
The International Law of Human Trafficking
Hardcover | 30 September 2010
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596 Pages
23.5 x 16.0 x 3.3
Hardcover
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Industry Reviews
'Dr Gallagher's expertise in this field, particularly in the area of criminal justice responses to trafficking, is recognized and deeply appreciated throughout the ASEAN region. ... This meticulously researched book confirms her position as a leading international legal authority on the issue. While scholarly in approach, the book is straightforward in structure and clear in expression. It reflects an acute understanding of the politics of human trafficking and of the significant challenges involved in securing effective national implementation of international norms. The International Law of Trafficking is a valuable reference for policy makers, practitioners and all those working to end impunity for trafficking offences and to secure justice for those who have been trafficked.' Dr Surin Pitsuwan, Secretary General, Association of South East Asian Nations (ASEAN)
'Anne Gallagher has been a key player in analyzing, drafting, promoting, and critiquing the international legal order that has emerged over the past decade to address the previously long-neglected phenomenon of human trafficking. This authoritative book combines meticulous legal scholarship with deep insight into the key challenges that must be addressed in the years ahead.' Philip Alston, John Norton Pomeroy Professor of Law, New York University School of Law
'With an estimated 2 million women in sexual bondage in half the countries of the world, it is high time for the international community to pay attention to this human tragedy. The trafficking flow goes on while most governments at best only rhetorically deal with this manifestation of crime. Books like this one serve an important purpose in making the phenomenon better known and showing how international legal instruments and mechanisms are available, though by no means adequate and efficient. This is both an important legal contribution and one that addresses a significant human problem.' M. Cherif Bassiouni, Distinguished Research Professor of Law Emeritus and President Emeritus, International Human Rights Law Institute, DePaul University
'Trafficking in human beings is a modern form of slavery. Today, however, this issue does not raise the same level of concern as other serious human rights violations. In her remarkable in-depth analysis of international legal obligations to counter human trafficking, Dr Anne T. Gallagher clearly demonstrates that human trafficking is a gross violation of human rights, and comprehensively illustrates where State responsibilities lie. Her reflection on a wide range of international tools to respond to this crime, enriched by her authoritative experience, also provides valuable guidance to accessing the current challenges and possible responses. Her work enables us to understand that even anti-trafficking action could compromise the rights and dignity of trafficked persons, and that a human rights based approach is therefore essential to assess and establish an effective anti-trafficking strategy.' Dr Maria Grazia Giammarinaro, OSCE Special Representative and Co-ordinator for Combating Trafficking in Human Beings
'... the book provides a comprehensive overview of the international law on human trafficking, covering key legal issues and obligations with an appropriate analysis of international primary and secondary materials. The fact that Gallagher is one of the foremost authorities on the subject also adds value to this work. The book is useful not only for an academic audience, but also practitioners working in the field such as law enforcement and public officials and members of civil society.' Tom Obokata, Human Rights Law Review
Preface | p. xiii |
Table of Cases | p. xv |
Table of Treaties and Other International Instruments | p. xxiii |
Table of Common Abbreviations | p. lvii |
Introduction | p. 1 |
The International Legal Definition | p. 12 |
History of a Definition | p. 13 |
The 2000 Definition of Trafficking | p. 25 |
Key Issues During the Drafting Process | p. 25 |
The ôActionö Element | p. 29 |
The ôMeansö Element | p. 31 |
The ôPurposeö Element | p. 34 |
Post-2000 Developments | p. 42 |
The Scope and Limits of the Definition | p. 47 |
