicant must also sign a “performance contract” prepared by the Korean dispatching agency. Most of these contracts are identical to the “Standard Performance Contract” drafted by the Board as a sample. This standard contract stipulates that an entertainer performs for one year14 at the place designated by the Korean dispatching agency, is paid a monthly salary of the legal minimum wage or more,15 works no more than 8 hours a day, takes one full day off a week, and receives free round trip flight tickets home, meals, and housing.16 With the aspiring entertainer’s performance video and a signed contract, only a dispatching agency, not the entertainer, can apply for a ­recommendation 13 14 15 16

13

14 15

16

A worker dispatching agency is a licensed business in Korea, dispatching workers who belong to the agency to employers who want to hire them. Under Korean labor law, a dispatching agency is the primary employer of dispatched workers. This contract is renewable for another year, as the maximum term of an E-6-2 visa is two years. The legal minimum wage in Korea in 2014 set by the Ministry of Labor is about $5.10 per hour and about $1,020 per month (in case of eight working hours a day for twenty-five days a month). Further analysis of this standard contract is conducted in Section 4.B.

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from the Board. Once the Board grants a recommendation, the Ministry of Justice issues a “Certificate of Eligibility of Visa Issuance (cevi)” to the applicant. A local agent then takes the applicant to the Korean Embassy in the Philippines for a visa interview. At the interview, the Korean consul checks the applicant’s name and asks her to sing again in front of him, without further questioning on her designated workplace or her knowledge about the terms of her contract. With rare exceptions, the consul issues an E-6-2 visa, usually on the same day as the interview.17 With the visa finally in hand, the aspiring entertainer gets on a plane to Korea. At the Incheon (Seoul) Airport, she is met by personnel either from her dispatching agency or a foreigner-only club, who take her directly to the club in a u.s. military camp town. On the first night after her arrival, she discovers that she will not be working as a singer, but as a hostess, a so-called “juicy girl.”18 B A Brief History of the u.s. Camp Town Sex Industry in South Korea South Korea has an ongoing history of governmental regulation and patronage of the sex industry around u.s. military bases in Korea, particularly since the 1970s, when the u.s. government decided to reduce its troop deployments in Asian regions.19 While criminalizing prostitution in general, the Korean government made a special exception for u.s. military camp towns, so-called kijichon, in Korean. The government has shielded from law enforcement those involved in prostitution in kijichon and even encouraged Korean women to relocate to and work in this industry, praising it as “patriotic.”20 The government has also systematically regulated the women’s sex-related medical conditions.21 When the number of Korean women working in kijichon sharply decreased in the 1990s, the members of the Special Tourist Business Association, the association 17 18 19 20 21

17

18 19

20

21

At the interview this Author had with a Consul at the Korean Embassy in Manila in June 2010, the Consul answered he did not have much discretion in issuing E-6 visas since applicants already received a cevi from the Ministry of Justice, and the denial rate by his hand was less than 3%. In Korea, the term hostess is slang for a woman working in adult clubs who serves male customers and whose work is assumed to involve sexual services. For scholarly work in English on the history of the sex industry of u.s. military camp towns in Korea and the relevant roles of and the politics between the two governments, see Katharine H.S. Moon, Sex Among Allies: Military Prostitution in u.s.Korea Relations (1997); see also Sealing Cheng, On the Move for Love: Migrant Entertainers and the u.s. Military in South Korea 15–20, 59–65 (2011). See, e.g., Former Korean “Comfort Women” for u.s. Troops Sue Own Government, Reuters, July 11, 2014, http://uk.reuters.com/article/2014/07/11/uk-southkorea-usa-military-idUKK BN0FG0WK20140711. See Moon, supra note 20, at 78–83, 127–48.

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of club owners in kijichon areas, requested that the government allow them to “import” foreign hostesses to sustain their businesses. In 1996, the government granted them a legal entitlement to hire foreign entertainers at kijichon clubs through the E-6 visa system.22 In 1999, the government even loosened legal regulations on hiring foreign entertainers by replacing the requirement for permission by the Minister of Culture and Sports with the requirement of a much more lenient recommendation by the Korea Media Rating Board.23 Since then, the number of migrant women entering Korea with E-6-2 visas (mainly from Russia and the Philippines) has dramatically increased,24 as has the ­number of foreigner-only clubs and dispatching agencies. Most Russian women were hired with dancer visas, mainly at adult entertainment clubs for Korean male customers, who generally favor white women. Filipinas holding singer visas have predominantly been hired in kijichon foreigner-only clubs to serve gi customers because of their ability to speak English. After these migration flows began, widespread exploitation and abuses of female migrant entertainers drew international criticism, including from the Russian government. In response, the Korean government decided to stop issuing E-6-2 dancer visas in June 2003 while continuing to issue E-6-2 singer visas, of which the dominant recipients were Filipinas.25 Korean law, in fact, legalizes hiring hostesses (in legal terms, “workers engaged in entertainment”) in the bar entertainment business. The Food ­Sanitation Act defines workers engaged in entertainment as “women who provide amusement to customers by drinking alcoholic beverages with customers, singing or dancing.”26 A foreigner-only club is a kind of bar entertainment business open exclusively to foreign customers where these workers engaged in entertainment, the migrant entertainers, are hired to amuse them by singing or other services. In other words, the E-6-2 singer visa system for foreigneronly clubs exists in order to bring foreign women to work as hostesses. ­Hiring ­Filipina entertainers as “juicy girls” in these clubs is thus not an abuse or misuse of the visa system by individual perpetrators, but the system’s original intent. 22 23 24 25 26

22

23 24 25 26

Ministry of Culture and Tourism, Woekukin Yeonyein Doyib Siltaejosa mit Jeongchaekbikyo Yeongu [Research on Situations of Employment of Foreign Entertainers and Comparative Policy Study] 41–42 (2006). Id. at 63–66. See Table 1. See Table 1 for the sharp decrease of Russian female entertainers in 2004 and dominance by Filipina entertainers since then. Food Sanitation Act, Act. No. 1007, Jan. 20, 1962, amended by Act. No. 10787, June 7, 2011, art. 22 (translated in Statutes of the Republic of Korea, http://elaw.klri.re.kr/ kor_service/lawView.do?hseq=22661&lang=ENG).

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A survey by the Ministry of Culture and Tourism in 2006 contains interviews with promoters and club owners in kijichon, which confirm that operating the E-6-2 visa system for foreigner-only clubs is a coordinated project by those buisnessmen and the Korean government: In 1996, we asked the government to allow us to import entertainers. Our business was under threat of closing down due to the size reduction of the us Force in Korea and economic crisis....But the government could not [bluntly] issue “hostess” visas. Anyway, the government felt responsibility for our difficulties, so after deliberation, they created an entertainer visa for us to bring in hostesses under the name of entertainers....Our business is not unlawful, but just fits the original purpose of the visa.27 Kijichon clubs needed women who would do waitressing and entertain customers at the same time. As there was no other way to import them, dancer visas and singer visas were used.28 C Working and Living Conditions of Filipina Entertainers Filipina entertainers in foreigner-only clubs are directed to perform the work of hostesses. Filipina entertainers are often called “juicy girls” by their gi customers. This double entendre reflects the fact that one of their main duties is to sell customers as many glasses of juice or drink as possible in order to meet their monthly “juice quota” assigned by club owners. Each entertainer is ­usually assigned a juice quota ranging from 300 to 400 points each month. Selling one ten-dollar glass of juice counts one point.29 Each ten-dollar glass of juice gives customers twenty minutes to sit and flirt with Filipina entertainers. 27 28 29

27 28 29

Ministry of Culture and Tourism, supra note 23, at 40–41. Id. at 41. In 2011, the Ministry of Gender Equality and Family in Korea conducted a survey on ninety -eight migrant women, including fifty-one Filipina entertainers, who were working or have worked in entertainment establishments that were assumed to engage in prostitution. According to this survey, 70% Filipina entertainers answered that their clubs had a juice quota system. Ministry of Gender Equality and Family, Survey for the Migrant Women Employed in the Entertainment Business in Korea 90 (2011) [hereinafter the 2011 Survey], http://www.prism.go.kr/homepage/researchCommon/retrieveResearchDetailPopup.do?research_id=1382000-201100019. Due to the limited number of respondents in this survey and constraint situations of currently working entertainers that make them hesitate to provide more candid answers, it would be hard to consider the result of the Survey as an accurate presentation of the reality of migrant entertainers. Nevertheless, this chapter cites this survey as a reference considering its importance as a recent direct survey on migrant entertainers, conducted as a government project to understand their situations in various aspects.

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If an entertainer does not meet her assigned juice quota, various penalties are imposed: no day off or free time in the following month, no bonuses, transfer to other clubs with worse conditions, and threats of being sent back to the Philippines. Verbal threats and intimidation are routine, and physical violence occurs frequently.30 However, it is in fact impossible to meet their monthly quotas when the entertainers sell only juice or drinks. No clients of My Sister’s Home, for example, had met their d quotas: many reported they could make only forty to fifty points a month by selling juice. For most entertainers, the only way to achieve their monthly quotas is “going out for a bar fine,”31 which is slang for prostitution. According to the rules of most clubs, one bar fine counts as twenty to thirty points, equivalent to selling twenty to thirty glasses of juice. A customer pays a bar fine of $200–$300 directly to the club owner, not to the entertainer, before he takes her outside, often without asking her consent. No client of My Sister’s Home had a chance to sing in her club. Instead, requiring entertainers to perform provocative dances on stage wearing bikinilike garments is a widespread practice. In the hall, entertainers have to sit with customers, badgering them to buy drinks, offering lap dances, and sometimes “hand jobs” or oral sex. They also have to perform extra labor, such as cleaning up the club and washing dishes every day after work.32 The entertainers experience various constraints on their freedom. In many cases, either promoters or club owners confiscate their passports. Most clients of My Sister’s Home did not possess their passports when they came to the shelter. Entertainers usually live in a dormitory located inside or next to their club buildings, where they spend most of their off-work hours. Even during ­off-work hours, “real” free time spent outside is minimal: in many cases, one hour a day or less.33 During the “real” free time, many clubs let their ­entertainers go outside only when accompanied by a Korean employee or a senior Filipina entertainer.34 In some clubs where an entertainer can go out by herself during free time, the owner or manager repeatedly calls to monitor her

30 31 32 33 34

30

31

32

33 34

According to the 2011 Survey, 29.3% of Filipina entertainers answered they have experienced physical or psychological abuse in workplace. Among the respondents who were staying in a shelter, 48% answered they had experienced such abuses. Id. at 114–15. Customers who want to have sexual intercourse with an entertainer need to pay a club owner $200 to $300. This money is considered as a “fine” for a customer to pay the owner in order to take the entertainer outside the club during her work hours. In the 2011 Survey, current Filipina entertainers answered they were working 8.84 hours a day while former entertainers staying in a shelter answered they worked thirteen hours a day. Ministry of Gender Equality and Family, supra note 30, at 92. In the 2011 Survey, 29.2% of Filipina entertainers answered they could not freely go outside of their club during their free time. Id. at 94. This fact is confirmed also by the 2011 Survey. Id. at 93–94, 122.

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location.35 Clubs often impose heavy fines for returning even a few minutes late from free time.36Closed-circuit television (cctv) surveillance over dormitories is also common.37 Most clients of My Sister’s Home had only one or two days off a month, if any.38 If an entertainer wants to take an additional day off, she must pay a heavy fine to “buy herself a day.”39 Promoters and club owners constantly warn their entertainers that if they run away or contact the police or ngos, they will be immediately apprehended by the Immigration Service and deported for doing work beyond the scope of their visas. If an entertainer quits her job in the middle of her contract term, she must pay an extravagant penalty for breach of contract, which her employer asserts will be imposed upon her family in the Philippines.40 The lack of knowledge about Korea, including geography, language and legal system, and the absence of a social network outside their clubs contribute to the constrained lives of Filipina entertainers.41 Filipina entertainers work under poor medical and health conditions. Club owners do not readily let them go to the hospital except for hiv and std examinations.42 Many entertainers do not have medical insurance and have to pay their own medical expenses, including costs associated with stds.43 Upon becoming pregnant, entertainers face losing their jobs unless they have an 35 36 37 38 39 40 41 42 43

35 36

37 38

39

40

41 42 43

Id. Fining rules vary by clubs. In the 2011 Survey, one Filipina entertainer answered she had to pay $20 for being fifteen minutes late, while another entertainer answered she had to pay $300 for being five minutes late. Id. at 112. In the 2011 Survey, 50% of Filipina entertainers answered there were cctvs installed in their clubs and dormitories. Id. at 123. According to the 2011 Survey, Filipina entertainers had 3.47 days off a month on average. Former entertainers answered they had 2.41 days off a month on average. Some Filipina entertainers answered they had no day offs at all. Id. at 92. In the 2011 Survey, one Filipina entertainer stated that she had to pay $100 to $150 to her club owner to take a day off and that on a day without any customers in her club, entertainers were forced to pay the same amount as a fine for having no customers. Id. at 113. The 2011 Survey shows that 40% of Filipina entertainers answered they must pay a ­penalty to their employers if they quit their job in the middle of their terms. The average amount of the penalty was $1,887.50. Id. at 53; see also Cheng, supra note 20, at 85 (quoting Filipina entertainer’s statement that she had to pay $5,000 as penalty for breaking her contract). In the 2011 Survey, 96.1% of Filipina entertainers answered they spoke no or little Korean. Ministry of Gender Equality and Family, supra note 30, at 136–37. See Cheng, supra note 20 at 61; Ministry of Gender Equality and Family, supra note 30, at 125–26. In the 2011 Survey, 54.1% of Filipina entertainers answered they did not have health insurance. Ministry of Gender Equality and Family, supra note 30, at 124.

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abortion at their own cost.44 Many clients of My Sister’s Home stated that club owners forced them to take pills every day, which, they were told, were to keep them “slim, sober and stimulated.”45 While their contracts stipulate free meals, club owners usually give each entertainer only $10 a week for food expenses, which allows them only extremely poor options.46 The legal status of Filipina entertainers is subordinated to their dispatching agencies and club owners. However abusive and poor their working and living conditions are, Filipina entertainers must work in a place designated by their dispatching agencies.47 As mentioned earlier, only dispatching agencies are entitled to apply for E-6-2 visas on behalf of entertainers for work only in assigned clubs. Migrant entertainers do not have the right to change their employers or workplaces and must pay heavy, arbitrarily calculated penalties if they want to quit their jobs. On the other hand, they must return home immediately if fired by their employers for any reason. As discussed in a later section, when entertainers leave their clubs without notice, club owners and dispatching agencies report to the Immigration Service, making their immigration status unlawful. D Mechanisms of Exploitation Under Korean law, a dispatching agency, the primary employer of dispatched workers, is responsible for paying Filipina entertainers salaries as written in their contract, usually more than $900, to comply with minimum wage regulations. However, most clients of My Sister’s Home received about $350 a month from their agencies (except for those who received no wages at all).48 44 45 46 47 48

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In the 2011 Survey, 44.4% of Filipina entertainers did not use contraception and 8.2% had experienced pregnancy while working in Korea. Many Filipina entertainers stated that their club owners coerced abortion, asking them to choose between having a surgery and going back to the Philippines after paying back all the cost they owed to their employers. One respondent answered she escaped from the club to keep her baby. 57.1% of the respondents who became pregnant had an abortion. In 75% of such cases, either the entertainers or their boyfriends paid the cost of a procedure. Id. at 128–30. Similar statements are found in the 2011 Survey. Id. at 125. Id. at 135. This problem is further discussed in Section 4.B. In the 2011 Survey, an average basic monthly salary (excluding juice quota bonus and bar fine income) that Filipina entertainers received from their dispatching was $384, while an average monthly salary written on their contracts was $848. Ministry of Gender Equality and Family, supra note 30, at 52, 95. The respondent Filipina entertainers answered they were making extra money from bonuses for selling juice (41% of their total income) and bar fines (27.7% of their total income). In this survey, an average total monthly income of Filipina entertainers was $1,269, while that of Russian and Thai entertainers was $2,623 and that of Chinese entertainers was $1,947. Id.

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­ oreover, entertainers usually do not receive any wages for the first two to four M months of their employment because the promoters arbitrarily deduct “fees” for facilitating their immigration process.49 According to a common business contract between a dispatching agency and a club owner, a club owner must pay a dispatching agency about $1,000 to $1,200 every month for each entertainer that the agency brings to the club.50 This is the main reason that club owners try to extort as much profit as possible from each entertainer: The club owner must extract more money from each entertainer than he pays the dispatching agency. Under this system, coercive labor practices and exploitation of the entertainers naturally follow. This business practice also implies that foreigner-only clubs that hire Filipina entertainers make high profits. The combination of bar fine and juice quota systems is a unique mechanism of exploitation in foreigner-only clubs in Korea. While Korean criminal law penalizes prostitution, the Supreme Court of Korea has decided that as a civil matter, the entire earnings from prostitution belong to a woman in prostitution, and when her pimp takes a part of the earnings, it constitutes a crime of embezzlement.51 Kijichon clubs operate in open violation of this rule. As noted, while customers pay $200 to $300 directly to club owners, entertainers only get “points” toward their juice quota. In many clubs, the entertainers receive 20% or 30% of the total bar fine income they made at the end of each month as “bonuses” only when they meet their quota that month. In some clubs, owners give entertainers 20% of their bar fine sales when they do not meet the quota and 30% when they do meet the quota.52 Therefore, in most clubs, a club owner unlawfully takes 70% to 100% of entertainers’ earnings. Moreover, club owners often deduct large amounts of money from entertainers’ monthly bonuses or salaries with various pretexts of fines and penalties,53 which is a clearly prohibited practice under the Korean labor law. Several clients of My Sister’s Home received little or no wages during the period of their work due to such practices. In many cases, club owners also keep entertainers’ bankbooks and return them only when the entertainers need to send money to their families in the Philippines. The above-described mechanism of embezzlement and 49 50 51 52 53

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Id. at 96–97. Id. at 34. Supreme Court [S. Ct.], 98Do2036, Sept. 17, 1999. See Ministry of Gender Equality and Family, supra note 30, at 74–77. The pretexts of fines include penalties for not meeting juice quotas, for being late for work, for coming back late after free time or bar fine, for gaining weight, or for not having any customers in a club. See id. at 111–13. In the 2011 Survey, one Filipina stated she received only $145 a month even when she met her juice quota because of such a penalty system. Id. at 114.

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arbitrary wage deduction, combined with coercive juice quota and bar fine systems, clearly violates civil, criminal, and labor law in Korea and amounts to exploitation. E Endure or Escape: Absence of Remedies and Undesired Return Some Filipina entertainers manage to leave their clubs and seek help from My Sister’s Home. However, the lack of available legal options means their hardships continue. When a Filipina entertainer leaves her club, the promoter ­reports to the Immigration Service her “arbitrary leaving from the ­workplace,”54 which immediately invalidates her visa, making her presence in Korea unlawful. Fines for unauthorized stays in Korea start accumulating on the entertainer’s immigration record. The only way the entertainer can regain lawful immigration status is to file a legal (usually criminal) accusation against her employers. She may then apply for a G-1 “miscellaneous” visa, a threemonth temporary visa issued for reasons that do not fit into regular categories.55 ­However, in order to receive a visa, applicants for G-1 visas are required to pay all their accumulated fines. This is a significant and unfair burden for the ­Filipina entertainers who have escaped abusive workplaces and become undocumented as a result. Furthermore, even if an entertainer successfully gains G-1 status, her legal status remains unstable, since renewal of G-1 visas is at the discretion of the Immigration Service. An applicant must appear at the Immigration Service office every three months to show proof of her pending case and the need for further stay. Moreover, G-1 visa holders are prohibited from working.56 After several months without work, many entertainers feel frustrated since they cannot send remittances to their families for extended periods of time. They 54 55 56

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Every employer of migrant workers has a legal obligation to report to an Immigration Service in cases of “runaway” or missing workers. Immigration Control Act, Act. No. 1289, Mar. 5, 1963, amended by Act. No. 11690, Mar. 23, 2013, art. 19 (translated in Statute of the Republic of Korea, http://elaw.klri.re.kr/kor_service/lawView .do?hseq=29332&lang=ENG). The Korean immigration system does not provide a precise visa category for victims of human trafficking or other serious crimes. As an exception to this rule and as a response to constant criticism from civil societies, the Ministry of Justice made an internal guideline in 2008 allowing a possibility for victims of “human rights violation crimes” holding G-1 visas to apply for a work permit. However, this rule has never been applied and was hardly known to local immigration offices until March 2012, when this Author found the guideline and suggested My Sister’s Home file work permit applications for their clients; the organization succeeded in attaining work permits for three clients. However, this guideline has no binding force and is still seldom applied in practice.

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often tell their families they are sick or their workplace is temporarily closed. ­Unfortunately but understandably, some of them begin to regret their decision to escape and to seek help. The result of their efforts is even more depressing: The entertainers’ cases are almost always discontinued by prosecutors who make non-prosecution decisions, and they must leave the country. As discussed in detail in Section 4.A, no E-6-2 visa case has been prosecuted in Korea for either human trafficking or coercion of prostitution. As a consequence, Filipina entertainers who have filed claims end up being treated as “unlawful foreign hostesses” who have turned themselves in. Moreover, even if an entertainer were recognized as a victim, which has yet to occur, the result would, ironically, be the same: she must leave Korea, regardless of the result of her case, when her G-1 visa expires. Most clients of My Sister’s Home have left Korea against their will, being labeled as unlawful migrants under both criminal and immigration law.57 My Sister’s Home speculates that only a small number of Filipina entertainers among those who have escaped from their clubs contact the organization for assistance. The rest are assumed to be seeking out workplaces where they might find work as undocumented migrants. Filipina entertainers worry about unfulfilled promises to their families and try to find any possible opportunities left for them. Some clients of My Sister’s Home fail to show up on the designated departure date: They decide to be undocumented rather than return with empty hands. The majority of Filipina entertainers try to struggle through their current situations without attempting to escape. Their predictable t­rajectories—losing visas, losing jobs, losing cases, and being sent back home—and the absence of safe and stable alternatives make their decisions to endure reasonable. 3

Complex Realities across Human Trafficking and Labor Migration

While law prefers a black and white classification and treatment of things, realities appear mostly in gradations of grey. A number of authors, especially in anthropology and feminist studies, have shed light on ambiguous and complex realities and identities in victimized migrants’ experiences, especially in the case of sex work and trafficking. They have criticized that the current legal system on human trafficking is inadequately built on a fictional dichotomy 57 58

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In departing Korea, the Immigration Service requires them to sign a document admitting their unlawful stay and breach of relevant laws in Korea. See, e.g., Trafficking and Prostitution Reconsidered: New Perspectives on Migration, Sex Work, and Human Rights (Kamala Kempadoo, Jyoti ­Sanghera

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between “victims” and “criminals” (or “willing prostitutes”) with a flattened ­victim stereotype that effectively erases agency.58 Through an analysis of the realities of Filipina entertainers from the perspectives of both human trafficking and labor migration, this section extends this effort to illuminate the migrants’ complex transnational experiences. This part of the study provides the ground for evaluating the adequacy of the current legal framework and ­suggesting better alternative approaches. A Examining the Phenomena through the Lens of Human Trafficking 1) Definitions under International and National Law South Korea signed the Trafficking Protocol in December 2000 and ratified it only in November 2015. Recall that the Protocol defines human trafficking in adult persons as follows: [T]he 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 purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery or practices similar to slavery, servitude or the removal of organs59 59

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& Bandana Pattanaik eds., 2012) [hereinafter Trafficking and Prostitution ­R econsidered]; Rhacel Parreñas, Illicit Flirtations: Labor, Migration, and Sex Trafficking in Tokyo (2011); Jo Doezema, Sex Slaves and Discourse ­M asters (2010); Rutvica Andrijasevic, Migration, Agency and C ­ itizenship in Sex Trafficking (2010); Laura María Agustín, Sex at the Margins: ­M igration, Labour Markets and the Rescue Industry (2007); Shelley Cavalieri, Between Victim and Agent: A Third-Way Feminist Account of Trafficking for Sex Work, 86 Ind. L.J. 1409 (2011); Dina Francesca Haynes, Exploitation Nation: The Thin and Grey ­Legal Lines Between Trafficked Persons and Abused Migrant Laborers, 23 Notre Dame J.L. Ethics & Pub. Pol’y 1 (2009) [hereinafter Haynes, Exploitation Nation]; Dina Francesca Haynes, (Not) Found Chained to a Bed in a Brothel: Conceptual, Legal, and Procedural Failures to Fulfill the Promise of the Trafficking Victims Protection Act, 21 Geo. Immigr. L.J. 337 (2007) [hereinafter Haynes, (Not) Found Chained]; Jayashri Srikantiah, Perfect Victims and Real Survivors: The Iconic Victim in Domestic Human Trafficking Law, 87 b.u.l. Rev. 157 (2007); Kathryn Abrams, Sex Wars Redux: Agency and Coercion in Feminist Legal Theories, 95 Colum. L. Rev. 304 (1995); see also Diana Tietjens Meyers, Two Victim Paradigms and the Problem of “Impure” Victims, 2(2) Human. 255 (2011). Trafficking Protocol art. 3, para. (a) (emphasis added).

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Before 2013, South Korea had no criminal law to prosecute trafficking crimes in general. The only statute mentioning “human trafficking” was the Act on the Punishment of Acts of Arranging Sexual Traffic (hereinafter Prostitution Punishment Act) with brief provisions regarding only sex trafficking. It defines “human trafficking for the purpose of prostitution” as “transferring a targeted person to a third person while holding the person under control and management by a deceptive scheme, coercion or other equivalent means for the purpose of making the person sell sex.”60 In March 2013, under international pressure mainly from the u.s. government, the National Assembly adopted an amendment to the Criminal Act to criminalize trafficking acts more generally. The two most relevant provisions stipulate: A person who obtains and maintains another under the control of his/hers or a third person by means of the threat, use of force or other forms of coercion, or by means of fraud, deception or enticement for the purpose of labor exploitation, prostitution, sexual exploitation, or the acquisition of organs, shall be punished by imprisonment for not less than two years nor more than fifteen years.61 A person who buys or sells another for the purpose of labor exploitation, prostitution, sexual exploitation, or the acquisition of organs shall be punished by imprisonment for not less than two years nor more than fifteen years.62 The following sections examine whether the situations of Filipina entertainers satisfy the above definitions of human trafficking under the Trafficking Protocol and the Korean criminal law. 2)

Five Categories for Analysis: Appreciating the Diversity of Victimized Migrants Working with Filipina entertainers at My Sister’s Home as a legal counselor and examining the organization’s advocacy records for the last five years led to one clear conclusion: that the diversity found among Filipina entertainers needs

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Act on the Punishment of Acts of Arranging Sexual Traffic, Act. No. 7196, Mar. 22, 2004, amended by Act. No. 10697, May 23, 2011, art. 2, para. 1.3 (translated in Statute of the Republic of Korea, http://elaw.klri.re.kr/kor_service/lawView.do? hseq=22187&lang= ENG). Criminal Act, Act. No. 293, Sept. 18, 1953, amended by Act. No. 11731, Apr. 5, 2013, art. 288, para. 2 (emphasis added) (translated in Statute of the Republic of Korea, http:// elaw.klri.re.kr/kor_service/lawView.do?hseq=28627&lang=ENG). Id. art. 289, para. 3 (emphasis added).

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to be appreciated and properly addressed. The entertainers show different levels of prior expectations about their work and life in Korea, diverse reactions to their actual migration and work experiences, and various hopes and expectations about their futures. Incorporating this diversity, this section presents multiple categories of Filipina entertainers for further analysis. This categorical analysis aims to overcome the victim-versus-criminal dichotomy adopted by the current anti-trafficking regime and to develop more contextualized remedies for each individual, responding to one’s vulnerability and agency in integrated ways. The first three groups are based on cases identified by My S­ ister’s Home. The last two categories are hypothetical, but were included for the purpose of a more comprehensive analysis. These five categories are certainly not exhaustive, and cannot be so, but highlight the diversity among migrant entertainers that has been utterly neglected as a result of either the flattened and essentialized concept of “trafficking victims” or blanket prejudice against migrant women engaged in prostitution. The five categories are as follows: (1) Entertainers who believed that they would be working only as singers in Korea as informed by recruitment agencies and indicated on their visas and performance contracts; (2) Entertainers who were informed or expected they would be doing works other than singing, such as waitressing or sitting and talking with customers, but no more than that; (3) Entertainers who knew or expected that they would be working as “juicy girls,” not as singers, and that they might be engaging in sexual services, including prostitution, but only when they were willing to and with the understanding that they would be keeping all proceeds, and who were not informed of the actual working and living conditions in foreigneronly clubs in Korea; (4) Entertainers who were aware of the actual working and living conditions in foreigner-only clubs, including juice quotas, bar fines, actual salaries, and various restrictions of personal freedom, but who, after starting to work, find the situations intolerable and want to leave the clubs and work in a different place; and (5) Entertainers who were aware of all the actual working and living conditions in foreigner-only clubs and are willing to stay working in their clubs as long as their visas permit. 3) Examining the Applicability of Human Trafficking in Each Case a The First Category: Agreeing to Singer’s Job Only The experience of the first group would satisfy the definition of human trafficking with the least controversy. Filipina entertainers in this category were

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deceived both about the type and the conditions of their jobs. The abovediscussed modus operandi of foreigner-only clubs and dispatching a­ gencies— abusive work conditions, restriction of freedom, coercion of prostitution through juice quotas and bar fines, heavy penalties on quitting jobs, which could amount to debt bondage, and arbitrary and significantly unfair profit distribution and wage deduction practices—would constitute exploitation under the Trafficking Protocol.63 The promoters and club owners would be punishable under the Korean criminal law provisions as well. They have ­“control over” their Filipina entertainers, with both legal and actual power to manipulate entertainers’ entire migration processes, immigration status, work conditions, and income distribution. They used deception to obtain control over the entertainers and coercion to maintain their control. b The Second Category: Agreeing to Waitressing but Not Sexual Service In the second group, even if Filipina entertainers expected and “agreed” to do certain work other than performing as singers, deception still occurred. They were not accurately informed about the nature of their work, including various forms of sexual services, nor about actual working conditions. As in the first category, they were deceived both about the type and the conditions of their work and would be recognized as victims of human trafficking under both international and Korean law. However, entertainers in this category face the possibility of being charged with violating Korean immigration law. The Immigration Control Act provides that any person who stays in Korea outside the scope of her visa shall be sentenced to imprisonment up to three years or fines of up to around $20,00064 and subject to forced removal.65 By agreeing to work beyond the scope of their professional singer visas, entertainers put themselves at risk when they report their employers’ abuses to the police. However, the extent of their immigration law violation is relatively minor. Sitting and talking with customers is neither a crime nor a serious deviation from the scope of their visas. The activities beyond that level were coerced by their employers. A minor violation 63 64 65

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The Trafficking Protocol does not provide a definition of exploitation, only listing its examples. However, the Model Law against Trafficking in Persons, provided by the United Nations Office on Drugs and Crime (unodc) defines “exploitation of prostitution of others” as “unlawful obtaining of financial or other material benefit from the prostitution of another person.” u.n. Office on Drugs and Crime, Model Law Against ­T rafficking in Persons, art. 5, para. 1(h), u.n. Sales No. E.09.V.11 (2009). Immigration Control Act, supra note 55, art. 94, art. 17, para. 1. Id. art. 46, paras. 1, 7.

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of ­immigration law by entertainers should not disqualify them from being recognized as trafficking victims. As discussed at greater length in later sections, this proposition requires understanding that the coexisting victimhood and agency of an individual do not overrule each other. Minor violations of immigration law by the entertainers cannot exempt the employers from criminal charges. c The Third Category: Agreeing to Voluntary Sexual Service Only The third group requires more deliberation than the first two. Entertainers in this group knew that they would be working as hostesses with possibilities of engaging in prostitution. As discussed in Section 4, law enforcement authorities in Korea would most likely deny their status as victims either of trafficking or of coerced prostitution. However, a closer look suggests a different conclusion is in order. While it is true that the entertainers expected to engage in sex work, they assumed that they would do so only when they chose to and for their own profits. They were not informed about the exploitative operating system that coerced them into prostitution against their will, unlawful distribution of the proceeds from their work, and other abusive and constraining working and living conditions. Therefore, although they were aware of the type of work they would be doing, they did not know or agree to the important conditions of their work. In short, they may have agreed to engage in sexual work, but did not agree to be exploited or abused. As they were deceived about important information concerning work and living conditions critical to their migration ­decisions and its consequences, the entertainers in this group can be recognized as victims of trafficking under both international and Korean law.66 However, these entertainers would find themselves in a more complicated situation than those in the second category. They not only are in violation of immigration law but also could face charges under criminal law for “voluntary” engagement in prostitution. Section 4 of this chapter and Chapter 7 will discuss related problems in greater detail. 66

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The Model Law against Trafficking in Persons by unodc is clear on this point. See u.n. Office on Drugs and Crime, supra note 64, art. 6, para. 1(f). Official commentary on this provision explains: “Deception or fraud can refer to the nature of the work or services that the trafficked person will engage in…, as well as to the condition under which the persons will be forced to perform this work or services (for instance the person in promised the possibility of a legal work and residence permit, proper payment and regular working conditions, but ends up not being paid, is forced to work extremely long hours, is deprived of his or her travel or identity documents, has no freedom of movement and/or is threatened with reprisals if he or she tries to escape), or both.” Id. at 12.

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d The Fourth Category: Fully Informed but Hoping to Leave The fourth category is a hypothetical one. One could imagine an entertainer who agrees to work in a club although she is fully aware of its working conditions. The Trafficking Protocol specifically deals with this issue, providing, “The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used.”67 This provision was adopted to invalidate traffickers’ allegations that a victim has consented to perform the labor at issue.68 However, another issue is raised here. To constitute human trafficking under the Trafficking Protocol, one of the means stipulated in the definition clause must have been used.69 If a migrant already knew all the important information about her work, it would be difficult to argue that deception has been used by traffickers in the course of migration. This leaves the other means of trafficking in the clause, such as “the abuse of power or of a position of v­ ulnerability.”70 This is the vaguest term in the definition clause, which raises questions on whether, how, and why to draw a line between victims of human trafficking and migrant workers constrained by their vulnerable social and economic situations.71 For the Filipina entertainers in the fourth category, the applicability 67 68 69 70 71

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Trafficking Protocol art. 3, para. (b). Anne Gallagher, Human Rights and Human Trafficking: Quagmire or Firm Ground? A ­Response to James Hathaway, 49 Va. J. Int’l L. 789, 811 (2009). The Model Law against Trafficking in Persons states, “It is logically and legally impossible to ‘consent’ when one of the means listed in the definition is used. Genuine consent is only possible and legally recognized when all the relevant facts are known and a person exercise free will.” u.n. Office on Drugs and Crime, supra note 64, at 34. It should be reminded that in order to constitute human trafficking, the stipulated means under the Protocol should be used for the act of trafficking (movement or receipt of persons), not the purpose of it (exploitation). Trafficking Protocol art. 3, para. (a). Explanatory Report of the Council of Europe Convention on Action against Trafficking in Human Beings provides the meaning of “abuse of a position of vulnerability” as “abuse of any situation in which the person involved has no real and acceptable alternative to s­ ubmitting to the abuse. The vulnerability may be of any kind, whether physical, psychological, emotional, family-related, social, or economic. The situation might, for example, involve insecurity or illegality of the victim’s administrative status, economic ­dependence, or fragile health.” Explanatory Report of the Council of Europe Convention on Action Against Trafficking in Human Beings para. 83, http://conventions.coe. int/­treaty/en/reports/html/197.htm; for the difficulty in discerning between trafficking victims and migrant workers under exploitation, see Haynes, Exploitation Nation, supra note 59, at 48–50.

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of this element will be the key question in deciding their victim status under the Trafficking Protocol. Under the Prostitution Punishment Act in Korea, it would be even harder to recognize them as victims, since the provision does not stipulate the abuse of vulnerability as a means of trafficking. However, the amended Criminal Act could produce a different result since it provides “maintaining someone under control” by coercion as a punishable act. Even if the entertainers in this group would not fit neatly into the definition of trafficking victims under the current law, this does not mean that they do not deserve legal remedies for their victimization. These migrants indeed experienced various rights violations in the context of international human rights law and the domestic law of destination states, so are in need of and entitled to remedies. The relationship between “being recognized as a trafficking victim” and “experiencing victimization and rights violations” is further discussed in Section 3.C. e The Fifth Category: Fully Informed and Hoping to Stay The fifth category is also hypothetical: what if a migrant entertainer, fully informed of the situation of foreigner-only clubs before coming to Korea, is relatively “satisfied” with her work and wants to continue working in her club as long as she can? Would the Trafficking Protocol still recognize her as a victim (if a stipulated means exists) because she is under exploitation anyway, so her consent does not matter? If yes, should she be rescued and safely repatriated to her home country because she has been trafficked? Or should she be punished and deported because she voluntarily engaged in unlawful sex work and violated immigration law? Related questions can be asked concerning the first three categories as well: Some of the entertainers in each category may nevertheless want to stay and work in their clubs in order to send at least a small remittance to their families rather than to report their cases to the police and be sent home. Should they still be rescued from their workplaces and sent home because they are victims of trafficking? Or are there alternative ways to address their victimization while recognizing their needs and entitlement to stay and work in Korea under lawful conditions? These important questions have largely been neglected in the global campaign of anti-trafficking regime building for the last seventeen years. B Re-examining the Phenomena through the Lens of Labor Migration The Author’s continuing interactions with the Filipina entertainer clients and the service providers of My Sister’s Home yielded a series of firsthand stories of victimized migrants, as summarized below. These findings expose the

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l­imitations and risks of approaching Filipina entertainers’ situations solely in the context of human trafficking, especially when considering the current antitrafficking regime’s oversimplified perception and treatment of trafficking victims. It is essential to have fact-grounded, prejudice-free observations of each individual’s stories of migration, work, needs, and hopes in order to develop legal responses and remedies for them that are actually helpful and effective. Such an observation would require approaching the matter in the context of global labor migration72 and understanding the perspective of individual migrants who take transnational journeys. The following sections present six key observations about the experiences of Filipina entertainers in Korea. These observations demonstrate the entertainers’ agency, experiences and aspirations as migrant workers, which together defy the stereotype of trafficking victims. (1) Every Filipina entertainer agreed and wanted to migrate to and work in Korea. This basic fact is often overlooked in the current anti-trafficking regime. ­Unlike the traditional practice of slavery, the majority of victims in contemporary transborder human trafficking cases, in fact, desired to migrate to work abroad.73 The Filipina entertainers pursued new lives and careers in Korea ­either as singers or hostesses in order to support their families at home and also to fulfill their own migration aspirations.74 Appreciating the basic fact that “migration to work” itself was not against the victimized migrants’ will but in fact strongly desired by them, makes for an important consideration in assessing the current regime’s victim treatment scheme and for developing ­alternative approaches. 72 73 74

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As indicated in Chapter 1, in this book, including this chapter, labor migration means “migration to work,” regardless the characteristics of work, sexual or non-sexual, as opposed to migration mainly for non-work purposes such as migration for marriage, family unification, or as refugees. See Haynes, Exploitation Nation, supra note 59, at 50 (“[A]ll trafficking is a byproduct of labor and migration. Victims of human trafficking are people who determined to improve their lives but had that desire exploited. Only the very rare few have been literally snatched or kidnapped by traffickers.”). In her ethnographic work on Filipina entertainers in Korean kijichon, Cheng describes the entertainers’ agency and desires as “laboring and erotic subjects in migration,” stating, “[M]igrant Filipina entertainers are global actors who pursue desires and dreams shaped by the globalization of modernity and struggle for redistribution and recognition along their own paths, simultaneously reconstituting meanings and flows in the transnational field.” Cheng, supra note 20, at 9–10.

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(2) In every case, “deception” was used as a means of recruiting Filipina entertainers. Physical force or threat was not used in any case. Unlike the slave trade in the past and the stereotypical images of trafficking reproduced by multimedia, cases in which abduction, kidnapping, or p ­ hysical forces are used as a means of trafficking are rare.75 However, neither the ­Trafficking Protocol nor anti-trafficking frameworks in individual states distinguish critical differences between trafficking by force and trafficking by deception. Like many other potential trafficking victims, Filipina entertainers desired to migrate to and work in Korea, so using physical force was unnecessary to facilitate their migration. The use of deception instead of physical force not only suggests the migrants’ vulnerability and lack of resources, but also importantly indicates their agency and volition in their aspirations for better lives and work opportunities. Remedies and assistance measures for these victimized migrants should thus be designed differently from those targeting forced migration and forced work. (3) After escaping, most clients of my sister’s home want to stay and work in Korea as long as their immigration status permits. Some want to work as singers in more decent places, whereas others want to work as regular migrant workers in a factory or a restaurant. Going home empty-handed is the last thing Filipina entertainers would want to face after escaping. Most clients of My Sister’s Home wanted to stay and work in Korea, at least for their original E-6-2 visa period.76 As discussed 75 76

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Empirical studies confirm this observation. See, e.g., Ilse van Liempt, Trafficking in ­Human Beings: Conceptual Dilemmas, in Trafficking and Women’s Rights 27, 32–33 (Christien van den Anker & Jeroen Doomernik eds., 2006); Natasha Ahmad, Trafficked Persons or Economic Migrants? Bangladeshis in India, in Trafficking and Prostitution ­R econsidered, supra note 59, at 211–12; see also Ratna Kapur, Post-Colonial Economies of Desire: Legal Representations of the Sexual Subaltern, 78 Denv. u.l. Rev. 855, 876 (2000). In the 2011 Survey, 90% of Filipina entertainers (including both current and former entertainers) answered they wanted to stay in Korea for one to five years or more. 50% of Filipina entertainers answered they wanted to stay in Korea for one to three years, 40% answered five years or more, and only 10% said they wanted to leave Korea right away. Among currently working entertainers, 34.5% answered they wanted to stay in Korea for two years and 31% said more than five years, while no one answered they wanted to leave Korea immediately. Among former entertainers staying in a shelter, 33.3% answered five years or more, 33.3% answered one to three years, and 20.8% answered they wanted to

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e­ arlier, most former clients were returned to the Philippines against their will. Some other clients instead chose to become undocumented, in which case My Sister’s Home often lost contact with them and could not offer further assistance. While some clients want to work as professional singers in safer and more decent places, such as upscale hotels or tourist restaurants, more clients want to work as regular migrant workers outside the entertainment business. These findings directly question the appropriateness and effectiveness of the main “protection measure” under the current anti-trafficking regime: safe and voluntary repatriation. (4) More Filipina entertainers are still working in the clubs rather than trying to escape. Considering the total number of Filipina entertainers working in foreigner-­ only clubs, those who escape and contact My Sister’s Home are significantly small in number. The director of My Sister’s Home, based on her outreach experiences, estimates that roughly half of Filipina entertainers currently working in foreigner-only clubs cannot escape, while the other half do not escape (though the line between the two is difficult to draw). Various circumstantial factors, as discussed in Section 2, including confiscation of passports, the threat of incurring debts and penalties for breach of contract, unstable and subordinated immigration status, lack of legal options other than returning home, and an absence of social networks, would deter many Filipina entertainers from seeking alternatives, if any, to address their situations. On the other hand, some entertainers who achieve their monthly juice quota and receive higher bonuses may be relatively satisfied with their work, as they can make more money in Korea than they did in the Philippines. The 2011 Survey yielded counterintuitive results in this regard. 89.8% of Filipina entertainers responded “satisfactory” other than “unsatisfactory” or “neither” in answering the question about their lives in Korea, although they showed variations in the extent of satisfaction.77 The authors of the survey report assess this result as 77

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leave right away. As to the reasons they want to stay longer in Korea, 55.8% answered, “I did not earn enough money.” 16.3% answered “I can earn more money in Korea than in the Philippines, and another 16.3% said “living conditions in Korea is better than in the Philippines.” Ministry of Gender Equality and Family, supra note 30, at 139. For the question on the kinds of help they currently need, 31% of Filipina entertainers answered “counseling for escape from prostitution,” 20.7%, “improvement of working conditions,” and 17.2%, “counseling for immigration status,” while only 10.3% answered “counseling about going home.” Id. at 142. 36.7% of Filipina entertainers (including both current and former workers) chose “very satisfactory,” 20.4%, “overall satisfactory,” 32.7%, “somewhat satisfactory.” Only 2% chose

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follows: “The reason for this high level of satisfaction could be found in their achievement to secure jobs abroad, while reasons for dissatisfaction would be difficulties in life in Korea. These differences in self-evaluation reflect different experiences in their lives according to their current situations.”78 Many Filipina entertainers thus choose to continue to work in their clubs despite various predicaments and constraints they experience. They are pursuing their transnational aspirations, knowing that resources and options available to them are limited. With stories of Filipina entertainers who were fully aware of the fact that they have been put into trafficking situations, but at the same time did not “feel the need to be rescued” and did not regret their decision to come to Korea, Sealing Cheng illuminates the entertainers’ ­multi-layered identity and reality.79 These findings indicate that a single and uniform response centering on rescue and repatriation, whether in the name of anti-trafficking policy or protection of women in prostitution, is unable to properly address the individuals’ situations. (5) The primary concern of Filipina entertainers staying in the shelter is that they can no longer work and send remittances to their families. As mentioned earlier, Filipina entertainers staying in My Sister’s Home’s shelter are in desperate need of employment. Some clients choose not to stay in a shelter on a full-time basis and, instead, seek employment despite the risk of being caught and deported by the Immigration Service. For many Filipina entertainers, bringing their employers to justice is a matter of much less concern than receiving overdue and embezzled wages from them and finding new jobs. In fact, enduring prolonged criminal procedures while out of employment leads to feelings of insecurity and helplessness. One client left the shelter in the middle of the investigation period and returned to her club to work again. (6) In escaping, the majority of Filipina entertainers recieved help from their gi customers/boyfriends. gi customers frequently aid Filipina entertainers in leaving their clubs and contacting the ngo for assistance. gi customers who become close to ­particular 78 79

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“very unsatisfactory” and another 2%, “overall unsatisfactory.” 6.1% chose “neither,” and no one chose “somewhat unsatisfactory.” Among current entertainers, the overall degree of satisfaction was 74.75 out of 100 while that of former entertainers in a shelter was 67.31. Id. at 138. Id. Cheng, supra note 20, at 93–94.

