Anne T Gallagher

Understanding Exploitation

Anne T. Gallagher — Fri, 30 Dec 2011 17:35:06 PST

Anne Gallagher critiques Suddharth Kara's article "Supply and Demand: Human Trafficking in the Global Economy", published in Harvard International Review, June 2011.

Prosecution of Trafficking in Persons Cases: Integrating a Human Rights-Based Approach in the Administration of Criminal Justice

Anne T. Gallagher et al. — Tue, 12 Jul 2011 01:27:07 PDT

Trafficking in persons is a crime, as well as a serious violation of human rights. The international community now accepts that the investigation, prosecution and punishment of offenders are core aspects of an effective national response to trafficking. Strong prosecutions help to curb the current high levels of impunity that perpetuates the crime of trafficking in persons. They can also help to ensure justice for those who have been trafficked including access to remedies. An effective criminal justice response to trafficking also operates as a disincentive to future trafficking and is, thereby, an important aspect of prevention.

The United Nations Special Rapporteur on Trafficking in Persons, especially women and children, is scheduled to deliver a report to the United Nations on prosecution of trafficking in persons cases. In July 2011 the Special Rapporteur convened a meeting of experts to discuss this issue with a view to identifying good practices and lessons learned; and formulating proposals for recommendations to States and other actors, with a view to informing her report to the General Assembly. This is the background paper of that meeting.

Integrating Reproductive Rights into the Work of National Human Rights Institutions

Anne T. Gallagher — Mon, 20 Jun 2011 19:16:50 PDT

This report is a joint initiative of the Asia Pacific Forum of National Human Rights Institutions (APF) and the United Nations Population Fund (UNFPA). Its focus is on reproductive rights and the extent to which these rights are, or could be, integrated into the work of national human rights institutions. The report commences with an analysis of the place of reproductive rights in international human rights law. The body of the report includes information and insights secured through a comprehensive survey involving 15 Member Institutions of the APF. It analyses the current work practices and views of these institutions and considers the major challenges and risks they face in dealing effectively with this important issue. The report also identifies the special features of national human rights institutions that make them uniquely appropriate vehicles for promoting and protecting reproductive rights. It explores how NHRIs can best be supported in this work and proposes a set of steps for APF and UNFPA to consider in taking this initiative forward.

Improving the Effectiveness of the International Law of Human Trafficking: A Vision for the Future of the US Trafficking in Persons Reports

Anne T. Gallagher — Thu, 30 Dec 2010 17:52:04 PST

In 2000, the United States Congress passed the Victims of Trafficking and Violence Protection Act requiring its State Department to issue annual Trafficking in Persons Reports (TIP Reports) describing “the nature and extent of severe forms of trafficking in persons” and assessing governmental efforts across the world to combat such trafficking against criteria established by US law. This article examines the opportunities and risks presented by the TIP Reports, tracing their evolution over the past decade and considering their impact on the behavior of states. In looking to the future, the article focuses on how this influential unilateral compliance mechanism could improve its legitimacy, respond to negative impacts, and better contribute to the international legal regime around trafficking.

Commentary to the Recommended Principles and Guidelines on Human Rights and Human Trafficking

Anne T. Gallagher — Thu, 30 Dec 2010 15:32:52 PST

In 2002, the then High Commissioner for Human Rights, Mary Robinson, transmitted the Recommended Principles and Guidelines on Human Rights and Human Trafficking to the United Nations Economic and Social Council. She explained that their development was her Office’s response to the clear need for practical, human rights-based policy guidance, and encouraged States and intergovernmental organizations to make use of them in their own efforts to prevent trafficking and to protect the rights of trafficked persons. Since then, the principles and Guidelines have been integrated into numerous policy documents and interpretive texts attached to international and regional treaties, including both the UN Trafficking Protocol and the Council of Europe’s Convention on Action against Trafficking in Human Beings. They have been extensively cited by various international human rights bodies and adopted by the Special Rapporteur on Trafficking in Persons as a major reference point for the work of that mandate. Many non-governmental organizations have used them in their efforts to advocate a stronger and more rights-protective response to trafficking.

