U.S. Policy on Human Trafficking: A Partial Solution for a Perplexing Global Human Rights Problem

• Author: Madeleine Bailey
• Position: SMU Dedman School of Law
• Pages: 607-643

e Indonesian Journal of International & Comparative Law

ISSN: 2338-7602; E-ISSN: 2338-770X

http://www.ijil.org

© 2018 e Institute for Migrant Rights Press

I thank Professor Anthony Colangelo for reading multiple versions of this dra, as

well as Professors Natalie Nanasi, Jenia Iontcheva Turner, and Vanessa Bouche for

providing invaluable feedback during the writing process.

U.s. PoliCy on HUMan traffiCkinG

A PArtiAl Solution for A PerPlexing globAl

HumAn rigHtS Problem

Madeleine Bailey

SMU Dedman School of Law

E-mail: mebailey@smu.edu

e development of international law combatting human tracking has been inu-

enced—indeed, propelled—by the U.S. Department of State’s Tracking in Persons (TIP)

report. e TIP Report ranks countries of the world into three main tiered categories

based on compliance with international human tracking law. e U.S. imposes sanc-

tions on countries failing to comply with certain dened “minimum standards.” is ar-

ticle argues that the U.S. Tracking Victims Protection Act (TVPA) and corresponding

Tracking in Persons (TIP) Report provide valuable tools for measuring and responding

to the global human tracking problem despite criticism for alleged asymmetry with

the international denition of human tracking. is article provides a novel empirical

analysis of data collected for the U.S. TIP Report compliance rankings, and investigates

its application of anti-tracking policy for consistency with international policy. E xist-

ing literature analyzing U.S. and global anti-tracking policy for consistency focuses

primarily on how international policy and U.S. policy dene various tracking oenses.

is article argues that the denitions are consistent, and then adds a new facet to this

analysis by examining not just denitional consistency, but consistency in application

of anti-tracking laws in the U.S. TIP Report. Ultimately, it concludes that the U.S. an-

ti-tracking legislation and sanctions regime is in accordance with international prin-

ciples, and provides a valuable hard law contribution to a rights regime. Additionally,

this article provides normative sug gestions for improving the international compliance

system administered by the United Nations Oce of Drugs and Crime (UNODC). Such

enhancements would provide the legitimacy of global consensus, and a framework upon

which to build a multilateral sanctioning system to bring noncompliant States into con-

formity with global anti-tracking law.

Keywords: International Law, Legal C ompliance, Human Rights, International Law

Making.

V Indonesian Journal of International & Comparative Law 607-43 (October 2018)

608

Bailey

INTRODUCTION

Human tracking is among the fastest growing and most protable

forms of transnational organized crime.1 Even though only approxi-

mately 4% of the world’s 30.2 million tracking victims at the end of

2010 were tracked for sex, those individuals generated approximately

40% of the 96.8 billion in prots generated by human tracking during

2010.2 Data released by the International Labor Organization (ILO) es-

timates that forced labor in the private economy, including for sexual

exploitation, generates 150 billion dollars per year in illegal proceeds.3

Prots in human tracking are high because trackers can keep their

costs low by withholding food, wages, adequate shelter, and health care.

And unlike migrant smuggling, fees for movement of the “product”

(the human) can be extracted from the prolonged servitude of the vic-

tim.4

Current global trends in online payment and fast, online information

transmission increase the likelihood that human tracking will

only become increasingly protable in the coming years.5 Some have

suggested that the most eective approach to attacking the industry

will be to erect a system that renders it a low prot, high risk business

venture.6 is will involve a coordinated global eort to elevate

economic penalties in the law.7 However, global standards to achieve

1. L S, H T: A G P 3 (2010).

2. Siddharth Kara, Designing More Eective Laws Against Human Tracking, 9

NW J.  I’ H. R 126 (2011); O. S’  C-  E-

, L A-M L R  C T-

  H B (2014) (hereinaer L A-M

L R).

3. ILO Says Forced Labour Generates Annual Prots of USD 150 Billion, I’

L O. (May 20, 2014), http://www.ilo.org/global/about-the-ilo/news-

room/news/WCMS_243201/lang--en/index.htm.

4. Kelly E. Hyland, e Impact of the Protocol to Prevent, Suppress, and Punish

Tracking in Persons, Especially Women and Children, 8 H. R B 38

(2001).

5. L A-M L R, supra note 2.

6. Kara, supra note 2, at 128.

7. Id.

609

U.S. Policy on Human Tracking: A Partial Solution for a Perpelxing Global Human Rghts Problems

Bailey

this end are dicult to eectuate for many reasons such as push-back by

state-sovereignty advocates over a “new” human rights regime, and the

frequent complicity of state ocials in perpetuating tracking crimes

within their borders. Recent attempts by the United States to combat

tracking on an international scale through its Tracking Victims

Protection Act (TVPA) have generated public outcry and resistance to

hegemonic inuence in a global human rights regimes.8

In this paper, I argue that the impact of U.S. anti-tracking

legislation has been largely positive because (a) its operative language

has been craed in accordance with international principles, (b) its

practical application reects the fact that countries with U.S.-based

domestic anti-tracking policies are not treated more favorably, and

(c) it provides the hard law that can eectuate so law on human

tracking by minimizing the economic benet of participating in the

illicit industry.

I. BACKGROUND ON ANTI-

TRAFFICKING INTERNATIONAL LAW

As with many human rights regimes, the anti-human tracking regime

sits at the center of complex denitional and moral issues, contributing

to considerable international debate on the most eective ways to de-

ne the issue and combat it appropriately. “Because so many dierent

agencies, organizations, and lobby groups seek to address such radical-

ly dierent concerns and agendas through a focus on tracking, it has

proved remarkably dicult to obtain consensus on a precise and work-

able legal denition of the term.”9 Appropriate, consensus-based global

responses to the problem of human tracking have been elusive for

a few reasons: rst, the scope of the problem is virtually unknowable;

second, remediation for the problem of human tracking sits at the in-

tersection of controversial moral issues; and third, solution building is

at the intersection of two regimes—law enforcement and human rights.

8. Janie Chuang, e United States as Global Sheri: Using Unilateral Sanctions to

Combat Human Tracking, 27 M. J. I’ L. 437 (2005).

9. Bridget Anderson & Julia O’Connell Davidson, Tracking: A Demand-led

Problem? A Multi-Country Pilot Study, S  C (2002).