1
INTRODUCTION
The present thesis analyses the connections existing between human trafficking, one
of the most serious crimes perpetrated all over the world, and the migration
phenomenon.
In particular, we will try to detect the consequences produced on the trafficking
phenomenon, first of all by migration policies adopted in countries of destination, and
then by the general approach assumed towards immigration by receiving states’
institutions and the whole societies in which migrants end to live and work in.
Migration policies, as we will see, have not a direct influence on the amount of
migrants who daily move to try for a better life elsewhere, nor on the concrete factors
that push them to leave. What is instead debatable is the range of consequences that
these policies have on how the migration process takes place, and the actual conditions
in which migrants find themselves before, during and after their travel to an unknown
destination.
The movement of a person from one country to another is rarely a simple operation:
the access to another country is regulated by definite norms included either in a law of
that country or, as the transnational movement involves at least two countries, in an
international agreement between them.
2
Internal laws and bilateral agreements tend to subordinate the movement of persons
through their borders to a quantity of conditions, related to personal status, reason and
duration of staying, and some others. States check the entry of people and goods in their
territory in order to safeguard their public order, as well as their social and economic
structure.
The entry of foreigners in another state cannot therefore be qualified as an absolute
right, even less as a human right, but rather as a sovereign concession, even if regulated
by the law to avoid its arbitrariness. The presence of the foreigner in the territory of a
state can be legal or illegal, depending on the subsistence of the above-mentioned
conditions, and only people in legal position may legitimately stay in the host country in
order to travel, study, work, or to do any other activity permitted by the law or for
which a visa has been issued.
The norms about immigration, therefore, define the legal status of foreign persons,
addressing specifically to people moving to another country for working reasons, and
lay down all the requirements whose fulfilment is necessary to achieve a legitimate
position and to be qualified as legal migrants.
These norms are nowadays the object of an intense legislative activity in all the
developed countries, which are the main destination of people movement taken off in
the last two decades, due to the increasing economic and social gap between the
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northern richest areas, and many poor and often undemocratic countries, mainly placed
in the southern hemisphere of the world.
The right of a person to live in a country of which is not a citizen, its right to work,
earn and save money, to have a family and travel freely to and from its country of
origin, depend both on these norms and the migration policies which led to their
adoption and determine their concrete interpretation and application.
Whereas present immigration policies are getting more restrictive, crossing borders
from origin towards destination countries is more and more difficult for would-be
migrants looking for a new and better life abroad. Nevertheless, the strength of their
need to change their lives makes them able to join their final destination in spite of all
the obstacles and difficulties they have to overcome during their journey. Walls and
fences will effectively stem the migration stream only when they will be higher and
stronger than the will of migrants to go beyond them, and that rarely happens. The
migratory wave preserves its strength, while what remains of a law deprived of its
deterrent power is the distinction, in destination countries, between two categories of
persons: legal and illegal migrants.
In the illegal environment established by the law risks lurk for irregular migrants to
fall into the clutches of exploiters and criminal gangs and to finish enrolled in
clandestine work or illegal activities.
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Moreover, the illegal situation in which migrants find themselves in destination
countries has repercussions, due to the peculiarity of the migratory process, on every
stage of their journey, as they are obliged to organize it in such a way as to avoid police
and customs controls, to hide themselves from corrupt policemen of their own countries
or countries of transit, and, notably, to address criminal groups which offer their
expensive services in order to cross the borders undetected.
Restrictive migration policies appear therefore as one of the main causes of the
migrant smuggling phenomenon, but they also concur to create the illegal environment
in which irregular migrants are more likely to be recruited and exploited by criminals
taking advantage of their vulnerability which, in turn, is the result of restrictive norms,
as rigid as impossible to implement and so repeatedly infringed.
The present thesis is divided into five parts: chapter one contains a general review of
the human trafficking phenomenon, its definition, the problems related to data gathering
and evaluation, the main causes of trafficking, its comparison to slavery, the difference
between human trafficking and smuggling of migrants, the involvement of organized
crime and the issues related to victims’ consensus and coercion.
