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

Numerous legal texts and scholars use the term “transnational” to describe diverse legal concepts or phenomena the more traditional term “international” cannot fully or accurately capture. At least three different aspects are referred to or analyzed as transnational: the nature of the relevant cases, the operation of relevant legal systems, and the process of norm-making. First, many legal issues, including human rights cases, factually possess transnational features. Compare transborder human trafficking with a more traditional, textbook international human rights case such as discrimination against ethnic minorities in a certain state. The latter involves a state violating the human rights of its nationals within its territory, followed by an intervention of international law in a situation previously regarded as a “domestic matter.” In such cases, the main perpetrator is the state, the victims are the state’s own nationals, and human rights violations are committed within the state’s territory. A cross-border human trafficking case inverts this model: (1) the main perpetrators are usually non-state actors; (2) victims are mostly non-nationals in destination states; (3) relevant acts involve the movement of human beings across state borders. Human trafficking is a paradigmatic human rights issue that possesses three transnational features concurrently and in intertwined ways: in terms of acts (crossing state borders) as well as actors (non-state actors and non-nationals).

Second, the way the relevant legal systems are structured and operate is another important dimension of transnationality in law. It is helpful to compare the international criminal court system with the way in which the right to effective remedies is guaranteed under international human rights law. International crimes are defined by international law (a substantive aspect) and prosecuted and adjudicated by international courts according to international criminal procedure (jurisdictional and procedural aspects). On the other hand, international human rights treaties such as the International Covenant on Civil and Political Rights provide that when rights stipulated under the treaties (a substantive aspect) are violated, a member state has an obligation to ensure that the victimized individuals under its jurisdiction have effective remedies through its domestic legal system (substantive, jurisdictional and procedural aspects). International human rights law envisions international and national law as joint vehicles for a cooperative transnational project aimed at guaranteeing human rights across borders. While transnational events cross boundaries between states, transnational law cuts across and blurs the traditional boundaries between public and private law as well as between international and national law.

Lastly, transnationality in recent decades has also become conspicuous in lawmaking processes, at both international and national levels. Growing participation by diverse non-state, transnational actors across borders through various unconventional and transnational routes are rendering lawmaking processes more open and dynamic. In the field of human rights, participation by individual rights-holders is crucial in a norm-making process, broadly understood. Through participation, individuals empower themselves, changing from passive victims into active players in efforts to improve human rights systems and generate better jurisprudence.

The above three dimensions of transnationality are interconnected. A comprehensive transnational understanding of human rights law and cases helps lawyers and researchers detect state-centric orientations underlying existing legal systems and provides a perspective that is better equipped to design a legal framework for the empowerment of individuals. This book suggests a transnational human rights framework that would effectively address complex transnational human rights issues in today’s world of globalization and migration. Transborder human trafficking is explored as an exemplary case.

While human trafficking is a uniquely complicated transnational human rights issue, the current international and national legal frameworks deal with the problem primarily as transnational crimes. The two approaches (human rights vs. criminal) bear critical differences. The transnational criminal approach creates a structure that reinforces destination states’ power and control over their borders and the individuals concerned. The construction of the current anti-trafficking regime has been vigorously led by destination states looking for added justification for reinforcing their sovereignty over border crossings under the rhetoric of human rights and modern-day slavery. The current regime serves the needs of destination states — the very designers of this system — rather than those of individual rights-holders, empowering the states and disempowering the individuals whom the regime claims to protect. Individuals have been placed in marginalized, subordinated, and precarious positions, their legal status dependent primarily on their usefulness as crime witnesses. Victims have often been repatriated against their will in the name of protection and their agency as holders of human, civil, and labor rights has largely been disregarded. Individuals whose human, civil, and labor rights were violated but who were not recognized as trafficking victims in the narrower criminal context have been more severely discriminated against and even punished. States’ human rights obligations to ensure that individuals have effective remedies for the various rights violations they have suffered in destination states have thus been neglected. So far, transnational human rights issues such as human trafficking have been dealt with by nationalist legal approaches constructed by states evading their own human rights obligations and leaving little room for individual rights-holders to play active roles.

For the purpose of designing a legal framework of a more cosmopolitan nature, requiring state sovereignty to serve individual sovereignty, this research proposes an alternative transnational human rights framework. The alternative approach recognizes 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. It rejects current criminal-and-immigration-law-enforcement-centered approaches and unilateral repatriation policies, which only deprive victims of a venue in which to exercise their rights and seek remedies. Instead, it proposes comprehensive, integrated, and contextualized legal responses that empower victimized and vulnerable individuals, with concrete rights and remedies to be realized through the legal systems of destination states. The recommendation envisages positive, forward-looking, and creative forms of remedies, and in particular offers a newly constructed meaning and methods of restitution regarding human rights violations against vulnerable individuals crossing borders — restitution not simply turning things back to the past, but restoring a present that should have existed had rights not been violated. Accordingly, the book theorizes victimized individuals’ right to stay and work in destination states as an effective remedy in itself. The new approach redirects the focus from imposing crime and immigration control to ensuring the individuals’ substantive rights. Domestic civil and labor law are construed as key concretization of the transnational legal system aiming to effectively guarantee and realize internationally recognized human rights and the right to remedies. The new approach requires the reform of immigration law to better enable states to fulfil these human rights obligations. Through this rights-based framework, individuals can play a central role in improving law and their own human rights situations as empowered rights-holders, plaintiffs, and migrant workers. Multiple transnational features of human trafficking can be effectively addressed when international and national law are integrated toward a common goal of empowering individuals undertaking arduous journeys in the shadow of globalization.

A Transnational Human Rights Approach to Human Trafficking: Empowering the Powerless
by Yoon Jin Shin
Brill | Nijhoff, Leiden, 2017. 322pp.

Written by

Yoon Jin Shin was Senior Researcher at the WZB Center for Global Constitutionalism from 2016 to 2017. In 2017 she joined Seoul National University School of Law as Assistant Professor.
Website at the SNU Law

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