HUMAN TRAFFICKING CLASS ONE INTRODUCTION AND LEGAL BASICS

Transcription

1 HUMAN TRAFFICKING CLASS ONE INTRODUCTION AND LEGAL BASICS Prof. David K. Linnan UI-USC-UniKoeln-UGM-UNDIP-USU Univ. of South Carolina Joint Videoconferencing Class School of Law January 15, 2003

2 TRAFFICKING CONCEPTUALLY WHAT IS HUMAN TRAFFICKING TO YOU? WHO IS INVOLVED? WHERE & WHY?

3 TRAFFICKING CONCEPTUALLY WHAT IS HUMAN TRAFFICKING TO YOU? Old white slavery claims apparently (forced prostitution, kidnapping like 1950s stories of French teenagers abducted to North Africa), but even Mann Act precursors anti-chinese 1850s Modern connection still to prostitution, but what about (undocumented) migrant labor too (prostitution plus sweatshop issues), both children & adult

4 TRAFFICKING CONCEPTS WHO IS INVOLVED? Where do you draw line on sex industry side (arguments between those favoring legalization of prostitution because claimed victimless crime vs. flat rejection-- if you favor decriminalization tend to see trafficking problem only if sweatshop/forced with cultural question abroad whether unacceptable)? What about voluntary election in face of extreme economic conditions, and problem of whether naïve claims to a highly paid and glamorous job in distant city/land are not just psychological protection (eg, parents sold you)? Note recurrent internal & external migration theme, presumably economic/social dislocation behind it

5 TRAFFICKING CONCEPTS WHO IS INVOLVED? (CONT D) On the migrant labor side the issue is drawing lines between laudable economic immigrants (hardworking, albeit undocumented, sounds good) and sweatshop trafficked victims (sounds bad) If you look at migration side, there is a long history of modern migrations starting in 19 th century (Chinese to SE Asia and Western US), Southern & Eastern Europeans to Eastern US, with social-historical criticism on migration theories Modern local equivalent in (sometimes undocumented) Hispanic immigration into rural SC agricultural industries? Is everyone trafficked, or is everyone an economic migrant?

6 BASIC CONCEPTS WHERE & WHY? Note that we shall be talking about internal or external migrations within Asia, Europe and the Americas through Indonesia, Germany and US In looking at each, part sex industry, part migratory labor in differing proportions Issue of extent economically driven perhaps, but predisposition questions socially (hidden issue of different beliefs in different societies, return to legal issue of universal standards versus cultural relativism)

7 HUMAN RIGHTS BACKGROUND NAT L VERSUS INT L LAW CONCEPT HUMAN TRAFFICKING IN INT'L LAW GENERALLY HUMAN RIGHTS LAW, BUT WHAT IS HUMAN RIGHTS LAW? BY NATURE HUMAN TRAFFICKING IS MOSTLY ACROSS BOUNDARIES, SO CONCERN OF NATIONAL ( CRIMINAL, CIVIL RIGHTS, IMMIGRATION, LABOR) & INTERNATIONAL LAW (HUMAN RIGHTS) SINCE THERE IS NO CENTRAL INTERNATIONAL LAW SOVEREIGN VOLUNTARY IN TRAD. INT L LAW ANALYSIS, BUT ONE OF THE CLAIMED ROOTS OF HUMAN RIGHTS LAW IS NATURAL LAW & QUERY IF VOLUNTARY THEN

8 HUMAN RIGHTS BACKGROUND NATURE OF INT'L LEGAL SYSTEM Who are players? Subjects of int l law/states only traditionally Modern human rights law as claims in individuals (post WW II) NGOs important for human rights law highlighting State shortcomings (prob. mistreating own citizens)

9 HUMAN RIGHTS BACKGROUND HUMAN RIGHTS DEVELOPMENT Modern setting dated to end of WW II and UN Charter Modern split into civil & political rights (rights against government coercion) versus economic & social rights (claims to provision for individuals welfare, disfavored in US but accepted in many industrialized countries & most of developing world) Modern split universal vs. cultural relativism view of human rights, recent arguments on Asian & Islamic views of women s rights (note that Indonesia is Asian country w/ Moslem majority)

10 HUMAN RIGHTS BACKGROUND HUMAN RIGHTS PRECURSORS Modern setting dated to end of WW II and UN Charter/Universal Declaration of Rights, BUT 18 th century natural law & Enlightenment precursors (1776 Declaration of Independence s inalienable rights, 1789 Declaration of the Rights of Man, etc.) Humanitarian law 19 th century precursors in law of armed conflict & anti-slavery law (starting 1840s Britain, universal jurisdiction under international law), freeing of serfs on Continent (Civil Code status chapters) Early 20 th century labor precursors (ILO 1919 formation as part of League of Nations push)

11 HUMAN RIGHTS BACKGROUND SLAVERY-LIKE CONDITIONS AND MODERN SLAVERY COMPARISONS Is the analogy misleading or informative since the modern slavery claim is sometimes leveled equally against forced prostitution and sweatshop labor which are our initial categories? [on legal side, issues also on law of armed conflict following sexual slavery & forced rape recognition as crimes against humanity by the Tribunal for the Former Yugoslavia with hidden coercion issues; as a technical matter law of armed conflict is different from ordinary human rights law, and as a factual matter the circumstances are typically more extreme given violent atmosphere]

12 BASIC INT L LAW CONCEPTS CLASSIC INT'L LAW SOURCES 1. TREATIES (AGREEMENTS WITH VS. WITHOUT LEGAL FORCE) 2. CUSTOMARY LAW (CONSISTENT BEHAVIOR UNDER LEGAL COMPULSION & OPINIO JURIS) 3. GENERAL PRINCIPLES OF LAW 4. BEST (ACADEMIC) WRITINGS

13 SOURCES OF LAW Customary Law (opinion juris & state practice) How long to form, how specific in its dictates?

14 SOURCES OF LAW General Principles of Law Substantive vs. procedure problems, argument whether a very broad or rather only a narrow category Problem of hidden preference over customary law, but problem rather with customary law formation (inconsistent practice, etc.)

15 SOURCES OF LAW HUMAN RIGHTS LAW Claims about existence under each of : Treaty (surest, but legal versus political obligation?), Customary law (consistency & opinio juris problem as with torture?), General principles (eliminates theoretical consistency problem, but query universal vs. cultural relativism s effect?) Concept of soft law or law in making, not only by states