CONCLUSION
The particular interpretive query of this paper is: did State Parties
intentionally sign themselves up for mandatory transnational obligations to address the
root causes of human trafficking in countries of origin? It is argued herein that the
ordinary meaning of 9(4) clearly creates a shared responsibility to prevent
trafficking in origin countries. In the context of transnational prevention
programs to address root causes of trafficking, States Parties to the Protocol have
strong mandatory obligations. These obligations override the less onerous due
diligence obligations imposed under human rights law by virtue of the lex
specialis maxim. This interpretation is bolstered by the aim and purpose of the
Protocol because one of the three cornerstone goals of the Protocol is prevention.
Examining human rights conventions reveals that the language in 9(4) is
stronger, except for one small but important exception. The CRC also obliges
States Parties to undertake appropriate international measures to prevent to
abduction, sale or traffic in children. At this stage, the content and details
surrounding this rule are unclear. In fact, the entire international framework for
combatting human trafficking is in a phase of rapid development. This paper has
argued that this emerging framework does not fit neatly into either the
traditional "law enforcement" or "human rights" frameworks. The unique
international and clandestine nature of this phenomenon requires creative and
novel responses to it. One of these responses is providing for mandatory transnational prevention obligations. This provision is a skeletal starting point,
one that will hopefully be given flesh through further development in this area.
By bringing into focus the strong prevention obligations in the Protocol, this
paper has sought to question the widely held view that using a human rights
discourse and framework to address human trafficking is preferable. In fact, this
approach comes at an opportunity cost since the prevention obligations under
the developed human rights concepts of due diligence are simply nowhere near
as strong as under the Protocol.
However, what is also clear from the above analysis is that the fight against
trafficking in persons has created a new framework and it is not entirely clear
how this framework will operate. In the context of transnational prevention,
compliance and enforcement mechanisms could be found in the TIP Reports or
potentially in the country reporting under the CRC. It may well be that in this
way the law enforcement and human rights frameworks will both support this
transnational prevention obligation.
By highlighting this overlooked yet still rough gem, this paper seeks to
motivate actors in civil society and government to further develop the notion of a
shared responsibility to prevent human trafficking. It calls on the anti-trafficking
movement to take future action in this direction.