Trafficking in Human Beings: The EU Approach between Border Control, Law Enforcement and Human Rights

• Date: 01 November 2009
• Author: Sarah H. Krieg
• DOI: http://doi.org/10.1111/j.1468-0386.2009.00490.x
• Published date: 01 November 2009

eulj_490775..790

Traff‌icking in Human Beings: The EU

Approach between Border Control, Law

Enforcement and Human Rights

Sarah H. Krieg

Abstract: The f‌ight against traff‌icking in human beings has been high on the political

agenda of international organisations, regional organisations and states for more than a

decade. The European Union (EU) and the international community continuously reaf-

f‌irm their commitment to work jointly in countering the phenomenon. After years of

arguing over a common def‌inition and approach that culminated in the f‌irst international

def‌inition in 2000, it could be assumed that the international and European def‌initions

solve the issue of how to def‌ine and counter traff‌icking in human beings. Still, the debate

on how to understand and approach the problem has not ceased to exist. In particular, the

dominant opposition between a rights-based and a law enforcement approach has not been

dissolved by calls for holistic or multi-faceted approaches. The aim of this article is to

identify the approach taken by the EU, looking out for conceptual (in-)consistencies,

underlying assumptions and convictions. The rationale guiding EU action is extracted and

questioned by disclosing silenced aspects and contrasting them to their reappearance in

other legal instruments. It is argued that the humanitarian intentions of victim protection

are overshadowed by general anti-immigration conveniences. The approach taken by the

EU not only provokes the somewhat artif‌icial opposition between innocent victim

and guilty migrant, but it can easily fall prey to deeply entrenched gender and racial

stereotypes.

I Introduction1

Traff‌icking in human beings2has been high on the political agenda of international

organisations, regional organisations and states for more than a decade. The EU and

the international community continuously reaff‌irm their commitment to work jointly

in countering the phenomenon. What the phenomenon of human traff‌icking should

1The author is indebted to Susanne Baer, Daniel Thym, Martin Rempe, Tillmann Schneider, Richeza

Herrmann, Ryszard Piotrowicz and Jan Klabbers for valuable comments and critique on earlier versions

of this article. The usual disclaimer applies.

2There are several terms for the phenomenon and the lack of terminological clarity might ref‌lect parts of

the conceptual diversity. Traff‌icking in human beings and the abbreviation THB increasingly prevails in

academic writing. In order not to transform the issue into a technocratic abbreviation the terms traf-

f‌icking in human beings, human traff‌icking, and traff‌icking in persons will be used interchangeably in

this text.

European Law Journal, Vol. 15, No. 6, November 2009, pp. 775–790.

© 2009 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

actually comprise has been debated for years before the f‌irst international def‌inition

was agreed upon in the 2000 UN Protocol to Prevent, Suppress and Punish Traff‌icking

in Persons, Especially Women and Children.3The so-called Palermo Protocol has since

been widespread and served as a model in many other fora. Nevertheless, the debate on

how to understand, def‌ine and counter traff‌icking in human beings has not ceased.

While state representatives to the negotiations of the Palermo Protocol were thought to

take a law enforcement approach, human rights advocates and NGOs lobbied for

recognising human traff‌icking as a human rights issue. This opposition between taking

a rights-based and a law enforcement approach has persisted in political as well as

scholarly debate both for the international as well as the European context.4Calls for

an holistic or integrated approach have been offered as a middle ground or way out of

these polarising viewpoints. A prominent promoter of an ‘integrated and multidisci-

plinary approach’ is the EU Expert Group on Traff‌icking in Human Beings.5Such an

approach adopts a wide range of answers from many different legal angles: human

rights law, labour law, humanitarian law, (transnational) criminal law and (interna-

tional) migration law.6Calls for an holistic approach seem preferable because they

suggest to include all aspects and respect all possible interests. However, over-inclusion

runs the risk of being imprecise or may imply internal contradictions with downgrading

effects.

The aim of this article is to analyse the approach taken by the EU7with a particular

focus on conceptual (in-)consistencies. By describing the approach in terms of the

problem diagnosed and the solution chosen the contested conceptions of traff‌icking in

persons can be disentangled and the proposed approaches and classif‌ications thereof

put into perspective. In particular, this reading fosters apprehension of the enduring

conf‌lict between a rights-based approach and a criminal law approach and diminishes

their opposition. Possible descriptions of the EU’s approach are further scrutinised by

disclosing issues and themes that are silenced in the main legal instruments against

traff‌icking in persons and contrasting them to their reappearance in other contexts and

legal instruments. Thereby, the guiding rationale of EU action is extracted and ques-

tioned. In the course of the article, it is argued that the humanitarian intentions of

victim protection are overshadowed by anti-immigration conveniences that are silenced

3Protocol to Prevent, Suppress and Punish Traff‌icking in Persons, Especially Women and Children (Annex

II entered into force on 25 Dec 2003) is one of three Protocols supplementing the United Nations

Convention against Transnational Organized Crime (Annex I), adopted by the UN GA Resolution 55/25

of 15 Nov 2000 (UN Doc A/Res/55/25 (2000)).

4For an overview of international responses cf E Bruch, ‘Models Wanted: the Search for an Effective

Response to Human Traff‌icking’, (2004) 40 Stanford Journal of International Law 115; A. D. Jordan,

‘Human Rights or Wrongs? The Struggle for a Rights-Based Response to Traff‌icking in Human Beings’,

(2002) 10(1) Gender and Development 28. For the EU context cf M. Wijers, ‘European Union Policies on

Traff‌icking in Women’ in M. Rossilli (ed) Gender Policies in the European Union (Peter Lang, New York

2000), at 209.

5Report of the European Expert Group on Traff‌icking in Human Beings, (2004), 6, 9.

6cf J. Fitzpatrick, ‘Traff‌icking as a Human Rights: The Complex Intersection of Legal Frameworks For

Conceptualizing and Combating Traff‌icking’, (2003) 24(4) Michigan Journal of International Law 1143,

1147; A. Lansink, Interim Report on Women and Migration, International Law Association Conference

(Berlin, 2004), 25; T. Obokata ‘Traff‌icking of Human Beings from a Human Rights Perspective: Towards

a Holistic Approach’ (2006) International Studies in Human Rights 89, at166 passim.

7The term ‘EU’ is used here in its broader sense comprising all three pillars as def‌ined in Art 1(3)

TEU.

European Law Journal Volume 15

776 © 2009 Blackwell Publishing Ltd.