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Human Trafficking the State DepartmentResearch Paper

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[. . .] Within the text of the law itself, there is little description of these programs, and no provisions for funding. The law also includes provisions for the victims of trafficking. These include outlining the requirements to receive funding, definitions of trafficking victims, the production of the annual report, the investigation and prosecution of offenders and protections for victim, including clauses related to immigration status (TVPA, 1475-78). The law also sets the minimum standards for the elimination of trafficking. These are the standards that are used in the annual report to grade other nations on their anti-trafficking legislative environment. The minimum standards are:

The prohibition of severe forms of trafficking

Mandatory severe punishment for those found guilty of sex trafficking

Severe punishment for other forms of severe trafficking

Serious and sustained efforts to eliminate severe trafficking (TVPA, 1480)

These four standards are intended as the floor of efforts, upon which governments are supposed to build consistently over time. This is because human trafficking is both a complex issue and one that remains emerging in international law. The crime itself is fluid, evolving to meet the needs of the market. Indeed, in some cases trafficking does not necessarily require moving across borders ("Trafficking in Persons Report 2010," 5). People are trafficked for forced labor in particular to meet economic demand. This can take place by overt means such as kidnapped or by subtler means such as coercion and exploitation. Often, victims begin with a people smuggling arrangement only to find themselves in a human trafficking situation. Most victims are poor, coming from countries with weak legal infrastructures. They are valued for their labor and are smuggled to a place where that labor takes place. At times, they travel voluntarily at first, only to become trapped later. Because of the often economic nature of the crime, many victims in the latter category are migrants to the developed world, where they enter a form of bondage, often to pay for their journey. The high incidence of such scenarios highlights the need for greater and more effective laws regarding human trafficking, even in the developed world nations that currently receive high scores from the Secretary of State with respect to their efforts to combat human trafficking.

Beyond the TVPA and related acts, the laws governing human trafficking in the United States are often left to the individual states. Of considerable impact are laws concerning immigration. The United States Justice Department has had difficulty in the past ten years finding human trafficking cases to prosecute and one of the contributing issues to this problem is that victims are often reluctant to come forward. Although they are entitled to protections under TVPA, they are typically unaware of that fact and therefore reluctant to engage with local law enforcement agencies (Gonzalez, 2010). Arizona's immigration law -- which has inspired copycat state laws across the country -- is seen by human rights advocates as harming the cause of human trafficking. This of critical importance because Arizona is one of the main corridors for human trafficking into the United States, and the state has become a major corridor for illegal immigrants of all types entering the United States along the border with Mexico. Rights advocates argue that the Arizona immigration law effectively criminalizes human trafficking victim as a result of their lack of legal immigration status, regardless of how they came to be in the United States. The victims of human trafficking will be unsure of what rights they have and will have even more reason to be suspicious of law enforcement agencies in the state. This in turn will make it more difficult to uncover human trafficking rings and bring about more prosecutions (Kloer, 2010). Other state frameworks may be less oppressive than Arizona's towards illegal immigrants, but nevertheless the tenor of border states with respect to illegals is generally poor, which discourages trafficking victims from coming forward.

The European Union functions in a similar way to the United States. The EU as a whole is guided by a loose set of laws that includes guidelines for the establishment of jurisdiction and broad guidelines for the punishment of offenders, and has a continent-wide border patrol "Frontex," the laws with respect to the specific crimes that make up human trafficking vary between jurisdictions (Europa.eu, 2010). European nations work with neighboring countries to prevent instances of human trafficking. As an example, Italy has seen an influx of illegal immigrants from Tunisia in the wake that decreased patrols that have resulted from the recent political turmoil in that country (BBC, 2011). The Lampedusa case is similar to that of Arizona -- it highlights the need for not only comprehensive laws in the destination country, but also the necessity of cooperation from the countries that serve as jumping-off points. As a case in point, while Mexico is generally thought of as a source country for human trafficking, many of the illegal immigrants across the U.S.-Mexico border come from third-party countries (Hawley, 2010).

The United Nations has also attempted to tackle the issue of human trafficking, as the issue is multinational in scope and features many areas of concern in human rights and transnational crime. Written in 2000, the protocol is fully titled The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime. The underlying philosophy of the Protocol is that there was to that point an absence of international law regarding the issue. The protocol was written with two objectives in mind:

1. To prevent and combat trafficking in persons, paying particular attention to women and children;

2. To protect and assist the victims of such trafficking, with full respect for their human rights and;

3. To promote cooperation among states parties in order to meet those objectives. ("Palermo Protocol," 2000, 2)

Signatories to the protocol were expected to pass laws prohibiting human trafficking and to establish punishments for those convicted of the crime. The signatories were also encouraged to "consider implementing measures to provide for the physical, psychological and social recovery of victims of trafficking in persons" (Ibid, 3). Within the text of the Palermo Protocol, there is no mechanism for ensuring that the signatories follow through on their promises, nor that the signatories enforce the laws that they enact.

Effectiveness of Current Policies

Individual national and sub-national laws typically contain specific punishment prescriptions for those engaged in human trafficking, just as they define the protections that victims of human trafficking will receive. There are several key issues with respect to the effectiveness of these laws. The first key issue is that the laws typically have no specific means by which to measure the effectiveness of the law. The second key issue is that the laws can be impacted by other laws enacted in areas with some overlap on the issue of human trafficking. The third important issue is that there are few mechanisms within international law to ensure compliance on the part of nations, even those that have signed the Palermo Protocol and especially those that have not.

Few countries even have reliable figures for the instances of human trafficking. In the United States and Europe, there are reasonably reliable estimates but with nearly 140 countries involved (at least) the fact that most nations have no idea how much human trafficking goes on inside and across their borders (Laczko & Gramegna, 2003, 181-82) makes it difficult to implement measures for the effectiveness of laws. An additional problem is that there is reluctance on the part of some countries to share the data than they have collected internally (Ibid, 185). Data collection is also made difficult by problems related to definitions and counting. Laczko Gramegna point out that sex trafficking statistics are often derived from estimates of foreign prostitutes, despite the fact that human trafficking is not restricted to foreigners and that not all prostitutes are victims of human trafficking (Ibid, 187). This lack of data, lack of willingness to share data, and lack of consistency between the few data sets that do exist and are share makes it difficult to measure the problem, much less the solution. Measuring the solution naturally requires an understanding of the starting point, followed by a statistical analysis of the current state of human trafficking after the enactment of a law. This cannot take place when reliable starting points do not exist, much less when there are no starting points or ending points. While there is considerable anecdotal evidence that can be gathered about the impact that the efforts governments are having, the lack of statistics hinders reliable analysis considerably.

The second major issue with respect to determining which strategies for dealing with human trafficking are effective is that the patchwork of laws sometimes results in laws that conflict with one another. This is a natural consequence of the issue being complex and overlapping with so many other legal issues. The Arizona example, where the local immigration policy appears to conflict with the… [END OF PREVIEW]

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