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entertainers sometimes help the entertainers with transportation, money to escape, and a place to stay. However, such close relationships with gis often reinforce prejudices held by law enforcement authorities against Filipina entertainers: that they came to Korea to meet gis in a club and get married to one of them.80 As dicussed in Section 4, this offers a justification for law enforcement authorities to deny them victimhood. In fact, having gi “boyfriends” is an important event for many Filipina entertainers, both for their daily earnings and for their hopes for a better life in the future.81 A hope and an attempt by entertainers to secure a living with limited means available to them should not be grounds for subjecting them to abuse and exploitation and to deny remedies. C Need for Integrated Understanding The preceding examination of Filipina entertainers’ situations from the two different angles—human trafficking and labor migration—suggests a need for integrated approaches. These multiple aspects of reality coexist, not only among thousands of Filipina entertainers but also within a single entertainer’s migration-work experience. While the deception and exploitation that most entertainers experience locate them within the definitions of trafficking victims, their aspirations and endeavors throughout their migration projects illuminate their subjectivity and agency as migrant workers. These entertainers cannot be fully described by the single term “trafficking victims” or “foreign hostesses.” It would be fairer to refer to them as individuals in transnational labor migration whose rights have been seriously violated in various ways, who bear both victimhood and agency, whether or not they are recognized as trafficking victims under the criminal definitions.82 With responses from the 80 81 82

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See Section 4.A.1.b. for actual judicial practice based on such prejudice. Cheng explores the layered socioeconomic meanings of gi “boyfriends” to Filipina entertainers, noting, “To perform the role of a poor, virginal, and exploited oriental woman in need of protection is just one way to elicit financial and emotional support as well as the ‘love’ of their American gi customers.”; “[I]t allows migrant women, aware of their marginalization and stigmatization, to assert individual respectability and self-worth through genuine affection.” Cheng, supra note 20, at 34. She also notes, “In fact, marriage to a gi is a dominant theme in the lives of Filipina entertainers in gijichon.” Id. at 91. See Julia O’Connell Davidson, Will the Real Sex Slave Please Stand Up? 83 Feminist Rev. 4, 9 (2006) (“[T]he abuses that come under the umbrella of ‘trafficking’ can vary in severity, generating a continuum of experience rather than a simple either/or dichotomy.”); Srikantiah, supra note 59, at 197–98 (“The iconic victim concept also does not contemplate victims of sex work who are not completely passive, but instead exercise agency in a variety of ways even while enslaved....A simple mythology that assumes naïve victimhood fails to grapple with the reality of the trafficking victim’s complex identity and

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overwhelming majority of Filipina entertainers that they would want to stay and work in Korea for several more years, the 2011 Survey concluded that “most migrant women [entertainers] try to find hope in Korea despite their hard and weary lives.”83 Rhacel Parreñas, in her empirical work on “Filipina hostesses” in Tokyo, conceptualized their experiences as “indentured mobility”: The framework of indentured mobility provides a nuanced picture of the Filipina hostesses’ subjugation as labor migrants, one that acknowledges their susceptibility to human rights violations but simultaneously rejects the prevailing discourse on human trafficking that paints hostesses as helpless victims in need of “rescue.” So while [this book] questions the labeling of Filipina hostesses as trafficked persons, at the same time it refuses to dismiss their vulnerability to forced labor.84 Cheng observes the multiple aspects of the migrant entertainers’ being in their transnational projects: In spite of the uncertainties and the exploitative conditions in gijichon [kijichon], most of the women constantly engage with the possibilities that migration offers – not just in financial terms but also in social, physical, sexual, and romantic arenas. They do not see themselves as “professionals,” “prostitutes,” or “victims of sex trafficking” but rather in terms of their multiple subjectivities and possibilities in migration, encapsulated in their sense of “self.”85 Of key importance is thus not whether to declare a certain migrant as a trafficking victim or not, but to appreciate and respond to one’s vulnerabilities, victimization, agency, and aspirations in integrated ways, which are not mutually exclusive but intertwined in each individual’s transnational being. Only this nuanced understanding can lead to developing comprehensive and contextualized legal responses that would actually do good for the individuals concerned. In this regard, the following section evaluates the current legal responses of the Korean government. 83 84 85

83 84 85

­ sychological state—one in which the survivor may be both victim and individual acp tor.”); Meyers, supra note 59, at 262–64 (noting many trafficked sex workers affirm their agency and do not fit into the “pathetic victim” model); Cheng, supra note 20, at 34 (mentioning “the coexistence of victimhood and agency” of the migrant entertainers). Ministry of Gender Equality and Family, supra note 30, at 138. Parreñas, supra note 59, at 7–8. Cheng, supra note 20, at 95.

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Analysis of Current Legal Responses

Judicial Practice in Korea in the Context of Human Trafficking: Denial of Victimhood 1) Judicial Practice The Korean government does not collect official data on human trafficking and has not officially admitted the existence of transborder trafficking cases in Korea. Since the start of its work in July 2009, My Sister’s Home has assisted more than twenty Filipina entertainer clients in filing criminal accusations against their employers under charges of human trafficking and coercion of prostitution. Since My Sister’s Home is the only ngo of its kind in Korea to which the police and other ngos refer their relevant cases, it has assisted in most judicial cases regarding Filipina entertainers in Korea. However, none of these efforts has been successful, with each case being dropped by prosecutors. Only a couple of club owners were prosecuted and convicted under a minor charge of “arranging voluntary prostitution,” which resulted in minimal sentences with probation. The following section examines actual decisions and rationales of prosecutors and courts in Korea that acquitted the employers of the entertainers. The analysis sheds light on the problems that are not uncommon in other jurisdictions as well, including judiciaries’ dichotomizing approach of helpless/­ innocent victims vs. voluntary/criminal migrants, the prevalent prejudice against marginalized migrants, which tends to negate the overall credibility of their statements, and the general drawbacks and limitations of a criminal justice approach. A

a Fictional Dichotomy and “Misuse of Agency” In most cases, the police and prosecutors fail from the very beginning to treat entertainers’ accusations as human trafficking cases. In fact, Filipina entertainers often do not seem to fit into the typical image of trafficking victims. They have migrated through the regular visa system without force or coercion, were free to make phone calls, and could sometimes leave the premises on their own. In all the cases in which My Sister’s Home has assisted, prosecutors and courts acquitted promoters and club owners from the charges of human trafficking and coercion of prostitution, basically because the entertainers did not look like “victims.” Their rationales include the following:86 86

86

This chapter does not disclose the case numbers of prosecutors’ decisions in order to protect the private information of entertainers. Case numbers of court decisions that are open to public access are included.

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(1) “The entertainer has worked in two foreigner-only clubs for quite a long time. There were opportunities for her to run away when she went out bar fine with customers or when she was moved to the second club. But she did not escape at those times. It suggests she worked there out of her own will.” (2) “The entertainer worked in Club A, then moved to Club B after two months and moved back to Club A. The Court does not understand how she could move back to Club A if there was prostitution in that club and she did not like it.”87 (3) “There is lack of evidence that the club owner locked the victim’s dormitory from the outside.” “The victim stated she did not try to go outside of her dormitory because she did not know Korean and did not have any money.”88 (4) “Although there was a juice quota system at the club, the owner only yelled at her occasionally, and did not beat her.” (5) “The entertainer’s allegation about coercion of prostitution at her club is suspicious because the club owner does not speak English.”89 (6) “The entertainer had received a couple of presents from gis such as a cell phone and a necklace while she was working in the club.” (7) “The entertainer seems to have led a relatively free life, writing a message on her Facebook and meeting gis outside the club.”90 (8) “The promoter stated that the entertainer had begged him to help her go to Korea and that he had told her she would have to entertain customers by ways other than singing. Thus, she cannot be regarded as ‘deceived’ in the course of her migration.” (9) “It seems that she voluntarily chose bar fine because of the juice quota system [in order to earn more points to get a bonus].” These examples demonstrate how a narrow perspective on human trafficking and the stereotype of trafficking victims can actually affect judicial practice. As rationales (1), (2), (3) and (4) indicate, if an entertainer was not locked inside the premises, did not try to escape, or was not physically assaulted, she is most likely viewed as a voluntary prostitute or hostess by law enforcement 87 88 89 90

87 88 89 90

Suwon District Court Pyeongtak Branch [Dist. Ct.], 2011Go-Dan220, 2011 Go-Jung56, Oct. 12, 2011. Changwon District Court Tongyeong Branch [Dist. Ct.], 2011Go-Dan6, Feb. 1, 2012. Suwon District Court Pyeongtak Branch [Dist. Ct.], 2011Go-Dan220, 2011 Go-Jung56, Oct. 12, 2011. Id.

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a­ uthorities. Important circumstantial factors such as passport confiscation, subordinated immigration status, the threats of debts and penalties, restriction in daily life and freedom, abusive juice quota and bar fine systems, and the use of entertainers’ unfamiliarity with Korea are not considered elements of coercion. Rationales (5) and (9) also reveal unsophisticated views of coercion, disregarding circumstantial constraining factors. As rationales (6) and (7) show, a sign of intimate relationships with gi customers or of freedom in daily life is another major ground for prosecutors and courts to deny the entertainers’ victimhood and to reject the credibility of their statements: the entertainers do not seem helpless enough to be victims. Rationale (8) is the only case in which a prosecutor mentioned an element of human trafficking (deception) even briefly. To the prosecutor, the fact that the entertainer was allegedly informed that she would engage in work other than singing signaled she was not “innocent enough.” Her vague expectation of working beyond the scope of her visa was sufficient to disqualify her from being considered a victim, even though she was not informed of important job conditions and actually experienced abuse and exploitation. The above-cited examples illustrate how actual legal practices are based on and reproduce a fictional dichotomy between human trafficking and voluntary migration. The law adheres to a mutually exclusive framework of helpless and innocent victims vs. voluntary migrants and takes opposite approaches of “protecting victims” and “punishing unlawful migrants.” This practice disregards the fact that individuals in both groups could commonly experience victimization resulting from abusive migration and labor conditions but, at the same time, possess the agency of pursuing their own transnational migration projects. The dichotomous law intervening with overlapping, ambiguous and complex realities becomes particularly dangerous (1) when the question is not just whether a migrant is a victim or not, but whether she is a victim or criminal; and (2) when this dichotomy is combined with a narrow and fictitious victim stereotype.91 91

91

See Maggy Lee, Trafficking and Global Crime Control 64–65 (2011) (“[T]hese negative and disempowering images and assumptions about trafficked victims (primarily women) lie at the heart of a prosecution-oriented victim support regime.... Victims who do not fit an idealized notion of vulnerability tend to be rendered invisible on the victimological agenda or else regarded as precipitous or blameworthy in popular and criminal justice discourses.”); Wendy Chapkis, Soft Glove, Punishing Fist: The Trafficking Victims Protection Act of 2000, in Regulating Sex: The Politics of Intimacy and Identity 51, 57–58 (Elizabeth Bernstein & Laurie Schaffner eds., 2005) (“[T]he law [tvpa of 2000] relies heavily on the distinction between ‘innocent victims’ of forced prostitution and ‘guilty sex workers’ who had foreknowledge of the fact they would be performing

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Ironically, law enforcement authorities and the judiciary in Korea are eager to search for evidence of the entertainers’ subjectivity and autonomy, and not for vulnerabilities or victimhood, when interrogating them about their migration processes and workplaces. This is not, of course, out of respect for their agency, but in order to find grounds for denying their victimhood and the consequent legal protections. Under this framework, any indication of agency by Filipina entertainers pursuing their migratory aspirations will disqualify them from claiming victimhood and make them subject to punishment and deportation.92 This practice, “misuse of agency,” presents hardships for entertainers and their advocates who endeavor to achieve justice without compromising their agency and the truth. This practice works as an effective tool for governmental authorities to attribute all the negative consequences of migration to entertainers’ own decisions.93 This rationale of incriminating victims helps destination states to evade their responsibility to address human and labor rights violations committed in their territories through their legal systems.94 92 93 94

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sexual labor.”); Davidson, supra note 83, at 9, 16 (“[I]t seems that physical suffering is the litmus test for police officers and immigration officials involved in sorting VoTs [victims of trafficking] from undocumented migrants working illegally in the sex sector.”); Meyers, supra note 59, at 258 (explaining the pathetic victim paradigm, noting that “being victimized is understood as excluding agency—that is, as entailing shameful albeit blameless passivity.”); see also Elizabeth Schneider, Feminism and the False Dichotomy of Victimization and Agency, 38 n.y.l. Sch. L. Rev. 387 (1993). See Davidson supra note 83, at 18 (“For many migrants who trade sex, becoming visible is more likely to mean being deported than it is to mean securing rights and protections as workers.”); Srikantiah, supra note 59, at 199 (“Because the iconic victim is assumed to be passive and in need of rescue, a victim who escapes risks losing the legitimacy associated with lack of volition.”). See Martha Minow, Surviving Victim Talk, 40 ucla L. Rev. 1411, 1441–42 (1993) (“[W]e should…validate the capacities and choices available to people who have been ­victimized—but not treat this as a reason to shift all blame to them and away from others or vice versa.... The debates should not be short-circuited by an assumption that a victim’s capacity for choosing an alternate course of action means the victim is to blame.... The problem is not blame and cause, but responsibility.”). Cheng mentions a similar rationale is taken also by a sending country (the Philippine government): “[A]ttributing all responsibilities for harm to women who have chosen to take the risk of prostitution as ‘willing victims.’”; “This operates to erode migrant entertainers’ sense of entitlement to state protection of their rights as citizens, migrants and workers.” Cheng, supra note 20, at 78. She also points out that “[t]he discourse of ‘willing victims’ allows the [Philippine] state to actively shift all responsibilities to migrant women. It further precludes consideration of the more fundamental issue of migrant’s rights and safe migration.” Id. at 84.

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b Prevalent Prejudice against Filipina Entertainers Prejudice against Filipina entertainers as “undeserving foreign prostitutes or hostesses” is prevalent among law enforcement authorities and within the ­judiciary. They expect victims to be helpless and innocent and so to be “deserving” and trustworthy.95 Judging based on the prejudice against the entertainers often results in rejecting the credibility of their overall statements. Below are a few examples: (1) “The Filipinas still working in the club stated that the accuser [entertainer] and some other Philippine girls ran away from the club in order to get married to gis.” (2) “The accused club owner stated that the accuser arbitrarily ran away from the club and then filed a false accusation in order to extend her stay in Korea.” (3) “The statement of the Mamasan [a Korean senior woman manager] in the club seems to be the most credible one. She stated that the Filipinas tend to file false accusations, advised by the ngo, in order to stay in Korea longer, and that the ngo encouraged Filipinas to file a false accusation in order to get governmental subsidies for their shelter.” (4) “Many Filipinas try to stay in Korea as long as possible to earn money and to get married to gis. Although the accuser arbitrarily left the club, her deportation was postponed because she filed this suit. She also got her unpaid salary back and is still staying in Korea until this sentencing day, which shows the typical behavior of Filipinas and makes her motivations for this accusation very suspicious.”96 (5) “All the Filipinas who are currently working in the accused club made the same statements as the accused club owner, saying that there was no prostitution in their club.” Rationales (1) to (4) expose how a general prejudice against Filipina entertainers damages the credibility of an individual entertainer in judicial procedures. 95 96

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See Cavalieri, supra note 59, at 1436 (“Innocent trafficking victims stand in categorical opposition to the guilty or complicit sex worker…this serves as a way to distinguish deserving from undeserving victims in the sex-work realm: the deserving victim is the one who lacked knowledge of the work she would do, while the undeserving victim knowingly chose to do sex work and, therefore, ‘asked for’ any mistreatment that followed. In the policy arena, this distinction functions as a means test for the provision of services to trafficked women.”). Suwon District Court Pyeongtak Branch [Dist. Ct.], 2011Go-Dan220, 2011 Go-Jung56, Oct. 12, 2011.

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Filipina entertainers are suspected of filing false accusations in order to stay longer in Korea or to get married to gis. My Sister’s Home is even suspected of assisting false accusations to receive governmental subsidies. The judge in rationale (4) blatantly expresses his overt bigotry toward Filipina entertainers. Although filing a criminal complaint and receiving unpaid wages are legitimate exercises of the entertainers’ legal rights, the judge used this very fact as a ground to undermine their credibility. At the same time, as in rationales (1) and (5), the police and prosecutors nonetheless trust the statements by Filipina entertainers who are still working in the clubs. The officials disregard the fact that these entertainers are more likely to testify in favor of their employers, not to incriminate themselves and lose their employment. This suggests that the prejudice is stronger in the case of the entertainers who escaped and try to exercise their rights through legal procedures. This practice can serve the ­function of silencing and penalizing “those who make trouble,” and creates a deterrent e­ ffect for those who would hope to report their cases and seek help.97 As a result of judicial practice discussed above, the Filipina entertainers who have filed criminal accusations were treated as “unlawful foreign prostitutes or hostesses” who have confessed their own unlawful acts of “voluntary” prostitution and violation of immigration law. Entertainers’ efforts to seek remedies with true and detailed statements often result in destructive consequences, such as losing jobs and visas and facing deportation.98 The staff of My Sister’s Home constantly worries that due to the narrow criminal justice perspective taken by law enforcement authorities, its advocacy work may result in harmful consequences for the clients. Moreover, participating in criminal procedures is a frustrating and traumatic experience for many entertainers due to the often intimidating and prejudicial attitude of law enforcement officers as well as their former employers.99 97 98 99

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See Kathleen Kim, The Trafficked Worker as Private Attorney General: A Model for Enforcing the Civil Rights of Undocumented Workers, 1 U. Chi. Legal F. 247, 247–48 (2009) (introducing the events of massive raids by the u.s. federal agencies on undocumented migrant workers that led to deportation while workers’ rights violations were under investigation or union negotiations were pending). Recently, My Sister’s Home began its effort to bring civil law suits against employers for past sufferings and embezzled salaries of the entertainers. So far two cases have been successful with monetary compensation even though relevant criminal accusations were dismissed by prosecutors. During the investigation, “confrontation interrogation” between an accusing entertainer and the accused club owners, promoters and entertainers still working in the club, is widely used as a common investigation tactic.

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2) Problems with the u.s. tip Reports on South Korea When the u.s. Department of State first issued its Trafficking in Persons Report (tip Report) in 2001, it ranked South Korea at the bottom (Tier 3), along with twenty-two other countries. Statements of the 2001 Report include:100 While South Korea is a leader in the region on human rights and democracy generally, the Government has done little to combat this relatively new and worsening problem of trafficking in persons. [T]here are no laws that specifically address trafficking. Aliens are treated as immigration violators and deported. No government assistance is available for trafficking victims or to support ngo’s involved in assisting trafficking victims. Although the rank brought a giant shock and shame to the Korean government, no noticeable changes were made in the following year. However, South Korea was curiously promoted from Tier 3 to Tier 1 in 2002, when the tip ­Report stated “Korea fully complies with minimum standards for the elimination of trafficking, including making serious and sustained efforts to eliminate severe forms of trafficking in persons with respect to law enforcement, protection of victims and prevention of trafficking.”101 Such a jump is inexplicable: no country before or after has ascended this rapidly, skipping a level. Since then, the State Department has ranked South Korea as Tier 1 for thirteen consecutive years, as of 2014. This favorable re-ranking has been a major justification for the Korean government to be largely indifferent to trafficking issues for the last decade. A detailed critique of the tip Reports’ evaluations would require separate treatment. Briefly however, at least two factors may have affected the tip ­Reports’ act of generosity toward Korea. First, tip reports seem to rely on inaccurate data submitted by the Korean government each year, which conflated domestic prostitution cases with human trafficking. Most cases prosecuted under the Prostitution Punishment Act in Korea are domestic cases with ­“voluntary” prostituion charges, while the sex trafficking provision has yet to be applied. Second, commentators have criticized the tip Reports’ ranking practice for being driven by u.s. political considerations.102 This might be true 100 101 102

100 Dep’t of State, Trafficking in Persons Report: June 2001 (2001). 101 Dep’t of State, Trafficking in Persons Report: June 2002 (2002). 102 See Anne T. Gallagher, Improving the Effectiveness of the International Law of Human Trafficking: A Vision for the Future of the us Trafficking in Persons Reports, 12 Hum. Rights Rev. 381, 392 (2011).

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in the case of South Korea.103 In 2012, one Korean newspaper released an article revealing the story behind that year’s ranking: The State Department Office to Monitor and Combat Trafficking in Persons had initially decided to rank Korea Tier 2 this year. However, the ­Korean Embassy in the us found out about this upcoming change and vociferously lobbied, and the State Department officials in charge of the East Asia Pacific region pleaded with the Office up until the last minute, when the Office decided to change the original decision and keep K ­ orea’s rank as Tier 1. The relevant officials are said to have argued that the downgrade could negatively affect the US-Korea relationship, especially at the present time, a time when the Korea-US fta has only recently been adopted.104 Although South Korea is now under greater pressure to take action on trafficking issues, concerns continue.105 As the u.s. anti-trafficking regime would heavily influence South Korea’s practice, the exposed problems of the u.s. ­trafficking law and policy could be repeated or aggravated, considering the ­legal practices in Korea discussed above. Legal System in Korea in the Context of Labor Migration: Denial of Status and Rights as Migrant Workers 1) Denial of Status and Rights as “Migrant Workers” Migrant workers in Korea are generally hired, regulated, and protected under the Foreign Workers Employment Act. However, the Act and its Enforcement B

103 104 105

103 Ayla Weiss notes that “South Korea’s tip report provides an excellent example of how the tip system has fallen prey to political influence.” Ayla Weiss, Ten Years of Fighting Trafficking: Critiquing the Trafficking in Persons Report Through the Case of South Korea, 13 AsianPac. L. & Pol’y J. 304, 305 (2012). Regarding the tip Reports’ leniency to South Korea, she argues, “Because the u.s. military lies at the heart of South Korea’s trafficking issues, South Korea’s tip Report could be easily skewed with the inherent conflict between an accurate report on the issues and the u.s.’ economic and political concerns.” Id. at 315. 104 The us State Department, “Korea Had Almost Ranked Tier 2,” Kukminilbo, July 29 2012, http://news.kukinews.com/article/view.asp?page=1&gCode=kmi&arcid=0006290939 &cp=nv (translations are of this Author). 105 With constant reporting effort by ngos in Korea, the tip Report 2014, while keeping K ­ orea in Tier 1, made a more detailed statement regarding problems with the entertainer’s visa system: “ngos and media alleged officials from the Korean Media Rating Board (kmrb), part of the Ministry of Culture, Sports, and Tourism, granted women E-6 entertainment visas, knowing the women were at risk of being sexually exploited, forced into prostitution, and held under debt bondage.” Dep’t of State, Trafficking in Persons ­R eport: June 2014 (2014).

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Decree exclude E-6 visa migrants from the Act’s application,106 along with other types of “professionals” such as professors (E-1), language teachers (E-2), researchers (E-3), lawyers and doctors (E-5). Migrant workers governed by the Act are those classified as “simple-skilled workers.” Filipina entertainers are thus not protected by the Act, being categoized into a group of “professionals,” along with artists and entertainers who visit Korea for a short time or are not in need of the same regulation and protection as “migrant workers.”107 This legal exclusion places Filipina entertainers in more vulnerable and disadvantaged situations than other migrant workers, such as E-9 “non-­ professional workers,” protected by the Act. For example, E-6 entertainers can stay and work in Korea for up to two years, whereas E-9 workers can stay up to five years.108 Unlike employers of E-9 workers, employers of E-6 entertainers are not required to enroll in guaranteed-insurance programs for retirement pay,109 overdue wages110 and personal-injury insurance (workers ­compensation).111 E-6 entertainers do not have the right to request a change of workplace, while E-9 workers are entitled to apply for the change up to three times, based on circumstances such as breaches of employment conditions or maltreatment by employers.112 While the government classifies E-6-2 entertainers as “professionals” who do not need the same legal protections as other migrant workers, it has at the same time imposed contradictory burdens on them. Up until November 2010, E-6-2 visa applicants had to submit a HIV-negative certificate, which was not required for other professional visa categories. Some local governments have required club owners to have their entertainers take regular hiv and std tests during the employment.113 This dual standard—legally classifying them as “professional” 106 107 108 109 110 111 112 113

106 Enforcement Decree of Foreign Workers Employment Act, Presidential Decree No. 25521, July 28, 2014, art. 2. 107 Foreign Workers Employment Act defines a migrant worker (a foreign worker) as “a person who does not have the nationality of the Republic of Korea and works or intends to work in a business or workplace located in the Republic of Korea for the purpose of earning wages.” Foreign Workers Employment Act, Act. No. 6967, Aug. 16, 2003, amended by Act. No. 11690, Mar. 23, 2013, art. 2 (translated in Statute of the Republic of Korea, http://elaw.klri.re.kr/kor_service/lawView.do?hseq= 27729&lang= ENG). 108 Id. arts. 18, 18–2. The Act provides that the initial three-year stay of E-9 workers can be renewed once for another 2 years. 109 Id. art. 13. 110 Id. art. 23, para. 1. 111 Id. art. 23, para. 2. 112 Id. art. 25, para. 1. 113 Ministry of Culture and Tourism, supra note 23, at 39.

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foreigners, while actually treating them as “hostesses”—reflects a discriminatory and exploitative attitude taken by the state toward E-6-2 entertainers. While benefiting from their labor, it denies them legal rights and protections as legitimate migrant workers. Considering their migration process, the substance and conditions of work, and their relations with employers, E-6-2 ­entertainers are much closer to E-9 “simple-skilled workers” and have little in common with the foreign professors or lawyers they are currently classified alongside. The vulnerabilities of migrant entertainers are aggravated by this legal system that excludes them from the legal status, rights and protections as migrant workers. 2) Denial of Status and Rights as “Workers” From a theoretical perspective, E-6-2 entertainers can and should be recognized as “workers” under Korean labor law. The Labor Standards Act114 defines a “worker” as “a person who offers work to a business or workplace to earn wages, regardless of the kind of job he/she is engaged in.”115 The nationality of a person does not matter. The Supreme Court of Korea has decided that even undocumented migrant workers have rights and status as workers under the Labor Standard Act if they have actually offered their labor to their ­employers.116 Filipina entertainers, who are offering labor to their employers in an entertainment business for the purpose of earning wages,117 fit the definition of “workers” under the Act. In reality, however, employment practices prohibited by the Labor Standard Act are common in foreigner-only clubs. For example, the Act prohibits arbitrary deductions of employee’s wages by employers and mandates wages to be paid in cash to workers in full.118 As noted earlier, Filipina entertainers must forgo at least the first two months’ salary to pay “broker fees” and after that, club owners deduct various fines and penalties from their wages. 114 115 116 117 118

114 The Act applies to “all business or workplaces in which five or more workers are ordinarily employed.” Labor Standards Act, Act. No. 5309, Mar. 13, 1997, amended by Act. No. 11270, Feb. 1, 2012, art. 11 (translated in Statutes of the Republic of Korea, http://elaw .klri.re.kr/kor_service/lawView.do?hseq=25437&lang=ENG). 115 Id. art. 2, para. 1. 116 Supreme Court [S. Ct.], 94Nu12067, Sept. 15, 1995. Seoul High Court has decided that undocumented workers have the right to create and join labor unions. Seoul High Court [Seoul High Ct.], 2006Nu6774, Feb. 1, 2007. 117 Labor Standard Act defines “wages” as “wages, salaries and any other money and valuable goods an employer pays a worker for his/her work, regardless of how such payments are termed.” Labor Standards Act, supra note 115, art. 2, para. 1. 118 Id. art. 43, para. 1.

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The forced work,119 overtime work,120 lack of free time121 and days off,122 and surveillance of dormitories123 experienced by Filipina entertainers on a daily basis are s­ trictly prohibited by the Labor Standards Act. Although the Act also prohibits employers from predetermining penalties or indemnities for breach of contract by workers,124 these are often imposed on Filipina entertainers. However, no labor inspection has been conducted by the government to investigate these serious labor rights violations in foreigner-only clubs. When an employer breaches working conditions set forth in a labor contract, the Act entitles a worker to claim damages and terminate her labor contract.125 A worker can report any violations of the Act by their employers to the Minister of ­Employment and Labor or a labor inspector.126 However, it is hard to imagine either entitlement being exercised by Filipina entertainers, considering their subordinate positions with respect to their promoters and club owners. Until recently, many local Labor Relations Commissions did not accept Filipina entertainers’ claims about overdue wages, on the grounds that petitions by migrant entertainers were not within their jurisdiction. Even when the Commissons have taken petitions, settlements have usually been made at around $350 a month regardless of the entertainers’ contractual salary or the statutory minimum wage. These realities indicate that Filipina entertainers’ rights and status as workers are not properly recognized and guaranteed in law and practice. The “standard performance contract” drafted and recommended by the ­Korea Media Rating Board for employment of E-6-2 entertainers consolidates the entertainers’ vulnerable and subordinate positions in relation to their employers. According to the standard contract, an entertainer must perform only in a place that a dispatching agency designates, under the direction and ­supervision of a club owner.127 An entertainer must “always maintain healthy physical conditions” and “take medical examinations by health authorities on 119 120 121 122 123 124 125 126 127

119 120 121 122 123 124 125 126

Id. art. 7. Id. art. 50. Id. art. 54. Id. art. 55. Id. art. 98, para. 1. Id. art. 20. Id. art. 19, paras. 1–2. Id. art. 104, para. 1. An employer cannot dismiss or unfairly treat the worker for making such report. Id. art. 19, para. 2. 127 Korea Media Rating Board, Standard Performance Contract arts. 1, 6, Korea Media ­R ating Board, https://www.kmrb.or.kr/data/publicDataView.do?idx=59.

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a regular basis.”128 A dispatching agency must “protect the entertainer’s security and thoroughly manage and supervise the entertainer to make sure she does not leave the performance place.”129 The contract also stipulates that a dispatching agency can cancel the contract if an entertainer leaves the workplace or violates the law.130 This standardized contract demonstrates that the state requires migrant entertainers to be submissive and healthy employees while denying their legal rights and protections as workers. C Concluding Evaluation The legal system and practice in Korea examined so far show that the law does not recognize Filipina entertainers either as trafficking victims or as migrant workers although the entertainers in fact have the identity and experiences of both. Most of the time, migrant entertainers work and live as “underground foreign hostesses.” When they seek remedies and justice in the outside world, they are labeled as “unlawful foreign prostitutes.” The very legal system and practice, not just wrongful acts by private actors, disempower, marginalize and criminalize Filipina entertainers. The analysis presented above leads to the following conclusions regarding the responsibility of the Korean government. First, in terms of human trafficking, the Korean government not only fails to protect migrant entertainers from human trafficking, but also facilitates and sustains this practice. The examination in Section  3.A showed that most Filipina entertainers’ migration processes and working conditions satisfy the definitions of human trafficking. As ­discussed in Section 2.B, the entertainer visa system for foreigner-only clubs is operated by the government to bring migrant hostesses to Korea to work instead of Korean women. The series of acts by the government (including only testing applicants’ singing ability during the visa issuance process while being fully aware of the actual nature and conditions of their assigned work, issuing singer visas, then assigning them to places where they cannot work as singers but have to work as hostesses under abusive and coercive conditions without just remuneration; and systematically denying their status and rights as migrants workers while subordinating their legal status to employers) offer c­ ompelling evidence that, by its own acts, the state drives these migrants into trafficking situations and benefits from their exploited labor. The current 128 129 130

128 Id. art. 11. 129 Id. art. 12 (emphasis added). 130 Id. art. 14.

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­ ractice of the government clearly goes against the purposes and minimal p mandates of the Trafficking Protocol that Korea has recently ratified. Second, in terms of human rights protection, the Korean government does not meet its obligations under the relevant human rights treaties.131 Considering the nature and extent of the roles played by the government, it can be argued that the state is a direct violator of human rights in complicity with private actors. Even if this argument could not be sustained, the Korean g­ overnment, at a minimum, does not meet its positive obligations under international human rights law to prevent and properly respond to human rights violations committed by private actors.132 It rather facilitates human rights violations through its legal system, has been extremely inactive in taking criminal justice measures against perpetrators, and has not made any meaningful effort to prevent the harm to or to protect the rights of Filipina entertainers. This state practice also constitutes violation of Article 6 of cedaw.133 Obviously, the government fails to meet its obligation to ensure victims effective remedies for human rights violations committed in its territory.134 Therefore, the Korean government, either by direct involvement in rights violations or by not appropriately preventing or responding to the violations by private actors, fails to meet its human rights obligations. Moreover, by designating from the beginning the jobs outside the scope of visas—by issuing a singer visa for hostess work—the Korean government knowingly drives migrant entertainers to engage in unlawful acts that violate immigration law (by working beyond their visa scope) and criminal law (by engaging in prostitution). This pre-ordained unlawful status—facing ­deportation for the very reason they were let in—effectively hinders migrant ­entertainers’ access to justice and remedies through the legal system. This can constitute a separate violation of a state obligation to ensure effective remedies for victims. 5 Conclusion This chapter examined the realities of the migrant entertainers and the relevant legal system and practice in South Korea, which have broader i­ mplications for 131 132 133 134

131 South Korea is a party to the iccpr, icescr and cedaw. 132 See Chapter 6.2.A for relevant positive state obligations under international human rights law. 133 See Chapter 2.1.C.4).c. 134 See Chapter 6.3 for state obligations regarding the right to effective remedies under international human rights law.

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the current international and national anti-trafficking regimes. The detailed analysis of the law and the reality through the lenses of human trafficking and labor migration illuminated the ambiguous, complex and diverse situations of these disadvantaged migrants, to which the stereotype of human trafficking and the uniform treatment of victims cannot properly respond. The practice of South Korea illustrates that it is highly difficult for victimized migrants to be recognized as trafficking victims even if a state has adopted national law to criminalize relevant acts. The state’s own political-economic interest and prevalent prejudice against marginalized migrants significantly impact the ways the state shapes and operates its legal system. Those who do not fit neatly into the narrow definition of trafficking victims are excluded, discriminated and demonized. The individuals’ agency and aspirations as migrant workers are used to deny their victimhood and further incriminate them. By operating the abusive labor migration system and criminalizing victimized individuals, the state benefits from the exploited labor of the migrants while effectively disqualifying them from proper rights and protections. The findings of this study demonstrate how the dichotomous, unilateral and control-based approaches of the current anti-trafficking regime can deny and damage the rights, needs and interests of the individuals concerned. The next chapter further investigates actual trafficking phenomena and the operation of the relevant legal system in another region, which shows that in a country vigorously engaged in the anti-trafficking campaign, individuals are still not being helped but often harmed in various ways.

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Case Study 2: Taiwan 1 Introduction In contrast to South Korea, Taiwan (the Republic of China) has been one of the most active destination states in Asia in building and implementing an anti-trafficking regime. Taiwan enacted the Human Trafficking Prevention and Control Act in 2009, adopting the 3P paradigm discussed in Chapter 3. As the Taiwanese government and ngos have been remarkably active in initiating and implementing the anti-trafficking framework, Taiwan makes for a good case study to investigate the efficacy of the current framework and its actual impact on individuals concerned. This Author visited Taiwan from May to July 2013 and interviewed 36 individuals in 25 entities engaged in the fields related to human trafficking. The interviewees include government officials, judges, prosecutors, lawyers, scholars, journalists, and ngo representatives. On the government side, interviewees include officials at the National Immigration Agency (nia) and the Council of Labor Affairs (cla); a former minister without portfolio in charge of national action plans on human trafficking; a judge in charge of judicial policy on human trafficking; and four prosecutors who have been leading the investigation and prosecution of trafficking cases. In the civil sector, lawyers at the Legal Aid Foundation who have been representing trafficking victims; expert scholars in the area of labor migration and human trafficking; and directors, case managers, and service providers at eight ngos and three specialized shelters for trafficking victims were interviewed. The specific names of interviewees and their affiliated entities are anonymized to protect their privacy and the independence of their work. This chapter first discusses the background behind Taiwan’s anti-trafficking initiatives. It explores how Taiwan’s own aspiration for international recognition, the influence of the u.s. government, and active roles by ngos have been intertwined in the new regime building. It then examines the most frequently identified cases of human trafficking in Taiwan, including migrant women in prostitution with fraudulent marriage visas, migrant domestic workers, and migrant workers who escaped from their original workplaces. Continuing from Chapter 4, this part of the chapter discusses the ambiguous nature of human trafficking cases and questions whether the current framework is capable of addressing the complex realities of migrant trafficking victims. Next, the

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chapter closely examines the structure and operation of the anti-trafficking framework in Taiwan. It investigates whether the current framework centering on criminal justice and immigration control is properly serving the rights and needs of the victimized individuals. 2

The Background of the Anti-Trafficking Framework in Taiwan

Taiwan’s Pursuit of International Recognition through Human Rights Commitments To understand the context of Taiwan’s active engagement in global ­anti-­trafficking campaigns, it is helpful to consider the nation’s unique political situation in the international community: its aspiration to achieve international recognition of Taiwan’s statehood and the importance of its human rights commitments in pursuing that path. Taiwan has not been a member state of the United Nations (un) since 1971, when the representatives of the Republic of China (roc) led by Chiang Kai-shek were expelled from the un and the representatives of the People’s Republic of China (prc) took over their seat.1 Taiwan’s continuous applications for a un membership have yet to come close to success.2 However, Taiwan has been striving to attain international recognition in various possible ways. Taiwan joined the World Trade Organization in 2002, and is a member of the Asian Development Bank and the Asia-Pacific Economic Cooperation Forum. Showing strong commitment to human rights has been integral to this effort. For example, the Legislative Yuan of Taiwan passed the Act to Implement the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights in 2009—the two Covenants that the roc had signed in 1967, but could not ratify before its expulsion from the un. Although Taiwan still cannot join the two Covenants under the un system, the mandates of the Covenants became the A

1 See g.a. Res. 2758, u.n. gaor, 26th Sess., Supp. No. 29, u.n. Doc. A/8429, at 2 (Oct. 25, 1971) (deciding “to restore all its rights to the People’s Republic of China and to recognize the representatives of its Government as the only legitimate representatives of China to the United Nations, and to expel forthwith the representatives of Chiang Kai-shek from the place which they unlawfully occupy at the United Nations and in all the organization related to it”). 2 The issue of Taiwan’s membership has never been included as an agenda of the General Assembly, due to a strong opposition by the prc. For more discussion on the relevant issues, see, e.g., Eric Ting-Lun Huang, Taiwan’s Status in a Changing World: United Nations Representation and Membership for Taiwan, 9 Ann. Surv. Int’l & Comp. L. 55 (2003).

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effective domestic law of Taiwan by the enactment of this implementation statute.3 In 2007, the Legislative Yuan also passed a law implementing the Convention on Elimination of All Forms of Discrimination against Women (cedaw), even though Taiwan could not join the Convention as a member state. The Taiwanese government voluntarily issued its first state report in 2009. The government also invited three former cedaw Committee members to Taiwan and held an international symposium to review Taiwan’s implementation of the obligations under the Convention.4 After the lifting of martial law in 1987, and through the first democratic presidential election in 1991 and the historic regime change to the Democratic Progressive Party (dpp) in 2000 from the Kuomintang’s (kmt) fifty-five years of ruling, Taiwan has achieved successful democratization.5 The first dpp President, Chen Shui-Bian, announced Taiwan’s aspiration to consolidate its standing as a human rights-promoting nation in the international community.6 The Taiwanese government believes that its continuous effort to actively engage in the international human rights arena would pave the way for attaining more solid international recognition of its independent statehood.7 3 For relevant discussion, see Wen-Chen Chang, The Convergence of Constitutions and International Human Rights: Taiwan and South Korea in Comparison, 36 N.C.J. Int’l L. & Com. Reg. 593, 597–99 (2011); Mark L. Shope, The Adoption and Function of International Instruments: Thoughts on Taiwan’s Enactment of the Act to Implement the iccpr and the icescr, 22 Ind. Int’l & Comp. L. Rev. 159 (2012). 4 For discussion on the cedaw and Taiwan, including Taiwanese ngos’ role in facilitating the government’s commitment to international human rights norms, see Wen-Chen Chang, An Isolated Nation with Global-minded Citizens: Bottom-up Transnational Constitutionalism in Taiwan, 4(3) NTU L. Rev. 203, 224–26 (2009). 5 See Tay-sheng Wang, The Legal Development of Taiwan in the 20th Century: Toward a Liberal and Democratic Country, 11 Pac. Rim L. & Pol’y 531 (2002). 6 In his inaugural speech in May 20, 2000, “human rights” appeared ten times. The most pertinent part includes: “we are also willing to commit a more active contribution in safeguarding international human rights. The Republic of China cannot and will not remain outside global human rights trends.... We will bring the Republic of China back into the international human rights system.... We hope to set up an independent national human rights commission in Taiwan, thereby realizing an action long advocated by the United Nations. We will also invite two outstanding nongovernmental organizations,…to assist us in our measures to protect human rights and make the Republic of China into a new indicator for human rights in the 21st century.” The English translation of his inaugural speech is available at President Chen’s Inaugural Address, Office of the President Republic of China (May 20, 2000), http://english.president.gov.tw/Default.aspx?tabid=491&itemid=18907&rmid=2355. 7 See Ken-Liang Cheng, A Critique of the Anti-Human Trafficking Industry in Taiwan From 2003 to 2009, at 29 (2009) (master thesis, National Central University in Taiwan).

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In this context, Taiwan has regarded the recent global campaigns against human trafficking as another platform for pushing forward its aspirations. While Taiwan cannot join the ctoc and the Trafficking Protocol as a member state, it proactively adopted an anti-trafficking framework in 2009, following the dominant international and national models discussed in Chapters 2 and 3. The government’s association of anti-human trafficking regime building with international human rights commitment is articulated in the recent government report on human trafficking: In 2013, Taiwan looks forward to continued partnership with the international community in safeguarding human rights through this war on human trafficking.... Taiwan aspires to become a beacon of human rights for its neighboring states to emulate.8 The minutes of the Human Trafficking Prevention Inter-Agency Meetings held in 2007, at the initial stage of Taiwan’s anti-trafficking regime building, more directly express the government’s aspiration: By carrying out the action plan…, we hope we can implement Taiwan’s overall human trafficking prevention measures and once again raise Taiwan’s international image....9 [T]he government hopes that it can do a better job in the fight against trafficking in persons, implementation of the protection of human rights, and defend Taiwan’s international image.10 In sum, Taiwan’s ambition to enhance its political position by convincing the international community of its commitment to human rights provides important context for its active anti-trafficking regime building and implementation. B u.s. Pressure on Taiwan Although Taiwan lost diplomatic relations with the United States in 1979, the two countries have been continuing unofficial, but close and substantial 8 9 10

Executive Yuan, 2012 Report on Prevention of Trafficking in Persons 3 (2013). Executive Yuan, Minute of the 3rd Executive Yuan Coordination Meeting on Human Trafficking Prevention, Nat’l Immigration Agency (July 18, 2007) (on file with author). Executive Yuan, Minute of the 4rd Executive Yuan Coordination Meeting on Human T ­ rafficking Prevention, Nat’l Immigration Agency (Sept. 17, 2007) (on file with author).

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­relationships.11 Since 1979, u.s. relations with Taiwan have been based on the Taiwan Relations Act12 and conducted through the American Institute in Taiwan (ait).13 The general political leverage of the u.s. on Taiwan has been conspicuous in anti-trafficking regime building, an area in which the u.s. has been taking an ambitious global lead. All interviewees agreed that heavy pressure from the u.s. government was a crucial driving force for Taiwan’s establishment of the anti-trafficking framework.14 The u.s. has exerted its influence through two major routes: engagement through the ait, and the monitoring mechanism through the Trafficking in Persons Reports of the u.s. State Department. The ait has worked closely with local ngos in Taiwan in sharing information, organizing meetings and conferences on human trafficking, and imposing collaborative pressure on the Taiwanese government.15 In 2005, the u.s. State Department invited representatives from two Taiwanese anti-trafficking ngos to visit relevant institutions in the u.s. and to attend a Freedom Network 11

The relations include u.s. assistance with Taiwan’s maintaining sufficient self-defense capability. See Taiwan Relations Act, 22 u.s.c. § 3302(a) (1979). For the official stance of the u.s. government on its relations with Taiwan, see u.s. Dep’t of State Bureau of East Asian and Pacific Affairs, u.s. Relations with Taiwan: Fact Sheet (Feb. 25, 2013), http://www.state.gov/r/pa/ei/bgn/35855.htm. (“In 1979,…the United States recognized the Government of the People’s Republic of China as the sole legal government of China…within this context the people of the United States will maintain cultural, commercial, and other unofficial relations with the people on Taiwan. The United States does not support Taiwan independence. Maintaining strong, unofficial relations with Taiwan is a major u.s. goal, in line with the u.s. desire to further peace and stability in Asia…assisting Taiwan in maintaining its defensive capability.”). 12 22 u.s.c. §§ 3301–3316. 13 Taiwan Relations Act defines ait as “a nonprofit corporation incorporated under the laws of the District of Columbia, or such comparable successor nongovernmental entity as the President may designate.” 22 u.s.c. § 3305(a). The u.s. State Department states: “The u.s. maintains unofficial relations with the people on Taiwan through the American Institute in Taiwan (ait), a private nonprofit corporation, which performs citizen and consular services similar to those at diplomatic posts.” u.s. Dep’t of State Bureau of East Asian and Pacific Affairs, supra note 11. 14 See also Yu-Ling Ku, Examining the Way “Anti-Trafficking” Has Being Constructed in Taiwan, International Symposium on the Protection and Practice of Local Rights, Tainan (Aug. 25, 2008) (on file with author). Ku raises a critical view on the u.s.’s paternalistic influence on Taiwan and the Taiwanese government’s eagerness to meet the expectations of the u.s. government. 15 See Cheng, supra note 7, at 68–71. Cheng explains the Taiwanese government’s anti-­ trafficking regime building as “a process of Taiwan’s political modernization toward the u.s. model, which was initiated by the ngos and the u.s. power.” Id. at 76.

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conference.16 Since 2006, several Taiwanese ngos have relayed information to the ait on a regular basis about trafficking cases and situations in Taiwan that the ngos were dealing with. Unlike South Korea, Taiwan’s ranking in the tip Reports has shown dynamic fluctuations. In 2005, Taiwan was downgraded from Tier 1 to Tier 2 for the first time due to the lack of governmental efforts to address human trafficking problems in the nation. In the same year, a massive protest by several hundred Thai workers against inhumane working conditions in the government’s subway construction site drew wide public attention.17 Without notable efforts made by the government, Taiwan slipped down again to Tier 2 Watch List in the 2006 tip Report.18 This downgrade was a shocking blow to the nation, whose leaders and ­citizens care greatly about its international reputation. The Taiwanese government immediately undertook a series of initiatives on the issue. The ­Executive Yuan announced a “Human Trafficking Prevention Action Plan” in 2006, which adopted the 3P model,19 and established “Human Trafficking Prevention Inter-Agency Meetings” in 2007.20 The Inter-Agency Meetings invited six ngo representatives as committee members and held a joint meeting every three  months.21 The Executive Yuan allocated a budget of 490 million ntd (15.5 million usd) to implement the National Action Plan between 2008 and 16

17

18

19 20

21

One scholar stated in the interview that the purpose of the invitation was to introduce them to the u.s. concept of human trafficking and its “3P paradigm,” with the expectation that those influential ngos would play pivotal roles in initiating anti-trafficking campaigns in Taiwan that followed the u.s. model. See, e.g., Thai Workers Riot Against “Unfair” Firm, Taipei Times, Aug. 23, 2005, http:// www.taipeitimes.com/News/front/archives/2005/08/23/2003268802; Taiwan Minister Resigns Over Thai Workers’ Riot, Financial Times, Sept. 5, 2005. u.s. Dep’t of State, Trafficking in Persons Report: June 2006 (2006). The relevant part includes: “There is also a growing public awareness and media coverage of the huge forced labor problem found in Taiwan’s relatively unregulated inflow of low-skilled foreign contract laborers.” Executive Yuan, 2008 Report on Prevention of Trafficking in Persons 3 (2009). Id. at 2. The Meeting is also translated as an “anti-TIP coordination task force.” Executive Yuan, supra note 8, at 3. The participating government agencies include: Coast Guard ­Administration, Council of Indigenous People, Council of Labor Affairs, Council of Agriculture, Department of Health, Financial Supervisory Commission, Mainland Affairs ­Council, Ministry of Education, Ministry of Foreign Affairs, Ministry of the Interior, Ministry of Justice, Ministry of Transportation and Communications, Veteran Affairs Council, and Judicial Yuan. Executive Yuan, supra note 8, at 4–5. See Taipei Women’s Rescue Foundation, Breaking the Cycle of Human Trafficking: A Service Model, World Social Forum on Migration 1 (Nov. 27, 2012) [hereinafter twrf].