It was this very positive response that paved the way for the Commentary, a comprehensive analysis of the Principles and Guidelines in the light of both general principles of international law and the specific rules that relate directly to trafficking. The need for such a publication is clear. Despite the impressive achievements of the past decade, the rights of individuals and the obligations of States in this area are not yet widely or well understood. As a result, the potential of international law to guide and direct positive change is only partially being fulfilled. The Commentary seeks to remedy this situation. It uses the Principles and Guidelines to structure a detailed overview of the legal aspects of trafficking, focusing particularly but not exclusively on international human rights law. The Principles and Guidelines and the present Commentary are directed to States, the international human rights system, intergovernmental agencies, civil society groups and all others involved in preventing trafficking, securing justice for those who have been trafficked and ending impunity for those who benefit from the criminal exploitation of their fellow human beings.

The right to an effective remedy for victims of trafficking in persons: A Survey of International Law and Policy

Anne T. Gallagher — Thu, 18 Nov 2010 11:50:00 PST

Remedies are a critical aspect of the international legal response to trafficking, confirming the status of trafficked persons as victims of crime and victims of human rights abuse. Over the past decade, States and the international community have come to better understand the true consequences of trafficking – an essential prerequisite to consensus on what constitutes ‘effective” and “appropriate’ remedies for trafficking-related harm. There have also been great improvements in the articulation and acceptance of legal obligations owed by States to prevent and respond to such harm. Unfortunately, and despite this important progress, victims of trafficking very rarely receive the justice to which they are entitled.

This paper sets out the international legal and policy framework that relates to remedies for victims of trafficking. Clarity about obligations and responsibility is important because it is on this foundation that strategies for improving access to justice for victims of trafficking can be developed, implemented, monitored and evaluated.

ASEAN Handbook on International Legal Cooperation in Trafficking in Persons Cases

Fiona David et al. — Mon, 08 Nov 2010 02:01:37 PST

The crime of trafficking in persons is often transnational in both commission and effect. In contrast, criminal justice responses to trafficking in persons are typically structured and generally only operate within the confines of national borders. The disjuncture between the reality of transnational crime and the limits of national systems presents a significant challenge to the ability of States to effectively respond to trafficking in persons and related crimes.

This Handbook provides criminal justice agencies within the ASEAN region with an introduction to the key tools of international legal cooperation, specifically mutual legal assistance (including for recovery of proceeds of crime) and extradition, as well as detailed guidance on the application of these tools to trafficking in persons cases. An increase in willingness and capacity to collaborate across national borders, within a framework of respect for national and international law, should contribute to redressing the high levels of impunity currently enjoyed by offenders, while also strengthening to the ability of victims of this crime to seek and receive justice.

The International Law of Human Trafficking

Anne T. Gallagher — Wed, 13 Oct 2010 15:11:46 PDT

This book presents the first-ever comprehensive and in-depth analysis of the international law of human trafficking. Anne T. Gallagher calls on her direct experience working within the United Nations to chart the development of new international laws on this issue. She links these rules to the international law of State responsibility , as well as key norms of international human rights law, transnational criminal law, refugee law and international criminal law, in the process identifying and explaining the major legal obligations of States with respect to preventing trafficking, protecting and supporting victims, and prosecuting perpetrators.

The High Cost of Freedom: A Legal and Policy Analysis of Shelter Detention for Victims of Trafficking

Anne T. Gallagher et al. — Sun, 28 Mar 2010 18:55:48 PDT

In countries around the world it is common practice for victims of human trafficking who have been “rescued” or who have escaped from situations of exploitation to be placed and detained in public or private shelters. In the most egregious situations, victims can be effectively imprisoned in such shelters for months, even years. This article uses field-based research to document this largely unreported phenomenon. It then considers the international legal aspects of victim detention in shelters and weighs the common justifications for such detention from legal, policy, and practical perspectives.