The second chapter offers a synthetic overview of the migration phenomenon, listing
its economic and social causes as well as its perception in countries of origin and
destination.
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Chapter three represents the central part of the present work, in which we try to
highlight the nexus between restrictive migration policies and human trafficking, while
analyzing the concept of border as manifestation of state sovereignty and the policies of
surveillance leading to the prevalence of the security frame over more pragmatic
approaches to migration. The vulnerability of irregular migrants and their recruitment in
illegal activities and clandestine work is also here discussed, as well as the
repercussions of restrictive measures on the situation of refugees and the asylum
system.
The main object of chapter four is the critique of present national and international
approaches to human trafficking, comprehensive of a summary evaluation of their
impact. Anti-human trafficking initiatives and campaigns today carried out all over the
world, as well as the norms over which they are based, appear disproportionately
focused on the (necessary) prosecution and punishment of perpetrators, rather than on
prevention measures directed to remove the main causes of this criminal phenomenon,
based on a thorough examination of its social and economic roots, which form the ideal
environment for criminals to thrive and make their enormous profits.
In the last chapter we will expose our conclusions, including a list of
recommendations and proposals for better and more realistic migration policies, not to
be intended as definitive solutions for a complex phenomenon like human trafficking is,
6
but rather as suggestions to create a better environment in which a not unrealistic fight
can be carried on against this awful crime.
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CHAPTER 1
THE CRIME OF HUMAN TRAFFICKING
1.1. Defining human trafficking
Defining human trafficking has been the first hard challenge in the battle against a
criminal conduct as heinous and serious, as complex and difficult to circumscribe.
Trafficking in human beings is strictly connected to other (criminal) concepts as
slavery, servitude, forced labour, prostitution, smuggling of migrants and irregular
migration, so that for a valid definition to be exhausting, it must include some elements
common to each of these related conducts and, at the same time, comprehend some
original features, fit to make human trafficking as a new and different concept, worthy
of a separate and suitable definition.
Human trafficking, indeed, is not a recent phenomenon: it rather lasts from
centuries, being linked to slavery and servitude.
1
Its definition is the final result of a
long process, which led, from the early nineteenth century, to the adoption of a great
1
For an overview of slavery throughout history, see BALES, TRODD, KENT-WILLIAMSON, “Modern Slavery.
The Secret World of 27 Million People” (2009), at 1-25. See also BRAVO, “Exploring the Analogy between Modern
Trafficking in Humans and the Trans-Atlantic slave Trade”, Boston University International Law Journal, Vol. 25
No. 2 (2007), at 207-295.
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quantity of bilateral and multilateral conventions against slavery
2
, or specifically
dedicated to some form of trafficking in persons
3
.
According to Article 1 of the 1926 Slavery Convention, slavery is “the status or
condition of a person over whom any or all the powers attaching to the right of
ownership are exercised.”
4
This definition is retained by the following 1956
Supplementary Convention on the Abolition of Slavery
5
, which nevertheless adds the
new concept of “person of servile status”, designed as a person who, although not
“owned” by another, is dominate and submitted in a condition of servitude
6
. Other
human rights instruments containing some prohibition of trafficking intended as a form
of slavery, are the Convention on the Elimination of All Forms of Discrimination
against Women
7
, which, although not offering a definition of trafficking, at Article 6
invites States Parties to “take all appropriate measures, including legislation, to suppress
all forms of traffic in women and exploitation of prostitution of women”, and the
2
See GALLAGHER, “Human R ights and Human Trafficking: Quagmire or Firm Ground? A Response to James
Hathaway”, 49 VA. J. INT’L L., at 799-800; GEKHT, “Shared but Differentiated Responsibility: Integration of
International Obligations in Fight Against Trafficking in Human Beings”, 37 DENV. J. INT’L L. & POL’Y, at 36-40.