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2010.22 Based on this governmental effort, Taiwan moved up in the tip rank from Tier 2 Watch List to Tier 2 in 2007. Finally in 2010, after the adoption of the Human Trafficking Prevention and Control Act in 2009 (the 2009 Trafficking Act), Taiwan regained its Tier 1 rank. The Taiwanese government takes the evaluation by the u.s. tip Reports seriously. Its special political relations with the u.s., the u.s.’s particular interest in leading the global anti-trafficking campaign, and Taiwan’s own aspiration to become an active player in the international community jointly motivated and expedited Taiwan’s anti-trafficking regime building.23 C Leading Roles and Active Participation by ngos Taiwan has a history of strong transnational activism in civil society.24 ­Taiwanese ngos have played integral roles in establishing the anti-trafficking framework in Taiwan. The anti-trafficking movement in civil society has been led by earlier “anti-prostitution” women’s groups such as the Taipei Women’s Rescue Foundation, Garden of Hope, ecpat Taiwan, and the Good Shepherds. Those groups adopted “anti-trafficking” as their new commitment, facing the era of global campaigns against human trafficking.25 One of the turning points for these ngos was the so-called “Throwing Package” incident in 2003. 22 23

24 25

Executive Yuan, supra note 20, at 2. See also Neil Boister, Transnational Criminal Law? 14 Eur. J. Int’l Law 953, 959 (2003) (“The breadth and depth of the normative power of tcl has attracted the interest of powerful states that are sensitive and vulnerable to many of the activities it proscribes. These states play a conspicuous role in the control of tcl, and use it to extend their own domestic criminal jurisdiction while simultaneously influencing the penal laws of weaker states. Although weaker states find this erosion of their sovereignty difficult to take, they are often not in a position to resist.”). See generally, Wen-Chen Chang, supra note 4. For an overview of the history of anti-prostitution/trafficking movement by ngos in Taiwan, see Josephine Ho, From Anti-trafficking to Social Discipline: Or, the Changing Role of “Women’s” ngos in Taiwan, in Trafficking and Prostitution Reconsidered: New Perspectives on Migration, Sex Work, and Human Rights 83 (Kamala Kempadoo et al. eds., 2nd ed., 2012). Ho explains that the first wave of anti-prostitution campaigns in Taiwan started in the mid-1980s, focusing on child prostitution/trafficking of aboriginal girls in Taiwan, based on a “rescue” framework. After the lifting of martial law in 1987, the anti-prostitution ngos changed their focus to the “punishment” aspect through legislative movement, which resulted in adoption of the Child and Youth Sexual Transaction Prevention Act in 1995. Ho criticizes that the subsequent anti-prostitution/ trafficking movement grew into a social discipline mechanism to prohibit sex work in general and to suppress the agency of sex workers by paternalistic nation-global governance against sex trafficking.

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Six M ­ ainland Chinese women, who were among twenty-six women heading to Taiwan on a boat, drowned when they jumped or were thrown from the boat to escape the Taiwanese Coast Guard. They were suspected of migrating to Taiwan for the purpose of engaging in prostitution.26 The anti-prostitution ngos perceived this tragedy as a typical example of sex trafficking of Mainland Chinese women to Taiwan and urged the government to take more rigid preventive measures.27 After the Thai workers’ protest in 2005, civil society’s attention began to expand to labor exploitation issues. ngos supporting migrant workers—such as the Hope Workers’ Center (hwc), Hsinchu Catholic Diocese Migrants and Immigrations Service Center (hmisc), Vietnamese Migrant Workers and Brides Office (vmwbo), and the Taiwan International Workers Association (tiwa)— joined anti-trafficking campaigns. Along with the anti-prostitution ngos, they created a “Coalition against Human Trafficking.”28 Some of their representatives participated in the Human Trafficking Prevention Inter-Agency Meetings as regular members. The Coalition also collaborated closely with the United States in sharing relevant information and pushing the Taiwanese government to take action. In 2008, the Coalition, in collaboration with expert scholars and lawyers from the Legal Aid Foundation, drafted a bill of the Human Trafficking Prevention and Control Act. In response, the government drafted its own bill soon after. Both bills were negotiated in the Legislative Yuan in a series of debates and public hearings. The ngo version was mainly adopted for the general definition of trafficking and for victim protection.29 The final Act was passed in the Legislative Yuan in January 2009 and entered into force in June 2009. 26

Six Dead, 20 Saved at Sea in Botched Smuggling Bid, The China Post, Aug. 27, 2003, http://www.chinapost.com.tw/news/detail.asp?id=40680; “Snakehead” Gets Death Sentence for Drowning Women, Taipei Times, Nov. 26, 2003, http://www.taipeitimes.com/ News/taiwan/archives/2003/11/26/2003077290. 27 Cheng, supra note 7, at 17–20. 28 Cheng notes that migrant workers’ rights groups took marginalized positions while the abolitionist anti-prostitution ngos continued to take a leading role in this campaign. Cheng, supra note 7, at 95, 113. tiwa later withdrew from the Coalition due to their different positions in approaching migrant workers’ rights and labor exploitation. 29 For the prosecution aspect, the final Act for the most part adopted the government version. One director of an ngo stated in the interview that the participating ngos were satisfied with about eighty percent of the final version of the Act. However, the important contents which were omitted in the final version include the victim’s right to compensation and the right to refuse to be a witness. Problems related to these aspects are discussed in Section 4 of this chapter.

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The interviewees agreed that the process was remarkably rapid, compared to the general pace of legislative practice in Taiwan. D Conclusion Taiwan’s anti-trafficking regime building was a product of dynamic interaction between the Taiwanese government, the u.s. government, and ngos in Taiwan.30 The Taiwanese government joined the global campaign against human trafficking as a platform for enhancing its participatory role and reputation in the international arena. The u.s. government, based on its influential political position, successfully pushed Taiwan to follow its lead in global antitrafficking regime building. The ngos, including anti-prostitution groups as well as migrant workers’ rights groups, actively participated in law and policy making processes and have pursued their agendas through a new framework of human trafficking. 3

Case Study

This section discusses the three most frequently identified human trafficking cases in Taiwan. The examination of each case reveals that even the most commonly recognized trafficking cases and their victims demonstrate a high degree of ambiguity, diversity and complexity. The 2009 Trafficking Act of Taiwan defines human trafficking as follows: To recruit, trade, take into bondage, transport, deliver, receive, harbor, hide, broker, or accommodate a local or foreign person, by force, threat, intimidation, confinement, monitoring, drugs, hypnosis, fraud, purposeful concealment of important information, illegal debt bondage, w ­ ithholding important documents, making use of the victim’s inability, ignorance or helplessness, or by other means against his/her will, for the intention of subjecting him/her to sexual transactions, labor to which pay is not commensurate with the work duty, organ harvesting; or to use the above-mentioned means to impose sexual transactions, labor to which pay is not commensurate with the work duty, or organ harvesting on the victims.31 30 See Cheng, supra note 7, at 76–77, 114. 31 Renkoufanyun Fangzhi Fa (人 口 販 運 防 制 法 ) [Human Trafficking Prevention and Control Act] (Jan. 23, 2009) 6845 Presidential Office Gaz. 67 art. 2, para. 1(1) (­emphasis added) [hereinafter 2009 Trafficking Act]. The English translation of

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The main characteristic of the Taiwanese definition of human trafficking is that it provides for two types of trafficking acts to be criminalized. One is to “move” persons with unlawful means for unlawful purposes. The other is to actually “exploit” persons with unlawful means. Either act constitutes human trafficking under the Act, which is a clear difference from the un Trafficking protocol. Other notable features include specifying concrete unlawful means of trafficking (such as “purposeful concealment of important information, illegal debt bondage, withholding important documents,” or “making use of the victim’s inability, ignorance or helplessness”), and stipulating the clearer language of “labor to which pay is not commensurate with the work duty”32 instead of the abstract term “labor exploitation.” Migrant Women Engaged in Prostitution with Fraudulent Marriage Visas 1) Overview The vast majority of identified victims of sex trafficking in Taiwan are either from Mainland China or Indonesia.33 Many of these victims came to Taiwan with marriage visas. Relying on marriage visas is a popular route of labor migration, since foreign spouses in Taiwan can lawfully work without categorical limitations. For Mainland Chinese women, this is in fact the only lawful way to enter and work in Taiwan, since general work visas are not issued to Mainland Chinese.34 Broker fees for arranging marriage visas vary and tend to be charged arbitrarily by brokers.35 Homeless or single men in poor economic situations A

­ aiwanese law and regulation is offered by the Ministry of Justice of Taiwan, Laws and T Regulations Database of the Republic of China, http://law.moj.gov.tw/Eng/LawClass/ LawAll.aspx?PCode=D0080177. 32 A more accurate translation of the original Chinese text of this phrase is “labor to which the payment is considerably disproportionate.” 33 According to government statistics, in 2015, 66 sex trafficking victims were newly identified and placed in shelters. Of these victims, 54 were from Indonesia and 6 were from Mainland China. Among 86 newly sheltered sex trafficking victims in 2014, 67 were Indonesians and 13 were from Mainland China. In 2013, among 121 sex trafficking victims,110 were from Indonesia and 9 were from Mainland China. Executive Yuan, 2015 ­R epublic of China (Taiwan) Trafficking in Persons Report 13 (2016). 34 Taiwandiquyudaludiqu Renminguanxi Tiaoli (臺 灣 地 區 與 大 陸 地 區 人 民 關 係 條 例 ) [Act Governing Relations Between the People of the Taiwan Area and the Mainland Area] (Dec. 21, 2011) 7008 Presidential Office Gaz. 53 arts. 10, 11 & 16. 35 According to the interviews with the ngos, the broker fees that the women had to pay ranged from 30,000 ntd to 210,000 ntd (950 usd to 6,650 usd). According to another study, the average broker fee that Mainland Chinese women pay for marriage ­migration

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in Taiwan often “sell” their ids and act as husbands of aspiring migrant women in necessary legal procedures. Prostitution is prohibited in Taiwan, and the engaged individuals are subject to administrative penalties under the Social Order Maintenance Law. No visa categories exist for this work for obvious reasons. According to interviews with ngo workers, prostitution nowadays in Taiwan is mostly arranged by “call service.” A customer makes a phone call and a broker sends a woman to a designated location with a hired driver. Most of these women already have a large amount of debt due to high broker fees and also have to regularly pay their contractual Taiwanese husbands.36 Those payments are usually deducted each time the women receive their portions for prostitution.37 2) Complex Realities Interviews with the ngos assisting sex trafficking victims in Taiwan who are already identified by law enforcement authorities reveal complicated truths about the victims’ experiences. The five findings from the interviews to be presented below demonstrate the multilayered reality of the migrant women who experience both labor migration and sex trafficking situations. First, most victim clients of the ngos already knew that they would come to Taiwan with marriage visas without the intent to have an actual marriage relationship with their Taiwanese husbands. It is true that brokers usually manage all the necessary documentation and procedures for visa applications. However, since the women must go through an interview process by an officer in the National Immigration Agency (nia), who screens fraudulent marriage migration, most women were aware of the unlawfulness, or at least the irregularity, of their migration before entering Taiwan. However, one of the interviewees stated that some Chinese women had thought that their migration was lawful and some did not think seriously about its lawfulness because they eventually passed the interviews and received and entered with visas issued by the Taiwanese government.38

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is 6,405 usd. Ko-lin Chin, Selling Sex Overseas: Chinese Women and the Realities of Prostitution and Global Sex Trafficking 173 (2012). According to an interview with a director of a shelter, a woman has to pay her “fake” husband 30,000 ntd (905 usd) each month. According to interviews with ngo service providers, with one-time prostitution, a Mainland Chinese woman earns about 1,300 ntd (41 usd), while a broker takes 2,500 to 3,500 ntd (79 usd to 111 usd), until she pays off all the debt. Women from Indonesia earn less. They get about 800 ntd (25 usd) while brokers get 1,500 to 2,500 ntd (48 usd to 79 usd). See also Regina Fuchs, Human Trafficking of Legal and Illegal Migrant Workers in Taiwan, Migrant Forum in Asia 13 ( Jan. 2011) (“Usually the women are not even aware that a fraudulent marriage itself already is a violation of law.”).

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Second, most victim clients already knew in advance that they would engage in prostitution in Taiwan. Only small numbers of clients had thought that they would have other jobs such as caretakers or factory workers. However, many interviewees stressed that most of their clients were not informed about the specific work conditions in prostitution, such as the actual amount of income they would earn, whether they could refuse customers, or whether they could quit their jobs before paying off their debts. Third, while the restriction of freedom did exist in the victims’ working and living environments, few victim clients experienced physical threats, force, or confinement. Some women lived together in a dormitory, but many others lived by themselves.39 Most victim clients had cell phones with them to receive calls from their brokers and could make phone calls to others as well. While most clients had the freedom to go outside, their passports were usually confiscated by their brokers. Some women felt they were under surveillance by their brokers or employers even when they went out by themselves. Fourth, migrant women in prostitution—even those identified as sex trafficking victims—tend to earn more money than other female migrants working in lawful sectors under ordinary conditions.40 This difference remains even after accounting for the substantial deductions sex trafficking victims have taken from their incomes for broker fees. The director of one shelter stated that the majority of their clients knew in advance about the deduction practice, but “did not think such a practice was that bad” because they came to Taiwan without paying any costs in advance and because they could earn more money than in their home countries even after the deductions.41 One shelter director stated that their sex trafficking victim clients often find the jobs available to them in a shelter are “boring and tiresome,” in addition to paying them much lower wages than they earned previously by prostitution. Fifth, no victim clients have reported their cases to the police for themselves. All of these victims were found in the course of prostitution raids by the police.42 Many interviewees agreed that most victims did not want to be

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One shelter director explained that the reason for the women to live separately was to avoid being easily detected by the police. According to an interview with a director of an ngo, the profits Mainland Chinese sex trafficking victims generate monthly are about 160,000 ntd (5,066 usd) before deductions, while the average income of migrant workers in other sectors is about 20,000 ntd (633 usd). However, the director also pointed out that there were some cases where their clients did not get any money from brokers until paying off their debts. See also twrf, supra note 21, at 4.

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“rescued” when they were found by the police and were not very pleased with their life in shelters as trafficking victims. One reason given by the interviewees was that the victims could no longer earn as much money as they did before the crackdown and victim identification. The other reason was that victims did not want to be repatriated to their home countries. One prosecutor said that in a couple of cases she handled, victims were very depressed when rescued, and worried about the debts they would no longer be able to pay back. Lawyers from the Legal Aid Foundation also agreed that many sex trafficking victims did not want to be rescued or to stay in shelters. The lawyers stated that undergoing legal procedures is a very difficult experience for victims and that they usually want to “just work, earn money then go home.” The lawyers shared a story about a victim who had been kept in a small room for prostitution and prevented from going out, but who did not want to stay in a shelter or to get any legal aid either because she was able to earn more money before the rescue. A director of an ngo for migrant workers pointed to the fact that some victims are rather “thankful” to their brokers for protecting them from police detection and are thus willing to pay broker fees. The director also stated that the rescue and victim identification processes could drive the women’s lives in more difficult and unexpected ways, and could cause “destructive” impacts on their overall situations. Only one interviewee, a director of a shelter, described the life of sex trafficking victims in shelters in positive ways. She explained that the victims tend to feel safer in a shelter, both mentally and physically, because of their suffering during their work in prostitution. In her opinion, the main reason these women did not report their cases was that the women knew they were “illegal migrants,” engaging in unlawful work, and there was no guarantee that they would be identified as trafficking victims. The “Throwing Package” incident in 2003 exemplifies the ambiguous nature of migration experienced by many female migrants engaged in prostitution. Ken-Liang Cheng analyzes how the government, ngos, and the media perceived and described the incident. As mentioned earlier, anti-prostitution ngos such as Taipei Women’s Rescue Foundation (twrf) depicted the accident as a typical example of sex trafficking by criminal groups and called for stricter border inspection and crackdowns on prostitution.43 On the other hand, a police officer interviewed by the media perceived the incident as a smuggling case and described the involved Chinese women as “gold diggers” and accomplices to migrant smugglers, violating border security and 43 Cheng, supra note 7, at 19, 67–68.

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­regulations.44 Cheng also introduced an observation by a boatman who was at the scene that portrayed the women and smugglers to be in a mutually dependent economic relationship.45 Another notable development was that the women who survived the incident changed their way of describing themselves to the public—from unlawful migrants to victims of sex trafficking—as the popular discourse proceeded.46 The ambiguous and complex realities illustrated above deviate from the stereotypes of sex trafficking victims in numerous ways. The story of these victim-migrants suggests that agency and victimhood coexist in individuals’ experiences. While these individuals are identified as victims of sex trafficking, they still possess agency as migrants pursuing better working and living opportunities outside their original communities.47 Their experiences bear a close resemblance to those of Filipina entertainers in South Korea. Some victim support ngos interpret the less stereotypical behaviors of victims with the term “a climate of fear.”48 They explain that victims “could not” escape due to circumstantial coercion, despite the absence of physical constraints, and assert that victims’ seeming consent to migrate and work should be ignored in such situations.49 However, by overemphasizing their victimhood in order to more neatly categorize them as trafficking victims, such interpretation tends to disregard and distort the subjectivity and the real experience of the victimized migrant individuals and their ability to make decisions 44 45 46 47

Id. at 20–21. Id. at 22–23. Id. at 21. A director of an ngo for migrant workers mentioned in the interview that “many ngos view and treat migrant women from Southeast Asia as being unable to think and decide for themselves, so they try to work for them from a superior position. But these women are not stupid. When you come close to them, they know things very well, they know how to survive, living and working in hard situations. If the women cope with their marriages and maintain ‘okay’ relationships with their contractual husbands, then that is a marriage for them. Many ngos do not recognize these women’s ability to decide and pursue their future. When you come closer to the reality, a simple line between ‘trafficking victims or not’ can’t work. It is no help. Reality is not that simple.” 48 One ngo director noted in the interview that judges in Taiwan lack understanding of this concept, which led them to make numerous non-guilty decisions in human trafficking cases. See also Fuchs, supra note 38, at 13–17 (discussing the importance of understanding a “climate of fear” in trafficking cases). 49 See generally, Regina Fuchs, Human Trafficking in Taiwan: Legislation and Prosecution–A Critical Review, Catholic Migrant Centers in Taiwan (2012).

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for themselves.50 A more desirable approach is to recognize and respect both the agency and victimhood of these individuals in integrated ways.51 3) Judicial Cases Taiwanese courts have been grappling with this ambiguity since the adoption of a new set of criminal provisions under the title of human trafficking. This section examines two court cases in which Mainland Chinese women came to Taiwan with marriage visas and engaged in prostitution, and were charged with sex trafficking crimes under the 2009 Trafficking Act. a Case 1 In this case, a Mainland Chinese woman came to Taiwan with a marriage visa with the help of a broker, knowing she would engage in prostitution. She also knew in advance that she would be in debt for a broker fee of 285,000 ntd (9,025 usd) which she had to pay back by working in prostitution. She would not receive any money from her employer until she paid back all her debt. She received a daily allowance of only 100 ntd (3 usd). She had no acquaintances in Taiwan.52 The Taipei District Court53 found the defendant broker guilty of a sex trafficking crime under Article 31 of the 2009 Trafficking Act, by using debt bondage and the victim’s helplessness. On the one hand, the Court recognized that the victim entered Taiwan with a purpose of engaging in prostitution, and had a type of “working relationship” with the broker. However, the Court found the deal between the two parties significantly unequal. Since the victim was not allowed to receive any money until she paid off all her debt, she had no choice but to continue to work, which constituted “improper debt bondage.” The Court also found that the victim’s unlawful immigration status and lack

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See Cheng, supra note 7, at 54 (presenting a critical view on the backgrounds of antiprostitution ngos for taking a “victim rescue” agenda and constructing sex trafficking discourse with emphasis on “victimhood”); see also Ku, supra note 14, at 14 (“[T]he mainstream victim discourse ignores the mobility of migrants themselves, but treats them as controlled objects or poor babies in need of protection. Such a simplified and hasty treatment makes us blind of the real oppression and interests and calculations of the migrants”). An alternative approach for this aim will be suggested in Chapter 7. Summary of the facts of this case is based on Executive Yuan, supra note 8, at 15; Judicial Yuan, Court Reference Book for Trials of Human Trafficking Cases 76 (2013). Taipei District Court 100 Su Criminal Decision No. 28 (Oct. 12, 2011).

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of acquaintances made her unable to seek help and made her continue to be subservient to the broker. The Taiwan High Court overruled the District Court decision.54 The High Court acknowledged that various circumstantial situations can constitute “psychological coercion” which can force someone into prostitution.55 The Court also acknowledged that in this case the broker “took advantage of the victim’s vulnerability, in particular her unlawful stay and language barriers, in an attempt to exert “psychological coercion” with which to force her into engaging in sexual transaction.”56 However, the Court ruled that there was not sufficient evidence to prove that such psychological coercion actually existed in this case. The decisive factor for the Court to reach this conclusion was the victim’s statement that “I came here to engage in prostitution because it is easier to make money in Taiwan.”57 b Case 2 In this case, two brokers ran a business arranging marriage migration for Mainland Chinese women who would engage in prostitution in Taiwan. They entered into a contract with each woman wherein the woman would pay a broker a fee of 200,000 ntd (6,333 usd) in total; pay her “fake husband” 30,000 ntd (950 usd) monthly; and pay a driver 3,200 ntd (101 usd) daily. The contract also stipulated that the woman could earn an hourly salary of 1,300 to 1,700 ntd (41 to 54 usd) with at least 22 working days a month, and that if the woman disappears, changes her mind, or breaches the contract in other ways, she must pay 20,000 rmb (3,200 usd) as additional penalty. The brokers arranged the women’s wedding ceremonies in China with Taiwanese men and processed other documents for visa applications. When the women arrived in Taiwan, the brokers took their passports, ids, and return flight tickets. They controlled the women’s schedules for prostitution, and another manager 54 55

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Taiwan High Court 100 Shangsu Criminal Decision No. 3588 (Mar. 29, 2012). Id. The Court acknowledged that “[i]n real cases, many human traffickers force victims to pay a debt resulting from migration fees, fake marriage fees, and the accumulated interest thereof. Victims feel a heavy burden psychologically and can only engage in sexual transactions against their own will in order to pay their debts. Human traffickers also take advantage of the vulnerability of the victims due to their illegal migration, illegal stay, language barriers, inability to seek help, etc. so as to make them agree to engaging in sexual transactions. Under the aforementioned human trafficking situations, such behavior constitutes as psychological coercion and must be taken into consideration.” Translated in Executive Yuan, supra note 8, at 16. Translated in Executive Yuan, supra note 8, at 16. Id.

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threatened them, saying, “If you don’t work hard, you will regret it,” “You will suffer consequences if you call the police,” and “If you run away, we can take revenge since we know where you live in China.”58 Taiwan High Court59 found the brokers guilty only of arranging a (consensual) sex trade,60 and not a sex trafficking crime. The Court reasoned that the women already knew that they would come to Taiwan with false marriage visas and also knew or at least expected they would engage in prostitution. They were also aware of the total amount of broker fees and agreed to come to Taiwan as arranged in their contracts. The Court found the defendant brokers not accountable for the threatening words made by the other manager. The Court also pointed to several other factors which made this case fall short of constituting human trafficking: that the women had cell phones and could freely contact their families or friends; that they could leave their residence at will after telling one of the brokers (some women even went on a trip); and that the women had holidays. Based on these facts, the Court found that the women were not under “improper debt bondage” or “helpless situations.” c Comments The situations of the victims in the above two cases are similar to each other and also to the interview results, in that the migrant women knew in advance about their migration route through marriage visas and their prostitution work in Taiwan. The women in the above cases also knew about their debts and the terms of repayment. They had a certain extent of freedom in their daily lives, such as using cell phones and going outside. The decisive factor for the courts in reaching the acquittal in the two cases was that these women already knew they would engage in prostitution in Taiwan.61 The High Court in the first case did not take other factors fully into account. The High Court in the second case considered the additional fact that the women agreed to their debts and the terms of their contracts. The decision also took into account the circumstantial factors that led the court to find the victims’ situations “not helpless.” On the 58 59 60 61

Summary of the facts of this case is based on Judicial Yuan, supra note 52, at 89–90. Taiwan High Court 100 Shangsu Criminal Decision No. 1207 (June 30, 2011). Zhonghuaminguo Xing Fa (中 華 民 國 刑 法 ) [Criminal Code] (June 18, 2014) 145 ­P residential Office Gaz. 139 art. 231, Sec. 1. The Executive Yuan 2012 Report commented on this issue as follows: “[V]ictims in some cases know the true purpose of coming to Taiwan in advance, but do not realize just how poor their working conditions will be, while others have no clue that they will be forced into prostitution. The former are more controversial, as it is difficult to determine whether they are human trafficking victims under the law.” Executive Yuan, supra note 8, at 15.

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other hand, the District Court in the first case paid attention to the unfairness of the debt contract even though the victim had agreed to it. In determining the existence of helpless situations, the District Court judge focused more on circumstantial factors, such as the victim’s unlawful immigration status and lack of acquaintances, rather than physical factors such as whether she had a cell phone or freedom to go outside. These court decisions show how different perspectives focusing on different factors in the same case or on different aspects of the same fact (e.g., whether to focus on the fact that the victim agreed on the terms of the contract, or on the unfairness of such terms) could lead to different conclusions. These examples of court cases affirm the ambiguity and complexity of individual migrants’ realities, which cross and blur the boundary between labor migration and human trafficking. The coexistence of victimization and endeavoring for better life opportunities is the essence of their experience. Even if their freedom was not entirely deprived as in the stereotypes of trafficking and slavery, abusive and exploitative working conditions and various rights violations did exist, and these should be addressed and remedied. The complexity of these cases illuminates the problems with the criminal justice framework that categorizes each case within a binary setting. The “guilty or non-guilty” decision dichotomizes similarly situated individuals as either “victims or non-victims,” and provides a rationale for penalizing and discriminating against those who are not classified as victims in criminal procedures. This practice ignores the crucial fact that the individuals whose victimizers are not found guilty in the criminal context still can be victims of serious rights violations in the human, civil, and labor rights contexts. B Migrant Domestic Workers from Indonesia 1) Overview In Taiwan, migrant domestic workers, including caretakers and domestic helpers, are deemed one of the most vulnerable groups to labor exploitation and abuse.62 Many interviewees pointed to the fact that the Taiwanese ­society 62

A sociological study on migrant domestic workers in Taiwan was conducted by Pei-Chia Lan, Global Cinderellas: Migrant Domestics and Newly Rich Employers in Taiwan (2006). Lan approaches the issue of globalization of domestic service with a concept of “boundary making” in terms of gender, race/class and home/family. She demonstrates the ways “complex identity politics” by migrant domestic workers play out under various social constraints, focusing on how the migrants’ agency and aspirations are manifested within and despite the structural disempowerment that makes them vulnerable and commodified. See also Fuchs, supra note 38, at 6–10, for a briefer overview and case study on migrant caretakers in Taiwan. The u.s. tip Reports on Taiwan also importantly raise migrant domestic worker issues every year.

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heavily depends on migrant domestic workers63 for various social welfare functions.64 It is common for Taiwanese middle-class families to hire migrant domestic workers to take care of seniors or children at home.65 More than 190,000 migrant “caretakers” and “domestic helpers” are lawfully working in Taiwan. This group constitutes about 38% of total documented migrant workers in Taiwan as of September 2014.66 The Taiwanese government issues domestic worker visas only to nationals of a few Southeast Asian countries. Most domestic workers are females, predominantly from Indonesia, followed by the Philippines and Vietnam.67 Interviewees explained that Indonesian women are most favored by Taiwanese families since they are presumed to be “obedient” based on the stereotype of their cultural backgrounds; “not so knowledgeable” about their rights and legal systems in Taiwan; and not familiar with either Chinese or English language.68 Like other documented migrant workers, migrant domestic workers come to Taiwan with a three-year work permit, which are renewable up to 12 years. However, the Labor Standards Act does not apply to domestic workers, while

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This chapter will use the term “domestic workers” to indicate the categories of both “caretakers” and “domestic helpers” under the Taiwanese visa system. The official purpose of the caretaker visa is to take care of patients at home or at nursing institutions. Domestic helper visas are issued in minimal numbers in Taiwan for families with three or more children. See also Lan, supra note 62, at 34–35. Under Taiwanese immigration law, “caretakers” can be hired only to take care of patients. However, many families in Taiwan hire caretakers mainly as domestic workers since a permit to hire a domestic helper is very hard to obtain. Interviewees said manipulations of the caretaker visa category are prevalent, frequently including unlawful transfer of employment permits and involving doctors who issue false certificates about the seriousness of patients’ conditions. As of September 2014, 505,220 migrant workers (not including professional job categories) are registered in Taiwan. Among them, 190,237 hold caretaker visas and 852 hold domestic helper visas. National Immigration Agency, Statistics (on file with author). As of September 2014, among 190,237 caretakers 187,600 are females. Among these female caretakers, 154,069 are from Indonesia, constituting 82% of total female caretakers. Female caretakers from the Philippines number 20,451, while 12,488 are from Vietnam, and 590 are from Thailand. Id. See also Lan, supra note 62, at 69, 75. Lan also discusses the recruitment process for Indonesian domestic workers, which screens out applicants with “a strong character” or who “look too smart,” and their training programs, which Lan characterizes as “depersonalizing and defeminizing” processes. Lan argues that these recruitment and training processes aim to produce “docile” and “ideal” servants. Id. at 80–89.

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other categories of migrant workers are protected by the Act.69 Thus, domestic workers do not have statutory rights for minimum labor conditions, including legal minimum wages, working hours, recess, overtime pay, days off, and compensation for occupational accidents. Labor insurance is not mandated either.70 Domestic workers can only rely on the terms of their employment contracts, which are rarely enforceable. This is a critical structural factor which aggravates migrant domestic workers’ vulnerability to labor exploitation. Labor inspection is also ineffective in the private sphere, such as in the home. Moreover, like other migrant workers, domestic workers must go through the migrant employment broker system, which is a standardized legal process in Taiwan, requiring them to pay high broker fees.71 Migrant “caretakers” can be hired in a private home only for taking care of seriously ill patients within a family. However, as implied by the dominant number of caretakers relative to “domestic helpers,” most caretakers do a range of domestic work required by their employers, such as taking care of babies and children and doing various housekeeping work.72 Employers often force migrant caretakers to work in other places, such as a factory or a store run by the employers, in addition to their domestic work duties. Due to the nature of domestic and caregiving work, the workers essentially work on a 24-hour basis. Many Indonesian migrant domestic workers do not have any days off.73 Although the Labor Standards Act does not apply, these practices are still in breach of the workers’ employment contracts. Many employers try to avoid such accusations by asking their domestic workers to sign an additional agreement to waive their right to days off and other contractual rights. A c­ aretaker’s 69 Laodongjizhun Fa (勞 動 基 準 法 ) [Labor Standards Act] (Feb. 4, 2015) 7179 Presidential Office Gaz. 50 art.3. 70 Id. art. 6. 71 For three years of contractual period, total 60,000 ntd (1,903 usd)—in the first year 1,800 ntd (57 usd) per month, the second year 1,700 ntd (54 usd) per month, and the third year 1,500 ntd (48 usd) per month—can be lawfully deducted as broker fees under the Taiwanese law. Moreover, Indonesian caretakers have to pay their local recruitment agencies a “placement fee” of 3,000 to 5,000 usd. This placement fee is currently conducted under the name of “loan” since the Taiwan Government recently outlawed such practice of local recruitment agencies in sending states. See also Lan, supra note 62, at 51–52 (­discussing the broker system in Taiwan and the practice of forced savings by brokers). 72 See Lan, supra note 62, at 53. 73 Id. at 78, 90. Lan discusses how Indonesian domestic workers are located in more disempowered positions and more abusive working conditions than Filipina caretakers who tend to have more bargaining power against their employers based on their higher education level and fluency in English.

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average salary is significantly lower than that of other migrant workers, because caretakers are not protected by minimum wage regulation.74 According to the ngo interviewees, migrant domestic workers usually earn little money during the first one or two years of their employment due to heavy broker fees and placement fees.75 Their passports are usually confiscated by brokers. A high “runaway” rate of migrant domestic workers suggests their disadvantaged situations compared to other migrant workers.76 2) Ambiguous Line between Labor Trafficking and Labor Disputes Migrant domestic workers, predominantly from Indonesia, are generally exposed to labor exploitation and abuses due to various structural and circumstantial factors as indicated above. However, all the ngo interviewees agreed that the Taiwanese government has been much more reluctant in recognizing migrant domestic worker cases as labor trafficking, compared with the government’s relatively active response to sex trafficking cases.77 Most ngo case managers were critical of the government’s practice of treating labor trafficking cases as “mere labor disputes.”78 One ngo director stated that at the time the 2009 Trafficking Act was being drafted, a “myth” existed that only undocumented migrants could be victims of human trafficking, which then only meant sex trafficking, especially in Mainland Chinese women. The lawyers at the Legal Aid Foundation stated that local labor bureaus generally send reported 74

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Labor Standards Act, supra note 72, art. 21. According to the ngo interviewees, an average daily wage for caretakers is 520 ntd (16 usd), or about 15,000 ntd (476 usd) per month, before any deductions. The monthly minimum wage in Taiwan is 20,008 ntd (627 usd) as of July 2015. The Taiwanese government announced that the contractual wage for newly employed domestic workers was raised from 15,840 ntd to 17,000 ntd from September 2015. Executive Yuan, supra note 33, at 30. See also Lan, supra note 62, at 52, 222. Regina Fuchs points out that while domestic helpers and caretakers constitute about 40% of the total number of migrant workers in Taiwan, they comprise 70 to 80% of undocumented migrant workers. Fuchs, supra note 49, at 6. See also Lan, supra note 62, at 56, 79 (discussing circumstances which drive migrant domestic workers to run away). See also Ku, supra note 14 (criticizing the Taiwanese government’s indifference to labor exploitation issues embedded in the Taiwanese foreign labor system while the government overreacts to migrant prostitution issues in the name of cracking down on sex trafficking). A director of a migrant workers’ rights ngo stated in the interview that out of forty Indonesian caretaker cases they assisted, only one case was identified as labor trafficking. The lawyers at the Legal Aid Foundation said that most of the forty Indonesian caretaker cases they represented ended in non-convictions, mostly due to a lack of evidence to prove the migrant caretakers’ “helplessness.” See also Fuchs, supra note 38, at 6–7.

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migrant caretaker cases into a settlement procedure, which only resolves unpaid salary issues. No migrant domestic workers could claim overtime pay or remedies for various abuses they suffered. A director of migrant workers’ rights ngo pointed out that all of their labor trafficking cases were reported by the workers themselves, and that none were referred by the government. This is a clear contrast with sex trafficking cases, all of which were referred by the police to the ngos. The director indicated that none of their migrant worker cases were recognized as labor trafficking by prosecutors. The ngo interviewees attributed the low prosecution and convictions rates of labor trafficking cases to a lack of understanding by law enforcement authorities and the judiciary of the new concept of trafficking crimes, and emphasized the need for more training programs.79 However, poor judicial practice implies a more fundamental problem than a lack of training. It is challenging to distinguish the point where labor trafficking begins from among a wide range of labor rights violations that most migrant domestic workers experience on a daily basis. With regard to the standard for distinguishing labor trafficking from labor disputes, most ngo interviewees acknowledged that it is difficult to draw a clear distinction. Some of these interviewees mentioned a few popular indicators of labor trafficking: confiscation of passports, having no days off or freedom to go outside, and poor salary and work/living conditions. However, a closer examination of migrant domestic workers’ general situations suggests that the question is still too complicated to answer based on these markers alone. For example, confiscating passports is a standardized practice among Taiwanese employers and brokers as a strategy to prevent migrant workers from running away. A few ngo case managers pointed out that some migrant domestic workers waive their right to days off if their employers agree to pay more wages for additional work days. One of the interviewees also stated that during free time or days off, many migrant domestic workers choose to stay inside in order to save money.80 As for poor salary and working conditions, not every migrant domestic worker is protected by the labor 79

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Regina Fuchs criticizes that prosecutors and judges in Taiwan ignore cultural and personal situations of victims and place excessive focus on the existence of victims’ consent. She points out that judges tend to use narrow-sighted indicators in deciding the existence of victims’ consent. These indicators are mainly limited to freedom of communication (i.e., whether a victim could use cell phones); freedom of movement (i.e., whether there was continued physical confinement); and some sort of remuneration (i.e., whether a victim received compensation for her labor). Fuchs, supra note 49, at 5. See also Lan, supra note 62, at 54–55 (“Burdened by substantial debts, migrant domestic workers tend to agree to work on Sundays in order to earn extra income and to save on expenses.” She quotes two workers as saying: “If I go out, I lose money. I need more money

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standard law; and most of migrant domestic workers earn significantly lower wages than other migrant workers do, while being subject to high broker fees and other wage deductions. Various factors constituting living conditions do not allow for a clear line between trafficking victims and non-victims. As mentioned, most migrant domestic workers are subject to structural constraints—the main cause of their vulnerability to exploitation. Migrant domestic workers in Taiwan have lawful work visas, but do not enjoy corresponding legal rights and protections. Employers can fire them anytime and send them back to their home countries while the migrant workers have urgent needs to pay off their debts, earn enough money to support their families, and renew their employment contracts each term. Under this asymmetrical power structure, the workers have little bargaining power.81 Therefore, it is difficult to expect migrant caretakers to complain or take legal actions against their employers’ abuse and maltreatment. According to a case manager in a migrant workers’ rights ngo, “They sold land, houses or cows to come to Taiwan. They need to make money, so have no choice but to accept assigned labor conditions and be obedient workers.”82 One scholar said in her interview that she viewed the overall predicament of migrant domestic workers not so much from the perspective of human trafficking, but as a problem of disproportionate negotiating power intertwined with the absence of labor rights and the unreasonable broker system. In 2011, a Taiwanese diplomat was arrested and prosecuted in the United States under the labor trafficking charge for exploiting her Filipina domestic worker.83 The interviewees agreed that the case would not have been

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to pay the broker,” “I didn’t have even one single day off the whole year! But I didn’t want to either.”). Id. at 54–55, 90–91 (discussing the context of lack of barging power for Indonesian domestic workers). Id. at 55 (“Workers also agree to work overtime to demonstrate their loyalty and diligence to their employers to ensure the renewal of their second-year or third-year contract.” Lan quotes a migrant worker as saying, “We are afraid if we speak out, we will be sent home. We don’t want to spend money on placement fee again,” and quotes another worker who treated her injury at her own cost: “If she knows I am sick, she will send me home!”); see also Fuchs, supra note 38, at 8 (“Having little bargaining power, many workers do not even dare to complain about bad working conditions or unjust payment terms because they fear that it could endanger their employment and result in their repatriation. For migrant workers, to be sent back home is the worst-case scenario.”). Taiwanese Diplomat May Wait in Prison for Months, Taipei Times, Nov. 20, 2011, http:// www.taipeitimes.com/News/front/archives/2011/11/20/2003518743; Taiwan Diplomat Who Abused Pinay Maids to be Deported from us, abs-cbn, Nov. 24, 2011, http://www.abs-cbnnews .com/global-filipino/11/24/11/taiwan-diplomat-who-abused-pinay-maids-be-deported-us.

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prosecuted in Taiwan since the diplomat’s practice was “what every employer is doing every day to their domestic workers,” as one interviewee remarked. A former government officer indicated in the interview a prevalent concern in Taiwanese society: that improving legal status and rights of migrant domestic workers will impose heavier burdens on middle-class Taiwanese families. This concern prevents the government from actively addressing fundamental problems. A bill drafted by Taiwanese ngos for labor rights protection of domestic workers has been pending in the Legislative Yuan since 2003 without any progress. While the government also drafted its own “Domestic Workers Protection Bill,” the bill has been under the prolonged review of the Executive Yuan since 2011.84 The above discussion suggests that the elements of human trafficking under law—the “inability” of victims and their “helplessness”—are mainly rooted in the disadvantaged and disempowered position of migrant domestic workers in their employment relations, as well as in the legal system producing and reinforcing their vulnerability. Labor exploitation and right violations are fundamentally a problem of structural subordination, not simply a matter of abusive conduct by individual traffickers or “bad employers.”85 Since most migrant domestic workers in Taiwan are vulnerable to and victimized by labor rights violations and abuses due to various legal constraints and circumstantial conditions, distinguishing between labor trafficking victims and those who are not among those workers could be misleading. 3) Judicial Cases a Case 1 The defendant hired an Indonesian caretaker to take care of her grandparentsin-law at home with a monthly salary of 17,592 ntd (558 usd) from December 2009 to June 2010. The defendant deducted from the caretaker’s monthly salary a 3,600 ntd (114 usd) broker fee, a 2,000 ntd (63 usd) alien resident 84

Executive Yuan, supra note 33, at 29. The government expressed an ambivalent view on this bill: “It is essential to safeguard domestic workers’ employment rights. However, in view of the unique nature of domestic work, the proposed law should encourage measures that are practical and feasible by striking a balance between the rights of the employer and those of the employee, as well as the interests of all other parties involved. The cla strives to enact legislation that is practical and is in accordance with the consensus reached by stakeholders.” Executive Yuan, supra note 8, at 38–39. 85 Fuchs, supra note 38, at 8–9 (“To be able to earn enough money to support their families at home and to pay off their debts, most workers see no other way than to accept abusive working conditions…vulnerability and dependence created through the brokerage system can be seen as a possible starting point of human trafficking.”).

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certificate (arc) fee, and health insurance premiums. The defendant made the caretaker work overtime, threatening to send her back to her home country. The defendant did not pay any salary or compensation for overtime work during the employment period. The defendant was prosecuted under the 2009 Trafficking Act for labor exploitation using improper debt bondage and the victim’s helplessness. The Taiwan High Court86 found the defendant not guilty of the charge. The Court ruled that in this case, belated salary payments or deductions do not constitute “improper debt bondage.” The Court found that the worker already knew about the fee deductions, having signed a contract in Indonesia stipulating the terms of deduction, and further held that the deductions in such cases are lawful. The Court also noted that the defendant had a certain situation that caused the delay of salary payment for which she could not be held responsible. The Court found that the worker was not in a helpless situation, either: The worker could freely contact others and could have easily asked them for help; when the employer asked her whether she wanted a transfer, the worker chose not to change her employer; and the worker did not ask her employer to return her passport or alien resident certificate. The Court also stated that there was no additional evidence beyond the victim’s statement to prove the alleged threats made by the employer. b Case 2 In this case, the defendant-broker introduced an Indonesian caretaker to the defendant-employer, who was running a nursing facility. The worker was in a transit period waiting to be hired by a new employer and could not find a job by herself. The two defendants knew her situation and made her work in the nursing facility, where she took care of at least ten critical patients a day in 17 hour shifts, from 9:00 in the evening to 2:00 the next afternoon. She was allowed to take only one 30-minute break at around 5:00 am. She was not permitted to take holidays. The defendants deducted 19,500 ntd (635 usd) from her salary of 21,000 ntd (684 usd) under various pretexts—such as broker service fees, loans and costs of medical care, and hair and clothing expenses—and gave her only 1,500 ntd (49 usd). The Changhua District Court87 found the defendants not guilty of labor trafficking under the 2009 Trafficking Act. The Court reasoned that the worker was not in a helpless situation since she had a cell phone and phone cards and was free to make phone calls; she could see visitors, including her sister; and she 86 87

Taiwan High Court 101 Shangyi Criminal Decision No. 847 (June 14, 2012). Changhua District Court 99 Yi Criminal Decision No. 333 (Sept. 14, 2010).

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could go out shopping during off hours. The Court also found that the prosecutor did not provide sufficient evidence to prove that the caretaker’s salary was significantly disproportionate to her work duties. c Comments Few Taiwanese court decisions have found defendants guilty of labor trafficking in migrant domestic worker cases. The above two judgments show that the most frequently used means of trafficking—improper debt bondage or abusing victims’ helpless situations—are difficult to prove and recognize. Even if migrant workers are under heavy debts from the beginning of their employment, courts may not regard the situation as “improper” or “bondage,” especially when the workers have agreed on the condition in advance. Evaluating victims’ helplessness becomes an intricate task for judges when circumstantial and physiological constraints are the central issue.88 The judgments indicate that manifestations of migrant workers’ agency are used by courts to deny the migrants’ victimhood under the dichotomous approach to human trafficking. The physical possibilities of making phone calls or going outside are treated as decisive factors, while significant circumstantial constraints that make most migrant workers endure abusive situations are disregarded. The decisions suggest that an anti-trafficking framework with narrow and strict standards is not capable of addressing the general vulnerability and victimizations that migrant workers commonly experience. These decisions also suggest that the current anti-trafficking framework is not equipped to account for the structural factors which reproduce migrant workers’ vulnerabilities, but which are not directly identified as the responsibility of individual employers or brokers. C Runaway Migrant Workers 1) Overview Many clients of the ngos interviewed were “former documented migrant workers” who “ran away” from their original workplaces and fell into trafficking situations. “Runaway migrant workers,” a term used by the Taiwanese government, could become victims of human trafficking either before or after their departure. When documented migrant workers leave their workplace,

88

The Judicial Yuan Reference Book specifically comments on the second case in a critical tone, pointing out that the judgment did not consider the whole situation in a synthesized manner, but divided the situation into several pieces, which led to a conclusion that the prosecutor did not prove the victim’s helplessness. Judicial Yuan, supra note 52, at 118–19.

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­employers must report the situation to government authorities.89 From that moment, migrants’ work visas become invalid, and their legal status converts to that of a “fugitive.”90 However, the ngo interviewees pointed out that for many documented migrant workers in Taiwan who experience labor exploitation in their workplaces, “running away” is their only option. In their interviews, scholars and ngo directors pointed out several structural factors that make documented migrant workers vulnerable to labor exploitation and also drive them to “run away.” One of the key problems is that in principle, migrant workers are not allowed to change their employers or workplaces.91 The Employment Service Act stipulates a few limited exceptions that allow a migrant worker to change their workplace upon authorization by the Council of Labor Affairs (cla).92 However, all ngo interviewees agreed that transferring to a new employer is extremely difficult, which leaves the workers with little option but to leave their jobs on their own.93 Many ngo interviewees 89

Jiuyefuwu Fa (就 業 服 務 法 ) [Employment Service Act] (Dec. 25, 2013) 7119 Presidential Office Gaz. 8 art. 56. 90 Ku, supra note 14, at 12 (“Once the foreign workers ‘escape’ from enslavers, they are immediately falling into an ‘illegal’ status with the police running after, which makes a ‘victim’ become a ‘wanted man’ immediately.”). 91 This prohibition is exclusive to simple-skilled migrant workers. Employment Service Act, supra note 89, art. 53, para. 4 provides: “Unless otherwise authorized by the central competent authority on account of the respective circumstances as referred to in paragraph 1 of Article 59, a foreign worker who has been employed to engage in work as referred to in subparagraphs 8 to 11 of paragraph 1 of Article 46 may not transfer to a new Employer or new work.” The job categories under subparagraphs 8 to 11 of paragraph 1 of Article 46 are: marine fishing/netting work, household assistant, construction work, and other specialized work ad hoc approved by the cla due to the lack of such labor force in domestic employment market (mainly manufacturing work or caregiving work in nursing institute or at home). 92 The stipulated exceptions are death of an employer; bankruptcy or close of business; a failure to pay salary by an employer resulting in the termination of an employment contract; or similar circumstances not attributable to the worker. Employment Service Act, supra note 89, art. 59. A cla officer stated in the interview that the “similar circumstances” could include when the employer committed a violation of labor law and a local labor bureau found it serious enough to annul his employment permit. An employer who wants to hire migrant workers shall first attain an employment permit from the cla (Employment Services Act art. 48). See Id. art. 54, stipulating the occasions when an employment permit or the extension of it shall not be issued to employers. 93 Transfer to another employer is also possible if both the current employer and the new employer agree on the transfer, but it rarely happens. Current employers seldom agree to a transfer because if they agree, they lose their employment permit to hire foreign workers for next six months.