Developing an Effective Criminal Justice Response to Human Trafficking: Lessons from the Front Line

Anne T. Gallagher et al. — Thu, 17 Sep 2009 14:44:21 PDT

Trafficking in persons now affects all regions and most countries of the world. Over the past decade, there has been increasing acceptance of the need for an effective, internationally coordinated response. However, the practical difficulties in realizing this goal are considerable. No country can yet lay claim to genuine, extensive experience in dealing with trafficking as a criminal phenomenon. Most are developing and adapting their responses on the run, often under strong political pressure, and principally through trial and error. While communication between national agencies on this issue is improving, there is still very little cooperation or cross-fertilization of ideas across national borders. The authors draw on emerging interna- tional rules as well as their experience of working with States and intergovernmental organizations on this issue to propose eight elements of an effective national criminal justice response to human trafficking. Each is described in detail, justified with reference to relevant international standards, and illustrated with examples from current professional practice.

Prosecuting and Adjudicating Trafficking in Persons Cases in Australia: Obstacles and Opportunities

Anne T. Gallagher — Mon, 15 Jun 2009 23:24:52 PDT

Law Enforcement Cooperation in Anti-trafficking Cases

Anne T. Gallagher et al. — Mon, 08 Jun 2009 00:15:41 PDT

Gallagher and Holmes consider the extent to which cross-border cooperation between national law enforcement agencies is necessary for an effective criminal justice response to trafficking. In exploring the opportunities and challenges of such cooperation, the presenters draw on first-hand experience of working with the ASEAN Heads of Specialist Trafficking Units Process ; established in 2004 to promote exchange of intelligence and good practices between specialist trafficking units in South East Asia.

The United Nations, Democracy and Human Rights

Anne T. Gallagher — Thu, 04 Jun 2009 16:30:43 PDT

Recent Legal Developments in the Field of Human Trafficking: A Critical Review of the 2005 European Convention and Related Instruments

Anne T. Gallagher — Thu, 04 Jun 2009 16:16:35 PDT

In terms of both speed and substance, the development in human trafficking related norms and standards over the past several years is almost unprecedented in international law. This article examines the 2005 Council of Europe Convention on Action against Trafficking in Persons and the various legal and policy developments that led up to or otherwise intersect with this watershed agreement. The analysis focuses special attention on the issues of international obligation and responsibility around trafficking, particularly in relation to its important human rights dimensions. What exactly is required of States under the new European treaty in terms of specific actions and responses? How do these obligations compare to those contained in the UN Trafficking Protocol, adopted by the General Assembly five years earlier? How do they relate to other agreements developed within the European institutions? To what extent has the new European Convention remedied weaknesses in the international legal regime especially those related to protection of victims of trafficking? What are the main challenges ahead and is the Convention and its various implementing mechanisms up to meeting these challenges and thereby contributing to a more effective international law around trafficking?

Using International Human Rights Law to Better Protect Victims of Trafficking: The Prohibitions on Slavery, Servitude, Forced Labour and Debt Bondage

Anne T. Gallagher — Thu, 04 Jun 2009 16:10:35 PDT

Trafficking was a matter for international human rights law long before it became an issue of migration or of transnational organized crime. However human rights law has not, on balance, been especially useful to victims of trafficking. Rarely are even the most clear-cut and uncontested provisions (e.g. those relating to slavery, debt bondage, forced marriage and forced labor) advanced in relation to a situation of trafficking. When such connections are made, their purpose is often rhetorical and, even when presented by legal scholars, conspicuously lacking in legal justification. While many examples could be cited, one of the most significant relates to the human rights treaty-bodies: the key enforcement mechanisms of the international human rights system. Despite this issue being raised with increasing frequency in the context of human rights treaty-body work, none of the relevant committees has managed to tie trafficking to a violation of a specific right in a specific treaty. Perhaps this is because trafficking is just too complicated. Perhaps it is because the norms themselves are devoid of sufficient content to support their application to real life. Perhaps the situation is aggravated by the fact that traffickers are generally bad people and bad organisations, not bad governments. The primary purpose of this Chapter is to flesh out several of the strongest and clearest human rights norms that could be applied to trafficking by the international human rights system, international and regional tribunals and national criminal justice agencies. These norms include the prohibition on slavery and the slave trade; the prohibition on forced labor; and the prohibition on debt bondage. The underlying rationale for this approach lies in the fact that even the most promising recent international legal developments do not appear to have made the process of prosecuting traffickers and protecting victims much easier. It may be time to go back to basics: to take out of cold storage our oldest, strongest and most widely accepted laws to determine whether (and, if so, to what extent) they can be used against this especially persistent and virulent criminal phenomenon.