3
GEKHT, supra note 2, at 40-44.
4
League of Nations, Convention to Suppress the Slave Trade and Slavery, September 25, 1926, 60 LNTS 253. Kevin
Bales suggests a broader definition of slavery, intended as “a relationship in which one person is controlled by
another through violence, the threat of violence, or psychological coercion, has lost free will and free movement, is
exploited economically, and is paid nothing beyond subsistence.” Cf. BALES, TRODD, KENT-WILLIAMSON,
supra note 1, at 31.
5
Supplementary Convention on the Abolition of Slavery, 7 September 1956, 266 UNTS 3.
6
For a distinction between slavery and servitude, see GALLAGHER, supra note 2, at 802 -3 (quoting Manfred
Nowak commentary on the ICCPR).
7
Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, 1249 UNTS
13.
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Convention on the Rights of the Child
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, whose Article 11 provides that “States Parties
shall take measures to combat the illicit transfer and non-return of children abroad”,
while Articles 34 and 35 urge States Parties “to protect the child from all forms of
sexual exploitation and sexual abuse” and to take all appropriate measures “to prevent
the abduction of, the sale of or traffic in children for any purpose or in any form.”
Some other international conventions specifically address human trafficking as
criminal conduct to fight and eradicate. Article 1 of the 1910 International Convention
for the Suppression of the White Slave Traffic, following the 1904 International
Agreement for the Suppression of the White Slave Traffic
9
, defines trafficking as the
“procuring of women or girls for immoral purposes abroad”.
The 1921 International Convention for the Suppression of the Traffic in Women and
Children
10
extends the prohibition to the trafficking in women and children of any race,
omitting the term “white slave traffic”.
In 1933 was signed the International Convention for the Suppression of the Traffic
in Women of Full Age
11
, whose Article 1 requires States Parties to punish “Whoever, in
8
Convention on the Rights of the Child, 20 November 1989, 1577 UNTS 3.
9
International Agreement for the Suppression of the White Slave Traffic, 18 May 1904, 1 LNTS 83; Convention for
the Suppression of the White Slave Traffic, 18 May 1910, 1912 Gr. Brit. TS No. 20, as amended by Protocol
Amending the International Agreement for the Suppression of the White Slave Traffic, and Amending the
International Convention for the Suppression of the White Slave Traffic, 4 May 1949, 30 UNTS 23.
10
International Convention for the Suppression of the Traffic in Women and Children, 30 September 1921, 96 LNTS
271.
11
International Convention for the Suppression of the Traffic in Women of Full Age, 11 October 1933, 150 LNTS
431.
10
order to gratify the passions of another person, has procured, enticed or led away even
with her consent, a woman or girl of full age for immoral purposes to be carried out in
another country […] notwithstanding that the various acts constituting the offence may
have been committed in different countries.”
The Convention for the Suppression of the Traffic in Persons and of the Exploitation
of the Prostitution of Others
12
, at Article 1, imposes on States Parties the obligation to
“punish any person who, to gratify the passions of another: (1) Procures, entices or
leads away, for purposes of prostitution, another person, even with the consent of that
person; (2) Exploits the prostitution of another person, even with the consent of that
person.”
All the international documents listed above represent without any doubt important
steps towards a broader definition of human trafficking, but remain somewhat partial
and limited to particular forms of criminal conduct, exclusively linked to enslavement
or exploitation of prostitution
13
. What is still lacking is a clear-cut definition
14
,
comprehensive of every possible manifestation of human trafficking, as protean and
12
Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, 21
March 1950, 96 UNTS 271.
13
According to Sharma, all these documents should be considered as efforts to regulate the lives of women and to
maintain their subordination. White slave trade, moreover, was strictly linked to anti-immigrant politics. Cf.
SHARMA, “Anti-Trafficking Rhetoric and the Making of a Global Apartheid”, NWSA Journal, Vol. 17 No. 3 (Fall
2005), at 98.
14
See GEKHT, supra note 2, at 42.
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