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mentioned cases in which migrant workers suffering abuses called the cla hotline for help, but poor practices by local labor inspectors only worsened the workers’ situations.94 A failed sos signal aggravates the relationship with the employer and drives the worker to leave the workplace eventually. In their interviews, directors of migrant workers’ rights ngos explained the relationship between the prohibition of workplace transfer and human trafficking. Since migrant workers can rarely change their employers, their option is either to endure current exploitation or to run away, which could drive them into more serious exploitation. One director stated his opinion on the government’s overlooking of this connection: One of the root causes of human trafficking for migrant workers in Taiwan is that they cannot change their employers. However, the Taiwanese government tries very hard not to recognize this connection. Because if the government recognizes this cause and effect link and at the same time undertakes to prevent human trafficking, it has first to give migrant workers a freedom to change their employers. But the government doesn’t want to give migrant workers more rights as such. Another structural factor constraining migrant workers is the employers’ discretion to fire their employers at will. If fired for any reason, migrant workers must go back to their home countries if not hired by a new employer within sixty days.95 On the other hand, the employer can hire another migrant worker with the same employment permit that he initially received from the government. 94

According to ngo interviewees, labor inspectors typically contact the worker’s employer directly and ask whether there is a problem. They usually listen to the employer’s side of the story and dismiss the transfer request by the worker on the ground of the lack of material evidence of exploitation. Then they typically ask the employer to resolve the situation privately. 95 Waiguoren Shoupingu Congshi Jiuyefuwu Fa Disishiliutiao Diyixiang Dibakuanzhi Dishiyikuan Guiding Gongzuozhi Zhuanhuan Guzhuhuo Gongzuo Chengxu Zhunze (外 國 人 受 聘 僱 從 事 就 業 服 務 法 第 四 十 六 條 第 一 項 第 八 款 至 第 十 一 款 規 定 工 作 之 轉 換 雇 主 或 工 作 程 序 準 則 ) [Directions of the Employment Transfer Regulations and Employment Qualifications for Foreigners Engaging in the Jobs Specified in Items 8 to 11, Paragraph 1, Article 46 of the Employment Services Act] (Oct. 17, 2014) 20:197 Executive Yuan Gaz. 38664 art. 10. To be rehired, migrant workers should attend “public conciliation meeting” where employers seeking to hire migrant workers also attend and select workers from among the attendees. Migrant workers who do not attend the meeting are regarded as abandoning the opportunity to transfer and are subject to deportation. Id. art. 9.

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One scholar explained in the interview the link between this power asymmetry and running away: Employers can fire migrant workers any time. This is a kind of threat and a reason of fear. Using such threat is an abuse of a legal system. Migrant workers don’t want to be sent back. They want to work. So when workers feel such threat, they often just run away. Employment broker services for migrant workers are lawful in Taiwan.96 However, these services’ high broker fees often lead migrant workers to a debt bondage situation that could constitute a means of human trafficking97 and could also contribute to migrant workers’ decisions to run away.98 According to one NGO director, for example, Vietnamese migrant workers often have to pay broker fees that cost more than 3,000 usd, which requires them to work at least for 18 months to repay the debt. To many migrant workers, this amount of broker fees would be impossible to pay back if the workers were to go back to and work in their home countries. A study shows that broker fees constitute 29% to 68.4% of the surveyed migrant workers’ monthly wages.99 If they are fired before they pay off their debts, migrant workers often choose to run away to find another job. Migrant workers consider this option to be “safer” than passively waiting to be hired by a new employer and facing the risk of being sent back when not chosen. Moreover, if migrant workers want to renew their work permit for another three years, they have to first leave Taiwan and reapply for the work permit through the broker system, again paying the same exorbitant broker fees.100 Such dependence on the broker system contributes to the increasing rate of runaway migrant workers in Taiwan. 96 97

See Employment Service Act, supra note 89, arts. 34–41 (Private Employment Services). For an overview of problems related to the migrant worker broker system in Taiwan, see Asia Pacific Mission for Migrants, The Face of Human Trafficking in Taiwan: Taking a Close Look at the Living and Work Conditions of Its Migrant Workers 17–21 (2010) [hereinafter apmm]. 98 See Fuchs, supra note 38, at 10–11 (discussing the relation between broker fees and reasons to run away). 99 apmm, supra note 97, at 18. 100 Migrant workers can reapply for a work permit every three years for up to 12 years. Employment Service Act, supra note 89, art. 52. Although the Taiwanese government recently started a direct employment system (Direct Hiring Service Center, http://dhsc.evta .gov.tw/home-chi.jsp), it is mainly for employers who want to rehire the same migrant workers without paying broker fees on the employer’s side. ngo representatives said that migrant workers still depend on the broker system to be rehired every three years.

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The discussion above has examined several structural problems of the migrant worker employment system in Taiwan that disempower documented migrant workers and make them vulnerable to exploitation, while providing them with little recourse to address their situations other than “running away.” The lawyers at the Legal Aid Foundation mentioned a common criticism from the civil society that “the system makes migrant workers run away.” An ngo director also noted “the system produces runaways, and then shifts all the blame to runaway migrant workers while not improving the system.” Along with the recent adoption of the human trafficking framework, the location of runaway migrant workers in the legal system has become more complex. These workers could have multiple identities as lawbreakers who are subject to legal sanctions and as trafficking victims who are entitled to legal protection. The next section looks more closely into this complexity. 2)

Ironic Realities and the Ambiguous Positioning of the Human Trafficking Framework It is a general assumption that runaway migrant workers would become especially vulnerable to exploitation and trafficking situations due to their unlawful immigration status and lack of legal protection. In fact, many of the interviewed ngos had clients in such situations. However, differing stories also exist and are not unusual. Many interviewees from ngos and academia pointed out that undocumented migrant workers, including runaways, often enjoy better working conditions than documented workers who are subordinated to various constraints by the legal system. Since their employers are also violating the law by hiring undocumented migrant workers, undocumented workers tend to have more bargaining power than documented ones. Moreover, compared with documented migrant workers, undocumented workers experience lesser or no deductions of broker fees and no deduction of insurance premiums, taxes, or other expenses from their salaries. One ngo director mentioned that hiring undocumented migrant workers can result in higher wages for the workers, since employers in these situations do not have to pay the security deposit to the government that is required when hiring migrant workers.101 Therefore, interviewees noted that when this “win-win” relationship goes without problems, undocumented migrant workers can earn more income and pay back their debts more quickly. When they earn enough after paying off their debts, these workers often report themselves to the National Immigration Agency (nia), pay fines for their undocumented stay, and go back to their home countries. This ironic “better off” story of undocumented and

101 Employment Service Act, supra note 89, art. 55.

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runaway migrant workers underscores the problems of the migrant worker employment system in Taiwan. As in many other destination states of labor migration, Taiwan operates a highly regulatory foreign labor system which pursues national economic interests by utilizing and controlling migrant labor.102 By problematizing and punishing individual “runaways,” the government seeks to consolidate the regulatory regime without addressing inherent problems of the system which reproduces undocumented migrant workers.103 Pei-Chia Lan points out that the Taiwanese government views the issues of “runaways” as a challenge to state sovereignty.104 She notes that the government externalizes the cost of regulation by prohibiting employment transfer and holding employers liable for runaways. This policy in turn leads employers to take more rigid controlling measures against their workers, which results only in aggravating the problems of exploitation and running away.105 Another typical response of the Taiwanese government has been to stop issuing work visas to applicants from the states whose nationals show higher rates of running away.106 This punitive policy shows the attitude of a government running a controlling regime without self-reflection. While the structural problems of the migrant labor system remain unaddressed, the new human trafficking framework has ambiguous implications for runaway migrant workers. One scholar noted in the interview that runaway migrant workers seldom report themselves as trafficking victims. Even if they escape from the workplace due to exploitation, these workers tend to prefer 102 The Employment Service Act articulates the state’s purpose in regulating the foreign labor employment system: “For the purpose of protecting nationals’ right to work, no employment of foreign worker may jeopardize nationals’ opportunity in employment, their employment terms, economic development or social stability.” Id. art. 42; see also id. art. 47, art. 54, paras. 2, 6 & 7, art. 57, for the government’s perception of foreign labor as a potential threat to domestic employment market and social orders. 103 One ngo director discussed the prevalent bias by the government against run away migrant workers in general, stating that these workers receive ungrounded suspicion as general crime suspects in society. She jokingly stated, “Runaway migrant workers are treated as criminals in general and it is hard for them to be recognized as victims. Our major job is to make them more like victims than criminals.” See also Fuchs, supra note 38, at 17 (“In the official discourse, migrant workers who become undocumented are viewed as being related to an increase in criminal events. Statistics on crimes committed by migrant workers are published monthly by the Council of Labor Affairs. With the discourse channeled that way, strict controls and harsh punishment are justified.”). 104 Lan, supra note 62, at 56. 105 Id. 106 Id. at 41.

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continuing to work undocumented in a freer situation, rather than resorting to uncertain victim identification and protection procedures. This general preference is the same for runaway migrant workers who experience exploitation after running away, because they are afraid of deportation. Only when found by the police or nia officers, do they finally claim themselves as trafficking victims. Being identified as trafficking victims is the only way for runaway migrant workers to regain any lawful immigration status.107 Once they leave their workplace, documented migrant workers are treated the same as migrant workers who have been undocumented from the beginning, regardless of the reasons they had to leave. They cannot recover their original work visas even if identified as trafficking victims. If runaway migrant workers are not identified as trafficking victims, they are sent to a detention center and subject to deportation even if they have remaining legal issues from the labor abuses and rights violations they experienced. As discussed, labor trafficking is rarely recognized by the government, especially compared with sex trafficking cases. The ngo interviewees agreed that such recognition becomes even harder when the workers have already left their workplaces. The government expects migrant workers to call the government hotline when they have problems, not to run away. The default position of runaway migrant workers is thus of lawbreaking fugitives, and their identification as trafficking victims is too unpredictable and unstable to rely upon. The stories of runaway migrant workers indicate not only the constraining nature of the migrant labor system in Taiwan, but also the limited efficacy of the new human trafficking framework. As further analyzed in Section 4, the trafficking framework is not capable of or intended to redress the structural problems that reproduce the predicaments of migrant workers. Although the new system creates one possibility for runaway migrant workers to gain a lawful status as “trafficking victims,” the later discussion shows that this status serves the interest of the state more than that of the individuals. 3) Judicial Cases a Case 1 In this case, seven Indonesian women came to Taiwan as documented caretakers, but ran away from their workplaces. The defendant rented a house for these women and had them work in karaoke bars and offer sexual services to male costumers. The women received 40% of what customers paid while the defendant took 60% for himself. 107 Problems with the temporary and conditional stay as trafficking victims will be discussed in more detail in Section 4.A of this chapter.

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The Taiwan Hsinchu District Court108 and the Taiwan High Court109 found the defendant guilty under the 2009 Trafficking Act for the crime of sex trafficking. The defendant appealed to the Taiwan Supreme Court, arguing that he only provided the women with economic assistance because they could not lawfully work in Taiwan. He also alleged that those women voluntarily took the jobs in karaoke bars and he neither used any force or threat nor took advantage of their helpless situations. The Taiwan Supreme Court rejected his appeal and found that the defendant used the helpless situations of the victims, especially their unlawful immigration status and language barriers.110 b Case 2 In this case, seven Vietnamese women came to Taiwan either as documented caretakers or factory workers, but ran away from their workplaces due to the combination of hard work and low salaries. While looking for a job, they met the defendant brokers, who persuaded them that prostitution was the only possible job for them to make money and asked each woman to pay 20,000 ntd (634 usd) as a broker fee. The prosecutor indicated that these Vietnamese women were unfamiliar with neighboring areas and not fluent in Chinese, and that they were in desperate need to make a living. For 15-minute sexual services, the workers received 400 ntd (12 usd) while the brothel owner took 600 ntd and the defendants 200 ntd. The women worked for 12 hours a day, from 3:00 p.m. to 3:00 a.m. or 5:00 p.m. to 5:00 a.m. Their living expenses were deducted from their wages. The defendants told the women that if they wanted to quit their jobs, they should first pay 20,000 ntd broker fees. The women were discovered by police raid. The Taiwan High Court found the defendants guilty of sex trafficking under the 2009 Trafficking Act for using improper debt bondage and victims’ helplessness to coerce them into prostitution.111 However, the Taiwan Supreme Court overruled this decision, holding that numerous contradictory factors made it difficult to view these women as being in helpless situations or working against their will.112 The facts raised by the Supreme Court include that the women went on a trip at one of the defendants’ cost; that one of the women said she left her factory since the workload was too light to make money; that the women could freely go outside (even though for some women the defendants 108 109 110 111 112

Taiwan Hsinchu District Court 100 Shensu Criminal Decision No. 161 (June 24, 2011). Taiwan High Court 100 Shangsu Criminal Decision No. 2378 (Oct. 11, 2011). Taiwan Supreme Court 101 Taishang Criminal Decision No. 1821 (Apr. 12, 2012). Taiwan High Court 100 Shangsu Criminal Decision No. 964 (July 13, 2011). Taiwan Supreme Court 101 Taishang Criminal Decision No. 4122 (Aug. 9, 2012).

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had accompanied them); that the women were not beaten or threatened; that some women traveled between different cities; that the women could freely contact their friends and relatives with their cell phones, but they did not ask for help; that the women could run away when they went out, but always came back to their brothels to work; and that the women had been in Taiwan for several months to two years which should have made them familiar with the living environment and the Chinese language. c Case 3 In this case, two defendants provided lodging for thirty-six runaway migrant workers and arranged new jobs for the workers while strictly managing their lives. The defendants required the migrants to get their approval to go outside and made them purchase groceries only from the defendants. They also charged the workers various fees, including housing and transportation, with inflated prices. When the workers objected, the defendants threatened to evict the workers, report them to the police, and sue their families in their home countries. The defendants charged 6,000 ntd (190 usd) for each time they arranged jobs for the workers. The defendants received the money directly from the workers’ employers and gave the wages to the workers after unreasonable deductions. The Taiwan High Court113 found the defendants guilty of “illegally referring foreign workers to work for a third party” under Article 45 of the Employment Service Act. However, they were not found guilty under the 2009 Trafficking Act. The Court acknowledged that in general, runaway migrant workers and smuggled migrants are in vulnerable situations. They cannot report their brokers or employers to public authorities because this would incriminate the workers themselves and they would be caught and sent back home. The Court also acknowledged that the migrant workers in this case wanted to stay in Taiwan to earn money and that when they moved into the lodging run by the defendants, they were already in a vulnerable situation. However, the Court found that the situations fell short of the standard taken by the Taiwan Supreme Court. While citing the Supreme Court decision from Case 2, the Court ruled that the criterion of “helpless situation” under the 2009 Trafficking Act needs to be examined in a more concrete and specific manner. d Comments Like the court decisions in the migrant domestic workers cases, the above judgments illustrate the ambiguity of actual cases charged as human ­trafficking 113 Taiwan High Court 100 Shangyi Criminal Decision No. 1188 (Aug. 11, 2011).

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crimes and the difficulties that courts face in applying the new elements of crimes under the 2009 Trafficking Act. Since few trafficking cases involve physical force, threat or confinement,114 the key issue usually centers on whether the defendants used improper debt bondage or victims’ helpless situations. The decisions in Cases 1 to 3 demonstrate that whether individuals situated in similarly oppressive situations are classified as trafficking victims or unlawful/ criminal migrants depends on interpreters’ perspectives. As in the earlier cases, the acquittal decisions in Cases 2 and 3 expose the inadequacy of a criminal justice approach in addressing various victimizations experienced by migrant workers. Criminal procedures focus on the criminal accountability of concrete acts committed by individual defendants under the strictest evidentiary standard. A criminal justice approach cannot respond to the fact that even if defendant employers or brokers are not found guilty in criminal procedures, the workers are still victims. When criminal justice against individual perpetrators is a dominant focus, the anti-trafficking framework cannot address victimized individuals’ complex predicaments and various rights violations. The victimization of migrant workers could be better prevented and redressed through human, civil, and labor rights approaches and structural reforms of the relevant legal systems. The High Court decision in Case 3 demonstrates the problems of the criminal justice approach in addressing rights violations. While the Court recognized the general vulnerability of runaway migrant workers, it could not find the defendants guilty under the criminal framework. Decisions to acquit defendants relocate victimized migrants as mere lawbreakers, subject to penalty and deportation. D Conclusion This section illustrates that even the most commonly identified human trafficking cases in Taiwan demonstrate a high level of ambiguity. Such ambiguity reflects the complex realities of vulnerable and victimized migrants whose identities and experiences cannot be labeled by a unitary legal concept. The individuals in the above three categories experienced both the situations of human trafficking and of labor migration. Even when they are identified as trafficking victims, these individuals still possess agency and needs as migrant workers. The individuals’ identities in the fraudulent marriage case and the runaway case are even more complex: These migrant individuals are situated in multiple legal dimensions as trafficking victims, migrant workers and lawbreakers. The difficulty in “identifying” trafficking victims among migrant workers increases due to the structural constraints of the legal system that disempower 114 See Fuchs, supra note 49, at 7.

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migrant workers in general and make them vulnerable to exploitation. Under these circumstances, whether a migrant worker is labelled as a trafficking victim is contingent on the views of those responsible for interpreting the facts in individual cases. This raises a question about the adequacy of the dichotomous approach of the anti-trafficking framework which protects victims only in the narrow criminal context and discriminates and punishes other similarly situated migrants.115 The relevant judicial cases in each category suggest the inadequacy of the criminal justice approach in addressing the situations of vulnerable migrant workers and in redressing the various abuses and rights violations they experience. The following section looks more closely into how the current Taiwanese anti-trafficking law and policy actually operate. It pays a particular attention to how the interest of the government shapes the formation and implementation of the framework, how complex realities are simplified and ignored in the process, and how individuals’ needs and rights are compromised by the legal system which claims to protect them. 4

Efficacy of the Anti-Trafficking Framework

In line with the mandate of international law and the trend of major destination states, especially influenced by the United States, the Taiwanese trafficking victim treatment system is built on two main agendas: criminal justice and immigration control. A Criminal Justice Response When an individual migrant is identified as a trafficking victim in Taiwan, four main victim protection measures follow: temporary stay permits, shelter accommodation, temporary work permit, and a return service. Taiwanese law requires two basic eligibility conditions for these measures. First, an individual must be officially and continuously identified as a victim of human trafficking by law enforcement authorities. Second, an individual must be useful for and cooperate with criminal procedures. The discussion below examines the operation of the Taiwanese trafficking victim treatment scheme, which centers 115 Ku criticizes the negative implications of the victim vs. non-victim dichotomy, arguing, “We do not need the thorough search for ‘victims’ or the distinction of exploited trafficking victims, which leads to stigmatization, criminalization, and marginalization of ­specific industries and specific ethnic groups. This distinction of victims/non-victims framework is a transplant from the u.s. model, a top-down implementation of Taiwan/u.s. governments’ will, which ignores the real situation of labor exploitation and serves as the coverup for border control.” Ku, supra note 14, at 15.

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on achieving the criminal justice objectives. A critical question for evaluation is whether the framework can properly serve the needs and rights of the individuals concerned. 1) Victim Protection Focused on Witness Preservation a Exclusive Victim Identification by Law Enforcement Authorities Under the 2009 Trafficking Act, the judicial police and prosecutors have exclusive authority to identify trafficking victims.116 Victim support ngos do not hold the official entitlement to refer victims to the authorities, although they may assist in the victim identification process.117 Specialized shelters for trafficking victims are owned or subsidized by the government and can assist only those who are officially identified as trafficking victims and referred to them by government authorities.118 Migrant workers whose rights are seriously violated, but who have not been officially identified as trafficking victims cannot receive support from government budgets allocated for trafficking victims. Due to the ambiguity of trafficking cases as well as the inconsistency and strictness of applied standards, many victims are screened out during the identification process. The main standard for victim identification used by the police and prosecutors is whether suspects’ acts would be prosecutable under the relevant criminal provisions, and not whether individuals’ rights—including human, civil, and labor rights—have been violated. b Mandatory Temporary Residence in Taiwan Migrants who are identified as trafficking victims must stay in Taiwan. Once identified, the migrants are mandated by prosecutors not to leave Taiwan and to cooperate with investigation and court procedures.119 Identified victims without other valid visas receive a six-month temporary residence permit,120 which is renewable based on the necessity of the victims’ participation in 116 2009 Trafficking Act, supra note 31, art. 11, paras. 1, 2. 117 Id. art. 11, para. 3 (“The judicial police and prosecutors may request assistance as necessary from social workers or relevant experts while identifying human trafficking victims”). 118 The 2009 Trafficking Act stipulates victim assistance measures to be provided by the government authorities or by commissioned ngos, including: safety protection, medical assistance, interpretation service, legal assistance, psychological counseling, accompanying to interrogations during investigation or trial, and necessary financial assistance. 2009 Trafficking Act, supra note 31, art. 17. 119 2009 Trafficking Act, supra note 31, art. 19 (“The repatriation stated in the preceding paragraph shall be enforced only after the approval of the judicial authority has been secured.”). See also twrf, supra note 21, at 4. 120 2009 Trafficking Act, supra note 31, art. 16.

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­criminal procedures.121 The mandatory residence can last more than one or two years, even when victims want and need to go home. Many ngo ­interviewees criticized this policy as authoritarian and pointed out it could constitute a ­violation of the human right to leave a country and to return to one’s own.122 The temporary residence in Taiwan is thus essentially a legal obligation for identified victims in order to serve as witnesses in criminal procedures. It is far from a right or a platform to seek remedies for victimized individuals.123 In the interviews, ngo case managers mentioned numerous cases in which identified victims were not allowed to go home even for urgent reasons, such as when a victim became pregnant and wanted to go back to her family to deliver and take care of her baby;124 when a victim needed to attend his father’s funeral; or when a victim’s family member was in a serious medical condition. Especially for those migrant workers who want to go home after the hardship they experienced in Taiwan, being identified as a trafficking victim serves not to protect, but to trap victims for the government’s prosecutorial purpose.125 This mandatory policy demonstrates that trafficking victims are treated mainly 121 Id. art. 28 (“The central competent authorities may, based upon the necessity of an investigation or trial, extend the temporary visitor (or resident) permit under a six-month duration of stay issued to any human trafficking victim who is a non-citizen roc national, foreigner, stateless person, Mainland Area resident, Hong Kong or Macau Area resident with no valid visitor (or resident) permit prior to the issuance of the temporary permit. If the human trafficking victim in the preceding paragraph has a valid visitor (resident) permit, the central competent authority may grant an extension to his/her visitor (resident) permit based upon the status of the investigation or trial.”). 122 See the International Covenant on Civil and Political Rights art. 12, paras. 2, 4, Dec. 16, 1966, 999 u.n.t.s. 171. 123 See also Fuchs, supra note 38, at 21 (“During the investigation and prosecution period, the victims received hardly any information about their cases. The many months of waiting were a period of increasing uncertainty.... Trafficked persons commonly complain about this type of treatment within the judicial system; they feel ignored, used and disrespected.”). Fuchs also introduces a case where three Indonesian women, identified as trafficking victims, waited for 13 months without receiving any information about the criminal case or being called as witnesses, and then were ordered to return home as they were no longer needed as witnesses. Id. at 22. 124 One ngo director stated in the interview that the victim in this case was not allowed to go home for one year, and as a result had to deliver and raise a baby for nine months in Taiwan by herself while the Taiwanese legal system did not provide any support for the child. 125 In such cases, ngos write a petition letter to prosecutors or judges asking for allowing victims to go back to their home countries. However, ngo interviewees stated that such efforts are not well responded to by prosecutors or judges.

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as crime witnesses, and not as holders of rights or victims of rights violations. The policy shows how the state interest in prosecuting crimes supersedes victims’ rights and needs in and through the victim protection scheme of the antitrafficking framework. c Neglected Civil and Labor Rights As in most states examined in Chapter 3, victims’ right to remedies is marginalized in the Taiwanese anti-trafficking regime. Except for the provisions on temporary residence permit and sheltering,126 the major portion of the victim protection chapter of the 2009 Trafficking Act127 is concerned with securing victims’ safety and their statements during investigation and court proceedings.128 No provision mentions victims’ right to remedies in civil or labor law procedures. While victims must stay in Taiwan to serve as crime witnesses as long as prosecutors find it necessary, victims cannot stay in Taiwan to seek remedies of their own. Temporary residence is available only for the state’s criminal justice purpose, not for victims’ pursuit of civil or labor rights. In short, victims have a duty to serve as witnesses, but no right to act as plaintiffs. According to the interviews with ngos, the government’s explanation for this policy is that victims do not need to stay in Taiwan for civil procedures because lawyers can represent them without their physical presence. However, the lawyer interviewees disagreed. They emphasized that the way for victims to get real assistance is through civil and labor rights procedures. The absence of a plaintiff makes it difficult for the case to proceed. A lawyer at the Legal Aid Foundation introduced a case in which a victim withdrew her civil lawsuit after she returned home even though she had won a case at the trial level. The lawyer suspected that the victim would have been threatened by local agencies in connection with the defendant brokers. The lawyer also pointed out that even if a victim wins her case for compensation, it is challenging to ensure the victim actually receives the award if she has already left Taiwan. Each ngo had at most one successful civil case in which the court ordered compensation for a victim. 126 2009 Trafficking Act, supra note 31, arts. 13–20. 127 Id. ch. 3 (arts. 12–30). 128 E.g., id. arts. 21 and 22 (Securing the confidence of victims’ private information), art. 23 (Protection of victims when serving as a witness in investigation or a trial), art. 24 (Accompanying victims when testifying in investigation or a trial), art. 25 (Victim’s testimony through audiovisual telecommunication), art. 26 (General protection of victims’ safety in investigation and a trial, including separation from criminal suspects or defendants) & art. 27 (Admissibility of evidence of victims’ statements made during investigation).

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d Mandatory Stay in a Shelter Staying in a shelter is another “mandatory benefit” for trafficking victims. Identified victims and suspected victims without other immigration status must stay in a shelter designated by the government unless permitted otherwise.129 Staying in a shelter subjects victims to disciplinary supervision. The Regulations Governing the Placement and Protection of Victims and Suspected Victims of Human Trafficking, which is a national law, mandates each shelter to set up the rules for victims (which victims must sign when entering a shelter), which regulate their comings and goings, communications, visitors, and behavior.130 The Regulations list specific behavior strictly prohibited, including clamoring, quarreling, drinking, gambling, disobeying the order of shelter management, interfering with the order of the shelter, injuring the life or body of others, or destroying or damaging public property.131 The victims who violate the shelter rules are subject to various types of discipline, from reprimand to being banned from making phone calls or receiving visitors, to being ordered to complete manual labor.132 Most of all, if a victim leaves a shelter without permission or violates shelter rules, the nia can revoke the victim’s temporary residence permit and repatriate the victim.133 Like the temporary residence permit, staying in a shelter is essentially a duty, rather than a right for victims. The location of shelters is another indicator of the nature of the shelter system. The specialized shelters for the trafficking victims who did not hold valid residence visas from the beginning are located in remote and isolated areas of Taiwan. A case manager pointed out in the interview that victims want to stay in the cities they worked and lived, where they can keep in touch with their friends and ask for help. On the other hand, one ngo director emphasized the necessity of isolated shelter locations to cut victims’ connections with their 129 One ngo director stated in the interview that victims can live outside shelters if the nia allows, on occasions when a victim’s workplace is too far away from a shelter. In this case, ngo workers visit the victims regularly to check on their situations. 130 Renkoufanyunbeihairen Jiyisirenkoufanyunbeihairen Anzhibaohuguanli Guize (人 口 販 運 被 害 人 及 疑 似 人 口 販 運 被 害 人 安 置 保 護 管 理 規 則 ) [Regulations Governing the Placement and Protection of Victims and Suspected Victims of Human Trafficking] (June 1, 2009) 15:101 Executive Yuan Gaz. 17207 art. 5. 131 Id. art. 5, para. 4. 132 Id. art. 6. 133 2009 Trafficking Act, supra note 31, art. 19 (“[T]he competent authority or labor affairs competent authority may revoke his/her temporary visitor permit, and may detain or repatriate him/her if he/she leaves the shelter without permission or violates laws or regulations and the violation is deemed to be sufficiently serious.”).

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former employers and colleagues; to ensure victims’ safety; and to prevent “evidence contamination.” In the shelter run by her ngo, victims are not allowed to use cell phones during the first month of their stay, to ensure preserving evidence.134 Moreover, while the law sets a maximum period for detaining non-victim undocumented migrants in a detention center,135 there is no maximum term for staying in a shelter as a trafficking victim. Mandatory stay in a shelter often exceeds one year due to prolonged investigation processes. The government’s justification for this arrangement would be that the shelter service is part of the victim protection program, not a punitive sanction. However, as long as the shelter system runs on a mandatory and disciplinary basis, it is not essentially different from detention. The shelter policies discussed above embody the criminal-justice-centered nature of the national anti-trafficking framework. Mandatory stay, concrete and strict disciplinary regulations, isolated shelter locations, restricted freedom (including no right to leave shelters without permission), a risk of losing one’s stay permit if not obeying the rules, and the indefinite term of sheltering all serve the state interest to secure well-behaved and trustworthy witnesses. The current shelter policy in Taiwan can create a de facto custody situation for victims, especially for those who do not want to stay in a shelter, adverse to victims’ human rights and well-being. This policy also reflects a stance that trafficking victims who did not hold valid visas before identification are basically unlawful migrants requiring surveillance and custody. 2) Repatriation Policy Migrant individuals’ entitlement as trafficking victims ends when a prosecutor finds that the victims are no longer needed as witnesses. The victims must then leave Taiwan unless they have another valid visa to stay, which is unusual. The term of a victim’s stay in Taiwan is thus unstable and unpredictable, contingent on a prosecutor’s judgment. Article 30 of the 2009 Trafficking Act provides: Any human trafficking victim who is a non-citizen roc national, foreigner, stateless person, Mainland Area resident, Hong Kong or Macau 134 The director noted that victims could only make a phone call to their families in their home countries with a phone in the office. The director acknowledged that victims have complaints about this restriction, but she said the shelter managers explain to them that it is for their protection. 135 Ruchuguo Jiyimin Fa (入 出 國 及 移 民 法 ) [Immigration Act] (Feb. 4, 2015) 179 Presidential Office Gaz. 138 art. 38.

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resident, shall be repatriated back to his/her country (area) of origin as soon as possible if his/her continued assistance is deemed by the judicial authorities to be no longer necessary in the investigation or trial.136 Likewise, the extension of the six-month residence permit is possible only when it is necessary for investigation or trial.137 Victims can be returned to their home countries any time in the middle of the term if a prosecutor finds them unnecessary for criminal procedures. According to the ngo interviewees, many of their clients were repatriated after they testified in court and before the relevant criminal procedure was over. The only exception under law is when the government finds that victim’s safety may be threatened upon repatriation due to her cooperation with criminal procedures.138 However, this exception falls entirely under the discretion of the authorities, and the interviewed ngo staff members agreed that this provision rarely applies.139 Victims are also repatriated when they do not or cannot cooperate with the relevant investigation. The Guidelines for Prosecutors Dealing with Human Trafficking Cases provides that “if a prosecutor finds a victim does not cooperate with investigation or prosecution, the prosecutor must notify the judicial police and the shelter, in order for nia to repatriate the victim to her home country.”140 In this context, repatriation is a process of removing unnecessary, unwilling, or incapable victim-witnesses. This regulation can work as a threat 136 2009 Trafficking Act, supra note 31, art. 30. 137 Id. art. 28, para. 1 (“The central competent authorities may, based upon the necessity of an investigation or trial, extend the temporary visitor (or resident) permit under a six-month duration of stay issued to any human trafficking victim who is a non-citizen roc national, foreigner, stateless person, Mainland Area resident, Hong Kong or Macau Area resident with no valid visitor (or resident) permit prior to the issuance of the temporary permit.”) (emphasis added). 138 Id. art. 28, para. 3 (“If the human trafficking victim’s personal safety may be threatened after his/her repatriation back to his/her country (area) of origin because of his/her assistance in the investigation or trial, the central competent authority may grant stay or residency to him/her on a special case-by-case basis.”). This paragraph also provides conditions to apply for permanent residency, which is continuous lawful residency in Taiwan for five years and over 270 days per year. However, there has been no case in which a trafficking victim has been granted permanent residency in Taiwan. 139 According to the interviews with the ngos, there was only one reported case of this kind, in which a victim was stateless. 140 Jianchajiguan Banli Renkoufanyunanjian Yingxing Zhuyishixiang (檢 察 機 關 辦 理 人 口 販 運 案 件 應 行 注 意 事 項 ) [Guidelines for Prosecutors Dealing with Human Trafficking Cases] (June 26, 2009) art. 31, National Immigration Agency, https://www .immigration.gov.tw/public/Data/072612113971.pdf.

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to victims to coerce them to cooperate with criminal law enforcement. Victims’ unfulfilled right to seek and attain remedies is not considered in deciding on their repatriation. Consistent with international law and dominant national frameworks on human trafficking, repatriation of victims is the primary goal of the victim protection scheme of the Taiwanese anti-trafficking framework. Major antitrafficking ngos in Taiwan also adopt the same position. twrf posits their role of victim protection as providing “interim measures” between rescue and repatriation.141 twrf divides victim protection processes into three phases: first, victim identification by law enforcement authorities; second, protection in a shelter; and lastly, reintegration to countries of origin.142 While twrf states that empowerment is at the center of their service,143 their victim support bears inherent limitations since its final goal is repatriation once the victim’s criminal utility is over. nia officers stated in their interviews that “most victims want to go home.” This is a different observation from the ngo staff, who are actually engaged in supporting identified trafficking victims. Most ngo interviewees agreed that the majority of their migrant trafficking victims want to stay and work in Taiwan for a substantial period of time, although not permanently. This is because they came to Taiwan to work and earn money, but could not achieve their goals due to exploitative employment conditions. One ngo director stated with certainty that all victim clients of the ngo would want to stay and work in Taiwan for a longer period, if such a legal option for them existed. One ngo case manager stated, based on his five years of experience: “If we say there are fifty trafficking victim clients, one or two of them would want to go home because they are sick or have some family issues. The rest would want to stay here and work.” Another ngo director agreed that most of his victim clients wanted to stay and work longer in Taiwan, except for those who had personal issues at home. The other ngo director pointed out that some victim clients who were more traumatized wanted to go home at first, but soon after, they became used to the new environment in a shelter and felt satisfied because they could work in better conditions. Another director said that while some clients wanted to go back because they did not want to fight back against their traffickers, after some time, they also wanted to stay longer in Taiwan and work. She stated that sometimes victims run away from the shelter when they face repatriation because they prefer working in Taiwan as undocumented to returning to their 141 twrf, supra note 21, at 2. 142 Id. at 3. 143 Id. at 6.

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home countries. Among her clients, those who wanted to go home quickly had specific personal reasons such as a homesickness or family issues. A director of one shelter expressed a somewhat different observation. She said that most of their victim clients wanted to go home after criminal procedures. However, common narratives exist between this shelter director and the other ngo interviewees. The director said the reason her clients wanted to go back was that they were not satisfied with the temporary jobs available during their stay in the shelter. She mentioned that some of their clients who found stable jobs wanted to stay longer in Taiwan. A director of another shelter discussed diversity among victim clients. In her experience, female clients who had been victims of sex trafficking wanted to return home as soon as possible. Their main reason was that since the majority had come to Taiwan with fraudulent marriage visas, they were afraid of being prosecuted as criminals. In addition, criminal procedures of sex trafficking cases tend to take longer than those of labor trafficking cases, so the victims have to stay longer without being adequately informed about the process of their cases. It is also more difficult for sex trafficking victims to find stable and satisfactory jobs during their stay in a shelter. On the other hand, the director said that male victim clients prefer to stay and work in Taiwan as long as possible. She explained that their situations are not as complex as those of sex trafficking victims and they have less to fear. According to the director, most male clients came to Taiwan to earn money and fulfill their responsibility as breadwinners. They tend to be more satisfied with their jobs during their stay in the shelter than sex trafficking victims, because they can work in a place similar to their previous workplaces, with higher salaries and better working conditions. A lawyer at the Legal Aid Foundation recalled that at least half of her clients who returned home after criminal procedures actually wanted to stay and work longer in Taiwan. A director of the other shelter also stated that half of their clients would have chosen to stay longer in Taiwan if they had such legal options. A director of one ngo for migrant workers criticized the repatriation policy as “the easiest and the cheapest way to deal with victims.”144 She emphasized the fact that trafficking victims and other migrant workers had spent significant time and money in order to make their way to Taiwan, and were in need of work to earn enough to pay back their debts and support their families. She suggested that if the government really wanted to claim to be running a victim protection system, it should at least provide options for victims to stay in Taiwan for some time period regardless of criminal procedures. 144 See also Cheng, supra note 7, at 61.

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These interview findings suggest that the majority of repatriation procedures in Taiwan were conducted against victims’ will. Repatriation which is solely based on the victims’ usefulness as crime witnesses is a far cry from a human rights-based victim protection policy. Repatriation conducted under this framework is not essentially different from deportation. Victims’ human rights then remain only as rhetoric to justify the state’s utilization of the individuals for its own purposes. 3) Unstable Work Permits Since the adoption of the 2009 Trafficking Act, identified trafficking victims can apply for a work permit during their stay in Taiwan.145 With this permit, victims can work regardless of their former work or visa categories. It is also easier for identified trafficking victims with this permit to change employers than it is for non-victim documented migrant workers.146 Victims who was holding a valid work visa at the time of victim identification can stay for the rest of the period of their original visas, after their temporary stay as trafficking victims expires. However, as mentioned earlier, if documented migrant workers have left their workplace in the middle of their visa period before victim identification, they cannot regain their original work visas and must leave Taiwan when their participation in relevant criminal procedures is over. The reasons for their leaving—trafficking situations and exploitation—do not make a difference. The ngo interviewees pointed out that while it is easy to get a work permit once identified as a trafficking victim, it is not easy for the victims to get an actual job. The main reason is the short and unpredictable term of their temporary residence. The temporary residence permit is issued for six months in principle, and this could end even earlier and with no guarantee of renewal. Not many employers want to hire migrant workers with such short and unstable immigration status. To have a stable job with a proper salary and working conditions is the most urgent need for most trafficking victims. One ngo director mentioned that even during the application process for a work permit, victims often feel very anxious, because they are not allowed to work in the meantime. The most commonly and significantly violated human rights in trafficking situations are 145 2009 Trafficking Act, supra note 31, art. 28, para. 3. Before the enactment of the Act, victims were not allowed to work while they were obligated to stay in Taiwan until the relevant criminal case is closed. See Fuchs, supra note 38, at 3. 146 Trafficking victims are not restricted by the Employment Service Act, which limits the conditions for changing employers, and can use much simpler procedures to apply for a transfer.

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victims’ rights to work in humane conditions with proper rewards. Remedies for victims thus need to start by redressing the violation of this right. However, under the current anti-trafficking framework in Taiwan, a temporary work permit for trafficking victims has two limited functions. One is as an inducement to victim’s cooperation with criminal procedures.147 The other is a soothing measure as a reward for mandatory cooperation. One former government officer explained in the interview that “since victims must stay in Taiwan for investigation, we offer them a shelter and a job.” The use of work permits as an inducement or a soothing measure indicates that the government is in fact aware of migrant trafficking victims’ needs and desire to work in Taiwan. However, the work permit remains mainly as a tool for witness preservation, not as a right or remedial measure for victims. 4) Conclusion Taiwan takes a criminal-justice-centered approach as one of the main pillars of its anti-trafficking framework. Based on this approach, the entire set of victim protection measures—temporary stay, sheltering, work permit and repatriation—is structured to effectively serve the state’s prosecutorial interests. Mandatory stay in Taiwan and in a shelter is likely to constitute a de facto custody situation which is designed for witness preservation, far from protecting or promoting human rights of victims. Repatriation when victims are no longer useful as witnesses is de facto deportation. A work permit is issued mainly for facilitating victims’ cooperation with criminal procedures, and not as a right, remedy, or a platform for victims to seek remedies. The victim protection scheme perceives trafficking victims as potential crime witnesses, and not as right holders. It does not guarantee the individuals any procedural or substantive remedies for the rights violations they suffered in the human, civil, and labor rights contexts. The anti-trafficking framework in Taiwan thus does not properly respond to victims’ rights and needs. Ironically, the victim protection scheme serves the interests of the government more than those of the victims. B Immigration Control Response 1) Tightening Border Control in the Name of Trafficking Prevention Consistent with in the international and dominant national frameworks, the other main pillar of the Taiwanese anti-trafficking framework is border and ­immigration control implemented in the name of preventing or combating 147 u.s. tip Reports also praise this policy. For example, “Taiwan authorities encouraged victims to participate in investigations against their traffickers by offering residency and temporary work permits.” u.s. Dep’t of State, Trafficking in Persons Report: June 2012 (2012).

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­ uman trafficking. For the purpose of “stamping out” human trafficking, the h Taiwanese government adopted several immigration law enforcement measures. The measures are centered on suppressing unlawful border crossings, employment of undocumented migrant workers, and fraudulent marriages.148 Since the launching of the national action plan on human trafficking, the Taiwanese government fortified crackdowns on the following migrant categories, with the justification that those migrants are vulnerable to crime syndicates’ unlawful recruiting activities: migrants with forged or altered passports or visas, or with other people’s ids or fake ids; suspicious transit passengers; undocumented foreign workers; and stowaways from Mainland China.149 In government reports on human trafficking, the Taiwanese government presents the statistics related to detecting “forged travel documents, stolen identity, and fingerprint mismatch at the border” and regulating “undocumented alien workers found within the border” as important measures to suppress human trafficking.150 The reports explain that the purpose of adopting “more rigorous measures” is “to deter trafficking syndicates from (a) sneaking victims into Taiwan using a false identity at the border or during flight transits; or (b) recruiting and exploiting illegal foreign workers in vulnerable circumstances.”151 In line with the practices of the destination states discussed in Chapter 3, the measures the Taiwanese government takes to crack down on unlawful migration are presented as measures to combat human trafficking. The typical groups of migrants subject to rigid law enforcement measures are now named as “potential victims” of trafficking to be discovered and rescued early at the borders. With this “label change,” the government can more vigorously undertake crackdowns on unlawful border crossings. A human rights connotation attached to the anti-trafficking regime obscures the true nature of these governmental measures. With a new justification of combating human trafficking and protecting targeted migrants from potential harm,152 the government 148 Executive Yuan, supra note 33, at 9–11; Executive Yuan, 2014 Republic of China (Taiwan) Trafficking in Persons Report 9–12 (2015); Executive Yuan, supra note 19, at 5–6; Executive Yuan, supra note 8, at 8. 149 Executive Yuan, supra note 19, at 5. 150 Executive Yuan, supra note 33, at 9; Executive Yuan, supra note 148, at 9; Executive Yuan, supra note 8, at 10; Executive Yuan, 2013 Republic of China (Taiwan) Trafficking in Persons Report 9 (2014). 151 Executive Yuan, supra note 33, at 9; Executive Yuan, supra note 148, at 9; Executive Yuan, supra note 150, at 9. 152 One scholar mentioned in the interview that during 2007 and 2008, the period when the Taiwanese government began to undertake active anti-trafficking regime building, the government put much effort into improving its border control system. It adopted an

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­effectively pursues its own agenda of immigration control rather than addressing the concerns of the victimized individuals. Another immigration law enforcement policy adopted recently in Taiwan is a reward system for citizens who report unlawful employment of migrant workers. The government rewards individuals according to the number of undocumented workers detected based on a report.153 The government explains that this policy is adopted “in order to prevent foreign workers from disappearing, and detain foreign workers that have run away.”154 The government employs this policy as a prevention measure against human trafficking.155 This practice demonstrates how the government uses anti-human trafficking agendas to bolster its immigration law enforcement against a broader scope of migrant population. The justification provided by the government would be that migrant workers become more vulnerable to exploitation and trafficking situations if they leave their original workplaces. However, “to prevent migrant workers from running away and to detain those who do” can neither be a prevention measure against trafficking nor a protection measure for the victims. Without addressing the structural problems of the migrant labor system, the anti-­trafficking framework only reinforces the punitive regime against individuals who deviate from the system.156 An attempt to prevent running away of migrant workers by penalizing them does not prevent exploitation, but only sustains it. electronic passport and identity profiling system and database to identify the entry of each individual and to detect irregular border crossings. Around the same time, the government widened its borders to Mainland Chinese tourists, while still prohibiting their labor migration. It also adopted a visa waiver program for certain countries. This scholar pointed out that both the recent anti-trafficking campaign and the opening up of borders for Chinese tourists justified the government policies for tighter border control and immigration screening processes. 153 The cla adopted the Guideline Governing the Payment of Reward to Members of the Public Informing the Authorities about Violations of the Employment Service Act on April 29, 2011. Executive Yuan, supra note 150, at 34. 154 Executive Yuan, supra note 8, at 39. 155 Id.; Executive Yuan, supra note 33, at 29 (reporting that the size of rewards was increased in September 2015, and that in 2015 a total of around 288,000 usd was rewarded to 757 informants of unlawful employment of migrant workers). 156 See Fuchs, supra note 38, at 26 (“Better legal protections for domestic workers and caretakers would not only reduce the number of undocumented workers but would also help to fight human trafficking. To criminalize undocumented migrant workers, as is common in the current public discourse, is not only overlooking one of the root causes of the high number of undocumented workers but is also the wrong way to successfully combat human trafficking.”).