The International Legal Framework | p. 54 |
A Brief History of Trafficking in International Human Rights Treaty Law | p. 54 |
Trafficking and White Slavery | p. 55 |
The 1949 Trafficking Convention | p. 58 |
The CEDAW Convention | p. 64 |
The Convention on the Rights of the Child and Its Optional Protocol | p. 65 |
Trafficking in Transnational Criminal Law | p. 68 |
The Organized Crime Convention | p. 74 |
The Trafficking Protocol | p. 77 |
The Migrant Smuggling Protocol | p. 89 |
Regional Legal Agreements | p. 95 |
European Union Instruments | p. 96 |
EU Framework Decision on Combating Trafficking (2002) | p. 96 |
EU Council Directive on Short-Term Residency Permits | p. 100 |
Proposal for a Replacement to the 2002 Framework Decision (2009-2010) | p. 103 |
The Council of Europe Convention against Trafficking | p. 110 |
The SAARC Convention | p. 127 |
Nontreaty Aspects of the International Legal Framework | p. 132 |
Customary Law, Jus Cogens, and Trafficking | p. 132 |
Secondary and Subsidiary Sources of International Law | p. 136 |
The ôSoftö Law of Trafficking | p. 138 |
Specific Legal Issues | p. 144 |
Trafficked Persons as Noncitizens | p. 144 |
Human Rights Protections for Noncitizens | p. 145 |
A Note on Trafficking and Statelessness | p. 158 |
Trafficked Persons as Migrants and Migrant Workers | p. 159 |
Right to Leave and Return | p. 160 |
Trafficked Persons as Migrant Workers | p. 165 |
Trafficking and Slavery | p. 177 |
The Definition and Indicia of Slavery | p. 179 |
Trafficking as Slavery? | p. 189 |
Trafficking as a Form of Discrimination and Violence against Women | p. 191 |
Trafficking and Asylum | p. 197 |
Trafficking and the Right to Seek and Receive Asylum | p. 198 |
Trafficking as the Basis of a Claim for Refugee Status | p. 199 |
Conclusion on Trafficking as a Basis for Asylum | p. 205 |
A Note on Trafficking and Internal Displacement | p. 208 |
Trafficking in International Humanitarian Law and International Criminal Law | p. 209 |
Sexual Violence and Other International Crimes Related to Trafficking | p. 210 |
Trafficking as a Crime Against Humanity | p. 214 |
State Responsibility for Trafficking | p. 218 |
A General Theory of International Responsibility | p. 219 |
State Responsibility for Violations of International Law Associated with Trafficking | p. 222 |
Requirement of Attribution | p. 223 |
Requirement of a Breach of Obligation | p. 230 |
State Responsibility for Trafficking-Related Breach of Obligations Originating in the Conduct of Private Persons or Entities | p. 235 |
Implications of the General Rule of Nonattribution of Private Conduct | p. 235 |
Moving Beyond the General Rule: State Responsibility to Prevent, Protect, and Respond | p. 236 |
Identifying Violations Giving Rise to Responsibility: The Due Diligence Standard | p. 241 |
Conclusion: The Primacy of the Primary Rules | p. 248 |
Consequences of a Finding of State Responsibility | p. 251 |
The Obligations of Cassation and Reparation | p. 251 |
Consequences Attached to Serious Breaches of Peremptory Norms | p. 256 |
Invocation of Responsibility | p. 259 |
General Rules Governing Invocation of Responsibility | p. 259 |
Rules Governing Invocation of Responsibility for Violations of Human Rights Norms | p. 264 |
Countermeasures | p. 266 |
A Note on Legal Responsibilities of International Organizations, Private Individuals, and Private Entities | p. 269 |
Summary of the Key Principles of State Responsibility Relevant to Trafficking | p. 272 |
Obligations of Protection and Support | p. 276 |
Rapid and Accurate Victim Identification | p. 278 |
The Importance of Identification | p. 278 |
An Obligation to Identify Victims | p. 280 |
No Prosecution or Detention of Victims | p. 283 |
Prosecution for Status Offenses | p. 284 |
Detention of Trafficked Persons | p. 288 |
Protection and Support for Victims | p. 297 |
Separating Protection and Support from Victim Cooperation | p. 298 |
Protection from Further Harm | p. 301 |
Privacy and Protection from Further Harm | p. 303 |
Physical and Psychological Care and Support | p. 305 |
Consular Access and Support | p. 310 |
Noncoercion in the Provision of Care and Support | p. 313 |
Legal Assistance, Participation, and the Right to Remain | p. 315 |
Legal Information, Support, and Participation | p. 315 |
Protection and Support for Victim-Witnesses | p. 317 |