A Shadow Report on Human Trafficking in Lao PDR: The U.S. Approach v. International Law

Anne T. Gallagher — Thu, 04 Jun 2009 15:56:20 PDT

Since 2001, the United States Government has issued annual reports on the situation of human trafficking in every country other than its own identified by the State Department as having a significant trafficking problem. The focus of this article is on the standards that are used to assess the response of States to trafficking. The article examines the way in which the US judges the performance of countries while noting that international law already provides detailed and substantive guidance on the obligations of States in this area. The author demonstrates, using Lao PDR as an example, that application of these international standards yields a far better result than is possible under the US approach: one that is legally sound as well as more accurate, more nuanced and more likely to induce real and lasting change. The objective of this exercise is to confirm the importance of evaluation and assessment when it comes to a country's performance in dealing with trafficking - while at the same time emphasizing the dangers and limitations inherent in a unilateralist approach that is fundamentally limited in its ability to accurately capture the situation and is not necessarily grounded in established and accepted international rules.

Economic, Social and Cultural Rights: A Legal Resource Guide

Scott Leckie et al. — Thu, 04 Jun 2009 15:41:01 PDT

In response to a growing global awareness of human poverty and the increasing potential of human rights law as a tool that can be used by the poor to achieve their basic rights, the international body of law, policy and relevant standards on economic, social, and cultural rights has expanded markedly in recent years. This book provides, for the first time, a comprehensive, consolidated source of most major international agreements recognizing economic, social and cultural rights. The guide contains key treaties, declarations, general comments, interpretive texts, and charters. An introduction by the editors places these materials in context as do contributions by the former U.N. High Commissioner for Human Rights and the Chairperson of the U.N. Committee on Economic, Social and Cultural Rights.

Human Rights and Human Trafficking: Quagmire or Firm Ground? A Response to James Hathaway

Anne T. Gallagher — Thu, 04 Jun 2009 14:16:47 PDT

In a Fall 2008 article published in the Virginia Journal of International Law, James Hathaway questions whether the elimination of trafficking is a worthy objective and an appropriate focus for international law. Specifically he charges that while the elimination of trafficking is billed as the answer to contemporary slavery, the focus on trafficking has unfairly 'privileged' a small group of exploited individuals and diluted efforts that could have been better spent addressing the much broader problem of human enslavement. Hathaway also asserts that those human rights advocates and practitioners engaged on the issue of trafficking have been hoodwinked by preferred destination countries into supporting a covert extension and tightening of border controls, thereby driving migratory demand into the black market and increasing the difficulties faced by refugees seeking to access their right to protection under international law. This Article, written from the perspective of one who has been closely involved in the development of the new legal framework, as well as in its implementation at the national level in over forty countries, provides an alternative and a sharply differing perspective on the global battle to combat trafficking. In considering each of Hathaway’s major concerns in turn, and discrediting the assumptions and authorities on which they are based, I identify a number of serious flaws in both interpretation and application. In terms of the broader legal and political context, I conclude that far from damaging human rights, the issue of trafficking provides unprecedented opportunities for the renewal and growth of a legal system that, until recently, has offered only platitudes and the illusion of legal protection to the millions of individuals whose life and labor is exploited for private profit.