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Another major countermeasure taken by the government in the name of preventing human trafficking is implementing stricter interview and screening processes over international marriages, especially those involving Mainland Chinese or Southeast Asian female spouses. A couple consisting of a Mainland Chinese woman and Taiwanese man must go through a series of rigid interviews and screening processes before and after marriage.157 The main purpose of such procedures is to screen out fake marriages.158 An immigration officer stated in the interview that the government is concerned that Mainland Chinese migrants may take jobs away from local workers in Taiwan. Mainland Chinese spouses are also discriminated against when applying for permanent residency in Taiwan, subject to a stricter residency requirement than foreign spouses from other countries.159 Discrimination in attaining permanent residency cannot be explained by the anti-trafficking agenda. This policy suggests that the Taiwanese government perceives Mainland Chinese spouses, mostly women, as potential unlawful migrants who use marriage visas for labor migration, rather than as potential victims of human trafficking. Brides from Southeast Asian states are more recent targets of heightened scrutiny. The government selects specific nationalities—Vietnam, Indonesia, Thailand, the Philippines, Myanmar (Burma) and Cambodia—for mandatory face-to-face visa interviews at Taiwanese consulate offices in those states.160 Visa rejection rates for the women from these states are significantly 157 The Regulations Governing Interviews of People from Mainland China Entering Taiwan requires the couples to go through a face-to-face interview with nia officers in Taiwan. Even after passing the initial interview, follow-up “home visit interviews” are conducted repeatedly with six months to one year intervals to confirm whether their marriage is “real.” In 2015, 82% applicants passed the interview, 12% were rejected, and 6% were classified for follow-up interviews. In 2014, 79% passed, 14% failed, and 7% were shelved. For the relevant statistics from 2008 to 2015, see Executive Yuan, supra note 33, at 10. 158 See also Cheng, supra note 7, at 42 (“[T]he Cross-Strait marriage interview in fact became an immigration control of Mainland immigrants rather than a combat against prostitution and sex trafficking.”). 159 Act Governing Relations between the People of the Taiwan Area and the Mainland Area, supra note 34, art. 17; Immigration Act, supra note 135, art. 10, para. 2. 160 Executive Yuan, supra note 33, at 10. The Guidelines published by the Ministry of Foreign Affairs states: “Citizens of selected countries appearing on a certain list of the Ministry [of Foreign Affairs] shall undergo an interview when applying for entry into Taiwan. To create such a list, which also specifies where interviews shall be conducted, the Ministry may take into account the roc’s national interests, international convention and practice, the relations between the home countries of the applicants and the roc, and the overall visa status of other countries’ nationals in Taiwan. The Ministry will review and modify this list when necessary.” Guidelines for the Ministry of Foreign Affairs

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high, which the Taiwanese government presents as evidence of its efforts and achievements in cracking down on human trafficking.161 The reason that the government provides for this region-specific policy is as follows: “There have been many incidents where a Southeast Asian national has entered Taiwan under the pretense of marriage and subsequently engages in activities other than those stated on the visa application. Many of these turn out to be human trafficking cases.”162 This rationale shows how the agenda of trafficking prevention is used to justify reinforcing law enforcement over larger migration flows that the government wants to regulate. The stereotype of Southeast Asian women as a group vulnerable to trafficking also contributes to justifying discriminatory procedures based on nationality.163 By adding preventing human trafficking to its list of policy purposes, the government grants itself greater legitimacy for heightened border control measures.164 The following excerpt is an example of this practice: mofa [Ministry of Foreign Affairs] must strike a delicate balance between upholding the legitimate rights of foreign spouses to join their partner and/or family in Taiwan, while meeting its objectives to safeguard border integrity, prevent human trafficking, and curb fake marriages....mofa’s foreign missions must conduct separate interviews for the Taiwanese and Diplomatic Missions of the Republic of China (Taiwan) Regarding Interviews with Foreigners Applying for Entry into Taiwan on the Basis of Marriage to roc Citizens (June 9, 2010) art. 2. 161 In 2014, 39.4% of spouse visa applications with Indonesian spouses were rejected, followed by rejection rates for applications from Vietnam (38.85%), Thailand (33.8%) and Myanmar (17.5%). Executive Yuan, supra note 148, at 10. In 2013, the rejection rate for Vietnamese spouses was as high as 47%, and 38% of Indonesian applicants and 30% Thai applicants were rejected. Executive Yuan, supra note 150, at 10. In 2012, an average of 60% of spouse visa applicants from these states passed the interview and 40% were rejected. This rejection rate is an increase from previous years: the rejection rate was 34% in 2008, 32% in 2009, 26% in 2010, and 35% in 2011. Executive Yuan, supra note 8, at 11. See also Ku, supra note 14, at 8 (discussing a sharp decrease of the approved number of Vietnamese spouses from 11,953 in 2004 to 3,864 in 2006). 162 Executive Yuan, supra note 8, at 10. 163 Ku, supra note 14, at 8. 164 Explaining its stricter border control measures, the Taiwanese government also conflates human trafficking with unlawful migration. For example, the 2008 Government Report states in its foreword: “Although we have put in place various border control measures, Taiwan remains a destination and transit point for sex workers and illegal labor from Southeast Asia. The main human trafficking problems Taiwan faces today involve forced labor and sexual exploitation.” Executive Yuan, supra note 19, at 2.

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­ ational and the foreign spouse, inquiring into each person’s background, n and details of their courtship and wedding so as to determine whether their marriage is genuine. Such a mechanism is conducive to rooting out sham marriages and human trafficking.165 As the government admits, strengthening the visa screening process for international spouses of certain nationalities can affect individuals’ right to migrate to unify with their spouses.166 By adopting the anti-trafficking agenda with human rights rhetoric, the government is ironically taking measures that are in fact detrimental to the human rights of the individuals concerned.167 In sum, the Taiwanese government has fortified its border control and immigration law enforcement in the name of preventing and cracking down on human trafficking as well as detecting and protecting potential victims. The adoption of the anti-trafficking framework has presented the government with an additional justification for strengthening its leverage over migrant groups of concern.168 The same groups of people are now identified as potential trafficking victims, in addition to their existing identity as suspected unlawful migrants. However, this new labeling only works to legitimize heavier restrictions of their rights and freedom in migration, work and family reunification. While the new crackdown regime empowers the state, it disempowers migrant individuals. 2) Punishing Trafficking Victims for Violation of Border Regulation Many ngo interviewees pointed out that their victim clients who came to Taiwan with fraudulent marriage visas often receive criminal punishment for falsifying immigration documentation. The lawyers interviewed confirmed that there are quite a few criminal cases in which trafficking victims have been found guilty for violating immigration and criminal law and have received

165 Executive Yuan, supra note 8, at 11 (emphasis added). 166 See also Cheng, supra note 7, at 40. 167 Id. at 64 (discussing the relationship between a human rights cause and stricter border control). Cheng notes that “although the cause of the stricter border control aimed at fighting the Cross-Strait sex trafficking, the enforcement actually aimed at the control of all immigrants, not only the illegal ones but also the migrants through legal access, in the name of sex trafficking prevention and inspection.” Id. at 41. 168 Cheng points out that the anti-trafficking agendas of the ngos driven by the anti-­ prostitution purposes were taken by the government, since these agendas fit the state interest in homogenous nation building and fortifying surveillance over marginalized migrant groups. Cheng, supra note 7, at 11, 58 & 65.

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sentences of two or three-month imprisonment after being identified as trafficking victims. If a trafficking victim was aware that her visa was unlawfully attained and took part in the process, she is likely to be prosecuted for using falsified immigration documents. In other words, the government treats the migrant as a criminal for the part of migration while it treats her as a victim for exploitation experienced after migration.169 This dual legal status works in an unforgiving manner for victims. The ngo interviewees stated that victims are sometimes abruptly arrested and transferred from a shelter to a prison because they are found guilty of falsifying immigration documents while staying in a shelter as trafficking victims. This situation indicates not only the inflexibility of prosecutorial practice, but also the attitude of the legal system that prioritizes the state’s border integrity over the overall well-being of victimized individuals. The state punishes those who have deviated from its immigration regulation, whether or not the violation was committed in the course of and as a means of human trafficking. The immigration-control-centered approach of the anti-trafficking framework forsakes victim protection when it conflicts with state sovereignty over border and immigration law enforcement. .

3) Treatment of Runaways The treatment of runaway migrant workers is another indicator of the immigration-­control-centered anti-trafficking framework. As discussed earlier, runaway migrant workers have no possibility of regaining their original status as documented migrant workers and are subject to deportation, regardless of the reasons for and the period of leaving their workplaces. They are also obligated to pay fines for the duration of their undocumented stay, even if they are later identified as trafficking victims based on their experiences at their initial workplace. The law criminalizes and deports every migrant worker who leaves one’s assigned workplace for any reason. The system focuses on the fact that the migrants have violated immigration regulations, without paying attention to the circumstances which drove them to leave their workplace. Under this framework, identification as trafficking victims could only have a limited 169 Article 29 of the 2009 Trafficking Prevention Act provides: “Any human trafficking victim who has violated other provisions of the criminal code or administrative regulations as a result of being trafficked may be eligible for a reduction in penalty or absolution from his/ her liability.” The judge interviewed indicated that since falsifying documentation would not be regarded as the “result” of human trafficking, the provision may not exempt victims from prosecution. He also mentioned that victims’ claim that they did not know the unlawfulness of their visas or migration processes usually does not persuade judges.

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­function—temporarily postponing deportation according to the state’s prosecutorial needs. 4) Conclusion This section investigated how the immigration-control-centered approach operates in Taiwan’s anti-trafficking framework. First, the government utilizes the anti-trafficking framework to fortify border and immigration control in general. Second, the immigration control regime overrides the victim protection agenda when the two interests are in conflict. Pushing forward stricter border control measures in the name of human trafficking prevention can detrimentally impact on the larger migrant population, including those who are labeled as (potential) trafficking victims. The policy prioritizing the enforcement of immigration regulation over victim protection exposes the fragility of the human rights agenda of the anti-trafficking framework. Along with the criminal justice approach, the immigration control approach underpinning the antitrafficking framework mainly serves the state’s power and interest while subordinating the rights, needs and interests of the individuals. C De-identification and Precarious Status of Victim-Migrants The “de-identification” process in Taiwan is one of the clearest examples of how the criminal justice and immigration control approaches of the anti-­trafficking framework work collectively to the detriment of victims. While both the police and prosecutors have the authority to identify trafficking victims, prosecutors have final decision-making power which can reverse previous victim identification decisions. Taiwan has adopted a “dynamic victim identification process,” which conducts identification efforts multiple times on the same individual. Prosecutors can reverse a previous identification decision after further investigation or acquittal decisions by a court on the suspects. The Principles and Guidelines for Human Trafficking Victim Identification, the official guidelines for law enforcement authorities, provides: “When the prosecutor finds that identified victims who are already in shelters are not human trafficking victims, the prosecutor should notify the original institution that transferred the case. That institution should remove the persons from the shelter.”170 Most ngo staff interviewed had numerous cases in which their victim clients were handcuffed in the middle of their shelter stay and transferred to a

170 Renkoufanyunbeihairen Jianbieyuanze (人 口 販 運 被 害 人 鑑 別 原 則 ) [Principles for Human Trafficking Victim Identification] (Feb. 13, 2009) art. 9.

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detention center,171 and then deported, because they were “de-identified” by prosecutors. The de-identification decision suddenly overturns these victims’ lives.172 Prosecutors do not have an obligation to provide reasons for such decisions,173 and victims do not have the right to appeal. ngos must immediately stop all assistance for the victims and arrange their transfer to a detention center.174 The drastic and unilateral conversion of victims’ legal status indicates that even identified trafficking victims continue to stand on a precarious line between criminal and victim. The practice of de-identification exemplifies how the dichotomous anti-trafficking framework based on criminal and immigration law enforcement adversely affects victimized individuals’ well-being. As discussed in the earlier sections, actual trafficking cases are highly ambiguous and complex. In most cases, the dichotomous law enforcement approach 171 Taiwan runs three types of facilities accommodating migrants, according to their status in relation to the human trafficking framework. The first is, a shelter for identified trafficking victims. The second is a special facility for “potential trafficking victims” whom law enforcement authorities classify for future investigation to decide on their status, which should be concluded in one month. The third is a detention center for undocumented migrants who are not identified either as victims or potential victims. Migrants’ living conditions are different among these three levels of facilities. Only identified victims in the first group can apply for a work permit, while potential victims cannot. While the second type of facility provides nicer quality and space than detention centers, potential victims do not have the freedom to go outside of the facility—the same restriction as detainees. The potential victims would go either to a shelter or a detention center after one month of further investigation. 172 Most ngo interviewees pointed to the de-identification procedure as one of the most problematic policies under the anti-trafficking framework in Taiwan. One director stated that in some cases, prosecutors reversed previous identification decisions after a long period of time such as eight months to one year. Another director said that among 102 trafficking victims her organization sheltered, eight of them were de-identified and deported. The other director mentioned a case in which a victim, who had been receiving regular medical treatment for her disease, was de-identified and transferred to a detention center. She gave up her treatment after the transfer because she had to wear handcuffs to go to the hospital, which made her feel ashamed. 173 Two interviewed ngos had received from prosecutors a written notice of reasons for deidentification. Those reasons were similar to the typical reasons found in non-guilty court decisions discussed earlier in this chapter. 174 Sifajingchajiguan Banlirenkoufanyunanjian Xietiaolianxi Yaodian (司 法 警 察 機 關 辦 理 人 口 販 運 案 件 協 調 聯 繫 要 點 ) [Guidelines for Law Enforcement Authorities Dealing with Human Trafficking Cases for Coordination and Liaison] (June 1, 2009) art. 5 (“If a suspected victim is identified as a non-victim, the person who violated Immigration Act shall be detained and deported.”).

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can work in detrimental ways for individuals. This framework divides similarly situated individuals not just into victims vs. non-victims, but into victims vs. criminals. It differentially treats migrants who have experienced similar rights violations, not only with protection vs. non-protection, but with a “protection vs. punishment” dichotomy.175 Under the current system, individuals are treated differently only according to their status in the criminal and immigration law contexts. The various rights violations the individual has experienced in the human, civil, and labor rights contexts remain overlooked and unaddressed. The notion of human rights, once attached to the protection scheme, is easily removed by the operation of the criminal justice and immigration control regimes. The combination of the criminal justice and immigration control approaches under the anti-­trafficking framework enables the state to effectively pursue its own needs and interests, utilizing and disposing the individuals who are in greatest need of the law’s rights protection and remedies. 5 Conclusion In recent years, Taiwan has been one of the most active destination states in Asia with respect to anti-trafficking regime building. The nation’s aspiration to attain international recognition has been a powerful driving force, while pressure from the u.s. government and active participation by civil society have also played critical roles. Taiwan has enthusiastically adopted the dominant anti-trafficking model based on criminal justice and immigration control. It has squarely implemented the mandates of international law framed by the Trafficking Protocol and adopted the prevailing model among major destination states. Therefore, its law and practice provide a useful barometer to evaluate the efficacy of the current anti-trafficking regimes at the international and national levels. As examined in Section 3, and in line with the findings of the case study in Chapter 4, even the most frequently identified human trafficking cases demonstrate a high level of ambiguity, complexity and diversity. Individual victim-migrants possess both agency and victimhood throughout their journeys of labor migration, which often drive them into abusive and exploitative situations. The dichotomous criminal framework perceives the two coexisting aspects of victimhood and agency in a mutually exclusive way. Exercise of agency in this framework only works to deny the victimhood of 175 On top of this, the Taiwan legal system also punishes the victims, as discussed earlier, for their criminal or immigration law violations.

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migrants and leads to self-incrimination. While victimized migrants are utilized as crime witnesses and then removed, the various rights violations these individuals have experienced remain unaddressed. Trafficking victims are migrant workers whose human, civil, and labor rights are severely violated. They should have procedural as well as substantive rights to remedies for these rights violations. Preventing and remedying rights violations should be central in constructing and operating the legal system which claims to protect victims’ rights and interests. By utilizing victimized individuals only as potential crime witnesses while disregarding their status as rights-holders and demonizing the exercise of their agency as migrant workers, the current anti-trafficking framework dehumanizes these migrants. By framing immigration law enforcement as a major prevention and crackdown measure against human trafficking, the regime fortifies state power and control to pursue its own agenda while detrimentally affecting broader population in the name of protection. The case study of Taiwan affirms the concluding observation of Chapter 3 that the antitrafficking framework built on the two pillars of criminal justice and immigration control empowers destination states and disempowers individuals. This regime is incapable of addressing the individuals’ complex predicaments and the various rights violations they have experienced, and also fails to address the structural problems of the legal and economic system which reproduce the victimizations of marginalized migrants. The agendas of victim protection and human rights have mostly played a rhetorical role in this framework.

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International Human Rights Law in the Context of Human Trafficking 1 Introduction The previous chapters have investigated the nature, structure and operation of the current international and national regimes on human trafficking. The analysis in these chapters demonstrates that the present framework is a tightly knit combination of transnational regimes of crime, border and immigration control, constructed under the rhetoric of human rights. The findings reveal how the current regime empowers destination states and disempowers victimized individuals, serving the interests of those states rather than the needs of the individuals the regime claims to protect. Chapters 4 and 5 illustrate how the regime’s simplified perception and unilateral treatment of trafficking victims are often at odds with the real experience, needs, and interests of these individuals, harming their overall human rights situations and well-being. The analyses in Chapters 2 and 3 show that such detrimental state practices at the national level are not arbitrary actions by individual states, but are in fact straightforward implementations of the problematic primary rules provided by the ctoc and the Trafficking Protocol. Chapter 2 demonstrates that the other international treaty regimes have also been ineffective in addressing human rights violations related to human trafficking for various reasons, including the abstract nature of provisions, lack of explicit links with trafficking situations, a low ratification rate, and scattered locations of relevant provisions around different treaties. The problems of the current anti-trafficking regime and the weakness of other treaty regimes suggest a need to develop a comprehensive alternative framework that prioritizes addressing the rights violations suffered by individuals and empowering them at both international and national levels. In order to shape this alternative transnational human rights framework, it is necessary to first examine what the existing international human rights law has to offer in addressing unique transnational features of human trafficking and in constructing effective remedies for the victims. This chapter thus investigates whether international human rights law, including treaties and theories, is capable of fully and properly addressing the multiple transnational features of human trafficking discussed in Chapter 1: human trafficking as human rights violations (1) committed by non-state actors, (2) against © koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004311145_007

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non-nationals, (3) in which the acts and victims cross borders. An examination of these subjects will show that the current international human rights regime is weak and ineffective in addressing the new challenges posed by transnational human trafficking and in promoting the human rights of relevant individuals. The chapter then explores international law on the right to remedies for victims of human rights violations, and discusses the potential and limitations of this area of international law in constructing concrete meanings and methods of effective remedies for trafficking victims. The chapter argues that due to its current weakness and ineffectiveness, the international human rights regime, ironically, supports the anti-trafficking regime’s transnational criminal and immigration law enforcement project, which empowers destination states and disempowers individuals. 2

International Human Rights Law and Transnational Human Trafficking

A typical international human rights case assumes a situation where a state violates the human rights of its nationals in its territory. International human rights norms in such a case restrict the sovereignty of the state—the violator— requiring the state to rectify wrongdoings and to respect human rights of its nationals. However, in the case of transborder human trafficking, the dynamics of individuals, state sovereignty and human rights law changes greatly and becomes much more complicated. The state is positioned as a protector of human rights of non-national victims against wrongdoings committed by private actors. This section examines how international human rights law responds to the transnational characteristics of human trafficking and whether the law functions effectively in addressing complex human rights situations posed by human trafficking. A Human Rights Violations by Non-State Actors and State Obligations 1) General Theory a Positive Human Rights Obligations and the Due Diligence Standard Although a conventional international human rights case presumes a state as a direct violator of human rights, the general typology of states’ human rights obligations—a duty to respect, protect and fulfill (and also promote) human rights—acknowledges that human rights can be violated by private actors.1 1 For the typology of international human rights obligations of states, see, for example, Olivier De Schutter, International Human Rights Law: Cases, Materials, Commentary 242–48 (2014).

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While a state bears a negative obligation to respect human rights (i.e., to refrain from violating human rights with its actions), a state is also under a positive obligation to take actions to protect human rights in cases in which human rights are threatened or violated by non-state actors or natural disasters. In evaluating whether a state has met its positive obligations in the case of human rights violations by private actors, the due diligence standard has been developed and widely accepted by relevant international tribunals and bodies. This standard appeared in the earlier doctrine of state reasonability regarding injuries to aliens caused by private actors, and was later adopted in international human rights law as well as a few other areas of international law.2 In international human rights law, the due diligence standard generally requires states to take appropriate measures to prevent and respond to human rights violations committed by non-state actors. Failing to meet the standard triggers state responsibility.3 The Inter-American Court of Human Rights, in its landmark case Velásquez Rodríguez, articulates this point: An illegal act which violates human rights and which is initially not directly imputable to a State (for example, because it is the act of a private person or because the person responsible has not been identified) can lead to international responsibility of the State, not because of the act 2 For the history of the due diligence standard in general and in international human rights law, see Jan Arno Hessbruegge, The Historical Development of the Doctrines of Attribution and Due Diligence in International Law, 36 N.Y.U. J. Int’l L. & Pol. 265 (2004); Joanna BourkeMartignoni, The History and Development of the Due Diligence Standard in International Law and Its Role in the Protection of Women Against Violence, in Due Diligence and Its Application to Protect Women From Violence 47–61 (Carin Benninger-Budel ed., 2008). The due diligence standard is also applied to areas such as international corporate law and international environmental law. E.g., International Law Commission’s Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, art. 3, u.n. Doc. A/56/10 (2001); see also Convention on the Law of the Non-Navigational Uses of International Watercourses art. 7, u.n. Doc. A/RES/51/229 (1997). 3 See Ian Brownlie, State Responsibility 159–61 (1983). However, the International Law Commission’s Draft Articles on Responsibility of States for Internationally Wrongful Acts deliberately did not deal with the case in which a wrongful act is not attributed to a state, but in which the state merely failed to meet the due diligence standard. The Articles only include a case in which a treaty specifically obligates states to prevent certain consequences. International Law Commission’s Draft Articles on Responsibility of States for Internationally Wrongful Acts art. 23, u.n. Doc. A/RES/56/83 (2001) [hereinafter ilc Articles on State Responsibility]. For the background of this part of the Articles, see James Crawford, State Responsibility 228 (2013).

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itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention.4 The substance of the due diligence standard under international human rights law indicates that the duty of states has predominantly focused on taking criminal law enforcement measures against perpetrators. Much less attention has been paid to the preventive aspects—especially outside the criminal ­context—and to protecting victims and their right to remedies. Velásquez Rodríguez famously articulates the substance of the due diligence standard: The State has a legal duty to take reasonable steps to prevent human rights violations and to use the means at its disposal to carry out a serious investigation of violations committed within its jurisdiction, to identify those responsible, to impose the appropriate punishment and to ensure the victim adequate compensation.5 As the Court holds, state obligations in the case of human rights violations by non-state actors center on taking criminal law enforcement measures against perpetrators: “to carry out a serious investigation, to identify those responsible, to impose the appropriate punishment.” On the other hand, the Court states a duty to prevent human rights violations in a brief and abstract way; with regard to the treatment of victims, it only mentions compensation. The un Human Rights Committee in its General Comment No. 31 stresses states’ positive obligation to ensure the rights under the iccpr, making explicit reference to the due diligence standard. Investigation and punishment are central duties. While a duty to “redress the harm” can be interpreted in a broader sense than Velásquez Rodríguez’s duty to compensation, the Comment does not offer further elaboration on its meaning: There may be circumstances in which a failure to ensure Covenant rights as required by article 2 would give rise to violations by States Parties of those rights, as a result of States Parties’ permitting or failing to take appropriate measures or to exercise due diligence to prevent, punish, investigate or redress the harm caused by such acts by private persons or entities.6 4 Velásquez Rodríguez Case, Judgment, Inter-Am.Ct.h.r. (ser. C) No. 4, ¶ 172 (July 29, 1988). 5 Id. ¶ 174. 6 Human Rights Comm., General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, ¶ 8, u.n. Doc. CCPR/C/21/Rev.1/Add.13 (2004).

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The cedaw Committee’s General Recommendation No. 19 adopts the due diligence standard as interpreted by Velásquez Rodríguez: “States may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence, and for providing compensation.”7 In particular, domestic violence against women is one of the areas to which the due diligence standard is most frequently applied.8 For example, the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women stipulates the duty of states to take due diligence “to prevent, investigate and impose penalties for violence against women.”9 The United Nations General Assembly Declaration on the Elimination of Violence against Women urges states to “[e]xercise due diligence to prevent, investigate and, in accordance with national legislation, punish acts of violence against women, whether those acts are perpetrated by the State or by private persons.”10 While not explicitly using the term due diligence, the European Court of Human Rights has applied a similar standard in cases involving non-state actors.11 7

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Comm. on the Elimination of Discrimination Against Women [hereinafter cedaw Committee], General Recommendation No. 19, Violence Against Women, ¶ 9, u.n. Doc. A/47/38 (1993). See, e.g., Special Rapporteur on Violence Against Women, Its Causes and Consequences, Third Rep. on Violence Against Women: The Due Diligence Standard as a Tool for the Elimination of Violence Against Women, Econ. & Soc. Council, u.n. Doc. E/CN.4/2006/61 (Jan. 20, 2006) (by Yakin Ertürk); see also cedaw Committee’s individual communication cases, including Fatma Yildirim v. Austria, Communication No. 6/2005, u.n. Doc. CEDAW/C/39/D/6/2005 (Oct. 1, 2007) (finding the Austrian government’s failure to act with due diligence to prevent domestic violence-related death violation of cedaw), V.K. v. Bulgaria, Communication No. 20/2008, u.n. Doc. CEDAW/C/49/D/20/2008 (Aug. 17, 2011) (finding the Bulgarian government’s failure to protect the victim against domestic violence a violation of cedaw). Inter-American Convention on the Prevention, Punishment, and Eradication of Violence Against Women art. 7, para. b, June 9, 1994, 33 i.l.m. 1534; see also Maria Da Penha v. Brazil, Case 12.051, Inter-Am. Comm’n. h.r., Report No. 54/01, ¶ 56, OEA/Ser.L/V/II.111 doc. 20 rev. (2001) (“[T]his case involves not only failure to fulfil the obligation with respect to prosecute and convict, but also the obligation to prevent these degrading practices.”). United Nations General Assembly Declaration on the Elimination of Violence Against Women, art. 4 (c), u.n. Doc. A/RES/48/104 (1993). See, e.g., Opuz v. Turkey, 2009-III Eur. Ct. h.r. 107; Osman v. United Kingdom 1998-VIII Eur. Ct. h.r. 3124; Akkoç v. Turkey, 2000-X Eur. Ct. h.r. 389 (pointing out states’ primary duty to protect the right to life by “putting into place effective criminal-law provisions to deter the commission of offences…[and] law-enforcement machinery for the prevention, suppression and punishment of breaches”).

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The due diligence standard has clearly favored criminal justice measures since the earlier regime of state responsibility for injuries to aliens. For example, the United States-Mexico General Claims Commission held the Mexican government responsible in several cases for its failure to take appropriate steps to protect victims from wrongful acts or to apprehend, prosecute, and punish perpetrators.12 A number of authors on state responsibility also briefly summarize the duty of states as “to prevent or punish” in the case of human rights violations by private actors.13 As the above overview shows, the due diligence standard is comprised of two parts: (1) a duty to prevent and (2) a duty to respond to human rights violations by private actors. Regarding a duty to respond, required actions are m ­ ostly limited to taking criminal justice measures against perpetrators—arrest, investigation, prosecution, and punishment. Taking criminal law enforcement measures is often considered as a primary way to prevent human rights violations as well.14 Criminal justice measures are generally regarded to be more rigid and effective than other measures such as civil or administrative law enforcement.15 The due diligence standard pays scant attention to n ­ ecessary 12

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E.g., William E. Chapman Claim (United States v. Mexico), 4 r.i.a.a. 632 (1930); Laura M.B. Janes Claim (United States v. Mexico), 4 r.i.a.a. 82 (1926); Youmans (United States v. Mexico), 4 r.i.a.a. 110 (1926); Massey (United States v. Mexico), 4 r.i.a.a. 155 (1927); see also Neer Claim (United States v. Mexico), 4 r.i.a.a. 60 (1926); United States Diplomatic and Consular Staff in Tehran (United States v. Iran), 1980 i.c.j. 3 (May 24). E.g., Rick Lawson, Out of Control. State Responsibility and Human Rights: Will the ilc’s Definition of the “Act of State” Meet the Challenges of the 21st Century?, in The Role of the Nation-State in the 21st Century: Human Rights, International Organisation and Foreign Policy 96 (M. Catermans-Holleman, R. van Hoof & J. Smith eds., 1998) (“where they are guilty of not having done everything within their power to prevent the injurious act of the private individual or to punish it suitably if it has occurred despite everything”); E. Jiménez de Arechaga, International Responsibility, in Manual of Public International Law 531, 560 (Max Sørensen ed., 1968) (“The basis of State responsibility for acts of private individuals is not complicity with the perpetrator but solely failure of the State to perform its international duty of preventing the unlawful act or, failing that, to arrest the offender and bring him to justice.”); 4 Max Planck Encyclopedia of Public International Law Due Diligence (2012), http://opil.ouplaw .com/home/EPIL (“[A] violation of a human right by a non-State entity may also trigger a State’s legal responsibility where it has failed to act with due diligence in preventing and punishing the non-State actor.”). See, e.g., Osman v. United Kingdom ¶¶ 115–16; Opuz v. Turkey ¶ 128. See, e.g., X & Y v. Netherlands, 91 Eur. Ct. h.r. (ser. A), ¶ 27 (1985) (“The Court finds that the protection afforded by the civil law in the case of wrongdoing of the kind inflicted on Miss Y is insufficient. This is a case where fundamental values and essential aspects of private

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legislative arrangements or broader structural reforms. Providing support for victims and ensuring they attain remedies are also marginalized concerns. With respect to remedies, only compensation is mentioned and only occasionally. Cases are rare in which a state is found in violation of the due diligence standard for its poor treatment of victims. In short, under the current international law of due diligence—a standard of positive state obligations in the case of human rights violations by non-state actors—the main duty of states is to prosecute private perpetrators. b Evaluation of the Current Standard from Human Rights Perspectives In the case of human rights violations by non-state actors, international human rights law requires states to be proactive and to intervene,16 but in a limited manner. Through the application of the due diligence standard, criminal law enforcement has been equated with human rights protection. This development engenders several concerns. The due diligence framework empowers states with greater justification for exercising their criminal law enforcement authority in the name of discharging their human rights obligations. This “license to intervene” creates room for states to abuse this leverage to pursue their own agendas and interests. This critique by no means suggests that criminal justice measures are not necessary to prevent or respond to human rights violations. The problem lies in overemphasizing criminal law enforcement as a primary human rights response. By investigating or prosecuting private actors, states can easily avoid accusations of state responsibility. This may discourage states from taking more serious measures to address systemic and structural problems that cause repetitive human rights violations. Enforcing criminal justice does not necessarily improve victims’ human rights situations. As demonstrated in the previous chapters, criminal justice measures often turn out to be detrimental to victims’ safety and well-being. Conflating prosecution against perpetrators with human rights protection for victims is a legal assumption with weak factual grounds. The due diligence standard has not contributed much to the areas of victims’ rights and remedies, but has instead marginalized them. As discussed later in this chapter, the

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life are at stake. Effective deterrence is indispensable in this area and it can be achieved only by criminal-law provisions.”). Dinah Shelton, Private Violence, Public Wrongs, and the Responsibility of States, 13 Fordham Int’l L.J. 1 (1989) (generally pointing out that the development of international human rights law requires and allows more state interventions to protect human rights).

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duty of states to ensure effective remedies for victims of human rights violations has been developed independently of the due diligence standard. A criminal justice approach targeting private perpetrators reinforces an asymmetric relationship between states and individuals. When human rights are violated by non-state actors, states are positioned both as prosecutors against perpetrators and as protectors for victims. This sharply contrasts with the traditional case in which a state is a direct violator of human rights. Acting in a position of moral superiority over perpetrators and assuming a paternalistic role over victims, states are subject to less scrutiny over the impact and efficacy of their actions in terms of human rights. This positioning also dilutes and diverts attention away from states’ own possible accountability for the problem at issue.17 The current due diligence standard disregards the crucial fact that not every human rights violation constitutes a crime. While the cases involving private perpetrators adjudicated by relevant international bodies often include crimes of murder or violence, human rights can be violated by non-state actors outside the reach of domestic criminal law, as in labor rights violations by employers or violations of other social and economic rights. The due diligence standard does not provide any answers as to how state obligations should be constructed in such cases. In conclusion, when non-state actors are perpetrators, international human rights law does not restrict state power or sovereignty. Instead, it reinforces state power and sovereignty by requiring the state to take active intervention and criminal law enforcement measures. Overemphasis on criminal justice measures contributes to the empowering of states instead of individuals. This overemphasis marginalizes the need to protect and uphold victims’ rights outside the criminal context, and drives attention away from structural problems that require broader reforms of law and policy. It addresses a narrow scope of human rights cases with a limited approach. By requiring criminal law 17

See Bridget Anderson, Us and Them?: The Dangerous Politics of Immigration Control 11 (2013) (“Trafficking as modern-day slavery emphasizes the experiential and individualized, in contrast to the language of labor migration.... The focus on the personal relations of dominance establishes the state as protectors and passes over its role in producing the category of migrant with its attendant vulnerabilities in the first place.”); Bridget Anderson, Where’s the Harm in That? Immigration Enforcement, Trafficking, and the Protection of Migrants’ Rights, 56 Am. Behavioral Scientist 1241, 1252 (2012) (noting that states avoid state responsibility while acting as protector of trafficking victims).

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enforcement measures as the main human rights response, the due diligence standard lends additional legitimacy to the recently developed transnational crime control regimes.18 The mandates of the standard do not alleviate human rights concerns related to these regimes, but justify and support the regimes’ main agendas. 2) In the Context of Human Trafficking The due diligence standard supports rather than restricts the key agendas of the global anti-trafficking regime. State obligations centering on criminal law enforcement parallel the anti-trafficking regime’s 3P paradigm. This section further explores the relationship between states’ positive human rights obligations, the due diligence standard, and each element of the 3P paradigm. a Prevention “Prevention,” the first P of the 3P paradigm, is also a component of the due diligence standard. As noted, while the standard does not prescribe specific methods of prevention, relevant adjudicating bodies often cite criminal law enforcement as an effective measure to prevent human rights violations by private actors. A law-enforcement-centered duty to prevent fits well with the current international law responding to human trafficking, which approaches the issue as transnational organized crime and prioritizes border and immigration control as the main prevention measure. Destination states commonly fortify their border security by claiming a duty to prevent human rights violations related to human trafficking. However, the minimum requirement of the due diligence standard is to take appropriate measures to prevent human rights violations. If a measure taken by a state is not adequate or effective for preventing rights violations, a state cannot be regarded as having met its obligation under the due diligence standard. As discussed in the previous chapters, border and immigration control is neither an adequate nor an effective way to prevent human rights violations related to human trafficking. It in fact aggravates the problem by increasing the number and vulnerability of potential victims as well as their reliance on trafficking rings. However, since the Trafficking Protocol sets primary rules for preventing and responding to human trafficking, operating as de facto

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On the development of transnational criminal law regimes and related human rights concerns, see generally Neil Boister, An Introduction to Transnational Criminal Law (2012).

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lex specialis, states would easily be freed from state responsibility by meeting the mandates of the Protocol. While core human rights violations related to human trafficking are committed in the territory of destination states after individuals cross borders, the concrete mandates and strong appeals of the Trafficking Protocol regime—centering on a duty to prevent trafficking by rigid border control—tend to replace a vague and abstract norm under international human rights law—a duty to prevent human rights violations. b Prosecution Prosecution—the center P of the 3P paradigm—is also the chief component of the due diligence standard, as discussed above. Taking vigorous criminal law enforcement measures under the anti-trafficking regime thus satisfies the human rights obligation under due diligence standard as well. Cracking down on suspicious border crossings, on employment of undocumented migrant workers, and on engagement with prostitution all attain greater justification when framed as efforts to protect human rights of targeted individuals from human trafficking. The criminal-justice-centered due diligence standard thus supports the main agenda of the anti-trafficking regime. Structural factors in the legal and economic systems of destination states that contribute to human trafficking and exploitation of migrant workers receive little attention under either regime. However, a closer look at the two regimes reveals that their law enforcement targets are not the same. The anti-trafficking regime targets those who take part in the movement of persons (across borders) using wrongful means for the purpose of exploitation. The human rights regime should focus on human rights violations committed in destination states after a migrant victim arrives at the workplace. The law enforcement initiatives under the anti-trafficking regime focus on cracking down on unauthorized border crossings and employment of undocumented migrants. The human rights protection initiative in its proper form should aim to protect human rights of migrants working and living in exploitative conditions. However, the dominant positioning of the antitrafficking regime has made the regime’s mandates sweep over the relevant international human rights provisions. Moreover, as discussed, the current due diligence standard is narrowly constructed. In this setting, taking criminal law enforcement measures according to the mandates of the trafficking regime is likely to exempt destination states from further obligations and state responsibility. However, the practical relationship between the two regimes—where the current anti-trafficking regime acts as lex specialis to relevant international

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human rights frameworks—is incorrect in theory, since the two regimes have different purposes and targets.19 c Protection of Victims As examined in Chapter 2, the Trafficking Protocol does not prescribe to states parties any legal obligations regarding protection of victims or on victims’ rights and remedies. The marginalized position of victims under the 3P paradigm is also found in the due diligence standard. This human rights standard is incapable of guiding the trafficking regime to take a rights-based approach placing victims at the center.20 It is important to note that the scope of trafficking victims in the criminal justice regime is narrower than in the human rights framework, since human rights violations related to human trafficking do not necessarily constitute a crime under the domestic law of destination states. However, as the anti-­ trafficking regime came to occupy a primary position, it has become harder for individuals to claim their rights and attain remedies, especially for those whose human rights have been violated but are not recognized as trafficking victims in the criminal context. The due diligence standard is not capable of remedying serious drawbacks of the anti-trafficking regime, including poor victim protection, marginalized and subordinated positions of victims as crime witnesses, and an inability to treat victims as rights holders. d Conclusion By favoring criminal law enforcement measures against perpetrators and equating these measures with human rights protection for victims, the due

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Gallagher points to the importance of improving primary rules to enhance the effectiveness of international law in addressing specific issues. Anne T. Gallagher, The International Law of Human Trafficking 251 (2010). See Viviana Waisman, Human Trafficking: State Obligations to Protect Victims’ Rights, the Current Framework and a New Due Diligence Standard, 33 Hastings Int’l & Comp. L. Rev. 385, 418 (2010) (examining the trafficking policy in Spain and concluding that “it is clear that the current legal and policy framework in Spain, as in other receiving states, does not adequately protect trafficked women from further human rights violations, or provide access to remedies for the human rights violations already suffered. International and regional efforts to date have failed to develop an enforceable scheme to hold individual States accountable. Furthermore, the presently available protections in Spain fall short of offering effective means for trafficked women to remain legally in the country”).

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diligence standard under international human rights law ironically supports the trafficking regime’s 3P paradigm, which often works against the well-­being and human rights of the affected individuals. The anti-trafficking regime benefits from abstract and fragmented human rights law and from the law-­ enforcement-centered due diligence standard. Victims are marginalized under both frameworks. Structural factors that facilitate the practice of trafficking and labor exploitation are rarely addressed, as the focus of both regimes is limited to prosecuting individual perpetrators. Current international norms regarding human rights violations by non-state actors contribute to the antitrafficking regime’s project of empowering destination states and disempowering individuals. The state obligations to protect, fulfill and promote human rights in the context of human trafficking need to be constructed in far more comprehensive and concretized ways. B Human Rights Violations against Non-Citizens 1) General Theory a International Law of Injuries to Aliens International law on the protection of aliens was developed before the postWorld War ii human rights regime and has contributed to the development of the doctrine of diplomatic protection and state responsibility.21 Its sources of law include the earlier Friendship, Commerce, and Navigation (fcn) Treaties, Bilateral Investment Treaties, and Free Trade Agreements, among others. These regimes contain mechanisms to protect individuals engaged in trade or investment in foreign states.22 The background and operation of this body of international law clearly demonstrate its state-centric nature. The regime had been developed mainly by Western imperial powers who held a substantial economic interest in protecting their nationals engaging in businesses abroad. David Weissbrodt pinpoints a salient characteristic of the groups of individuals who triggered the development of the regime: 21

22

On state responsibility regarding injuries to aliens in the context of human rights, see, e.g., Myres S. McDougal, Lung-chu Chen & Harold D. Lasswell, Protection of Aliens From Discrimination and World Public Order: Responsibility of States Conjoined With Human Rights, 70 Am. J. Int’l L. 432 (1976). For the historical development of international law on the protection of non-nationals, see David Weissbrodt, The Human Rights of NonCitizens 18–38 (2008); Carmen Tiburcio, The Human Rights of Aliens Under International and Comparative Law 23–74 (2001). See Lori Fisler Damrosch & Sean D. Murphy, International Law: Cases and Materials 1008–13 (2014).

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Since international human rights protections for non-citizens developed in parallel with the law of international commerce, protections for non-citizens have historically been protections for investors, traders, merchants and business people, not individuals requiring humanitarian assistance. As such, the history of the rights of non-citizens began as the history of the rights of the privileged.23 Louis Henkin also points out that in the past, international law protected only a limited range of individuals, such as diplomats and property owners abroad— those whose interests were regarded as identical or beneficial to state interests.24 Henkin argues that the earlier regime of injury to aliens is an extension of statehood driven by states’ political and economic interests, not by a general concern for protecting the human rights and dignity of human beings.25 He explains: “Injury to a foreign national or to the national’s property was also an affront to the state of his or her nationality, and powerful states exporting people, goods, and capital to other countries in the age of growing mercantilism insisted on law that would protect the state interests that these represented.”26 This assessment echoes Ian Brownlie’s remark that “the question of individual protection merges with the less altruistic and conflicting positions of investorcreditor states and ‘underdeveloped states.’”27 While injured individuals are aliens to host states, they are nationals to sending states. The regime has been 23 24 25 26

27

Weissbrodt, supra note 21, at 36. Louis Henkin, International Law: Politics and Values 170 (1995). Id. at 171. Id. at 170. Philip Alston and Ryan Goodman also point to this historical background, stating, “This body of law would not have developed so vigorously but for Western colonialism and economic imperialism that reached their zenith during this period. Transnational business operations centered in Europe, and later in the United States as well, penetrated those regions now known as the Third World or developing countries.... In such circumstances, given the links between the success and wealth of corporations in their foreign ventures and national wealth and power, the security of the person and property of a national or corporation operating in a foreign part of the world became a concern of his or its government. That concern manifested itself in the vigorous assertion of diplomatic protection and in the enhanced activity of arbitral tribunals. In the late ninetieth and early twentieth centuries, some such arbitrations occurred under the pressure of actual or threatened military force by the claimant states, particularly against Latin American governments.” Philip Alston & Ryan Goodman, International Human Rights 92 (2013). Ian Brownlie, The Place of the Individual in International Law, 50 Va. L. Rev. 435, 452 (1964).

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developed by these sending states, who are mostly richer and more powerful than host states, in pursuit of the sending states’ own political and economic interests in protecting their nationals doing business in host states.28 In this regard, unlike a general view,29 international law on injuries to aliens is more of a precursor to international investment law than international human rights law. The state-centered nature of this regime can be found also in the way the system operates.30 At the international level, the state of nationality of an injured individual (hereinafter the state of nationality) exclusively espouses the rights of the individual and invokes state responsibility against the state to which a wrongdoing is attributed or which is indirectly responsible for the injury by private actors (hereinafter an injuring state).31 Exercising diplomatic protection is a right but not a duty of a state of nationality.32 Once a state of ­nationality takes up a claim, the state has exclusive control over the individual’s right and can dispose of the claim at its discretion. When the state receives reparation from the injuring state, it does not have a duty to allocate the 28

In this regard, the terminology of Edwin Borchard is more accurate: “protection of citizens abroad.” Edwin Borchard, The Diplomatic Protection of Citizens Abroad; or The Law of International Claims (1915). 29 See, e.g., Alston & Goodman, supra note 26, at 90; Andrew Clapham, Human Rights Obligations of Non-State Actors 66–67 (2006). 30 The ilc Articles on State Responsibility reflect this traditional inter-state structure of state responsibility, acknowledging no rights of individuals. For critiques of this conservative move, see Christian Tomuschat, Individual Reparation Claims in Instances of Grave Human Rights Violations: The Position Under General International Law, in State Responsibility and the Individual 4 (Albrecht Randelzhofer & Christian Tomuschat eds., 1999) (criticizing the ilc Articles for disregarding the development of international human rights law and individuals as rights-holders and the subject of international law, and noting “In fact, to acknowledge the individual as a subject enjoying an autonomous status which is independent of that of his or her home State necessarily means that the state as a system of governance loses some elements of its sovereign powers. Governments are reluctant to accept such a diminished role.”). Although the ilc Articles do not deal with state responsibility toward individuals, they do not deny individuals’ rights established by other sources of law. ilc Articles on State Responsibility, supra note 3, art. 33, para. 2 (“This part is without prejudice to any right, arising from the international responsibility of a State, which may accrue directly to any person or entity other than a State.”). 31 The cases include when a state is directly responsible for a wrongful act committed by state organs or actors, or when a state is indirectly responsible by not taking appropriate steps in preventing and responding to acts by private actors. 32 Damrosch & Murphy, supra note 22, at 1058; Brownlie, supra note 27, at 460.

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reparation to the individual.33 An injured individual theoretically has rights, but has no general standing to claim those rights against the injuring state at the international level.34 The regime generally assumes that the interest of an individual is consistent with that of her state and that a state is willing to exercise diplomatic protection for its nationals.35 When the state is unwilling or unable to exercise such protection, this domain of international law has little to offer to victimized individuals. b International Human Rights Law for Non-Nationals The international human rights regime that developed after World War ii embraced the human rights of aliens in a more general sense. Major human rights treaties prescribe the non-discrimination principle, which is interpreted to include non-nationals as protected categories.36 For example, regarding the scope of application of the iccpr, the Human Rights Committee articulates: “the enjoyment of Covenant rights is not limited to citizens of States Parties but must also be available to all individuals, regardless of nationality or statelessness, such as asylum seekers, refugees, migrant workers and other persons, who may find themselves in the territory or subject to the jurisdiction of the State Party.”37 In its General Comment No. 15, the Committee emphasizes the general requirement of non-discrimination between citizens and aliens “irrespective

33 Brownlie, supra note 27, at 460–61. 34 Brownlie notes the reluctance of states in having individuals make human rights claims “without government supervision.” Id. at 460. Currently, exceptions include the international investment law regime, which allows individual investors to bring suits against host states, as well as the framework of the European Court of Human Rights (ECtHR). Under the international investment law regime, investors can directly sue a host state before international adjudication bodies even without having to exhaust domestic remedies—the requirement imposed on individuals by the doctrine of diplomatic protection, the ECtHR, and individual communication mechanisms by human rights treaty bodies. 35 Critics note that identification of individuals with their states reflects the nationalistic trend of the era in which diplomatic protection regime has evolved. Alston & Goodman, supra note 26, at 92. 36 E.g., the International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 u.n.t.s. 171 [hereinafter iccpr] art. 2, para. 1 provides: “Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” 37 Human Rights Comm., supra note 6, ¶ 10.

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of reciprocity, and irrespective of his or her nationality or statelessness.”38 At the same time, the iccpr acknowledges that certain rights are guaranteed only for nationals, such as the rights to vote and to be elected and the right to access to public service.39 The Covenant also distinguishes aliens lawfully residing in a state and those who are not with respect to certain rights, such as freedom of movement, freedom to choose one’s residence within the territory of a state, and certain procedural rights upon expulsion.40 The icescr also provides for the non-discrimination principle in almost the same wording as the iccpr.41 In interpreting the “other status” mentioned in the paragraph 2 of Article 2, the Committee on Economic, Social and Cultural Rights (icescr Committee) in 2009 specifically and importantly commented on nationality and undocumented status: The ground of nationality should not bar access to Covenant rights, e.g. all children within a State, including those with an undocumented status, have a right to receive education and access to adequate food and affordable health care. The Covenant rights apply to everyone including nonnationals, such as refugees, asylum-seekers, stateless persons, migrant workers and victims of international trafficking, regardless of legal status and documentation.42 38 39

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Human Rights Comm., General Comment No.15: The Position of Aliens Under the Covenant (1986), ¶¶ 1–2, u.n. Doc. HRI/GEN/1/Rev.7 (2004). iccpr art. 25. The un Declaration on Non-Nationals states that certain rights of aliens such as the rights to leave the country, to freedom of expression, to peaceful assembly, and to own property can be subject to restrictions by domestic law. Declaration of the Human Rights of Individuals Who Are Not Nationals of the Countries in Which They Live, art. 5, para. 2, u.n. Doc. A/RES/40/144 (1985) [hereinafter un Declaration on Non-Nationals]. iccpr art. 12 (“1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.”); id. art. 13 (“An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.”). icescr art. 2, para. 2 (“The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”). Comm. on Econ., Soc. & Cultural Rights, General Comment No. 20: Non-Discrimination in Economic, Social and Cultural Rights (art. 2, para. 2, of the International Covenant on Economic, Social and Cultural Rights), ¶ 30, u.n. Doc. E/C.12/GC/20 (2009).