Right to Remain | p. 320 |
The Rights and Needs of Child Victims | p. 323 |
Identification of Child Victims | p. 324 |
Applying the ôBest Interestsö Principle | p. 327 |
Protection and Support for Trafficked Children | p. 329 |
Conclusions on Obligations of Protection and Support | p. 336 |
Obligations Related to Repatriation and Remedies | p. 337 |
Repatriation of Victims | p. 338 |
The Standard of Safe and Preferably Voluntary Return | p. 339 |
Entitlement to Return | p. 344 |
Expulsion, Due Process, and the Obligation of Non-refoulement | p. 346 |
Repatriation and Legal Proceedings | p. 349 |
Alternatives to Repatriation | p. 351 |
Reintegration of Victims | p. 352 |
Access to Remedies | p. 354 |
Obligation to Remedy Violations of Human Rights Law | p. 355 |
Right to a Remedy for Violence against Women | p. 360 |
The Right to a Remedy in the Specific Context of Trafficking | p. 362 |
Standards and Forms of Remedy | p. 364 |
Information and Other Means of Accessing Remedies | p. 368 |
Obligations of an Effective Criminal Justice Response | p. 370 |
The Obligation of Criminalization | p. 371 |
The Conduct to be Criminalized | p. 373 |
Exercise of Criminal Jurisdiction | p. 379 |
Effective Investigation, Prosecution, and Adjudication | p. 382 |
Practical Application of the Due Diligence Standard | p. 382 |
Gender in the Investigation, Prosecution, and Adjudication of Trafficking Cases | p. 389 |
Rights of Suspects and the Right to a Fair Trial | p. 391 |
Effective and Proportionate Sanctions | p. 392 |
Obligation to Impose Sanctions | p. 392 |
The Standard: ôEffective and Proportionateö Sanctions | p. 395 |
Aggravated Offenses and Previous Convictions | p. 396 |
Asset Confiscation and Use of Confiscated Assets | p. 400 |
Obligation to Seize and Confiscate Proceeds of Trafficking | p. 401 |
Using Confiscated Assets to Compensate or Support Victims | p. 403 |
International Cooperation | p. 404 |
Obligations Related to Extradition | p. 404 |
Mutual Legal Assistance in Trafficking Cases | p. 410 |
Informal Cooperation | p. 412 |
Obligations to Prevent Trafficking and Respond Lawfully | p. 414 |
Prevention through Addressing Vulnerability | p. 415 |
A Legal Obligation to Address Vulnerability to Trafficking | p. 416 |
Addressing Vulnerability Related to Inequality and to Poverty | p. 418 |
Addressing Vulnerability Related to Discrimination and to Violence against Women | p. 423 |
Addressing the Special Vulnerabilities of Children | p. 427 |
Addressing Increases in Vulnerability in Conflict and Postconflict Situations | p. 430 |
Prevention through Addressing Demand | p. 432 |
Understanding Demand in the Context of Trafficking | p. 432 |
Is There an International Legal Obligation to Address Demand for Trafficking? | p. 434 |
Prevention through Addressing Corruption and Complicity | p. 442 |
An Obligation to Address Trafficking-related Corruption | p. 443 |
Practical Application of the Due Diligence Standard | p. 447 |
Due Diligence in Preventing Trafficking-related Corruption by International Officials | p. 449 |
Obligation to Respond Lawfully | p. 453 |
Obligation to Avoid Violations of Established Rights When Responding to Trafficking | p. 453 |
Obligation to Ensure Antitrafficking Measures Do Not Violate the Prohibition on Discrimination | p. 456 |
Issues of Compliance, Implementation, and Effectiveness | p. 461 |
Compliance Theories and Variables | p. 461 |
Formal Compliance Mechanisms under the Specialist Treaties | p. 466 |
The Organized Crime Convention and Trafficking Protocol | p. 466 |
The European Trafficking Convention | p. 473 |
Promoting Compliance through the International Human Rights System | p. 477 |
Unilateral Compliance Machinery: The U.S. Evaluation and Reporting System | p. 480 |
Transnational Compliance Networks | p. 486 |
Criminal Justice Networks | p. 489 |
Human Rights Networks | p. 492 |
Improving Compliance: Issues and Prospects | p. 496 |
Epilogue | p. 499 |
Select Bibliography | p. 505 |
Index | p. 529 |
Table of Contents provided by Ingram. All Rights Reserved. |
ISBN: 9780521191074
ISBN-10: 0521191076
Published: 30th September 2010
Format: Hardcover
Language: English
Number of Pages: 596
Audience: Professional and Scholarly
Publisher: Cambridge University Press
Country of Publication: GB
Dimensions (cm): 23.5 x 16.0 x 3.3
Weight (kg): 0.91
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