Human trafficking has emerged as one of the most pressing human rights
issues of our time. The fight against human trafficking has begun to focus on
prevention efforts, bringing more attention to factors that make people
vulnerable to traffickers in the first place. States have demonstrated a strong
political willingness to address the factors that make people, particularly women
and children, vulnerable to trafficking in their countries of origin. This paper
argues that States parties to the Protocol have gone so far as to establish a
transnational duty to prevent human trafficking that is stronger than prevention
obligations in the human rights framework.
The international legal framework for human trafficking is largely
articulated in the Protocol to Prevent, Suppress and Punish Trafficking in Persons,
Especially Women and Children, Supplementing the United Nations Convention
Against Transnational Organized Crime (the "Protocol").' The Protocol takes a
three-pronged approach to trafficking, known as the "three Ps": (1) criminalizing
and "P"rosecuting the act of trafficking, (2) trafficking "P"revention programs
and (3) aid (or "P"rotection) for victims of trafficking. States who are members of
the Protocol ("States Parties") have mainly focused on criminalization, and to a
lesser extent aid, for victims of trafficking.2
The duty to prevent can be found in the Protocol and also somewhat
indirectly in human rights treaties.3 Many scholars argue that a human rights
approach to human trafficking should be employed; some of these scholars argue this is necessary in order to effectively address the "root causes" of human
trafficking. 4 This line of scholarship generally argues that the criminal law
model, employed by the Protocol, tends to focus on the "bad actors" at the
expense of underlying and complex global and social economic and political
forces.5
The major claim of this paper is that States Parties to the Protocol have a
transnational duty to prevent human trafficking; that under the Protocol States
have a shared responsibility to prevent international human trafficking, and this
responsibility extends past national borders.6 These obligations are stronger than
those in human rights treaties and therefore focusing on human rights standards
waters down the shared prevention responsibilities. In other words, using the
human rights framework to address human trafficking comes with an
opportunity cost. Therefore, it should be avoided, at least in the narrow (but
important) area of transnational prevention addressing root causes that make
people, especially women and children, vulnerable to trafficking.
Article 9 of the Protocol sets out the States Parties' prevention obligations
regarding human trafficking. The language used in this provision is unusually
strong. States Parties must establish comprehensive policies to prevent and
combat trafficking as well as protect victims of trafficking from revictimization. 7
States Parties must endeavor to conduct mass media campaigns and other social
and economic measures to prevent trafficking within their borders.8 They must
also establish policies to cooperate with non-governmental organizations, and
other civil society groups.9 States Parties are obliged to adopt or strengthen
educational, social or cultural measures to discourage the demand that fosters human trafficking