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However, commentators note that the actual practice of the icescr Committee differentiates non-nationals lawfully residing in a state from those who are not and that only the former have been recognized to enjoy equal Covenant rights as nationals.43 The Covenant also makes an exception for developing countries concerning the extent of economic rights they will guarantee to nonnationals.44 The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (cmw) and the two ilo Conventions of 1949 and 1975 are treaties specifically aimed at protecting migrant workers. As discussed in Chapter 2, the cmw acknowledges that the level of protection can be different between regular and irregular migrant workers in a number of respects. In the contemporary world of globalization and migration, the non-­ nationals who most need the protection of international human rights law are those who are living and working in marginalized sectors of destination states, who have with the fewest resources to defend themselves from various rights violations. These individuals include undocumented migrants, simple-skilled migrant workers, migrants engaged in sex industry and those victimized by human trafficking. The irony of international law on the rights of ­non-nationals is that in both law and practice, the least vulnerable individuals with the richest resources—international investors—receive the strongest legal protection and privileges while the most vulnerable receive the least. It can be ­persuasively argued that the level of protection provided by international law has been proportionate not so much to the needs or vulnerabilities of individuals, but to how closely the individuals’ interests are aligned with the interests of the states who play a leading role in international lawmaking. David Jacobson argues that the recent evolution of international human rights law and practice makes territorial residence more important 43

44

M. Magdalena Sepúlveda, The Nature of the Obligations Under the International Covenant on Economic, Social and Cultural Rights 262 (2003). Gallagher notes that it remains to see whether there will be changes to the practice of the Committee after its General Comment No. 20 in 2009. Gallagher, supra note 19, at 151. The earlier un Declaration on Non-Nationals had listed certain social and economic rights that are limited only to lawfully residing aliens, including the right to safe and healthy working conditions; the right to fair wages and equal remuneration for work of equal value; the right to join trade unions; and the right to health protection, medical care, social security, social services, education, rest, and leisure. un Declaration on NonNationals, supra note 39, art. 8, para. 1. icescr art. 2, para. 3 (“Developing countries, with due regard to human rights and their national economy, may determine to what extent they would guarantee the economic rights recognized in the present Covenant to non-nationals.”).

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than ­citizenship to the enjoyment of human rights in a given state.45 However, this may be an overly optimistic view, especially when considering the reality of undocumented or simple-skilled migrant workers in any destination states. Catherine Dauvergne points out that when human rights norms are applied in domestic courts, the distinction between lawful and unlawful aliens becomes more important than the boundary between citizens and non-citizens.46 Even though international human rights norms prescribe the general ­non-discrimination principle between nationals and non-nationals, ­undocumented non-nationals are subject to a greater number of justified ­discriminations compared to nationals and documented non-nationals. Moreover, as long as states possess almost absolute authority in deporting the undocumented, the non-discrimination principle does not have much meaning for these aliens. As will be further discussed in the next section, a hierarchal relationship between immigration control and human rights—as exists in cases where individuals are discriminated against in human rights protection based on their immigration status—highlights the limits of international human rights law in today’s world of global migration. 2) In the Context of Human Trafficking The case of human trafficking contrasts with the traditional case of injuries to aliens in multiple ways. First, the political and economic statuses of states involved are reversed. Most transnational human trafficking cases involve migration from economically less developed and politically weaker sending states to richer and more powerful destination states. Second, in contrast with the traditional case, sending states usually do not invoke state responsibility against destination states regarding the victimization of their nationals by human trafficking situations. State responsibility in a destination state can arise either by direct involvement of the state in facilitating human trafficking—as in the case of South Korea—or by not taking appropriate measures in preventing or responding to related human rights violations related to human trafficking. However, sending states in most cases lack political will and economic interest in exercising diplomatic protection against destination states. Many developing states have a greater interest in receiving remittances by sending abroad as many workers as possible. Since

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David Jacobson, Right Across Borders: Immigration and the Decline of Citizenship (1996). Catherine Dauvergne, Making People Illegal: What Globalization Means for Migration and Law 20 (2008).

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many guest worker programs are based on bilateral agreements between sending states and destination states, sending states usually do not want to risk losing their competitiveness compared with other labor-exporting states by requiring destination states to protect their workers’ rights and improve their working conditions. The passivity of labor-exporting states in human rights and human trafficking regimes contrasts sharply with the proactive attitude of capital-exporting states in the earlier alien protection regime and the current international investment law regime. Third, in the traditional theory of protecting aliens, the debate on the standard of treatment of non-nationals—international standard versus national standard—was meaningful because in many cases the national standard of a host state was lower than that of international community or the state of nationality. In the case of human trafficking, the national standard (i.e., nondiscrimination between foreign workers and national workers of destination states) becomes crucial to preventing and redressing the rights violations that migrant workers often suffer. Fourth, in contrast to the traditional law governing injury to aliens, it is destination states—and not sending states—that have actively led the lawmaking process of international law on human trafficking. Unlike the case of traditional diplomatic protection in which rich and powerful sending states built the regime to protect their nationals abroad, non-nationals are the targets of the trafficking regime built by rich and powerful destination states. The crucial point is that the interest of destination states is not identical to that of non-national individuals in question—trafficked migrants. As affirmed by the non-participation by destination states in the cmw regime, the leading lawmaking actors and their generally conflicting interests with the targeted nonnationals make it clear that the trafficking regime has not been built out of human rights concerns for the individuals concerned. Due to the inactiveness of sending states, the state-centric regime of state responsibility and diplomatic protection is ineffective and inadequate in securing remedies for victimized individuals in trafficking cases. Except for the availability of a regional human rights court system, a victim’s fate is in the hands of a destination state. Many migrant trafficking victims are thus in a de facto stateless situation, in which no states are genuinely interested in ­protecting those individuals’ rights and well-being. The ineffectiveness of the state responsibility and diplomatic protection regime contributes to sustaining the anti-trafficking regime’s agendas dominated by the interests of destination states. As reviewed in Chapter 2 and in this section, the present international human rights framework is not fully effective in empowering trafficking v­ ictims

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and vulnerable migrant workers. As non-nationals, these migrants have neither the right to enter nor the right to freely stay in destination states, nor do they have any political rights. The absence of these rights reflects and consolidates the migrants’ disempowered positions in and against the destination states. Trafficking victims and victimized migrant workers who do not hold regular immigration status are subject to greater discrimination in both law and practice, especially with respect to social and economic rights and the right to stay in destination states. Existing rights are also difficult to exercise for these individuals, facing a risk of deportation. While the cmw regime provides more concrete rights and protections for migrant workers, its present use is minimal for victimized migrants in trafficking situations. As discussed further in the next section, international human rights norms are built on the premise of and as a compromise with state sovereignty, which expresses itself most clearly with regard to the rights of non-­nationals who cross borders—the least internationalized space over which states have successfully preserved their sovereignty in the era of globalization and migration. C Migration, State Sovereignty, and Human Rights This chapter has been exploring how the three transnational characteristics of human trafficking challenge the traditional dynamics among human rights, state sovereignty and individuals. This section examines how the third transnational feature—the border crossings of persons in the act of trafficking— highlights the reversed relationship between human rights and state sovereignty. It looks into how the destination states, facing globalization and m ­ igration flows of human beings, have successfully reinforced their interests and sovereignty under the institution of international human rights law. It ponders whether human rights law is equally universal and effective for the individuals who are crossing borders and explores this question’s implications in the context of human trafficking. 1) General Theory a Human Rights, State Sovereignty, and State Interests The system of international law is built on the basis of state sovereignty. The un Charter explicitly acknowledges sovereign equality among states and the existence of “matters which are essentially within the domestic jurisdiction” of a state.47 At the same time, the Charter proclaims “promoting and encouraging 47

u.n. Charter art. 2, para. 1 (“The Organization is based on the principle of the sovereign equality of all its Members.”); art. 2, para. 7 (“Nothing contained in the present Charter

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respect for human rights and for fundamental freedoms” as one of the main purposes of the un and stipulates the obligations of states to cooperate to achieve those purposes.48 The post-World War ii international law system has strived to show its commitment to both state sovereignty and human rights which are often in conflict.49 However, as human rights developed into major international concerns, consensus emerged that no state can resort to Article 2(7) of the Charter for serious human rights violations committed in its territory.50 International human rights law is considered revolutionary in that it imposes restrictions on state sovereignty for what had previously been regarded as domestic matters, and in its raising of the status of individuals as the subject of international law.51 This conflicting relationship between state sovereignty and human rights has been a basic tenet of international human rights discourse. Henkin views the development of human rights as “radical derogation from the axiom of

48 49

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shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter 7.”). Relevant provisions include u.n. Charter arts. 1(3), 2, 13, 55 & 56. W. Michael Reisman, The Quest for World Order and Human Dignity in the Twenty-First Century: Constitutive Process and Individual Commitment 220 (2012) (noting, “From its very origins, the international human rights movement danced around the antinomy between national sovereignty and the international protection of human rights. The great human rights instruments affirm fealty to both the sovereignty of States and the human rights of their citizens,” and citing the Helsinki Accords of 1975 as one of the clear examples). See Thomas Buergenthal, The Evolving International Human Rights System, 100 Am. J. Int’l L. 783, 784–85 (2006); Henkin, supra note 24, at 176. See Hersch Lauterpacht, International Law and Human Rights 61 (“The Charter of the United Nations, in recognizing the fundamental human rights and freedoms, has to that extent constituted individuals subjects of the law of nations.”). This evolution contrasts with the earlier treatises by Lassa Oppenheim, who states: “Since the Law of Nations is a law between States only, and since States are the sole exclusive subjects of International Law, individuals are mere objects of International Law, and the latter is unable to confer directly rights and duties upon individuals.” 1 Lassa F.L. Oppenheim, International Law: A Treatise 244 (1905); see also Reisman, supra note 49, at 360–70 (discussing international human rights law as having brought the era of individualism). Regarding the general status of individuals in international law, see Brownlie, supra note 27; Matthias C. Kettemann, The Future of Individuals in International Law: Lessons from International Internet Law (2013).

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sovereignty,”52 setting restrictions on what a state can do to individuals under its jurisdictions. While traditional international law is “consent-based,” H ­ enkin notes that international human rights law is “constitutional,”53 moving the system from state values and interests toward human values and interests.54 Recasting the concept of state sovereignty in international law as an institution to serve the ultimate goal of individual sovereignty, the former Secretary General Kofi Annan famously stated: State sovereignty, in its most basic sense, is being redefined—not least by the forces of globalisation and international co-operation. States are now widely understood to be instruments at the service of their peoples, and not vice versa. At the same time individual sovereignty—by which I mean the fundamental freedom of each individual, enshrined in the charter of the un and subsequent international treaties—has been enhanced by a renewed and spreading consciousness of individual rights. When we read the charter today, we are more than ever conscious that its aim is to protect individual human beings, not to protect those who abuse them.55 On the other hand, the opposing relationship between state sovereignty and human rights becomes less clear when considering the role of state interests in human rights norm-building and practice. Regarding the historical development of international human rights law, Henkin illuminates how the regimes of injuries to non-nationals, abolition of slavery, minority treaties, and the ilo conventions have been driven by political-economic interests of major states involved.56 Recent debates on the practice of humanitarian intervention and “responsibility to protect” also reflect a concern about the abuse of human rights notions.57 The school of legal realism perceives law and human rights as social and political products. Legal realist traditions illuminate “socio-economic interests and political powers behind rights-talk,” investigate “the instrumental use of

52 53 54 55 56 57

Louis Henkin, Human Rights and State “Sovereignty,” 25 Ga. J. Int’l & Comp. L. 38 (1996). Id. at 44. Id. at 32–33. Kofi A. Annan, Two Concepts of Sovereignty, The Economist, Sept. 16, 1999. Henkin, supra note 24, at 169–72. Reisman, supra note 49, at 272–80.

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the rhetoric of humanity,”58 and demand inquiry into “who is doing what to whom beneath the rhetoric of upholding the rule of law and due process and human rights.”59 Nationalist critiques are also committed to the view that international law in general “emerges from states’ pursuit of self-interested policies on the international stage.”60 While human rights norms restrict state sovereignty once the norms are formed, state sovereignty and interests also influence and restrict human rights norms in their constitutive processes. This double-layered, intertwined relationship between human rights and state sovereignty/interests becomes clearest when it comes to the human rights of individuals who are crossing borders. The following sections further examine these relationships. b Migration, State Sovereignty and Interests Catherine Dauvergne, along with many contemporary scholars on migration, argues that modern sovereign states are fortifying their border control as a counter-reaction to threats from globalization, which makes the states lose control and “nationness” in other sectors.61 For nation-states, border control is “the last bastion of sovereignty.”62 Seyla Benhabib observes that the core meaning of sovereignty has come to consist of “monopoly over territory…exercised through immigration and citizenship policies.”63 As Maggy Lee summarizes, by “the exclusion, expulsion and immobilization of ‘unauthorized arrivals’ and other suspect populations…‘the nation state has come to define its identity and express its sovereign power.’”64 As globalization proceeds, the fate of state sovereignty has diversified. Critics point out that while globalization has eroded sovereignty in the economic

58 59 60

61 62 63 64

William Novak, Legal Realism and Human Rights, 37 Hist. of Eur. Ideas 168, 174 (2011). Id. at 173. Jack L. Goldsmith & Eric A. Posner, The Limits of International Law 13 (2005). See also Antony Anghie, Imperialism, Sovereignty and the Making of International Law (2004); Nico Krisch, International Law in Times of Hegemony: Unequal Power and the Shaping of the International Legal Order, 16 Eur. J. Int’l. L. 369 (2005). Dauvergne, supra note 46, at 17. Id. at 169. Seyla Benhabib, The Rights of Others: Aliens, Residents, and Citizens 5 (2004). Maggy Lee, Trafficking and Global Crime Control 68 (2011) (quoting Leanne Weber & Benjamin Bowling, Valiant Beggars and Global Vagabonds: Select, Eject, Immobilize, 12 Theoretical Criminology 355 (2008)).

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context, it has strengthened sovereignty in a political sense.65 Saskia Sassen has famously argued that globalization has produced two directional changes in sovereignty of nation-states: while the global flows of capital denationalize states, the flows of human migration renationalize the states.66 The sovereignty of modern states in the globalizing world becomes most visible in states’ control of human beings at their borders, where they determine whom to admit in their territories and under what conditions. Borders became “regulatory sites” by sovereign states,67 and “illegal migration” has been treated as a threat to state sovereignty.68 The dynamics becomes more complicated as both political sovereignty and economic interest of states come into play over migration flows. Dauvergne draws attention to an important trend: While destination states allow migrants into their territories and attain economic benefit from their labor, the states at the same time label them as “illegal” through migration law and achieve political advantages from justified control over the migrants. Illegalizing migrants denies the individuals’ moral standing, which in turn justifies rigid crackdown, criminalization and deportation when necessary.69 Sovereignty makes people “illegal,” and that illegality in turn strengthens the need for fortified sovereignty.70 By admitting people in as a matter of practice and at the same time classing them as unlawful beings, destination states can utilize their labor while denying them rights. This dual strategy enables states to achieve greater political sovereignty and economic interests at the same time.71 Irregular migrants 65 66 67 68 69 70 71

E.g., Benhabib, supra note 63, at 6. Saskia Sassen, Losing Control?: Sovereignty in the Age of Globalization 59–60 (1996). Id. at 65. Jean L. Cohen, Globalization and Sovereignty: Rethinking Legality, Legitimacy, and Constitutionalism 1 (2012). Dauvergne, supra note 46, at 6, 17 (pointing out states are using migration laws for criminal law ends). Id. at 27. See Antoine Pécoud & Paul de Guchteneire, International Migration, Border Controls and Human Rights: Assessing the Relevance of a Right to Mobility, 21 J. Borderlands Stud. 4 (2006) (discussing economic interest of states from accepting and acquiescing undocumented migrants, and domestic employers lobbying their governments for allowing in migrant workers for labor market reasons, and noting that “officially declared policies may be different from actual intentions....it is often observed that a benign neglect toward undocumented migration may fit into the interests of states or employers wishing to have access to an unorganized and irregular workforce”); see also Linda S. Bosniak, State Sovereignty, Human Rights and the New un Migrant Workers Convention, 86 Am. Soc’y Int’l L. Proc. 634, 638 (1992).

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are politically and officially claimed unwanted, but are economically and secretly “wanted.” In this regard, border control is a political ritual as well as an economic strategy of sovereign states facing globalization and migration flows. Dauvergne points out this paradox of globalization, in which inclusion and exclusion are increasing at the same time.72 Christian Joppke echoes this point by observing a gap between “a restrictionist control rhetoric and an expansionist immigration reality,” arguing against a notion of a decline of sovereignty in the era of globalization.73 Criminalizing migration is a recent development, having emerged in the second half of the 20th century. Throughout the long history of human migration, especially in the era of expedition and colonization, unhindered border crossing has been not only justified but also praised by the very powers who are now demonizing them.74 The norms surrounding state borders have been contingent on the changing interests of the states with stronger norm-making power. Most recently, criminalization of border crossings has been facilitated by the construction of a global anti-terrorism regime, which has created a “migration-crime-security complex.”75 Moving further, destination states are pushing sending states to join their transnational enterprise for implementing more harmonized, systemic and fortified migration control and to take measures to deter emigration of certain populations who are considered undesirable by destination states.76 Through this transnational migration control regime building,77 destination states are stretching the reach of their border sovereignty even into the systems of sending states. 72 73

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Dauvergne, supra note 46, at 119. Christian Joppke, Why Liberal States Accept Unwanted Immigration, 50 World Pol. 266, 267 (1998) (noting that destination states accept more “unwanted migration” than would be consistent with their political rhetoric on immigration control). See Dauvergne, supra note 46, at 2. Lee, supra note 64, at 12. See Valsamis Mitsilegas, Immigration Control in an Era of Globalization: Deflecting Foreigners, Weakening Citizens, Strengthening the State, 19 Ind. J. Global Legal Stud. 3, 42 (2012) (“The development of extraterritorial immigration control practices has been a key tool for states to address perceived pressures from global migration flows. Extraterritoriality in this context has a number of advantages for states. On the one hand, it extends the reach of the state outside its territory with the aim of preventing access; on the other hand, it may create gaps in the legal responsibility of states.”). An example of global-scale initiatives for transnational migration control is the Berne Initiative, “a States-owned consultative process with the goal of obtaining better management of migration at the national, regional and global level through enhanced cooperation between States,” and its product, International Agenda for Migration Management, “a reference system and non-binding policy framework aimed at facilitating cooperation

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c Migration, State Sovereignty, and International Human Rights Law Against this backdrop, this section looks into what international human rights law has to offer for individuals who cross borders, in relation to the sovereignty of destination states over their borders. Scholars have discussed tensions between human rights norms and state sovereignty over migration. Benhabib argues that “transnational migrations bring to the fore the constitutive dilemma at the heart of liberal democracies,” arising out of the tension between state sovereignty and universal human rights principles.78 Exclusive democratic sovereignty entails a monopolized power over state territory through immigration and citizenship regulations, while universal human rights norms mandate inclusiveness and expansiveness.79 Benhabib notes that the tension becomes most obvious surrounding the “rights of others”: those who are within the territory of a state but outside its political community.80 However, such tensions in an abstract and normative sense tilt toward state sovereignty when one examines the actual mandates of international human rights law regarding the rights of individuals who cross borders. Under international human rights law, an individual has the freedom to leave one’s state of nationality and return to it, but does not have the right to enter other states.81 International human rights law acknowledges states’ exclusive power over their borders to decide on whom to admit into their territories on which conditions.82 Under international law, there is thus no general right to

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between States in planning and managing the movement of people in a humane and orderly way.” International Organization for Migration, https://www.iom.int/ berne-initiative; see also Weissbrodt, supra note 21, at 196. Benhabib, supra note 63, at 2. Id. at 2, 9 & 19. Id. at 6. Universal Declaration of Human Rights art. 13, para. 2, g.a. Res. 217 (iii) A, u.n. Doc. A/RES/217(iii) (Dec. 10, 1948) [hereinafter udhr] (“Everyone has the right to leave any country, including his own, and to return to his country.”); iccpr art. 12, para. 2 (“Everyone shall be free to leave any country, including his own.”); iccpr art. 12, para. 4 (“No one shall be arbitrarily deprived of the right to enter his own country.”). Human Rights Comm., supra note 38, ¶ 5 (“The Covenant does not recognize the right of aliens to enter or reside in the territory of a State party. It is in principle a matter for the State to decide who it will admit to its territory.”). The same paragraph then provides a rather noncommittal statement for a possible exception: “However, in certain circumstances an alien may enjoy the protection of the Covenant even in relation to entry or residence, for example, when considerations of non-discrimination, prohibition of inhuman treatment and respect for family life arise.” The Comment continues, “Consent for entry may be given subject to conditions relating, for example, to movement, residence and employment. A State may also impose general conditions upon an alien who is in

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migration. The freedom of movement and to choose one’s residence is limited within the territory of a state for those who lawfully reside in that state.83 Lawfully residing aliens also have certain procedural rights upon expulsion, but not a general substantive right against expulsion itself.84 Undocumented aliens do not have either procedural or substantive rights regarding deportation. While major human rights treaties provide for the general principle of non-discrimination, which applies to undocumented migrants as well, the existing rights for these individuals stand on a house of cards since their presence in destination states can be ended at any moment without condition. Human rights lose their meanings when holders of those rights have little space to exercise them. The potential universality of international human rights is significantly limited, since the human rights law from the outset has resolved the anxiety of destination states by giving them a key to create or remove a space for human rights.85 The only exception to this exclusive sovereignty under international law is the principle of non-refoulement. The 1951 Convention Relating to the Status of Refugees mandates a general non-refoulement obligation for states parties,86 while refugees lawfully residing in a state party receives stronger protection transit. However, once aliens are allowed to enter the territory of a State party they are entitled to the rights set out in the Covenant.” Id. ¶ 6. The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families notably emphasizes that “nothing in the present part of the Convention shall be interpreted as implying the regularization of the situation of migrant workers or members of their families who are non-documented or in an irregular situation or any right to such regularization of their situation.” International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families art. 35, Dec. 18, 1990, 2220 u.n.t.s. 3 [hereinafter cmw]. 83 udhr art. 13, para. 1 (“Everyone has the right to freedom of movement and residence within the borders of each state.”); iccpr art. 12, para. 1 (“Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.”). 84 iccpr art. 13; Human Rights Comm., supra note 38, ¶ 9. 85 For example, the un Declaration on Non-Nationals, before listing the rights for non-­ nationals, provides that: “Nothing in this Declaration shall be interpreted as legitimizing the illegal entry into and presence in a State of any alien, nor shall any provision be interpreted as restricting the right of any State to promulgate laws and regulations concerning the entry of aliens and the terms and conditions of their stay or to establish differences between nationals and aliens.” un Declaration on Non-Nationals, supra note 39, art. 2. 86 The 1951 Convention Relating to the Status of Refugees art. 33, para. 1, July 28, 1951, 189 u.n.t.s. 150 (“No Contracting State shall expel or return (‘refouler’) a refugee in any ­manner whatsoever to the frontiers of territories where his life or freedom would be

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against expulsion than other groups of non-nationals.87 This principle is adopted by the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.88 However, the principle is limited to not returning the individuals who have already reached the territory of destination states.89 No states are obligated to admit refugees or other groups of aliens into their territories. International law of refugees does not provide individuals with the right to enter other states or to full citizenship. The right not to be expelled only applies to refugees with lawful residence. States can expel refugees in other categories to third countries without foreseeable risks as stipulated under the Conventions. Moreover, actual practice of destination states shows increasing restrictiveness in their refugee policies.90 Destination states perceive refugee flows and relevant international norms as threats to their sovereignty, and have attempted to limit their obligations under international law.91 In fact, the general trend of destination states intensifying immigration regulations increases incentives for potential migrants to rely on refugee laws, which in turn offers grounds for the states to adopt more restrictive refugee policies in the name of preventing abuses.92 While scholars emphasize the normative significance of international law on refugees as a restriction on state sovereignty, its actual scope and the extent of burdens imposed on states are limited.

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threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”). Id. art. 32, para. 1 (“The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order.”). Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 3, para. 1, Dec. 10, 1984, 1465 u.n.t.s. 85 [hereinafter cat] (“No State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”). The Human Rights Committee’s interpretation of the principle relating to state obligations under the iccpr is also very limited, mainly regarding the right to life and the right against torture or inhumane treatment. Human Rights Comm., supra note 6, ¶ 12 (“[T] he article 2 … entails an obligation not to extradite, deport, expel or otherwise remove a person from their territory, where there are substantial grounds for believing that there is a real risk of irreparable harm, such as that contemplated by articles 6 and 7 of the Covenant.”) (emphasis added). See, e.g., Morten Kjaerum, Refugee Protection Between State Interests and Human Rights: Where Is Europe Heading?, 24 Hum. Rts. Q. 513 (2002) (discussing tensions between state interests and human rights in refugee protection and stressing the trend of restrictive refugee policies in Europe, such as dispatching immigration officers in sending states and pursuing international cooperation to reduce the demand for asylum). See Dauvergne, supra note 46, at 50–60. See id. at 54.

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Within the structure of international law as discussed above, the sovereignty of destination states over their borders overshadows the universal human rights of individuals who cross those borders. Although the international human rights regime has in general brought changes to the traditional relationship between international law and state sovereignty, borders are still a space where international regulations are almost absent. Dauvergne critically notes that international law currently does not play any role in migration law and citizenship law of destination states.93 Pécoud and de Guchteneire point out that the lack of human rights at borders stands in contradiction with the inner values of western states—human rights and democracy.94 Linda Bosniak, noting that “‘illegal aliens,’ as they are often called, are treated as symbols of the state’s violated sovereignty,” predicted that the cmw would not motivate destination states to uphold the rights of undocumented migrant workers even though the Convention “acknowledge[s] the states’ vital interests in territorial integrity.”95 Stephen Castles and Mark Miller point out that “[t]he key issue is the unwillingness of rich labor-importing countries to enforce migration rights and to make concessions that might improve outcomes for countries of origin, because that would increase the costs of migration labor.”96 Along with the recent anti-terrorism regime building, the global trend towards expanding state sovereignty that outweighs human rights is gaining a stronger momentum. Since border control has been conceived as essential to national security, less room has been allowed for human rights and rightsbased approaches for those who cross borders.97 The security regime enables 93 Id. at 46. 94 Pécoud & de Guchteneire, supra note 71. 95 Bosniak, supra note 71, at 637. Regarding the tension between international human rights and state sovereignty, she poses the following question: “To what degree is the treatment of these migrants properly subject to international human rights standards, and to what extent does that treatment fall within states’ largely unfettered domain of territorial sovereignty? Is it realistic for the international community to set forth detailed standards governing states’ treatment of aliens in their own territory, and will the states in which these aliens reside accept the legitimacy of such efforts?” Id. at 634. 96 Stephen Castles & Mark J. Miller, The Age of Migration 13 (2009). 97 See Pécoud & de Guchteneire, supra note 71, at 5–6 (“Even when human rights violations are acknowledged (such as in the case of trafficking), they are understood as a problem per se and not related to the broader picture of border and migration policies.”); see also Ariadna Estévez, Human Rights, Migration, and Social Conflict: Towards a Decolonized Global Justice (2012) (discussing negative impacts on human rights caused by criminalization of border crossings and securitization of border control).

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states to project themselves as victims and to take rigid actions to defend their territories and peoples from possible harms and crimes popularly associated with suspect border crossings.98 Valsamis Mitsilegas points out “the use of globalization to justify the extension of state power—by proclaiming the state action necessary in order to address perceived global security threats,” and thus argues that “globalization has led to the strengthening, rather than the weakening, of the state.”99 Mitsilegas observes that by shaping “unwanted migration” as a global security threat, and by linking it with transnational organized crimes and terrorism, powerful destination states have developed “global law on immigration control,” which includes the un Trafficking and Smuggling Protocols.100 She argues that securitization of immigration control was justified based on the need “to protect states from transnational criminality” and has extended state power at the expense of rights of foreigners and citizens.101 This transnational migration control regime building makes the human rights of those crossing borders more vulnerable by reducing available resources for migration as well as by justifying more rigid law enforcement measures. Chantal Thomas discusses two contrasting trends of state sovereignty in international law as it relates to border policing. Thomas points out that while the principle of non-discrimination among citizens and non-citizens challenges state sovereignty and border policing, “criminalizing immigration” necessitates state intervention and border regulation to prevent illegal activity and preserve order.102 She articulates how the status of migrant individuals changes according to these two frameworks: In the former view, migrant workers register primarily as human beings. Their legal subjectivity becomes relevant under a conceptual and doctrinal paradigm that identifies individuals as the ultimate and sacrosanct constituents of law. The latter view adopts a lens of sovereignty that continues to see states as the primary occupants of the legal terrain, with both rights and responsibilities relating to territoriality. Here, migrant workers register primarily as objects of governance in a paradigm that privileges border control as a prerogative of states.103 98 See Mitsilegas, supra note 76; Anderson, supra note 17. 99 Mitsilegas, supra note 76, at 4. 100 Id. 101 Id. at 6. 102 Chantal Thomas, Convergences and Divergences in International Legal Norms on Migrant Labor, 32 Comp. Lab. L. & Pol’y J. 405, 440 (2011). 103 Id.

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International law firmly upholds the sovereignty of states over their borders, and international human rights law is the weakest in its norms and functions when it comes to individuals who cross borders. With exclusive state power to decide on acceptance, illegalization and deportation of migrants, the space and conditions of these individuals’ human rights are overshadowed by destination states’ immigration regulations. With securitization of borders and criminalization of immigration, facilitated by global anti-terrorism campaigns and creation of a transnational migration control regime, migrant individuals with fewer resources are placed in more vulnerable and precarious situations with regard to their human rights and well-being. 2) In the Context of Human Trafficking The international and national legal frameworks on human trafficking constitute an integral part of the recent transnational migration and crime control regime. This positioning effectively supports the agenda of the trafficking framework to empower destination states and disempower individuals. The current trafficking regime is not a product of human rights concerns for vulnerable migrants, but a response to the anxiety of destination states about uncontrolled migration flows and national security threats in the era of globalization.104 International human rights law, which functions at a very weak level on the matter of border crossings, lends only the language of human rights to the trafficking regime. By coupling the agenda of crime and border control with the avowed purpose of human rights protection, destination states enable themselves to exercise expansive power and control with more justifications.105 A strategy of merely tacking on the rhetoric of human rights to the trafficking regime has been appealing for destination states— the new regime does not restrict, but strengthens the states’ leverage over their ­borders and migrant populations.106 The trafficking regime thus aims to 104 See Dauvergne, supra note 46, at 71 (“The quickly emerging consensus about the need for international law to confront human trafficking coincides with the crackdown on illegal migration.... [T]he emergence of these [un Trafficking and Smuggling] protocols at this point in time reflects the transformation in nation and migration pairing that globalizing conditions fosters, and the threat that migration law evasion represents to sovereignty.”). 105 See Jennifer M. Chacón, Tensions and Trade-offs: Protecting Trafficking Victims in the Era of Immigration Enforcement, 158 U. Pa. L. Rev. 1609 (2010) (discussing “how growing attention to the trafficking issue (in the United States and internationally) has occurred alongside, and has served as an additional justification for, the increasing reliance on the criminal justice system to manage migration”). 106 See Neil Boister, “Transnational Criminal Law”? 14 Eur. J. Int’l. L. 953, 958 (2003) (explaining why the transnational criminal law regime has been easily generated and

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restore state sovereignty, not human rights, threatened by globalization and migration flows. The anti-trafficking framework is different from the international refugee protection regime in multiple ways. While refugee law imposes restrictions on state sovereignty out of human rights concerns, the trafficking regime fortifies state sovereignty supported by the rhetoric of human rights. While in most cases destination states have not caused the refugee flows they face, destination states often structurally facilitate or at least benefit from the exploitative labor migration practices entailed by human trafficking. While destination states are where individuals seek asylum from persecution committed in other locations, for trafficking victims, destination states are the very places where they suffer serious human rights violations. Therefore, destination states should be subject to higher human rights obligations and responsibility in the case of human trafficking and migrant labor exploitation. However, the trafficking regime has been created by those destination states as a global crime and migration control regime, and is indifferent and even detrimental to human rights of victimized individuals. By projecting themselves as victims of unlawful border crossings, despite their hidden roles as facilitators and beneficiaries of human trafficking, destination states prioritize their interests with stronger justification and less scrutiny. The discussion so far indicates three different ways human rights are implicated in the building of the anti-trafficking regime. First, current international human rights law demands and legitimizes destination states’ fortification of their state power and intervention as protectors of human rights. Second, international human rights law is weakest in protecting individuals crossing borders vis-à-vis state sovereignty over immigration control. Third, the rhetoric of human rights attached to the trafficking regime acts to conceal the self-interest pursued by destination states. Consequently, the current international human rights norms are ineffective and incapable of deterring the trafficking regime from ruling as a global control regime and causing detrimental impacts on the human rights of affected individuals. D Conclusion International human rights law has not yet been successful in effectively addressing the multiple transnational features of human trafficking toward the protection and empowerment of victimized individuals. The due diligence ­adopted by states, noting that “[t]he laws these treaties propagate do not threaten powerful constituencies or vested interests in the states invited to participate, ensuring willing participation in the prohibition regime”).

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standard focuses on criminal law enforcement measures against perpetrators. The standard fails to effectively enhance protection and remedies for victims or to facilitate legal and structural reforms of the causes of human rights violations. The diplomatic protection and state responsibility regime does not function in the case of trafficking, as sending states are unwilling and unable to take action. Non-nationals, especially the undocumented, are subject to de jure and de facto discriminations in terms of human rights protection in destination states. State sovereignty over border security and immigration law enforcement restricts and conditions the space of human rights for migrants vulnerable to human trafficking and related human rights violations. With these features combined, international human rights law ironically supports and sustains the problem of the anti-trafficking regime, which empowers destination states and disempowers individuals. To explore effective ways of empowering individuals, the next section examines international human rights law on victims’ right to remedies and its implications and limitations in the context of human trafficking. 3

The Right to Effective Remedies

The evolution of the international human rights regime has elevated individuals as the subject of international law, as the holders of rights recognized by international law. However, rights are meaningful only when there are enforceable and effective remedies upon violation. International law on reparations has traditionally developed centering on the doctrine of state responsibility between states. This doctrine has been limited to cases in which a state is either directly or indirectly responsible for wrongful acts, and is meaningful only when a state of nationality is willing to make a claim on behalf of its nationals. With the development of the international human rights regime, individuals’ general right to remedies for human rights violations has been recognized and articulated. The right to remedies of individuals is an important development in international human rights law with the potential to overcome the statecentric nature of the traditional reparation framework.107 This section sheds light on the significance as well as the limitations of the individual’s right to remedies under the current international human rights law and discusses implications for the case of human trafficking. 107 See Eckart Klein, Individual Reparation Claims Under the International Covenant on Civil and Political Rights: The Practice of the Human Rights Committee, in State ­R esponsibility and the Individual, supra note 30, at 28; M. Cherif Bassiouni, International Recognition of Victims’ Rights, 6 Hum. Rts. L. Rev. 203 (2006).

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A General Theory 1) Overview of Relevant Law The Universal Declaration of Human Rights (udhr) specifies the right to effective remedies as follows: “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.”108 The udhr requires that remedies for violations of fundamental rights are attainable through domestic judicial systems of individual states. The provision notably states that the fundamental rights concerned are those provided by constitutions and domestic laws of states. Critics point out that since this provision does not prescribe the content and scope of those fundamental rights, it has a limited effect on states whose constitutions or domestic law guarantee a poor list of rights.109 The wording of this provision is nonetheless understandable considering the fact that the Declaration was adopted as a non-binding document and the list of rights provided by the udhr had yet to attain legally binding force.110 Most human right treaties adopted after the udhr stipulate the right to effective remedies for violation of the rights listed under the respective treaties. For example, the iccpr provides:111 Each State Party to the present Covenant undertakes: (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c) To ensure that the competent authorities shall enforce such remedies when granted. The cmw adopts the same wording as the iccpr.112 The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 108 udhr art. 8. 109 E.g. Goran Melander, Article 8, in The Universal Declaration of Human Rights: A Commentary 144 (Asbjorn Eide et al. eds., 1993). 110 It is accepted that presently at least certain parts of the udhr have evolved as customary international law. See Hurst Hannum, The Status of the Universal Declaration of Human Rights in National and International Law, 25 Ga. J. Int’l & Comp. L. 287, 316–51 (1996); Bassiouni, supra note 107, at 216. 111 iccpr art. 2, para. 3. 112 cmw art. 83.

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(cat),113 the International Convention on the Elimination of All Forms of Racial Discrimination (cerd),114 and the International Convention for the Protection of All Persons from Enforced Disappearance (cped)115 also obligate states parties to ensure that victims of rights violations under respective treaties obtain effective remedies through the domestic legal systems of those states. If a state does not ensure effective remedies for victims, this constitutes an independent breach of the relevant treaties. At the regional level, the European Convention on Human Rights,116 the American Convention on Human Rights,117 and the African Charter on Human 113 cat, supra note 88, art. 14, para. 1 (“Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible.”). 114 Convention on the Elimination of All Forms of Racial Discrimination art. 6, Dec. 21, 1965, 660 u.n.t.s. 195 (“States Parties shall assure to everyone within their jurisdiction effective protection and remedies, through the competent national tribunals and other State institutions, against any acts of racial discrimination which violate his human rights and fundamental freedoms contrary to this Convention, as well as the right to seek from such tribunals just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination.”). 115 International Convention for the Protection of All Persons from Enforced Disappearance art. 24, para. 4, July 27, 2009, 2716 u.n.t.s. 3 [hereinafter cped] (“Each State Party shall ensure in its legal system that the victims of enforced disappearance have the right to obtain reparation and prompt, fair and adequate compensation.”); id. art. 24, para. 5 (“The right to obtain reparation referred to in paragraph 4 of this article covers material and moral damages and, where appropriate, other forms of reparation such as: (a) Restitution; (b) Rehabilitation; (c) Satisfaction, including restoration of dignity and reputation; (d) Guarantees of non-repetition.”). 116 Convention for the Protection of Human Rights and Fundamental Freedoms art. 13, Nov. 4, 1950, 213 u.n.t.s. 222 [hereinafter echr] (“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”) Article 41 provides a ground for a Court to issue an order of reparation: “If the Court finds that there has been a violation of the Convention or the protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 117 American Convention on Human Rights art. 25, para. 1, Nov. 22, 1969, 9 i.l.m. 673 (1970) (“Everyone has the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of the state concerned or by this Convention, even though such violation may have been committed by persons acting in the course of their official duties.”); id. art. 25, para. 2 (“The States Parties undertake: a. to ensure that any person claiming such remedy shall have his rights determined by the

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and Peoples’ Rights118 all stipulate the right to an effective remedy through competent national organs and provide for the grounds for the regional human rights courts to rule on the issue of remedies. Regarding treaties that do not explicitly stipulate the right to remedies, such as the icescr and the cedaw, scholars have argued for the existence of this right either by customary international law119 or as implied in the respective treaties.120 The treaty bodies, including the icescr and the cedaw Committees, also acknowledge states’ obligation to ensure victims effective remedies for violations of treaty rights.121 In this regard, the Permanent Court of International competent authority provided for by the legal system of the state; b. to develop the possibilities of judicial remedy; and c. to ensure that the competent authorities shall enforce such remedies when granted.”). Article 63 of the Convention provides direct grounds for the Court to rule on remedies in specific cases: “[The Court] shall rule that the injured party be ensured the enjoyment of his right or freedom that was violated. It shall also rule, if appropriate, that the consequences of the measure or situation that constituted the breach of such right or freedom be remedied and that fair compensation be paid to the injured party.” 118 African Charter on Human and Peoples’ Rights art. 7, para. 1, June 27, 1981, o.a.u. Doc. CAB/LEG/67/3/Rev. 5 (“Every individual shall have the right to have his cause heard. This comprises: a. The right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force.”). Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights art. 27, para. 1, June 9, 1998, o.a.u. Doc. OAU/LEG/EXP/AFCHPR/PROT (iii) (“[I]f the Court finds that there has been violation of a human or peoples’ rights, it shall make appropriate orders to remedy the violation, including the payment of fair compensation or reparation.”). 119 Bassiouni, supra note 107, at 207 (“Redress of wrongs is a fundamental legal principle that constitutes both a general principle of law and a customary rule of law recognized and applied in all legal systems.”); id. at 216–18; Theodor Meron, Human Rights and Humanitarian Norms as Customary Law 138 (1989). 120 Rebecca Cook, State Responsibility for Violations of Women’s Human Rights, 7 Harv. Hum. Rts. J. 125, 168–69 (1994). 121 Comm. on Econ., Soc. and Cultural Rights, General Comment No. 3, ¶ 5, u.n. Doc. E/1991/23 (1991) (“Among the measures which might be considered appropriate [under article 2], in addition to legislation, is the provision of judicial remedies with respect to rights which may, in accordance with the national legal system, be considered justiciable.... [T]here are a number of other provisions in the International Covenant on Economic, Social and Cultural Rights, including articles 3, 7(a)(i), 8, 10(3), 13(2)(a), (3) and (4) and 15 (3) which would seem to be capable of immediate application by judicial and other organs in many national legal systems. Any suggestion that the provisions indicated are inherently nonself-executing would seem to be difficult to sustain.”); see also Comm. on Econ., Soc. &

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Justice in the Chorzów Factory case importantly pointed out that “reparation is the indispensable complement of a failure to apply a convention and there is no necessity for this to be stated in the convention itself.”122 The International Court of Justice in the LaGrand case confirmed this interpretation.123 In terms of soft law on the right to remedies, the most important instrument is the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violation of International Humanitarian Law (the Principles and Guidelines on the Right to a Remedy).124 The Principles affirm that remedies include equal and effective access to justice; adequate, effective and prompt reparation for the harm suffered; and access to relevant information concerning violations and reparation mechanisms.125 The forms of reparation to be made available for victims include restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.126 The Human Rights Committee’s General Comment No. 31 also famously elaborates on the right to remedies under the iccpr.127

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Cultural Rights, General Comment No. 9, ¶¶ 3, 9 & 10, u.n. Doc. E/C.12/1998/24 (1998) (affirming that the right to effective remedies is implied in Article 2, paragraph 1 of the icescr and discussing the justiciability of the Covenant rights). The cedaw Committee also repeatedly affirms the right to effective remedies for the Convention rights through its conclusions for individual communication cases as well as in periodic monitoring sessions over the practice of states parties. Factory at Chorzów (Ger. v. Pol.), 1928 p.c.i.j. (ser. A.) No. 17, ¶ 73 (Sept. 13). LaGrand (Ger. v. u.s.), 2001 i.c.j. 466, ¶ 48 (June 27). Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violation of International Humanitarian Law, u.n. Doc. A/RES/60/147 (Dec. 16, 2005) [hereinafter Principles and Guidelines on the Right to a Remedy]. Id. art. 11. Id. arts. 18–23. Human Rights Comm., supra note 6, ¶¶ 8, 15–20 (emphasizing “interrelationship between the positive obligations imposed under article 2 and the need to provide effective remedies in the event of breach under article 2, paragraph 3” and “States Parties’ establishing appropriate judicial and administrative mechanisms for addressing claims of rights violations under domestic law”; articulating that the Covenant generally entails appropriate compensation, and where appropriate, reparation can involve “restitution, rehabilitation and measures of satisfaction, such as public apologies, public memorials, guarantees of non-repetition and changes in relevant laws and practices, as well as bringing to justice the perpetrators of human rights violations”; and stressing the importance of remedies functioning effectively in practice, beyond the formal existence of the legal systems containing remedies).

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As the Principles and Guidelines on the Right to a Remedy indicate, the concept of “remedy” includes both substantive and procedural components.128 As a procedural matter, often termed “access to justice,” individuals whose rights are claimed to be violated ought to have effective access to a competent legal system to seek remedies in a state where the violation has been committed. In a substantive sense, often termed “reparation,” individuals whose rights have been violated should obtain remedies effective enough to redress the harm. The existing international human rights treaties examined above share several features, including their weakness on the substantive aspect of remedies. First, the treaties do not elaborate the meaning of the term “effective,” nor do they provide any helpful guidance to shape substantively effective remedies for victims.129 Only the Principles and Guidelines on the Right to a Remedy provide a definition of restitution, lay out a few factors to consider in deciding the amount of compensation, and enumerate examples for each form of remedy.130 Second, human rights treaties do not mention possible differences in state obligations with regard to the right to remedies between the cases (1) in which a state is a direct violator of human rights; (2) in which a state is indirectly responsible for a violation committed by private actors (by not meeting the due diligence standard); (3) and in which a violation is committed by private actors that a state is not responsible for either directly or indirectly. For example, the iccpr Article 2(3) only provides “[e]ach State Party to the present Covenant undertakes [t]o ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy.” Nor do scholars clearly discern or articulate the different substance of state obligations on remedies in each case. A brief answer to this question would be as follows: When a state is a direct violator of human rights, that state has a duty to make substantive reparation to victims. When a violation is committed purely by private actors ­without the culpability of a state, the state is under no legal obligation to 128 See also Dinah Shelton, Remedies in International Human Rights Law 7 (2005) (discussing the dual meaning of remedies). 129 Among international human rights treaties, the cped provides the most comprehensive list of remedies, including restitution, rehabilitation, satisfaction, and guarantees of nonrepetition, following the Principles and Guidelines on the Right to a Remedy, but the Convention does not go further than simply listing these types of remedies. cped, supra note 115, art. 24, para. 5. 130 Principles and Guidelines on the Right to a Remedy, supra note 124, arts. 19–23.

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provide victims with substantive reparation. While soft law on the right to remedies encourages states to establish national programs for reparation in this case,131 it is a private wrongdoer who holds primary responsibility to make substantive reparation to victims.132 In cases in which a state does not meet the due diligence standard, both the state and private actors would be responsible for providing substantive reparation for victims. How duties to make reparation are allocated between the state and private actors is subject to the development of practice by relevant adjudication bodies. The extent and methods that a state has contributed to the relevant human rights violation will be an important factor to consider. For example, failing to meet a duty to prevent the event and failing to meet a duty to investigate would result in different amounts and forms of reparation on the side of the state. In each of the above three cases, a state where a human rights violation has occurred has a minimum obligation to ensure victims a procedural right to remedies, i.e., access to justice, in order to seek and attain substantively effective remedies through the domestic legal system of that state.133 Third, with respect to a venue for individuals to seek remedies, international law designates the state where a violation has been committed as a primary domain.134 An individual state, not international bodies, bears the primary duty to ensure effective remedies for victims through its domestic legal system. At the international level, individuals have no forum for attaining legally binding adjudications on remedies against states or private perpetrators. While most human rights treaty bodies provide individual communication procedures and often recommend individual states to provide certain forms of remedies 131 E.g., id. art. 16. 132 Id. art. 15 (“[A] State shall provide reparation to victims for acts or omissions which can be attributed to the State…. In cases where a person, a legal person, or other entity is found liable for reparation to a victim, such party should provide reparation to the victim or compensate the State if the State has already provided reparation to the victim.”); see also Bassiouni, supra note 107, at 223–26. 133 See Antoine Buyse, Lost and Regained? Restitution as a Remedy for Human Rights Violations in the Context of International Law, 68 Heidelberg J. Int’l L. 129, 140 (2008). 134 See Manfred Nowak, u.n. Covenant on Civil and Political Rights: ccpr Commentary 62 (2005) (“This provision [of art. 2, para. 3 of iccpr]… embodies the general principle of international law… but also the specific protection of the individual against violations of these rights are primarily domestic concerns.”; “The primary status of domestic remedies is incorporated to all existing individual or inter-state communication procedures, with the rule of “exhaustion of domestic remedies.”); see also iccpr First Optional Protocol arts. 2, 5(2)(b); iccpr art. 41(1)(c).

