The human rights-based approach to human trafficking in international lawan analysis from a victim protection perspective

Abstract

Enforcement and immigration control strategies focused solely on criminalization and punishment, without addressing the aspects related to the protection of its victims. Realizing the extent to which this narrow approach has proved ineffective and even counterproductive, part of the international community has in the last few years endorsed a different approach to this phenomenon: the human rights-based approach to trafficking. Content of the research: This study undertakes an in-depth analysis of this concept, aimed at addressing the lack of clarity that prevails around the exact meaning and scope of this approach and its complexity as a tool that has the potential of changing the way the international community tackles this phenomenon. In part one, this study examines the main features of the human rights-based approach as initially developed within the United Nations in the context of development cooperation, to then turn to examine how this approach developed in the law of human trafficking at the universal and regional level. On that basis, it reaches conclusions on the theoretical foundations of the human rights-based approach to trafficking and proposes a systematization of its constituent elements and of the main requirements that stem from each of them. In part two, this study examines in more detail the extent to which this approach has effectively been incorporated in international law as far as the key aspects of trafficking victims’ protection are concerned – identification, protection, assistance, right to remain and repatriation –, focusing on both the instruments that declare assuming this approach and the pronouncements made by relevant international monitoring and judicial bodies. Conclusions: The study concludes, among others, that this approach significantly broadens the scope of States’ obligations on the protection of trafficking victims not only in terms of substantive human rights standards but also in relation to the strong requirements it sets out in terms of process. The potential of participation and accountability as key crosscutting aspects of this approach is highlighted. However, the study also demonstrates that even in the most advanced anti-trafficking instruments, the incorporation of this approach is still deficient in relation to a significant number of aspects. Hence, the protection of victims is not guaranteed. Finally, the study concludes that this approach promotes greater coherence in the overall international law response to this phenomenon from the perspective of regime interaction.