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for victims,135 their decisions are not binding and their reach is limited to the states joining the relevant optional protocols.136 At the regional level, only the European Court of Human Rights (ECtHR) recognizes individuals’ independent standing to bring their claims to the Court.137 Individual claimants need first to exhaust domestic procedures for remedies, which reflects a supplementary and supervisory role of the Court vis-à-vis the primary role played by the domestic judicial systems of individual states.138 Moreover, whether or not to decide on remedies is at the discretion of the Court, even if all material requirements for reparation are met.139 Critics thus point out that individuals do not have an autonomous right to reparation even under the ECtHR system.140 135 iccpr, cat, cerd, cmw, cedaw and icescr all have optional protocols setting up individual communication procedures for individuals to bring their cases regarding the violation of their rights under the relevant treaties. 136 Nowak, supra note 134, at 75 (indicating the lack of an effective follow-up and pressure mechanism to ensure compliance with a decision made by the Human Rights Committee and to provide adequate reparation to victims). 137 echr art. 34 (“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”). Only states can bring a claim to the Inter-American Court of Human rights. American Convention on Human Rights art. 61, para. 1 (“Only the States Parties and the Commission shall have the right to submit a case to the Court.”). Under the African Court on Human and Peoples’ Rights system, individuals can bring a claim only against a state which has made a declaration accepting the competence of the Court to receive cases from individuals. Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, supra note 188, art. 5, para. 3, art. 34, para. 6. 138 echr art. 35, para. 1 (“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.”). 139 echr art. 41 (“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”). 140 E.g., Buyse, supra note 133, at 138 (“A different indication militating against a specific right to restitution at the international level is that the award of reparation is at the discretion of the supervisory institution involved. Such institutions therefore function as instruments which can be used by the individual against the state to a limited extent only. The general obligation upon states under international law to provide redress for violations, preferably through restitutio in integrum, is not complemented by a concomitant possibility for

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Furthermore, the ECtHR has been largely reluctant to issue other forms of reparation than monetary compensation.141 A legal guarantee of individuals’ right to effective remedies is thus principally in the hands of relevant states at the national level, weak and partial at the regional level, and absent at the international level. Finally, current international law does not distinguish nationals and nonnationals with respect to the right to effective remedies.142 A state which discriminates against aliens and does not ensure them a full and equal right to effective remedies in either procedural or substantive sense commits an independent breach of relevant human rights treaties.143 2)

The Substantive Meaning of Effective Remedies and Practice of Relevant Bodies a The Undefined Meaning of “Effective” Remedies Since the human rights treaties do not define the meaning of “effective remedies” and soft law offers only a list of several examples for each form of remedies, states have broad discretion in constructing the substance and methods of remedies through their domestic legal system and practice.144 However, it is not sufficient for some remedies to be legally available for victims. Remedies should be practically attainable and substantively effective in addressing the harm.145 This section explores the substantive aspect of the right to remedies as constructed under the current international human rights law and practice. Theo van Boven, in his final report to the Commission on Human Rights in 1993 as a un Special Rapporteur on the Right to Reparation to Victims of Gross Violations of Human Rights, proposed general principles offering some an individual to enforce a right to reparation in the international arena when his human rights have been violated.”). See also id. at 148–51. 141 See Matti Pellonpää, Individual Reparation Claims Under the European Convention on Human Rights, in State Responsibility and the Individual, supra note 30, at 110–12. 142 For example, iccpr art. 2(3) provides that “[states] ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy.” (emphasis added). 143 Bassiouni, supra note 107, at 217–18. 144 See Klein, supra note 107, at 37; Shelton, supra note 128, at 127. 145 The Council of Europe Guide to Good Practice in Respect of Domestic Remedies states, “A remedy is only effective if it is available and sufficient. It must be sufficiently certain not only in theory but also in practice, and must be effective in practice as well as in law, having regard to the individual circumstances of the case.” Council of Europe, Guide to Good Practice in Respect of Domestic Remedies 12 (2013).

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basic guidelines in constructing the meaning and method of remedies. The principles state that the purpose of reparation is to relieve the suffering of victims and afford them justice.146 The basic approach to that aim is “removing or redressing to the extent possible the consequences of the wrongful acts.”147 He emphasizes that reparation should “respond to the needs and wishes of the victims.”148 The following discussion first investigates the meaning of restitution—the primary form of remedy—which bears particular importance in constructing concrete methods of effective remedies for trafficking victims. b Restitution as a Primary Form of Remedy International law regards restitution as the primary form of remedy, to be considered first when deciding on an adequate method of remedies for victims.149 The Principles and Guidelines on the Right to a Remedy provide a definition and examples of restitution: Restitution should, whenever possible, restore the victim to the original situation before the gross violations of international human rights law or serious violations of international humanitarian law occurred. Restitution includes, as appropriate: restoration of liberty, enjoyment of human rights, identity, family life and citizenship, return to one’s place of residence, restoration of employment and return of property.150 However, the Principles’ definition of restitution is imperfect and could be misleading. Restitution is not just a return to a past situation that existed before the rights violation. The precise meaning of restitution as a remedy requires a wrongdoer to reconstruct a situation that would have existed at the

146 Special Rapporteur on Prevention of Discrimination and Protection of Minorities, Final Rep.: Study Concerning the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms, ¶ 137, Comm’n on Human Rights, u.n. Doc. E/CN.4/Sub.2/1993/8 (1993) (by Theo van Boven) (General Principle no. 3). 147 Id. 148 van Boven, supra note 146, ¶ 137 (General Principle no. 4). 149 The pcij in the Factory at Chorzów case held that the injuring state had to “restore the undertaking and, if this be not possible, to pay its value at the time of its indemnification, which value is designed to take the place of restitution which has become impossible.” Factory at Chorzów, supra note 122, ¶ 126. 150 Principles and Guidelines on the Right to a Remedy, supra note 124, art. 19.

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present moment if the violation had not occurred.151 In this regard, the pcij in the Chorzów case provides a more accurate definition of restitution: [R]eparation must, as far as possible, wipe out all consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed.152 There is a critical difference between the Chorzów definition of restitution and that of the Principles and Guidelines on the Right to a Remedy. In the Chorzów definition, which can be termed “corrective restitution,” restitution does not mean returning to the point in the past before the violation was committed— the status quo ante. Instead, restitution means reconstructing the present as it would have existed if the violation had not been committed. This difference can bring significant consequences, especially in the case of complex human rights violations in which multiple phases of wrongdoings aggregate in harming victims. As discussed later in this chapter and in Chapter 7, human trafficking provides a clear example of such cases. As Antoine Buyse points out, restitution deserves a primary position among diverse forms of reparation, since it best serves the basic purpose of reparation: to remove negative consequences of wrongful acts and restore the reality as faithfully as possible for the victims.153 Forms of restitution can be diverse depending on the types of human rights concerned and the ways those rights have been violated. The Principles and Guidelines on the Right to a Remedy lists examples of restitution such as “restoration of liberty, enjoyment of human rights, identity, family life and citizenship, return to one’s place of residence, restoration of employment and return of property.”154 Regarding the 151 See Shelton, supra note 128, at 10 (discussing the purpose of remedy, including “compensatory or remedial justice” which means “to place an aggrieved party in the same position as he or she would have been had no injury occurred”). The ilc Articles on State Responsibility shows the same limitation as the Principles and Guidelines on the Right to a Remedy, by describing restitution as “to re-establish the situation which existed before the wrongful act was committed.” ilc Articles on State Responsibility, supra note 3, art. 35. 152 Factory at Chorzów, supra note 122, ¶ 125. The Oxford English Dictionary defines reparation as an “action of restoring something to a proper or former state,” including an “action of making amends for a wrong or loss, compensation.” By including an action of restoring a proper state other than a former state, this definition is in line with the perspective of the pcij Chorzów Factory case. 153 Buyse, supra note 133, at 132–33. 154 Principles and Guidelines on the Right to a Remedy, supra note 124, art. 19.

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rights under the iccpr, Manfred Nowak mentions “release of detained, slaved, permission to enter or leave or to reside, legalizing entities, admission to public service, recognizing nationality.”155 Despite its significance for victims, the theory and practice of the right to remedies is relatively underdeveloped in international human rights law.156 In particular, although restitution is the primary form of remedy, cases in which relevant courts or tribunals have issued an order of restitution have been minimal.157 Reparation decisions by relevant adjudication bodies have focused predominantly on compensation.158 Scholarship that thoroughly explores the concrete 155 Nowak, supra note 134, at 74. 156 See Bassiouni, supra note 107. Christine Evans argues that the reason for the insufficient attention paid by the Human Right Committee to the issue of remedies is the lack of victims’ participation during the process of consideration in order to express their views and request the remedies they need. Christine Evans, The Right to Reparation in International Law for Victims of Armed Conflict 47–48 (2012) (“It is a considerable weakness that the [Human Rights] Committee has rarely explored in detail the implications of what effective remedy entails in individual cases,…”); id. at 57 (“[T]he decisions have tended to focus on procedural aspects of access to justice rather than on concrete interpretations of reparations. Despite the relevant General Comment adopted by the Human Rights Committee in 2004, the concept of reparations therein has yet to be fully reflected in the jurisprudence of the Committee.”). 157 See Douglas Cassel, The Expanding Scope and Impact of Reparations Awarded by the InterAmerican Court of Human Rights, in Out of the Ashes: Reparation for Victims of Gross and Systematic Human Rights Violations 197 (K. De Feyter et al. eds., 2005) (surveying the practice of Inter-American Court of Human Rights and noting that only a small number of cases have ordered restitution). 158 Bassiouni, supra note 107, at 211 (noting international and national law on reparation for human rights violations has been developed centering on compensation); Evans, supra note 156, at 48–55 (showing that reparation cases by human rights treaty bodies are mostly limited to compensation). After surveying the trend of international and regional bodies, Antoine Buyse concludes: “Restitution is thus the primary means of reparation. The situation in state practice is less clear. Restitution is a rather rare remedy in international arbitration and compensation is sought much more often. Already in the 1980s, the claim was made that the divergence between principle and practice is so extensive that the principle of the primacy of restitution is in itself misleading,” and “[g]enerally, the practice of the global and regional human rights mechanisms dealt with here does not seem to clearly single out restitution as the preferred form of reparation. All mention restitution as a possibility, but only apply it when appropriate, in a tailor-made fashion.” Buyse, supra note 133, at 132, 138. Nowak points out that although the term “just satisfaction” of Article 41 of the echr can mean different forms of reparation, the Court has limited its practice to awarding monetary compensation for damages. Nowak, supra note 134, at 74.

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meaning and desirable methods of restitution has been rare. Some human rights treaty provisions stipulate only compensation as a remedy for specific rights violations.159 In certain cases, restitution may not be possible, as in the case of wrongful execution.160 However, if one interprets restitution in a corrective sense, more positive and flexible forms of restitution can be developed. Currently, restitution as a remedy is too easily dismissed as implausible  in many human rights cases and the most simple and passive form of reparation—monetary compensation—is conveniently preferred. c Potential of Other Forms of Remedies Important forms of remedies other than restitution and compensation include satisfaction and guarantees of non-repetition. The Principles and Guidelines on the Right to a Remedy list several examples of each form of remedy, which pecuniary compensation cannot provide. Satisfaction may include arrangements such as: effective measures aimed at the cessation of continuing violations; verification of the facts and full and public disclosure of the truth; search for the whereabouts of the disappeared; an official declaration or a judicial decision restoring the dignity, the reputation and the rights of the victim; public apology; judicial and administrative sanctions against persons liable for the violations.161 Guarantees of non-repetition include strengthening the independence of the judiciary; providing human rights and international humanitarian education for the public and training for law enforcement officials; promoting the observance of codes of conduct and ethical norms by public servants; promoting mechanisms for preventing and monitoring social conflicts and their resolution; and importantly, “reviewing and reforming laws contributing to or allowing gross violations of international human rights law and serious violations of international humanitarian law.”162 The above examples are not exhaustive. These different forms of remedies possess valuable potential for overcoming the limitations of monetary compensation in redressing the harm suffered by victims and in complementing the role of restitution to function as a positive and corrective restoration of proper present situations for victims. While human rights treaties generally regard judicial remedies to be more effective than administrative measures

159 E.g., iccpr art. 9, para. 5, art. 14, para. 6; cmw art. 15, art. 16, para. 9 & art. 18, para. 6; cat arts. 13–14. 160 Nowak, supra note 134, at 73. 161 Principles and Guidelines on the Right to a Remedy, supra note 124, art. 22. 162 Id. art. 23.

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or other forms of remedies,163 certain human rights cases may require more prompt, flexible and creative arrangements, which can be more effectively executed by other state organs than the judiciaries. Legislative measures to reform defective laws, or policy reforms as part of guarantee of non-repetition are ­significant as they can bring about structural changes to prevent similar violations in the future beyond providing reparation for individual victims. Satisfaction and guarantee of non-repetition can make the substance and functions of the right to remedies more comprehensive and transformative. d Conflation of Remedies with Criminal Justice Measures Another feature of the current practice on the right to remedies involves conflating remedies for victims with criminal justice against perpetrators. Especially in the case of serious human rights violations, taking criminal law enforcement measures against perpetrators is regarded not only as a human rights obligation of a state, but also as a form of effective remedy for victims in itself.164 The Human Rights Committee, in its individual communication cases, has repeatedly decided that criminal justice measures, including investigation, prosecution and punishment of perpetrators, are important components of effective remedies for serious human rights violations, especially in the case of enforced disappearances, torture or ill-treatment in detention or other circumstances.165 By the same token, the Committee has repeatedly decided 163 See Nowak, supra note 134, at 63–65 (“[P]urely disciplinary and administrative remedies cannot be deemed to constitute adequate and effective remedies… in the event of particularly serious violations of human rights.”) (citing Baustista v. Colombia, hrc no. 563/1993). 164 See Shelton, supra note 128, at 9 (“Prosecution then becomes recast as an essential component of the remedy owed victims of certain grave human rights violations. International tribunals have sometimes declared that other forms of reparations, such as compensation or disciplinary sanctions, are insufficient to remedy the harm caused by these violations.”); Nowak, supra note 134, at 72 (“[I]n other cases of gross and systematic human rights violations, only a criminal investigation aimed at bringing the perpetrators to justices seems to bring relief and satisfaction to the victims.”); see also Bassiouni, supra note 107, at 226–28; Tomuschat, supra note 30, at 12. 165 E.g., Santullo v. Uruguay, Communication No. R. 2/9, u.n. Doc. Supp. No. 40 (A/35/40) (1980) (holding failure to investigate torture charges constitutes a violation of the right to an effective remedy); Bautista v. Colombia, Communication No. 563/1993, u.n. Doc. CCPR/C/55/D/563/1993 (1995); Arhuaco v. Colombia, Communication No. 612/1995, CCPR/C/60/D/612/1995 (1995) (holding that in serious human rights violations such as disappearance cases, Article 2(3) of the iccpr requires criminal prosecution and conviction of perpetrators, and that disciplinary or administrative measures are not enough).

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that an amnesty law giving impunity to perpetrators from criminal charges is a violation of Article 2(3).166 The ECtHR and the Inter-American Court of Human Rights have adopted similar positions.167 These practices regard criminal justice measures as more vigorous and effective forms of remedies than other measures and treat criminal justice as a required remedy in the case of serious human rights violations.168 The Principles and Guidelines on the Right to a Remedy present criminal justice measures as an example method of satisfaction.169 Furthermore, Bassiouni asserts that a remedial measure (mostly monetary compensation) can be an incentive to encourage victims’ cooperation in criminal procedures to achieve criminal justice against perpetrators.170 As discussed earlier, criminal justice measures do not guarantee improvement in victims’ well-being and human rights situations. As clearly demonstrated in the case of human trafficking, criminal law enforcement indeed can place victims in more dangerous, unstable, and subordinated situations. By conflating criminal justice measures with remedies for victims, and even regarding criminal justice as a more effective and demanding form of remedy, it becomes easier for states to claim that they have met remedy-related obligations while not redressing the actual harm that victims suffered. This conflation, combined with the due diligence standard, justifies and consolidates the criminal-justice-centered nature of states’ human rights obligations and dilutes the independent meaning of the right to remedies and victims’ status as the subjects and rights-holders of international law. B In the Context of Human Trafficking Although the theory and practice of international human rights law on the right to remedies need further development, a few basic principles are clear. First, the right to remedies includes both procedural and substantive rights. Second, a remedy should be effective both procedurally and substantively. Third, ensuring effective remedies for victims is a primary duty of the state where a violation has occurred. Fourth, while remedies are commonly issued

166 E.g., Hugo Rodríguez v. Uruguay, Communication No.322/1988, u.n. Doc. CCPR/ C/51/D/322/1988 (1994). 167 See Nowak, supra note 134, at 66; see also Shelton, supra note 128, at 127–29 for the ECtHR cases which predominantly emphasize state obligations for investigation and prosecution, with standardized judgment holdings in the cases involving article 2, 3 or 8. 168 Shelton, supra note 128, at 130. 169 Principles and Guidelines on the Right to a Remedy, supra note 124, art. 22. 170 Bassiouni, supra note 107, at 210.

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through a judicial system, administrate or legislative measures can also serve as effective remedies. This section examines whether the above principles are observed under the current anti-trafficking regime. In the case of trafficking, destination states bear the primary duty to ensure effective remedies for victims since most human rights violations related to human trafficking occur in the territory of these states. Regarding the procedural right to remedies, victim treatment schemes in most destination states do not fully ensure this right. As examined in Chapter 3, a trafficking victim’s stay in destination states is conditional and discretionary depending on the victim’s usefulness for pursuing criminal justice against perpetrators. Victims do not have the right to stay in destination states to seek remedies independently from criminal procedures. Available assistance for trafficking victims is limited during the relevant criminal procedures and is offered for the purpose of protecting witnesses and encouraging victims’ cooperation with law enforcement. Theoretically, migrants whose human rights are violated in destination states have the equal right to remedies even if they are not identified as trafficking victims. Under the current system, however, if an individual without regular immigration status is not identified as a trafficking victim in the criminal context, or if an individual is identified as such but does not or cannot cooperate with criminal procedures, that individual faces a risk of deportation, and it thus becomes difficult to redress the rights violations the victim has suffered in human, civil, and labor rights contexts. While international law recognizes the sovereignty of states to control their borders and to deport undocumented migrants, it also mandates that states ensure a procedural right to effective remedies for victims of human rights violations without discrimination. Operating an immigration system that fails to guarantee victimized migrants an independent right to seek remedies is thus a violation of states’ human rights obligation under international law.171 Second, as a substantive matter, the current victim treatment scheme does not provide effective remedies for trafficking victims. As discussed, the 4R 171 The ctoc does provide a state obligation regarding the procedural right to remedies: “Each State Party shall establish appropriate procedures to provide access to compensation and restitution for victims of offences covered by this Convention.” ctoc art. 25, para. 2. Thus destination states, most of which are parties to the ctoc, are in violation of the ctoc by repatriating victims without ensuring access to remedies. The Trafficking Protocol only mentions compensation in weaker language: “Each State Party shall ensure that its domestic legal system contains measures that offer victims of trafficking in persons the possibility of obtaining compensation for damage suffered.” Trafficking Protocol art. 6, para. 6.

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v­ ictim protection policy is not only unhelpful, but is often harmful to victims’ overall well-being and human rights situations. As emphasized by Theo van Boven, for remedies to be “effective” ones, they should “respond to the needs and wishes of the victims” and should be capable of relieving “the suffering of and affording justice to victims by removing or redressing to the extent possible the consequences of the wrongful acts.”172 Rescue and repatriation, which function as de facto crackdown and deportation, serve the needs and interests of destination states and many times go against the needs and interests of victims. Repatriation does not relieve any sufferings of victims nor does it redress any negative consequences of human rights violations committed in destination states. Repatriation cannot be justified as a measure of restitution, since the wrong to be rectified is not the border crossing itself, but the human rights violations committed after the border crossing.173 Repatriation only clears potential plaintiffs out of destination states’ territories. Repatriation is thus not a remedy, but only prevents victims from attaining remedies. Idealizing repatriation as the primary victim protection measure thus goes against the human rights obligation of destination states to ensure procedurally and substantively effective remedies for victims. Reintegration, the last R, reflects destination states’ desire to prevent remigration of the returned individuals. Rescue, repatriation, and reintegration are thus essentially immigration control measures, rather than effective remedies for victims. The current trafficking regime has been imposing unilaterally designed immigration law enforcement measures in the name of protection of and remedies for victims. The modern-day slavery rhetoric, which reproduces a false image of trafficked migrants as victims of forced migration and labor, has been used to justify this approach. A situation in which victims are being repatriated without a chance to seek and attain effective remedies significantly aggravates the disempowerment of the victimized individuals. International human rights law has been ineffective in deterring or correcting this problem of the anti-trafficking regime. Instead, international human rights law has contributed to marginalizing victims’ rights by conflating remedies for victims with criminal justice against perpetrators. 172 van Boven, supra note 146, ¶ 137. 173 Gallagher views repatriation as a form of restitution for trafficking victims and thus supports the current regime’s policy prioritizing repatriation as a primary victim treatment. Gallagher, supra note 19, at 254. Principles and Guidelines on the Right to a Remedy, supra note 24, art. 19 lists “return to one’s place of residence” as an example of restitution. The problem with this view is further discussed in Chapter 7.

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International human rights law and practice have been incapable of prescribing concrete and adequate meanings and methods of effective remedies for trafficking victims. Chapter 7 undertakes this unfulfilled task. 4 Conclusion This chapter has explored the potential and limitations of existing ­international human rights law in addressing the multiple transnational features of human trafficking and in constructing effective remedies for victimized individuals. The current international human rights regime shows multiple aspects of weakness in effectively meeting the challenges posed by transnational human trafficking toward the empowerment of affected individuals. The state obligations in the case of human rights violations by private actors have concentrated on taking criminal justice measures against perpetrators, requiring states to exercise more power and intervention, and creating room for abuse, all while marginalizing victims’ rights and protection. The ­state-centric reparation regime does not function in the case of trafficking, where the relative statuses of states concerned contrast with those in the traditional case of injuries to aliens. Despite the general principle of non-discrimination, international law recognizes distinctions in certain human rights protections between national and ­non-nationals, as well as between lawfully residing non-nationals and those who are not. More importantly, monopolized state sovereignty over borders and immigration regulation, as acknowledged and respected by international human rights law, restricts and conditions the space for non-nationals to exercise their existing human rights. The unique multi-faceted transnationality of human trafficking reverses the traditional dynamics between human rights and state sovereignty. In the case of human rights violations by nonstate actors against non-­nationals who cross borders, human rights norms—in the era of globalization and migration—ironically fortify and consolidate state sovereignty instead of individual sovereignty. International human rights law has also been unhelpful in constructing concrete meanings and methods of effective remedies for trafficking victims. Instead, it justifies the detrimental repatriation policy and the criminal-­ justice-centered approach of the trafficking regime in the name of remedies for victims. Ironically, due to this weaknesses and ineffectiveness, the international human rights regime actually supports the anti-trafficking regime’s transnational crime and immigration control enterprise, which empowers destination states and disempowers individuals. The international human rights

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regime’s weak and state-centric mandates, as well as its rhetorical appeal, enable ­destinations states to pursue their own agendas and interests in the name of human rights protection. This illuminates the need to develop alternative primary rules to reconstruct state obligations to properly address human trafficking as a transnational human rights issue; to place individuals’ human rights at the center; and to empower victimized individuals with procedurally and substantively effective remedies.

chapter 7

Alternative Approaches and Remedies: A Transnational Human Rights Framework* 1 Introduction The discussion in the previous chapters demonstrated how international and national law on human trafficking are not achieving their purported goals and are simultaneously negatively impacting the individuals concerned. The ­current regime serves the power and interests of destination states rather than the rights and needs of individuals. The major reasons for the current regime’s failure can be summarized as follows: problematic primary rules under the ­international anti-trafficking framework shaped by the interests of destination states; proactive implementation of those rules at the national level by destination states; and weak and ineffective international human rights law, which has not deterred, but has instead supported, the trafficking regime’s problematic project. Prescriptions for alternative approaches need to address these multiple problems in order to elevate the status of human rights and dignity from mere rhetoric to central values and primary goals of the system. Alternative state obligations of destination states are required to correct the harm caused by the current regime. The substance of international human rights law should be ­further developed and concretized to empower victimized and vulnerable individuals. This chapter proposes an alternative transnational human rights framework to carry out these tasks. It recommends primary principles and detailed directions to reform the current regime. It also diagnoses the central problem of current decisionmaking processes dealing with human trafficking and suggests ways of facilitating participation by victimized individuals in the law and policy making process. The chapter then reconstructs human-rights-centered state obligations, reshaping the 3P paradigm, and articulates the meanings and methods of effective remedies for victims in concrete terms. Lastly, it illustrates how these new approaches and remedies can actually be materialized, using the example case of the Filipina entertainers discussed in Chapter 4. * An earlier and briefer version of this chapter has been published in: Yoon Jin Shin, Human Trafficking and Labor Migration: The Dichotomous Law and Complex Realities of Filipina Entertainers in South Korea and Suggestions for Integrated and Contextualized Legal Responses, 48 VAND. J. TRANSNAT’L L. 753 (2015).

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Previous Literature on Alternative Approaches

Although there has been an explosive proliferation of the literature on human trafficking in the last seventeen years, serious scholarship proposing ­alternatives to the current anti-trafficking regime has been scant. Previous research has trended toward either mere description or non-constructive ­criticism—describing the phenomenon without undertaking an in-depth ­legal analysis, or criticizing the current law and policy without providing sufficient empirical evidence and practical alternatives. Few critiques were productive enough to suggest comprehensive prescriptions for better approaches based on thorough legal and field research. For example, while a few scholars have criticized the dichotomous approach of the current regime, they have largely been silent on the precise legal arrangements needed to overcome such a dichotomy. Minimal attention has been directed toward envisioning ways of addressing diversity among victimized migrants. The right to remedies of trafficking victims is the least developed area of the literature. A few scholars have suggested ways of protecting or empowering migrant workers and trafficking victims, however. Their suggestions largely follow two different approaches. One proposes using existing human rights regimes more effectively.1 The other favors what can be called a labor migration approach: adopting a “migrant labor rights paradigm,”2 allowing ­migrant workers to change their employers,3 or taking more radical steps, such as transnational liberalization of labor4 or the creation of “transnational labor 1 E.g., Margaret L. Satterthwaite, Crossing Borders, Claiming Rights: Using Human Rights Law to Empower Women Migrant Workers, 8 Yale Hum. Rts. & Dev. L.J. 1 (2005); Jennifer S. Hainsfurther, A Rights-Based Approach: Using cedaw to Protect the Human Rights of Migrant Workers, 24 Am. U. Int’l L. Rev. 843 (2009); See Anne T. Gallagher, Using International Human Rights Law to Better Protect Victims of Trafficking: The Prohibitions on Slavery, Servitude, Forced Labor, and Debt Bondage, in The Theory and Practice of International Criminal Law: Essays in Honor of M. Cherif Bassiouni 394 (Leila Nadya Sadat & Michael P. Scharf eds., 2008). 2 Grace Chang & Kathleen Kim, Reconceptualizing Approaches to Human Trafficking: New Directions and Perspectives from the Field(s), 3 Stan. J. Civ. Rts. & Civ. Liberties 317 (2007) (arguing for a migrant labor rights paradigm recognizing labor rights violations at the core of human trafficking, and advocating for comprehensive labor protections to all migrant and non-migrant workers). 3 James Gray Pope, A Free Labor Approach to Human Trafficking, 158 U. Pa. L. Rev. 1849 (2010) (arguing for a free labor approach centering on migrant workers’ freedom to change employers). 4 Karen E. Bravo, Free Labor! A Labor Liberalization Solution to Modern Trafficking in Humans, 18 Transnat’l L. & Contemp. Probs. 545 (2009) (suggesting that labor should have the

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citizenship.”5 The former approach tends to overlook the limitations of the existing human rights frameworks, which have been weak in prescribing and enforcing concrete state obligations and effective remedies for trafficked migrants or victimized individuals in general. Suggestions in the latter direction tend to be too brief and abstract (Chang & Kim), or too revolutionary to be realized in the near future (Bravo; Gordon). James Pope’s argument for the freedom of migrant workers to change their employers in order to reduce their vulnerability to exploitation is concrete but not comprehensive. Some authors have proposed that trafficking victims be recognized as refugees so they can enjoy rights and protections under the relevant international and national law.6 However, this approach carries several drawbacks. The highly complex nature of human trafficking will impose significant challenges in defining the expanded scope of refugees, and will present further difficulties in identifying victimized individuals as refugees. Moreover, as discussed in Chapter 6, human trafficking and refugee situations possess numerous important differences, especially in the weight of accountability and responsibility of destination states and their international obligation to ensure effective remedies for victimized individuals. While refugee status is essentially granted at the discretion of destination states on a humanitarian basis, trafficking victims have a legal right to seek and attain remedies for the rights violations committed in destination states. Destination states are under heavier obligations, and trafficking victims have stronger grounds for claiming their legal rights in destination states than asylum seekers do. Granting trafficking victims refugee status is therefore a compromise rather than a solution. A tendency of destination states to restrict their existing obligations under refugee law also raises doubts about whether expanding the scope of refugee protection to trafficking victims would be plausible.

same status as capital, goods or intellectual property in the international trading system for trade liberalization). 5 Jennifer Gordon, Transnational Labor Citizenship, 80 S. Cal. L. Rev. 503 (2007) (proposing transnational labor citizenship—a membership in organizations of transnational workers— as the source of rights and duties for migrant workers, to replace the current system tying their immigration status to particular employers). 6 E.g., Catherine Dauvergne, Making People Illegal: What Globalization Means for Migration and Law 70 (2008); Abram L. Seaman, Permanent Residency for Human Trafficking Victims in Europe: The Potential Use of Article 3 of the European Convention as a Means of Protection, 48 Colum. J. Transnat’l L. 287 (2010); Tala Hartsough, Asylum for Trafficked Women: Escape Strategies Beyond the T Visa, 13 Hastings Women’s L.J. 77 (2002).

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3

Shaping a New Framework

A

Basic Framework and Principles

1)

Transnational Human Rights Framework and Empowerment of Individuals The primary goal of the alternative transnational human rights framework proposed here is to empower vulnerable and victimized individuals by guaranteeing and realizing their human rights, including their right to effective remedies. The new framework places individuals, and their rights and dignity, at the center. The framework corrects the current regime’s hypocritical pursuit of state interests under the rhetoric of human rights and mitigates the current approach’s ironic outcome of empowering destination states and disempowering individuals. The transnational human rights framework aims to overcome the detrimental effects of the transnational crime and immigration control regime as well as the weakness of current international human rights law. This ­section fleshes out the second dimension of transnationality discussed in Chapter 1—a transnational operation of the legal system—in response to the transnational nature of the human trafficking problem. As briefly discussed in Chapter  1, the transnational criminal law (tcl) framework under the ctoc and the Trafficking Protocol contain more dynamic transnational features than the conventional international human rights law (ihrl). First, with respect to the nature of targeted events, tcl primarily deals with events of transnational nature—those involving non-state actors as well as actions, items or persons crossing state borders. In contrast, ihrl has traditionally focused on intra-national events caused by state actors in their territories. Second, concerning the operation of the legal system, tcl is premised on organic relationships between international law and domestic law, although these are limited in the criminal context. tcl also emphasizes transnational cooperation between states. The regime specifies state obligations to take certain legal actions, including adopting domestic legislation with prescribed contents and engaging in criminal law enforcement and cooperative activities against stipulated offenses. The connection between international and domestic law is tight in the tcl regime, and their intertwined relationship is essential for the operation of the system. On the other hand, state obligations under ihrl tend to be more general and abstract. ihrl usually does not mandate individual states to take specific legal actions. The relationship between international and domestic law is looser and less interdependent. Since the norms and state obligations are generally abstract, allowing broader discretion for states over the ways these obligations are carried out, individual holders of

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relevant human rights often find it hard to make actionable and enforceable claims solely based on ihrl. One of few areas in which ihrl prescribes that individual states take domestic legal actions is the right to remedies. ihrl specifically mandates that the states where rights violations are committed ensure that victims seek and attain effective remedies through those states’ domestic legal systems, including judicial proceedings. In the case of human trafficking, destination states bear this duty. As it relates to the right to remedies, ihrl thus provides a basic platform for developing a transnational human rights (thr) enforcement framework. Like the tcl regime, the thr framework operates based on the intertwined relationship between the two levels of law—with international law directing states to make domestic legal arrangements, and domestic law providing individuals with an actual system to exercise their rights grounded in international law. In the case of migrant individuals’ human rights, transnationality is manifested not only between international and national law, but also across state borders, as the rights travel with their holders. The thr framework embraces transnationality also in the context of substantive law. The framework understands international human rights and domestic legal rights as organically evolving. The thr framework perceives domestic legal rights as a concretization and furtherance of international human rights.7 The thr framework takes both international and domestic law as substantive sources of rights for individuals. Affected individuals should not only have procedural access to the domestic legal systems of destination states in order to seek and attain remedies. They should also be able to benefit from substantive law in those states. As further discussed in this chapter, civil and labor laws are of particular importance for trafficking victims and migrant workers vulnerable to exploitation. The relevant provisions under each legal system which are critical to protecting individuals’ basic civil and labor rights can be construed as materializing abstract international human rights norms. Moreover, many destination states not only incorporate human rights into their domestic law, but also adopt higher standards of civil and labor rights for nationals than are mandated by international law. The enforcement of the non-discrimination principle thus becomes crucial for non-national workers, especially with regard to their employment-related rights and the right to remedies. The sources of the non-discrimination principle include international 7 See Mattias Kumm, The Cosmopolitan Turn in Constitutionalism: On the Relationship Between Constitutionalism in and Beyond the State, in Ruling The World? Constitutionalism, International Law, and Global Governance 303–10 (Jeffrey L. Dunoff & Joel P. Trachtman, eds., 2008).

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human rights law, customary international law on injuries to aliens, the constitutional law of each state and general principles of domestic civil and labor law. Equal application of domestic civil and labor law can provide more powerful and effective tools for migrant workers to defend and realize their rights than simply invoking abstract ihr norms in domestic judicial procedures. With respect to actors, the thr framework takes a bottom-up approach, premised on and further pursuing the empowerment of individuals. Active roles by rights holders—i.e., trafficking victims and otherwise victimized migrant individuals—to defend and realize their rights through the domestic legal systems of destination states is valued as essential for the operation of the framework’s rights enforcement mechanism. In the traditional international human rights system, international law hands down obligations to states—the main actors of the system as duty bearers and rights protectors—while individuals are the subjects of rights in theory but mainly passive objects of protection in practice. Emphasizing individuals’ role in rights enforcement distinguishes the thr framework from the top-down approach of the traditional international human rights system. The rights-based framework is accessible not only to trafficking victims, but also to those migrant individuals whose rights have been violated but who are not identified as trafficking victims. The thr framework empowers vulnerable and victimized migrants in general. As discussed in the previous chapters, the anti-trafficking framework disempowers the individual, while the state-centric international human rights framework does not mitigate this problem. The due diligence standard empowers only states; the state responsibility regime does not function when no states are genuinely interested in protecting relevant individuals; and destination states exercise exclusive power to deprive migrant individuals of the space to exercise their existing rights. Under these conditions, empowering individuals as rights holders in destination states is the only way to produce meaningful change. The new framework criticizes the ­anti-trafficking regime’s use of human rights as a cover to impose unilateral and often harmful treatment on victims without acknowledging their rights and desirable remedies. It rejects the objectification of human beings by the criminal-and-immigration-law-enforcement-centered regime, requiring destination states to actually do what they claim to do: guarantee the human rights of victimized individuals. Further, the transnational human rights framework strives to overcome the ineffectiveness of the state-centric ihrl in addressing the multiple transnational aspects of human trafficking. It aims to promote individuals from subjects in theory to actors in practice, rebuilding the status of individuals as concrete and active rights holders. Towards that aim, the current trafficking regime should be reformed from the control-based ­framework

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over perpetrators and victims to a rights-based framework for and by the rights holders. The framework views empowering migrant individuals and making them less vulnerable to exploitation as far more effective strategies to p­ revent human trafficking than are executed by the current regime’s border and ­immigration control measures. 2)

Guiding Principles for the Rights-Based Framework: Comprehensiveness, Integration and Contextualization This chapter proposes three guiding principles for constructing the rightsbased framework to effectively achieve its goal of empowering victimized individuals and realizing their human rights: Comprehensiveness, Integration, and Contextualization. The Comprehensiveness principle requires broadening the anti-trafficking framework’s narrow focus on criminal justice and immigration control towards a full realization of victims’ rights. The current regime disempowers individuals by treating them only as victim-witnesses and conditioning a­ vailable ­benefits depending on their usefulness in criminal procedures. The new framework aims to protect and realize the rights of the individuals independently of the criminal justice regime, with cooperative operations among all relevant laws and policy sectors. In particular, the framework emphasizes full guarantee of individuals’ civil and labor rights and their right to effective remedies, accompanied by a cohesive role of immigration law. The Integration principle rejects the dichotomous designation of relevant individuals as either “trafficking victims” or “criminal migrants,” acknowledging the coexistence of multiple identities and experiences in any given individual’s transnational reality. The new framework aims to develop integrated responses to the complex legal situations of migrant individuals affected by human trafficking. The principle of integration recognizes that possessing and exercising agency should not be a reason to deny affected migrants’ victimhood, nor should it be a reason to incriminate and punish them. The agency, identity, and experience of victimized individuals as migrant workers should be valued and respected. Recognizing the coexistence of agency and victimhood is the first step in designing legal responses and remedies in an integrated manner that can properly address migrants’ complex predicaments and various rights violations they have suffered. By overcoming the victim vs. criminal dichotomy, the new framework treats an individual as a whole-person and rejects dividing similarly situated individuals with black-or-white labelling. Thus, the new framework challenges the current regime’s obsession with a “victim identification” process, which applies a narrow and closed victim category that excludes and discriminates against the remaining affected individuals who

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are not identified as such. Instead, the new framework seriously considers the “victimized aspects” of each individual in the human, civil, and labor rights contexts whether or not she or he fits the definition of a trafficking victim in the criminal context. The Contextualization principle fully recognizes the diversity among victimized migrants, with regard to their past experiences of rights violations, present needs and legal situations, and hopes for the future. This principle rejects the current regime’s flattened and fictional stereotyping of human trafficking; its misrepresentation by the modern-slavery rhetoric; and its unilateral and uniform treatment of identified victims. The new framework aims to develop contextualized legal responses to best address each individual’s distinct situation. B Directions for Reform Based on the above guiding principles, more detailed directions for reform the current anti-trafficking regime include the following: (1) From Transnational Organized Crimes to Human Rights in Global Labor Migration A comprehensive human rights approach is possible only when comprehending the real experiences of relevant individuals without prejudice. The new framework requires understanding the issue not only from the perspectives of states but also from the perspectives of the individuals concerned. While destination states frame human trafficking as transnational organized crime, victimized individuals and those who try to take advantage of vulnerable migrants essentially experience the matter in the context of migration and working abroad. Understanding human trafficking on a spectrum of global labor migration enables policymakers to recognize the diversity and complexity of the individuals’ predicaments and illuminates why crime and immigration control approaches are inadequate responses. Constructing a comprehensive rights-based framework requires breaking away from the conceptual trap of framing the issue as transnational organized crime and instead squarely recognizing human trafficking as a matter of transnational human rights situated in the broader context of global labor migration. (2) From Criminal Justice and Immigration Control to Human, Civil, and ­Labor Rights Protection The new framework requires shifting the focus from criminal justice and immigration control to full realization of the human, civil, and labor rights of

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affected individuals. These rights include the right to effective remedies as well as substantive legal rights under the domestic law of destination states, especially those concerning employment. As noted, it is crucial to observe the ­non-discrimination principle between national and non-national workers in enjoying these rights. The new framework rejects the superiority of immigration regulation over the value of these rights. Under the current ­anti-trafficking regime, as well as under international human rights law, the practical value of these rights for a given individual is dictated largely by her immigration status. The new framework repudiates this hierarchy. It invokes the ­non-discrimination principle and the human rights norms that all destination states commit themselves to, which requires their bodies of immigration law to enable full and effective exercise of the equal rights of individuals. (3) From Victim-Witnesses and Criminal Migrants to Rights Holders and Plaintiffs A transformation from a control-based to a rights-based regime entails a ­dramatic shift in the status of victimized individuals. In a rights-based ­regime, individuals are no longer subordinated to criminal procedures as ­victim-witnesses, but are instead recognized as central actors in the framework as rights holders and potential plaintiffs. Under the immigration control regime, the default status of victimized migrants without regular immigration status is as “criminals” violating immigration law. The new framework prioritizes individuals’ status as rights holders in the context of human rights, civil, and labor law over their status as witnesses or criminals in criminal or immigration law. (4) From Dichotomies to Continuum, and from Stereotypes to Diversity By taking an integrated approach, the new framework overcomes the detrimental impact of the dichotomous approaches taken by the current regime, including victims vs. criminals, trafficking vs. smuggling, and protection vs. punishment. The case studies presented in this book demonstrate that trafficking victims are essentially migrant workers in significantly vulnerable and abusive situations, and that exploitation is generally a matter of degree, rather than a simple matter of yes or no. The new framework rejects dichotomies and stereotypes, and embraces the complex and diverse realities of vulnerable migrants. The alternative framework recognizes that most trafficking cases begin with the deception of aspiring migrant workers, not with physical force. By respecting and realizing each individual’s agency, needs, and rights, the new

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framework rectifies the dehumanization of affected individuals that is caused by trafficking situations as well as by the anti-trafficking regime. (5) From Border to Workplace, and from Freedom to the Right to Work The previous chapters demonstrated that contemporary human trafficking contrasts with the practice of historical slavery in many aspects. The new transnational human rights framework opposes equating human trafficking with slavery. Such equation justifies focusing on “rescuing and freeing” targeted ­individuals without further substantive assistance. The new framework ­rejects protection without rights and pursues empowerment through rights. It ­emphasizes labor rights protection in the workplace, not merely a freedom from (forced) labor and rescue from the workplace. The empowerment framework shifts resources and law enforcement efforts from border control to workplace regulation. The framework encourages rigid labor rights law enforcement in place of immigration law enforcement. It prioritizes ensuring that every workplace abides by minimum labor law standards and that every worker can defend her employment-related rights without fear of deportation or losing her job or immigration status. Under the new framework, on-site monitoring activities by government authorities are conducted for detecting labor rights violations instead of cracking down on employment of undocumented migrant workers. If there is less room for exploitation, there will be less room for human trafficking; if there is less room for migration, there will be more room for human trafficking. Ensuring safe migration processes and lawful and humane living and working conditions for everyone is one of the major human rights challenges for today’s globalizing world. This new framework aims toward this goal. C Individuals’ Participation in the Lawmaking Process As discussed in Chapter 1, transnationality in human rights law can be manifested in at least three different dimensions: in the nature of the problem, in the way the framework operates, and in the process of lawmaking. Chapters 1 and 6 investigated the first dimension in the case of human trafficking; the preceding discussion in this chapter addressed the second dimension. This section discusses the third dimension of transnationality. As mentioned in Chapter 1, the contemporary context for international lawmaking involves increasing participation and influence by individuals and other non-state actors. The same has been true for decisionmaking processes at the national level. However, the international and national lawmaking processes responding to human trafficking have been dominated by destination

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states, from agenda-setting to law application and appraisal. Trafficking victims and other migrant individuals affected by the current framework have had no place to participate in or influence the process and outcome of the decisionmaking. It is a general truth that modern states do not allow migrants or potential migrants to participate in the states’ immigration law and policy making processes. Quite a few scholars in political theory have criticized this practice as contrary to the principle of democracy.8 More generally, these scholars have raised doubts as to the legitimacy of decisionmaking processes monopolized by members of a political community on matters that have significant transboundary effects on outsiders. They have suggested alternative principles for constituting the demos, including the ones rooted in the All-Affected Principle proposed by Robert Dahl.9 Regarding criteria to decide the scope of affected individuals, Carol Gould suggests that people are to be regarded as importantly affected when they are affected in their possibilities of realizing their basic human rights.10 In the same vein, Michael Walzer has objected to a guest worker system, which exploits migrant workers based on their disenfranchised status. 8

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For example, Phillip Cole points out that “there are two groups subjected to the laws of the state: its own members, and those non-members who are applying for inclusion,” and argues that the latter group should have a say in immigration laws because those laws are coercively imposed on them. Phillip Cole, Philosophies of Exclusion: ­L iberal Political Theory and Immigration 186 (2000); see also Christopher H. ­Wellman & Phillip Cole, Debating the Ethics of Immigration: Is There a Right to Exclude? (2011) (discussing theoretical grounds for closed borders and open borders). Arash Abizadeh argues that a state may not unilaterally exclude outsiders without democratically justifying their practice to those outsiders, based on the ­democratic theory of popular sovereignty. Arash Abizadeh, Democratic Theory and Border ­Coercion: No Right to Unilaterally Control Your Own Borders, 36 Pol. Theory 37 (2008). The All-Affected Principle prescribes that all people whose interests are affected by political decisions should be taken into account by the relevant political community and should have a say in its decisionmaking process. The principle was proposed by Robert Dahl, who argued that “everyone who is affected by the decisions of a government should have the right to participate in that government.” Robert A. Dahl, After the Revolution? 64 (1970). See also Robert A. Dahl, Democracy and Its Critics (1989). Robert Goodin further elaborated on this principle in Robert E. Goodin, Enfranchising All Affected Interests, and Its Alternatives, 35 Phi. & Pub. Aff. 40 (2007); see also Nancy Fraser, Scales of Justice: Reimagining Political Space in a Globalizing World 65 (2008) (arguing that “all those who are subject to a given governance structure have moral standing as subjects of justice in relation to it”). Carol Gould, Self-Determination Beyond Sovereignty: Relating Transnational Democracy to Local Autonomy, 37 J. Soc. Phil. 54 (2006).

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He has argued that if a state decides to admit foreign workers, it must treat them as free and equal: These guests experience the state as a pervasive and frightening power that shapes their lives and regulates their every move—and never asks for their opinion. Departure is only a formal option; deportation, a continuous practical threat. As a group, they constitute a disenfranchised class. They are typically exploited or oppressed as a class as well, and they are exploited or oppressed at least in part because they are disenfranchised, incapable of organizing effectively for self-defense. Their material condition is unlikely to be improved except by altering their ­political ­status. Indeed, the purpose of their status is to prevent them from improving their condition; for if they could do that, they would soon be like domestic workers, unwilling to take on hard and degrading work or accept low rates of pay.11 Theorists of deliberative democracy are also mindful of including affected individuals in the decisionmaking process. The discourse principle by Jürgen Habermas notes that “only those action norms are valid to which all possibly affected persons could agree as participants in rational discourses.”12 Highlighting a dilemma of “world proletariat, participating in global markets but lacking a demos,”13 “who are affected by the consequences of these norms and, in the first place, by criteria of exclusions, per definitionem, cannot be party to their articulation,”14 Seyla Benhabib argues for “democratic iterations” among demos and non-demos in jurisgenerative politics in order for the subjects of law to become its authors as well.15 In his essay in 1862 on the slavery abolition and separation in America, John Stuart Mill criticized the practice of ignoring the voices of enslaved people: Before admitting the authority of any persons, as organs of the will of the people, to dispose of the whole political existence of a country, I ask to see whether their credentials are from the whole, or only from a part. 11 12 13 14 15

Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality 59 (1983). Jürgen Habermas, Between Facts and Norms 107 (1996). Seyla Benhabib, The Rights of Others: Aliens, Residents, and Citizens 23 (2004). Id. at 15. Id. at 15, 21. See also Seyla Benhabib, Another Cosmopolitanism (2006).

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And first, it is necessary to ask have the slaves been consulted? Has their will been counted as any part in the estimate of collective volition? They are a part of the population. However natural in the country itself it is rather cool in English writers who talk so glibly of the ten millions [of white southerners]…, to pass over the very existence of four millions [of enslaved people] who must abhor the idea of separation. Remember, we consider them to be human beings, entitled to human rights.16 The New Haven School perceives law to be a constitutive process for authoritative and controlling decisions toward the world public order of human ­dignity.17 W. Michael Reisman notes that “a lawmaking process must serve the needs of the actual community of which it is part and not the needs or ­desires of its factotums.”18 The participation of diverse stakeholders, including all ­affected individuals and groups, is welcomed and encouraged.19 The key issue is whether those non-state actors have effective tools, skills, resources, and routes to make their voices influential in the decisionmaking process as well as in its outcomes.20 In the context of human trafficking, individuals who are affected by trafficking situations and by anti-trafficking frameworks have been excluded from relevant decisionmaking processes at the international and national levels. If assessed according to the All-Affected Principle, those individuals are the people most affected by the decisionmaking, but are currently the least empowered and least influential actors in the process. As non-demos, they have few ways to incorporate their voices in immigration law and victim treatment polices of destination states, the law and policies which are coercively imposed on them. 16 17

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John Stuart Mill, The Contest in America, in 1 Dissertations and Discussions: Political, Philosophical, and Historical 23 (1874). See Myres S. McDougal, Harold D. Lasswell, and Lung-chu Chen, Human Rights and World Public Order: The Basic Policies of an International Law of Human Dignity (1980); W. Michael Reisman, Siegfried Wiessner & Andrew R. Willard, The New Haven School: A Brief Introduction, 32 Yale J. Int’l L. 575, 580 (2007) (“Starting from the premise that law should serve human beings, the New Haven School anchors its policy-oriented search for a world public order of human dignity in the universe of human aspirations,…”); id. at 582 (“Our loyalty is to the values of human dignity and our goal is a world order producing and distributing those values.”). W. Michael Reisman, The Quest for World Order and Human Dignity in the Twenty-First Century: Constitutive Process and Individual Commitment 167 (2012). Reisman, Wiessner & Willard, supra note 17, at 576–78. Id.

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As Walzer points out, as temporary foreign workers, these individuals have little political power where they live and work, and are thus exploited. The democratic discourse between elites of destination states and marginalized migrant individuals has yet to be initiated. Human trafficking provides a clear example of the dilemma faced by democratic states in the age of global migration—the exclusion of those most affected. Like the enslaved people in Mill’s essay, trafficked migrants are not consulted in designing repatriation policy or in executing individual rescue missions by destination states. Reisman points out that “legal arrangements are created within political processes and…incorporate the values and demands of the most politically relevant actors.”21 While trafficking victims are the most factually relevant actors, they are the least ­empowered politically. They lack effective tools, skills, resources, and routes to influence decisionmaking processes and outcomes. In conventional state-centric international lawmaking processes, states are assumed to represent the collective interests of their people.22 In today’s world, where diverse peoples and interest groups reside in the territory of a single state, this assumption becomes less applicable and is indeed questionable. Destination states that lead the lawmaking process regarding human trafficking do not represent the voices of the people victimized by trafficking who live in these states. States have successfully infused their own interests in the process and made decisions adverse to the values and demands of the affected individuals. Under this condition, the only plausible strategy for these individuals to make their voices count would be coordinating with civil society, including ngos dedicated to migrants’ human rights. However, as discussed in Chapter 2, ngos have not properly represented the needs of trafficking victims in the lawmaking process. Feminist groups’ lobbying efforts in the course of drafting the Trafficking Protocol were occupied by the debate on whether to include prostitution per se in the definition of human trafficking, divided by different political positions on the issue. ngos advocating migrant workers’ rights did not actively participate in the negotiating process, probably considering human trafficking to be a “women’s issue” limited to sex trafficking, rather than an important matter of labor migration. In consequence, the most relevant but least powerful actors have been left out, while destination states—the holders of competing interests with superior political power— have dominated the decisionmaking process.23 The result is that states have 21 22 23

Reisman, supra note 18, at 237–38. Janet Koven Levit, Bottom-Up International Lawmaking: Reflections on the New Haven School of International Law, 32 Yale J. Int’l L. 393, 397 (2007). See Reisman, Wiessner & Willard, supra note 17, at 579 (“The point of emphasis is that a functional approach, using a mapping procedure that is designed to minimize the

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created international norms for their own sake—creating no additional human rights obligations while reinforcing the states’ preexisting agendas that detrimentally impact affected individuals’ rights and well-being.24 The reform of the current anti-trafficking regime toward the transnational human rights framework includes the development of transnational lawmaking processes that enable and facilitate participation by individuals whose rights are at stake. Such individuals need proportional space and resources to incorporate their views and needs in relevant decisionmaking. Substantive reform of the current regime begins with hearing the voices and experiences of the marginalized and victimized individuals, then shaping responses accordingly. By undertaking active roles as plaintiffs for human, civil, and labor rights through the judicial systems of destination states, these individuals can work as norm-generators despite their lack of political rights. Indirect representation by dedicated civil society organizations can supplement the individuals’ role by exerting pressure on the legislature and the government. It would be highly beneficial to incorporate an assessment procedure wherein individuals can evaluate their experiences with the victim protection programs they have participated in. Bottom-up lawmaking is possible at the international level as well. Individuals can bring their cases through the individual communication process against destination states that join the relevant optional protocols of major human rights treaties. The European Court of Human Rights, the only effective supranational venue for individuals to obtain legally binding decisions, recently issued an important judgment on a human trafficking case. The Court found that Cyprus as a destination state operated an abusive artiste visa system (similar to the equivalent in the South Korean case) in violation of the European Convention on Human Rights.25 Relevant committees of the iccpr, icescr and cedaw can play more proactive roles through their monitoring mechanisms, by encouraging and systemizing participation of affected individuals and nongovernmental groups who can effectively communicate victimized individuals’ silenced voices.

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chances of overlooking pertinent factors and relationships, enables the lawyers and ­policy-scientist to operate with a realistic sense of the relevant processes.”). See Reisman, supra note 18, at 162–63 (“The great human rights instruments, which are State-made law, though justly celebrated, are cautiously drawn, as many of the Governments that create and ratify them are cautious about installing prescriptions that could neutralize their techniques of governance and their internal control. No surprise, then, that the remedial structure for violations in these instruments is consensual and hortatory rather than compulsory and binding; indeed, the remedies offered may be more ­apparent than real.”). Rantsev v. Cyprus and Russia, App. No. 25965/04 (Eur. Ct. H.R. 2010).

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Concretizing Obligations, Rights and Remedies

Reconstructing State Human Rights Obligations: Reshaping the Three Ps The new framework requires reconstructing primary state obligations, with an eye toward empowerment of individuals and realizing their human rights and dignity. The 3P paradigm should be reshaped, and the mandates of international human rights law need to be further developed and concretized to overcome the current weakness and ineffectiveness. First, state obligations to prevent human trafficking should move the focus from screening irregular or suspect migration to detecting labor exploitation and various rights violations committed in the course of and as a consequence of human trafficking. Primary obligations should include strictly enforcing labor standards and employment contracts in all workplaces and ensuring easily accessible and effective remedies for workers to rectify unlawful practices by their employers. Also required are structural reforms to foreign labor systems that have driven migrant workers into positions more vulnerable to exploitation. The most frequent forms of human trafficking—trafficking by fraud, deception, and abuse of vulnerability—can be more effectively prevented by expanding opportunities for safe, informed, and autonomous labor migration, not by restricting the possibilities for migration itself. The due diligence standard of international human rights law needs substantive development to incorporate these obligations in the trafficking context. The standard should expand and further elaborate the meaning of the duty to prevent human rights violations beyond taking criminal justice measures against perpetrators, to encompass structural reforms of relevant law and policy that contribute to the problem. Second, regarding prosecution, the target of law enforcement should shift from those who facilitate unauthorized border crossings and employment of undocumented migrant workers to those who exploit the labor of migrant workers and benefit from their vulnerability. Law enforcement efforts should not be limited to criminal justice activities. Targeted wrongdoings should be expanded from the limited scope of criminal law violations to violations of human rights, civil law, and labor law. Administrative measures such as sanctions and corrective orders against unlawful practices by employers can be more prompt and effective than criminal justice procedures. The purpose of law enforcement activities should change from condemning past wrongs to rectifying present situations and maintaining rightful conditions for the future. The due diligence standard regarding the duty to respond should a­ ccordingly A

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expand its mandates, from criminal law enforcement to human rights law enforcement. Third, in its proper form, the protection of individuals should be the central state obligation. The relevant paradigm should shift from securing the participation of victim-witnesses to protecting victimized individuals’ rights. As a procedural matter, the legal system should enable victimized individuals to exercise their civil and labor rights and the right to effective remedies independently of their status in criminal procedures and under immigration law. Victimized individuals’ right to stay in destination states should be secured throughout civil or labor procedures.26 Individuals should be allowed to work during these procedures in order to make their rights exercisable in practice. Domestic procedural law, including civil procedure and labor petition procedure, should be applied to victimized migrant individuals without discrimination. As discussed in Chapter 6, the current framework—which subordinates victims’ status in destination states to their value in criminal procedures and repatriates them once their usefulness is over—goes against the human rights obligation of destination states to ensure effective remedies for victims. The prescription proposed here is a minimum requirement for correcting this unlawful practice. By this concretization of the procedural right to effective remedies, the right to stay in destination states during relevant legal procedures is redefined as the legal right of individuals, not merely an exceptional administrative measure. In a substantive sense, states’ duty to respect, protect, fulfill and promote human rights and the substantive right to effective remedies should be made more concrete in the context of human trafficking.27 The focus should shift from “rescue and repatriation” to guaranteeing employment-related rights and

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See Anne T. Gallagher, The International Law of Human Trafficking 350, 368 (2010); Explanatory Report to the Council of Europe Convention on Action Against Trafficking in Human Beings para. 192 (“It is also essential that victims who are illegally present in the country be informed of their rights as regards the possibility of obtaining a residence permit under Article 14 of the Convention, as it would be very difficult for them to obtain compensation if they were unable to remain in the country where the proceedings take place.”); Explanatory Report to the Council of Europe Convention on Action Against Trafficking in Human Beings para. 202 (“The return of a victim shall also take into account the status of any legal proceedings related to the fact that the person is a victim, in order not to affect the rights that the victim could exercise in the course of the proceedings as well as the proceedings themselves.”). Concretization of the substantive right to remedies in the trafficking context is further conducted in Sections 4.B. and C.

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the right to remedies for marginalized migrant workers without discrimination. As Chapter  2 discussed, the icescr, to which most destination states are parties, provides an important list of rights that are most pertinent to migrant workers. As discussed, the icescr Committee clearly stated that the ­non-discrimination principle applies to non-nationals regardless of their immigration status. Thus the icescr framework should proactively realize its potential by mandating destination states to guarantee migrant workers equal enjoyment of the Covenant rights.28 The due diligence standard should be ­developed accordingly in order to mandate more comprehensive protection and remedies for victims other than compensation. Equal application of ­substantive domestic law in destination states is also crucial. Labor law, including labor standards law, and civil law, including contracts and torts, are particularly important for defending migrant workers’ employment-related rights and for enabling migrant workers to seek remedies when those rights are violated. In constructing these state obligations, it is necessary to clarify the positions and roles of destination states in relation to human trafficking. Under the current anti-trafficking regime, the main roles and positions of destination states are assigned as prosecutors against private perpetrators, protectors of victims, and victims themselves regarding border integrity. This control-based regime has effectively obscured the roles of these states as contributors to and beneficiaries of human trafficking. As discussed in Chapter 6, destination states are usually beneficiaries of human trafficking, benefiting from exploited labor of marginalized migrant workers (including sex workers) in social and economic contexts.29 These states often act also as facilitators of human trafficking by operating and sustaining abusive foreign labor markets and legal systems, as demonstrated in the cases of South Korea and Taiwan.30 States s­ ometimes even 28

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The Inter-American Court of Human Rights has issued an advisory opinion of significant importance on the right of undocumented migrant workers. Juridical Condition and Rights of the Undocumented Migrants, Advisory Opinion OC-18/03, Inter-Am. Ct. H. R. (ser. A) No. 18 (Sept. 17, 2003) (holding that once employment relationship has commenced, fundamental workplace rights of undocumented migrant workers should be equally protected and that the international principle of non-discrimination prohibits discriminating undocumented migrant workers in terms of working conditions). See Christian Joppke, Why Liberal States Accept Unwanted Immigration, 50 World Pol. 266, 270 (1998); Lin Lean Lim, The Sex Sector: The Economic and Social Bases of Prostitution in Southeast Asia (1998). See Stephen Castles, Why Migration Policies Fail, 27 Ethnic & Racial Stud. 205 (2004) (pointing out that states facilitate and benefit from the exploited labor of undocumented migrant workers, in contrast with their border and labor policies).

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act as direct accomplices in trafficking when corrupt ­government ­officials get involved in the trafficking business, abusing their authority in relevant sectors.31 Destination states are often culpable bystanders who do not take any measures to address the problem though aware of and benefiting from it, which can constitute state responsibility as indirect accomplices for its c­ onnivance.32 By demonizing individual perpetrators and positioning themselves as protectors of trafficking victims, destination states successfully conceal their own responsibility in contributing to and benefiting from human trafficking, and achieve moral superiority and justification to pursue their own interests under the name of combating trafficking.33 By reducing the phenomenon into episodic wrongdoing by private perpetrators, the structural problems sustained by legal, economic and political systems of destination states remain unaddressed. By articulating the overlooked roles that destination states often play as contributors to and beneficiaries of human trafficking, stronger grounds are constructed for prescribing heavier legal obligations for destination states than are mandated by the current regime. The state obligations prescribed above do not impose brand new burdens on destination states. These obligations concretize existing international human rights law regarding state obligations to protect human rights and to ensure effective remedies for victims—obligations the destination states have ­already committed themselves to. These prescriptions require destination states to ensure coherence between what they claim to do and what they actually do; to reject the hypocrisy of pursuing self-interest under the cover of human rights; 31

32

33

See August Reinisch, The Changing International Legal Framework for Dealing with NonState Actors, in Non-State Actors and Human Rights 65 (Philip Alston ed., 2005) (discussing different forms of accomplice by states in the case of human rights violations by non-state actors, including active assistance, benefiting from, silence, and inactivity). See id. at 67 (discussing the role of states as indirect accomplice to human rights violations); Ilaşcu v. Moldova & Russia, 2004-VII Eur. Ct. H. R. 179, 264 (July 8) (“[T]he acquiescence or connivance of the authorities of a Contracting State in the acts of private individuals which violate the Convention rights of other individuals within its jurisdiction may engage the State’s responsibility under the Convention.”). See Bridget Anderson, Where’s the Harm in That? Immigration Enforcement, Trafficking, and the Protection of Migrants’ Rights, 56 Am. Behavioral Scientist 1241, 1252–54 (2012) (discussing the role of states operating a restrictive migrant labor system and illegalizing workers that generate unfree labor, and pointing out “with justification of harm prevent, states posit itself as protector while in fact the state creates their vulnerabilities by immigration and labor migration systems” and “[i]n the language of ‘harm prevention,’ the role of the state in producing vulnerability is invisibilized in favor of its role as a protector”).

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and to build a legal framework based on straightforward and comprehensive understanding of the reality. B Substantializing the Right to Effective Remedies As the current regime does not ensure a stable procedural right to remedies for trafficking victims, these victims’ substantive right to remedies has also been significantly underdeveloped both theoretically and practically. Thus far, available remedies in destination states have been limited to compensation at best, and in practice it is often difficult for victims to attain even these monetary remedies.34 As discussed, the current international and national frameworks adopt repatriation as a main victim treatment, which in fact effectively deprives victims of both procedural and substantive rights to remedies. This section investigates appropriate meanings of substantive remedies in the context of human trafficking and related human rights violations and suggests concrete methods to realize those meanings. These recommendations provide guidelines for destination states to better carry out their existing human rights obligations. 1) Restitution Under the current anti-trafficking regime, victimized individuals without regular immigration status face essentially the same fate whether or not they are identified as trafficking victims: repatriation or deportation. Even if victims originally held work visas, destination states do not renew their visas, ignoring human trafficking situations that existed during the visa period. Most victims are returned to their countries without having obtained proper remedies. Rescue and repatriation, which function in practice as crackdown and deportation, are not effective remedies for most victims. In order to develop alternative substantive remedies for trafficking victims based on the principles of comprehensiveness, integration and contextualization, the new framework first reconstructs the meanings and methods of restitution. This framework proposes positive, forward-looking, and creative approaches to remedies. As discussed in Chapter 6, a more accurate and desirable meaning of restitution is to reconstruct the present situation that would have existed if no human rights violation had been committed, rather than simply restoring the past situation as it was before the violation. Human rights violations related to human trafficking mostly occur after migrants cross borders and become 34

Two leading treaties on human trafficking also mention only victims’ access to “compensation.” Trafficking Protocol art. 6, para. 6; Council of Europe Convention on Action Against Trafficking in Human Beings art. 15, paras. 3–4.

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subject to exploitative labor conditions. What should therefore be rectified are severe human and labor rights violations in workplaces after crossing borders, and not the act of border crossing itself. If one interprets border crossing as the main wrong to be remedied for the sake of victimized individuals, repatriation might be considered as a measure of restitution. This is the only possible (but wrong) excuse for the current regime’s position. The current law and discourse do not distinguish between trafficking by force and trafficking by deception when prescribing remedies for victims, using repatriation as a main remedy and a form of restitution in every case.35 Prioritizing repatriation may be valid only in the case of human trafficking by force, such as kidnapping, in which movement of people itself constitutes a serious human rights violation. As discussed in the foregoing, such cases are rare. Moreover, even in the case of forced migration, repatriation may not always be an “effective” remedy for victims, depending on the victims’ present situations and needs and the expected impact of repatriation on their well-being. If labor-related human rights violations are the main wrong to be rectified, restitution measures take radically different forms. The main focus should be to correct unlawful working conditions violating human and labor rights of the workers. The right to remedies is not limited to the case of international human rights violations. Violations of domestic law, such as civil or labor law, also entail the right to remedies for victimized parties. Non-national workers should not be discriminated against regarding their right to remedies for violations of their rights under domestic law in the states where they work and live. In this context, this book suggests an innovative perspective from which to construe the problem of human trafficking. The new perspective proposes to look at the issue not simply as a transnational crime of transporting persons, but as a serious breach of employment contracts and labor law by recruiters and employers. This alternative perspective is grounded in the fact that most human trafficking cases are committed by means of deception about the types and important working conditions of arranged jobs. In this framework, an affected individual’s status changes from a victim-witness subject to paternalistic and unilateral treatment to a party to employment contracts and a worker under labor law. Recruiters and employers bear basic obligations to observe their contracts and 35

E.g., Gallagher, supra note 26, at 254; Principles and Guidelines on the Right to a Remedy lists “return to one’s place of residence” as an example of restitution. Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violation of International Humanitarian Law art. 19, u.n. Doc. A/RES/60/147 (Dec. 16, 2005) [hereinafter Principles and Guidelines on the Right to a Remedy].

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to abide by the relevant domestic law of the destination states. These recruiters and employers have contractual obligations to arrange a job for workers with promised remuneration and working conditions, and they bear the legal obligation to observe domestic law, including labor standards law and other laws for protection of workers. The Migrant Workers Convention (cmw) importantly establishes that employers cannot be relieved of their legal and contractual obligations based on irregular or undocumented status of workers: States Parties shall take all appropriate measures to ensure that migrant workers are not deprived of any rights derived from this principle by reason of any irregularity in their stay or employment. In particular, employers shall not be relieved of any legal or contractual obligations, nor shall their obligations be limited in any manner by reason of such irregularity.36 Understanding the rights violations associated with trafficking by deception in this way opens new possibilities for constructing creative and effective forms of remedies that victimized migrants could seek as rights holders in destination states. When employment contracts and relevant laws are breached, the primary remedy for a damaged party is the observance of contracts and relevant laws. In civil law, a primary remedy for breach of contract is to order the violating party to observe the terms of contract that were breached, usually through civil procedure. Under the labor laws in most states, workers can request the relevant government authorities to issue correction orders to their employers to rectify unlawful employment practices and to ensure their rights under employment contracts and labor law. In short, the violators—i.e., employers—should be mandated to observe the terms of contracts and labor law, rather than to send the damaged party home. The new approach also utilizes tort law for various abuses and maltreatment by employers, which is especially useful when a wrongful act does not amount to a crime or a violation of international law. Desirable methods of positive forms of remedies may include rectifying working conditions to be safe, humane and lawful; observing labor standards law; ensuring the payment of promised salaries above minimum wages; and allowing migrant workers to change workplaces or employers if necessary. This positive approach to remedies based on civil and labor law not only rectifies past wrongs, but also improves future conditions through adjusted employment practices. Compensation is to be used as a secondary 36

International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families art. 25, para. 3, Dec. 18, 1990, 2220 u.n.t.s. 3.

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and ­supplementary method when such primary measures for restitution are impossible or insufficient. Through this reconstructed theory and application, restitution can finally provide a helpful and effective remedy for victimized individuals, instead of a harmful and frustrating one as occurs under the current repatriation policy. Restitution can take positive, forward-looking, and creative forms, overcoming the limitations of a negative, backward-looking, and narrow form of monetary compensation for past damages, and supplanting a misconceived restitution method such as repatriation. Restitution in the new paradigm can empower individuals to transform their employment conditions and impart benefits to a broader scope of similarly situated individuals by creating preventive effects. With this proactive approach, restitution can finally achieve its original function as the primary form of remedy for human rights violations. The prevalent court practice of readily dismissing the possibility of restitution reflects the limited perception of earlier interpreters. Support for this new interpretation is in fact already provided by international documents. The American Convention on Human Rights, Article 63, provides: If the Court finds that there has been a violation of a right or freedom protected by this Convention, the Court shall rule that the injured party be ensured the enjoyment of his right or freedom that was violated. It shall also rule, if appropriate, that the consequences of the measure or situation that constituted the breach of such right or freedom be remedied and that fair compensation be paid to the injured party.37 As this provision indicates, ensuring the enjoyment of the rights that have been violated is the basic purpose and method of restitution. The reference to remedying the consequences of the breach of rights also points to restitution. Although the Principles and Guidelines on the Right to a Remedy adopt the wording of backward-looking definition of restitution, the definition clause lists “restoration of liberty” and “enjoyment of human rights” as example methods of restitution.38 The new approach to human trafficking suggested in this section re-identifies the matter from a crime of border crossing—a wrongful act against destination states—to a breach of contract and labor law—a wrongful act against migrant individuals. The new approach elevates victimized individuals from crime witnesses to rights holders, workers, and parties to contracts. This ­approach aims to 37 38

American Convention on Human Rights art. 63, para. 1 (emphasis added). Principles and Guidelines on the Right to a Remedy, supra note 35, art. 19.

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protect and realize individuals’ international human rights as well as their domestic legal rights, by fully and equally applying human rights, civil, and labor law through the domestic legal systems in destination states. This transnational human rights framework provides a far more effective approach for empowering the individual, as well as for preventing human trafficking and exploitative labor practices, than the current regime’s border and crime control and repatriation policy. The new framework corrects the current regime’s problematic tendency to empower states and disempower individuals. U ­ ltimately, the framework embodies the basic principles of remedies suggested by Theo van Boven: “removing or redressing to the extent possible the consequences of the ­wrongful acts”39 and “respond[ing] to the needs and wishes of the victims.”40 2) Cessation, Satisfaction, and Guarantee of Non-Repetition When a destination state is accountable for trafficking situations and relevant human rights violations by operating a legal system or policy that contributes to these problems, the state bears duties to cease such acts and to provide victims with substantive remedies in addition to ensuring the victims procedural access to remedies.41 Remedial measures can take various forms, depending on how the state has contributed to human trafficking and relevant human rights violations. Methods of cessation can take diverse and complex forms if the cause of human rights violations is the legal system and policy of the state. Such measures may include reforming the laws and policies that c­ onstrain migrants’ rights and freedom and make those migrants vulnerable to exploitation—such as restrictive anti-immigration policies, abusive guest worker systems (including entertainer visa systems such as South Korea’s), and discriminatory administrative and judicial practices against migrants. These forms of cessation may appear to overlap with a method of guaranteeing non-repetition suggested by the Principles and Guidelines on the Right to a Remedy: “reviewing and reforming laws contributing to or allowing gross violations of international human rights law.”42 However, these forms are not redundant, since cessation 39

40 41

42

Special Rapporteur on Prevention of Discrimination and Protection of Minorities, Final Rep.: Study Concerning the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms, ¶ 137, Comm’n on Human Rights, u.n. Doc. E/CN.4/Sub.2/1993/8 (1993) (by Theo van Boven) (General Principle no. 3). Id. (General Principle no. 4). See International Law Commission’s Draft Articles on Responsibility of States for Internationally Wrongful Acts art. 29, u.n. Doc. A/RES/56/83 (2001); Principles and Guidelines on the Right to a Remedy, supra note 35, art. 22(a). Principles and Guidelines on the Right to a Remedy, supra note 35, art. 23(h).

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­targets ongoing wrongdoings while guaranteeing n ­ on-repetition aims to prevent similar rights violations in the future. Other forms of remedies besides restitution can also be constructed in proactive ways to address trafficking cases. Possible methods of satisfaction and guarantee of non-repetition are not limited to the list provided by the Principles and Guidelines on the Right to a Remedy. These remedies also may take creative, flexible, and positive forms to provide effective supplements to the role of restitution. In the trafficking context, these remedies may include adjusting the immigration status of victims; arranging safe workplaces; imposing sanctions against employers; and amending immigration regulations in order to support safe, informed, and autonomous migration. 3) The Right to Stay and Work as an Effective Remedy Current international law and discourse partially recognize the need of victims to stay in destination states, but do so in the procedural context at best.43 The right to stay is regarded as only ancillary to victims’ right to remedies or to their right to participate in legal (mainly criminal) procedures. In this case, the term of stay is limited to the period of relevant legal procedures, or only until victims’ participation is necessary for the procedures. Otherwise, current discourse takes a limited view of victims’ need to stay in destination states. Victims’ prolonged stay is discussed mostly as an exception to repatriation on humanitarian grounds, when there is a foreseeable and significant risk to victims’ safety upon removal.44 An approach to construct the right to stay and work in destination states as a substantive remedy for trafficking victims has yet to be envisioned. In concretizing substantive remedies for trafficking victims, I propose that the right to stay and work in destination states for a certain time period can be an effective remedy for many migrant individuals victimized by trafficking situations. This right can be constructed either as a positive form of restitution or a creative form of satisfaction. It reflects and responds to the reality that 43 44

See supra note 26; see also Global Plan of Action Against Trafficking in Persons, G.A. Res. 64/293, ¶ 39, u.n. Doc. A/RES/64/293 (Aug. 12, 2010). Trafficking Protocol art. 8, art. 14, para. 1; u.n. High Comm’r for Human Rights, Recommended Principles and Guidelines on Human Rights and Human Trafficking: Rep. of the u.n. High Comm’r for Human Rights to the Economic and Social Council, u.n. Doc. E/2002/68/ Add.1 (May 20, 2002) (“Safe (and, to the extent possible, voluntary) return shall be guaranteed to trafficked persons by both the receiving State and the State of origin. Trafficked persons shall be offered legal alternatives to repatriation in cases where it is reasonable to conclude that such repatriation would pose a serious risk to their safety and/or to the safety of their families.”).

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most trafficking victims wanted and chose to migrate and work abroad; were deceived about their job types and/or important working conditions; experienced grave violations of human and labor rights as well as serious breach of their employment contracts; and presently hope to stay and work in safe and humane conditions with proper remuneration for a certain period of time before returning to their home countries. The key wrongs to be rectified in most trafficking cases are violations of human, civil, and labor rights and the breach of important terms of employment contracts. Primary remedial measures should include mandating employers to observe the terms of their contracts and regulations under relevant human, civil, and labor law. Observing contracts and relevant laws is premised on victims’ staying and working in destination states for the contracted period or during the term of victims’ work visas. The right to stay and work in destination states can thus be established as an effective and important form of remedy in itself for many trafficking victims, especially those who migrated with work visas and employment contracts. Migrants who originally held work visas and signed employment contracts have the right to stay and work in a destination state according to their visas and employment contracts. Under international human rights law and national labor law, these migrants are entitled to work under safe and lawful conditions with proper remuneration. They should be able to claim and enjoy these rights in destination states through judicial procedures and administrative arrangements, and should be able to seek and attain remedies when those rights are violated. Effective and positive forms of remedies parallel the obligations of employers to observe employment contracts and labor law. Remedial arrangements should include correcting working conditions to meet labor standards and terms of contracts; allowing migrants to change employers or workplaces if corrective measures are impossible or impractical; and issuing migrant workers new work visas or extending the term of their original visas, in a manner that accounts for the period and extent of exploitation that the migrants have experienced. If a destination state is accountable for human trafficking and related human rights violations either directly or indirectly, as in the case of South Korea, making such arrangements can be constructed as a duty of the government. In such cases, the state bears not only a general obligation to enforce civil and labor law for victimized migrants without discrimination, but also a duty to provide them with substantive remedies for the rights violations the state has been involved in as a direct or indirect accomplice. When a state is not accountable for relevant rights violations even indirectly, that state still bears a duty to ensure victims the procedural right to seek remedies against their

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employers for the observation of their employment contracts and labor law. Accordingly, proactive interpretations by courts on the meanings and methods of remedies are needed. This undertaking can elevate victimized migrants’ stay and work in a destination state from a discretionary administrative measure to a legal right, and from a procedural right to substantive one. Reissuing or extending work visas as a form of remedy is particularly important in the destination states where victims lose their original visas when escaping from abusive workplaces, or must relinquish their work visas and cooperate with law enforcement authorities in order to apply for special visas for trafficking victims. This arrangement is necessary for other cases as well, as a remedy for the period during which the individuals have been unlawfully exploited. The right to stay and work in destination states for a certain period of time, either for the term of the employment contract or for the same term as other regular migrant workers, can be constructed as an effective remedy itself. Guaranteeing this right can function as a positive, forward-looking, and creative form of remedy. The proposed approaches also have limitations. The applicability of the suggested responses to the case of undocumented migrant workers suffering from trafficking situations seems less clear than the case of documented migrant workers. Even if an undocumented migrant worker has signed an employment contract with her employer, the future enforceability of her contract currently depends on interpretation by the judiciary in a destination state.45 Further study would be required to provide a more solid theoretical foundation to establish the right to stay and work in destination states for trafficking victims who migrated without work visas and/or employment contracts from the beginning. However, the cmw provision cited above—that employers’ legal and contractual obligations are not relieved by the irregular immigration status of workers—provides an important ground to construct this remedy for undocumented migrant victims. Moreover, since employment contracts can be concluded either in a written or oral form, it would be possible in most cases to interpret that trafficking victims have concluded certain forms of employment contracts with their employers which they can claim against the employers. Allowing previously undocumented trafficked migrants to work as regular migrant workers under safe and lawful conditions for a certain time period could provide an innovative and effective remedy for these individuals to redress the serious rights violations they experienced in a destination state. This can also be a proactive policy measure to prevent re-trafficking of those migrants. 45

See, e.g., Hoffman Plastic Compounds, Inc. v. National Labor Relations Board, 535 u.s. 137 (2002).

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At the very minimum, undocumented migrants whose human, civil, or labor rights have been violated in a destination state should be entitled to stay and work in that state for the purpose of seeking remedies through its legal system, regardless of the status of relevant criminal cases. Another concern about this proposal is the potential for abuse. However, a concern about abuse cannot outweigh the obligation of destination states to ensure victims effective remedies for the rights violations committed in their territories. Recommended Remedies for the Case of Filipina Entertainers in South Korea As an extension of the effort to concretize the meanings and methods of remedies in the context of human trafficking, this section revisits the case of Filipina entertainers in South Korea examined in Chapter 4 and recommends remedies built on the transnational human rights framework and its principles of comprehensiveness, integration, and contextualization. These remedies emphasize realizing the entertainers’ human, civil, and labor rights and their right to effective remedies in the destination state with necessary adjustments of their immigration status. This example recommendation illustrates how the new approach to remedies proposed by this chapter enables innovative ways of addressing complex situations of victimized migrants. The remedies proposed here aim to redress the entertainers’ sufferings and vulnerabilities by upholding and realizing their agency and real needs, not sacrificing or blaming those needs and agency. The following suggestions also have meaningful implications for similar cases, especially those in which human trafficking is facilitated through a migrant labor visa system and actual employment practice. C

1) Responses Common to All Categories The five groups of Filipina entertainers discussed in Chapter 4 all experienced abusive and exploitive employment practices as well as considerable restrictions on their freedom, whether or not they fit into the current definitions of trafficking victims. This section first suggests responses applicable across all the categories in terms of labor, civil, and immigration law. First, in terms of labor law, migrant entertainers must be recognized as workers who are entitled to full protection of labor law in Korea, including the Labor Standards Act and minimum wage regulations. The relations between migrant entertainers and their promoters and club owners should be fully recognized and treated in the employer-employee context. Entertainers should be able to file a claim through official labor petition procedures against various rights violations committed by their employers and seek correction orders regarding their future working conditions. Labor inspectors should monitor

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foreigner-only clubs on a regular basis to identify and redress unlawful employment practices and human rights violations. Second, as a civil matter, migrant entertainers must be able to request overdue and embezzled wages from their employers, as well as compensation for physical and emotional damages. They should also be able to exercise the right to all the earnings made from prostitution. Importantly, the entertainers have a strong case to claim remedies against the Korean government based on the state’s direct and indirect responsibility for their suffering. The legal system must ensure their right to stay and work in Korea at least during the civil procedures to seek remedies. Positive forms of remedies should be arranged for their present and future employment and working conditions. These remedies require contextualized approaches for each group, as demonstrated in the next section. Third, reforms are required in the relevant immigration system. The actual work that migrant entertainers are directed to perform in foreigner-only clubs is that of hostesses, not singers. The Korean government must directly and officially acknowledge this reality, in which it knowingly and actively takes part. The government has an obligation to reform the legal system which renders the entertainers vulnerable to human trafficking and human rights violations. First, the government should stop issuing professional singer visas for entertainers in foreigner-only clubs, except for those clubs, if any, which are verified to observe the official visa purposes, terms of performance contracts and relevant laws. Second, if the Korean government plans to maintain the foreigner-only entertainment business and permit migrant women to work in the industry as hostesses,46 the government should make important legal reforms. The law should first recognize migrant entertainers as a category of regular migrant workers, not as a category of professionals as does the current law. The law should guarantee the migrant entertainers at least the same legal rights and protections as regular migrant workers, including those stipulated in the Foreign Workers Employment Act, such as the right to change employers and the term of visas (currently five years for regular migrant workers). At the same time, the government should collect updated information about the actual conditions and employment practices of foreigner-only clubs that seek to hire migrant entertainers. The government should permit employment only at verified venues that maintain good records. On this premise, the 46

This study does not take a position on whether the Korean government should sustain or try to eradicate this entertainment industry as a whole and whether or not it should allow the employment of migrant entertainers in this industry. These policy questions would require separate research and discussion.

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­ orean ­government must ensure a safe, informed and autonomous migration K process for aspiring migrant entertainers. This goal would be easier to achieve than in the case of undocumented migrants, since the entertainers’ migration is conducted through an official visa program. Migrant entertainers should have an independent right to apply for E-6 visas, instead of relying on promoters, who presently have the exclusive right to file visa applications on behalf of entertainers. Korean consuls should stop asking the applicants to sing in front of them. Instead, they should ensure that the applicants have accurate ­information about their work, workplace and working conditions in Korea. The process should confirm that the applicants are fully aware of their contractual terms, legal rights and obligations, available remedies in case of violations of their rights, and ways to exercise those rights. This series of arrangements would not be enough to solve all presently existing problems, but will help individuals make more autonomous and informed decisions on their migration; will empower them to be less vulnerable to rights violations; and will equip them to be able to defend and exercise their legal rights. 2) Contextualized Responses for Each Category Chapter 4 demonstrated that Filipina entertainers in Categories 1 to 3 can be recognized as victims of human trafficking by deception. Deceived about their job type and/or important working conditions, these migrants experienced serious breaches of contract, as well as various human and labor rights violations. The new perspective presents legal options to each Filipina entertainer which were not conceivable under the current regime centered on criminal justice and immigration control. For migrant entertainers in the first category (those who agreed only to a singer’s job), the primary remedy is not to send them home, but to allow them to change workplaces so they can perform as full-time singers according to their visas and contracts. Furthermore, these entertainers’ visas should be renewed for a new full term to work at a new place. The period during which they were unlawfully exploited against their will and in violation of their contracts should not count toward their visa stay. For the second category (those who agreed to waitressing but not sexual service), the entertainers’ initial expectation of work—waitressing and sitting and talking with customers—falls within the lawful boundary of hostess work under Korean law. It can be construed that the entertainers have made an unwritten contract with their employers to work as hostesses, under acquiescence by the Korean government. This fact should not affect the migrants’ rights to remedies for breach of contract and for human and labor rights ­violations.

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The primary remedy for these entertainers would be to allow them to change their workplaces to where sexual services are not included and labor standards are observed. However, such locations would be rare among foreigner-only clubs. Thus, as a proactive remedial measure, it is recommended that the government allow these migrants to work as regular migrant workers outside the entertainment industry if they so desire. Along with the change of workplace, the government should issue them regular migrant worker visas for a new full term. In the third category (those who agreed to voluntary sexual service only), the entertainers’ expectation about their work, except prostitution, falls within the lawful boundary of hostess work. Like the second category, as a positive form of remedy for breach of contract and rights violations, changing the place of employment should be allowed to venues where sexual services are not involved and labor standards are observed. Considering the extent of abuse and exploitation in current workplaces, these migrants’ visa periods should be renewed as well. However, if an entertainer wants to engage in sex work, but under safer, voluntary, and non-exploitative conditions, she would need to assume the risk of penalty and deportation for violating the criminal and immigration laws of Korea. However, it would be self-contradictory for the Korean government to prosecute and deport these migrant entertainers for engaging in sex work, since the government issued them visas fully cognizant that they would engage in such work. The entertainers should be able to exercise their rights as migrant workers for their work within a lawful boundary, and should be entitled to lenient treatment in the criminal context.47 As discussed in Chapter 4, the fourth and the fifth categories are hypothetical ones, and some entertainers in these groups may not be recognized as trafficking victims. However, this does not alter the fact that these entertainers have also experienced various rights violations under international and national law. Even if they do not neatly fit into the definition of trafficking victims in the context of criminal law, these migrants should be entitled to remedies in the context of human rights, civil, and labor law. For entertainers in the fourth category (those who were fully informed of their work in advance but hope to leave their clubs), the law should allow them to change their employers and workplaces, given the unlawful practices prevalent in their current clubs. If the relevant law is reformed to treat migrant entertainers as regular migrant workers, changing employers would become a more solid right for them under 47

This book does not take a position on whether or not prostitution itself should be criminalized or prohibited in the legal system of individual states.

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Korean law. For migrants in the fifth category (those who were fully informed in advance and hope to continue working in their clubs), a unilateral “rescue mission” either by government authorities or civil society would be particularly problematic. As in the third category, the government should be lenient in enforcing immigration and criminal law against these entertainers. The government should not criminalize and deport the entertainers for the very reason they were let in. The entertainers should be able to defend and exercise their human, civil, and labor rights in the workplace independently of the criminal context. 5 Conclusion This book investigated the nature, operation and impact of the existing international and national law on transborder human trafficking in the context of globalization, migration, state sovereignty/interests, and human rights. The project approached the phenomenon as a multi-faceted transnational human rights problem situated on a broader spectrum of global labor migration. The findings of this research illuminate the ambiguous, complex and diverse realities of vulnerable and victimized migrant individuals which have been disregarded by the current regime. This analysis demonstrates that the i­ nternational and national anti-trafficking legal frameworks, centering on criminal justice and immigration control, serve the interests of destination states who have led the lawmaking process, to a far greater degree than the rights and needs of the individuals whom the regime claims to protect. The study concludes that the current regime empowers destination states while disempowering the individuals, under the rhetoric of human rights. The research also reveals the weakness and ineffectiveness of the existing international human rights law in responding to multiple transnational challenges posed by human trafficking, consequently sustaining the problems of the anti-trafficking regime. The book proposes a transnational human rights framework aiming to empower marginalized individuals as the main actors of the framework and ­placing their human rights and dignity as the primary goal to be realized. It suggests guiding principles for reforming the current framework and further aims to concretize the meaning of human rights and the right to remedies for the affected individuals. The proposal is premised on the idea that the chief unlawfulness to be rectified is not the crossing of borders but the serious human rights violations committed in destination states. Individuals are ­re-conceived as holders of human, civil, and labor rights, overcoming their current subordinated position as crime witnesses or unlawful migrants. State

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obligations are reconstructed to protect and fulfill those rights. The set of recommendations made in this book is certainly not a panacea. However, neither would these prescriptions impose entirely new burdens on destination states. The suggested approaches and remedies substantialize rather than invent the human rights norms and the non-discrimination principle to which the states have already committed themselves, often benefiting from the norms’ abstract nature. The proposal made here guides the current efforts and resources vigorously expended by destination states in the name of preventing and combating human trafficking into a more just and desirable direction for all interested parties. This book takes a step toward envisioning a model of transnational human rights lawmaking to meet one of the most challenging human problems of our globalizing world. Further realization of the framework should be led by dynamic interactions between international, national, and transnational actors, with empowered individuals playing a central role both as rights holders and as active participants in this lawmaking.

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Index 3Ps 70, 72, 75, 82, 171, 230ff., 288 4Rs 75, 81, 269, 270 agency 24, 25, 27, 45, 67, 139, 143, 146, 147, 150–155, 179, 191, 220, 279, 300 alien 10, 237, 240, 247 anti-immigration 100, 116, 296 Australia 93ff. Belgium 110ff. Benhabib 244, 247, 284 border control 20, 22, 23, 41, 66, 72–73, 95, 118, 121, 212, 215, 216, 244, 246, 250–252 breach 162, 185, 293–295, 298, 302, 303 Canada 86ff. caretaker 183ff. cedaw 52–55, 226 cessation 266, 296, 297 China/Chinese 173, 175, 181, 182, 212, 214 Chorzów 258, 263, 264 civil law 157, 227, 288, 290, 294 colonization 246 compensation 30, 64, 112, 204, 225, 226, 228, 256–259, 262, 265–269, 290, 292, 294, 295 contract 115, 129, 134, 162, 163, 182, 183, 185, 188, 190, 288, 290, 293–295, 298, 299, 302 crackdown 102, 103, 115, 122, 123, 212, 216, 245, 270, 292 ctoc 8, 19, 66, 269 deception 25, 36, 86, 140, 142, 147, 281, 288, 293, 294 deportation 81, 106, 115, 117, 122, 123, 197, 211, 241, 252, 269, 292 discrimination 35, 41, 54, 99, 236, 241, 248, 251, 254, 271, 277, 281, 290 disempower 2, 3, 119–123, 195, 223, 252, 254, 270, 271 diversity 140, 141, 209, 280 domestic worker 183–191 due diligence 223–233, 259, 260, 278, 288, 290

E-6 visa 126, 132, 160–162, 302 echr 256, 261 ECtHR 261, 262, 268 effective remedies 229, 254ff., 288ff., 300 empowerment 274, 276, 278, 279, 282, 288 entertainer 125ff., 300ff. escape 75, 137, 138, 148, 153, 179, 196 eu 56ff. foreigner-only club 127–132, 136, 141, 142, 161–163, 301 guarantees of non-repetition 258, 266 Henkin 234, 242, 243 Human Rights Committee 47–50, 225, 236, 258, 265, 267 iccpr 44, 47–49, 225, 236, 237, 247–249, 255, 258–267 icescr 49–52, 237, 238, 257, 261, 287, 290 ilo 34–37, 45, 67, 238, 243 individual communication 52, 55, 226, 260, 267, 287 individual sovereignty 6, 243, 271 Inter-American Court of Human Rights 224, 261, 265, 290 Italy 82, 113ff. Japan 5, 69, 100ff. kidnapping 101, 147, 293 labor law 71, 136, 161, 204, 278, 281, 282, 293ff. labor migration 4, 34, 35, 39, 45, 123, 125, 145, 146, 150, 159, 176, 183, 274, 280, 288 labor rights 41, 42, 67, 108, 120, 183, 187–189, 204, 274, 277, 279, 280, 282, 293, 298, 300, 302, 304 labor standards 72, 99, 161, 184–186, 288, 294, 298, 303 labor trafficking 4, 186, 189–191 lawmaking 11, 12, 282, 285–287

321

Index migrant workers 34–42, 91ff., 110, 121–126, 137, 144, 146, 148, 150, 157, 159ff., 173ff., 191ff., 209ff., 231, 236ff., 250, 251, 274ff. minimum wage 129, 135, 186, 294, 300 modern-day slavery 44, 45, 67, 82–86 non-citizens 233, 234, 239, 251 non-nationals 9, 10, 12, 233, 236–243, 248, 249, 277 non-state actors 8, 9, 11, 223–229, 285, 291 optional protocol 49, 52, 55, 261 plaintiff 204, 270, 281, 287 positive obligations 224, 225 prostitution 14–18, 21, 52–54, 102, 103, 130, 133, 136–143, 152–158, 172–182, 301 Rantsev 287 reflection period 58–66, 88, 95, 96, 106, 110, 111, 113 refugee 79, 248, 249, 253, 275 rehabilitation 17, 18, 51, 53, 75, 76, 258 reintegration 51, 53, 66, 75, 81, 105, 106, 109, 270 Reisman 11, 12, 242, 243, 285, 286, 287 remuneration 35, 38, 294 reparation 235, 236, 254–267 repatriation 14, 20, 27, 29, 65, 67, 75, 81, 105, 106, 109, 115, 116, 118, 122, 207–210, 270, 292, 293, 295–297 rescue 24, 75, 76, 122, 149, 178, 270, 289, 304 residence permit 58–68, 76, 78, 90, 97, 107–115, 202, 205, 207 restitution 258, 263–266, 270, 292–296 rhetoric 2, 42, 83–85, 123, 246, 252, 253, 273, 276 right to stay 64, 68, 289, 297–301 right to work 282 satisfaction 266, 296, 297 security 21, 59, 66, 72, 73, 94, 95, 116, 230, 246, 250, 252, 254

sex trafficking 4, 52, 76, 151, 173–182, 186, 209 sex workers 21, 151, 154, 172, 215, 290 shelter 149, 177, 178, 202, 205, 206, 208, 209, 218 slavery 17, 24, 43, 45, 55, 56, 83, 85, 94, 146, 282 smuggling 19, 21, 26, 27, 32, 33, 67, 87 South Korea 95, 125ff., 287, 298, 300 state responsibility 224, 227, 231, 233, 235, 239, 240, 278, 291 state sovereignty 241–254 stereotype 67, 146, 153, 179, 215, 281 Taiwan 4, 6, 166ff. temporary residence 60, 76, 78, 88, 107–113, 202–205 temporary stay 28, 111, 201, 211 tort 10, 290, 294 transnational criminal law 8, 19, 119, 276 transnational human rights 1, 3, 11–13, 276–278, 280, 282, 287, 296 transnational law 7–12, 287 transnational organized crime 8, 14, 19, 94, 280 transnationality 7–12, 276, 277, 282 T-visa 76–81 undocumented 35, 37, 122, 161, 195, 197, 212, 213, 237, 239, 248, 254, 290, 294, 299 Velásquez Rodríguez 224, 225, 226 victim identification 71, 75, 110, 122, 178, 197, 202, 210, 218, 279 vulnerable migrants 2, 122, 123, 241, 252, 280 weapon 9, 13 well-being 206, 217, 219, 222, 228, 233, 240, 252, 268, 270, 287, 293 willingness 57, 60, 64, 68, 78