UPDATE: The Exploitation of Women and Children: A Comparative Study of Human Trafficking Laws between the United States-Mexico and China-Vietnam
By Christina T. Le
Updated with assistance by Scott Ibbotson
Christina T. Le is a private attorney at an immigration law firm in Houston, Texas. She received her J.D. from the University of Houston Law Center and a B.S. in journalism from Northwestern University. Prior to entering private practice, she served as Attorney Advisor and Judicial Law Clerk to the U.S. Immigration Court in Houston. During law school, she worked with victims of human trafficking at the UH Law Center’s Immigration Clinic and at the non-profit organizations Boat People SOS and YMCA International Services.
Published May 2013
(Previously updated by Christina T. Le on July 2010)
Table of Contents
Human trafficking is a global epidemic that that equates to modern-day slavery. It is estimated that as many as 27 million people around the world are victims of forced labor, bonded labor, and commercial sexual servitude at any given time, many of whom are women and children trafficked across international borders.[] Shockingly, this figure has risen from an estimated 12.3 million human trafficking victims in 2009. [] In their efforts to find a better life, they become victims of vicious traffickers. Human trafficking is usually defined as, inter alia, forced sexual exploitation, involuntary servitude, or debt bondage.[] The United Nations and international community in general have expressed their disdain for human trafficking and have recognized the evils and needs for protection of victims with increased awareness campaigns, such as the recently launched Blue Heart Campaign against Human Trafficking to advance the goals of the United Nations Convention against Transnational Organized Crime and its protocols,[] and the United National Global Compact to promote “ten universally accepted principles in the areas of human rights, labour, environment and anti-corruption.”[]
In 1999 the United Nations Office on Drugs and Crime and the United Nations Interregional Crime and Justice Research Institute established the Global Programme against Trafficking in Human Beings to track organized crime activity in human trafficking and to assist member nations to develop effective criminal justice responses.[] One year later, the United Nations passed The UN Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children (“UN Protocol to Prevent Trafficking”) [] and The UN Protocol against the Smuggling of Migrants by Land, Sea and Air (“UN Protocol Against Smuggling”) [], both supplementing the United Nations Convention against Transnational Crime.[] The preamble of the UN Protocol to Prevent Trafficking stated:
…effective action to prevent and combat trafficking in persons, especially women and children, requires a comprehensive international approach in the countries of origin, transit and destination that includes measures to prevent such trafficking, to punish the traffickers and to protect the victims of such trafficking, including by protecting their internationally recognized human rights…[]
Despite the lofty goals in the preamble, the international community remains far removed from implementing an effective comprehensive international approach to combat human trafficking.
The trafficking of persons is a growing epidemic that must be addressed and combated. However, to efficiently fight this global problem, the international community must understand the causes of human trafficking, the parties behind such trafficking, and the various methods countries are using to address the problem. This research program aims to provide the international community with the background information necessary to adopt an efficient and successful global campaign against the trafficking of human beings.
This paper seeks to understand the push and pull effects of human trafficking and to determine what may be the appropriate government practices to combat the problem. The research will focus on two parallel country conditions: United States-Mexico and China-Vietnam. These four countries on both sides of the world are experiencing similar problems with human trafficking. Preliminarily, the push and pull causes of human trafficking between the countries appear to be quite similar with the more affluent countries, China and the United States as the receiving country. The United States and China with better economic opportunities are seeing an influx of trafficking victims into their country from their southern neighbors. However, the policies the countries choose to address their human trafficking problems are quite different. The United States has a unilateral enforcement approach to stop human trafficking [] whereas China has a bilateral approach in working with Vietnam to address the situation. [] How each respective country has chosen to deal with the problem provides a great opportunity for research and analysis.
Twenty thousand people are trafficked from Mexico into the United States each year, [] and despite encouragement by the State Department to work together, there are little cooperative efforts between the two countries to combat trafficking. []
In 2000, the United States Congress enacted the Victims of Trafficking and Violence Protection Act of 2000 (“TVPA 2000”) to increase punishment for human traffickers, provide greater protection for victims of human trafficking, and help prevent and deter trafficking.[] The act was passed in response to the “millions of people, primarily women and children” who are trafficked every year.[] Legislative debate showed TVPA 2000 was “designed to ensure that our government uses its influence around the world to stop this abominable trafficking in human beings.”[] The TVPA 2000 called for the State Department to establish the Office to Monitor and Combat Trafficking. [] Additionally, it required the State Department to publish annual reports assessing international human trafficking and to provide sanctions against significant violator countries. [] TVPA 2000 was reauthorized in 2003 to provide additional funding. [] It was reauthorized in 2005, [] and the latest reauthorization in 2008 has sought to expand its scope of protection. []
In 2001, Mexico had no specific laws prohibiting trafficking.[] In 2005, the Mexican Senate unanimously passed comprehensive anti-trafficking legislation. In 2007, the Mexican federal government passed a law that prohibits all forms of human trafficking and provides 6-12 year sentences for trafficking crimes.[] In February 2009, the Mexican government issued regulations to implement its federal anti-trafficking laws,[] and in December 2009 the first convictions under these laws were handed down.[] In May 2009, twenty-two Mexican states and its federal district had enacted legislation to criminalize human trafficking on the local level.[] By 2011, all thirty-two states had passed anti-trafficking codes in some form, although the breadth and effectiveness of these statutes varied.[] Mexico’s anti-trafficking push has continued, and in April 2010 it became the first country to launch its own nationally-led United Nations “Blue Heart” campaign against human trafficking.[]
The research will first examine the United States’ punish and protect method under the Victims of Trafficking and Violence Protection Act. [] Preliminarily, it seems the United States chooses to deal with traffickers and trafficking victims on a case-by-case basis. The government uses federal laws to punish and then deport alien traffickers.[] As for victims who are trafficked into the country, the government slowly has begun to issue “T-visas” for those who cooperate with law enforcement and satisfy hardship requisites.[] These visas are not guaranteed to every trafficking victim, and those who do not qualify for the T-visa find themselves in deportation proceedings and removed from the United States.[] In fiscal year 2012, the Department of Homeland Security received 885 applications for a T-visa, and issued 674 approvals; more than 20% of the applicants were denied and eventually deported.[] Once deported, these people often fall victim to trafficking once again and return to the United States. The startling reality is that even with regular increases in T-visa applications and approvals, the vast majority of trafficking victims in the United States do not receive long-term immigration relief under the Victims of Trafficking and Violence Protection Act.[] The United States’ inability to independently provide broad relief for trafficking victims underscores the need for inter-governmental cooperation. In the past, the United States government rarely worked with Mexico towards a solution for human trafficking. Instead, it chose to unilaterally deal with the trafficking situation within its country and to deport parties involved. This has not fixed the problem, and trafficking into the United States by way of Mexico continues to increase each year.
The second part of the research will examine the China-Vietnam trafficking situation. Human trafficking continues to plague these two countries. Vietnamese authorities estimate during the 1990s approximately 22,000 Vietnamese women and children have been trafficked into China for forced marriage and other elicit purposes.[] The United Nations International Children’s Fund (UNICEF) believes this number is likely underestimated as China is now one of the major receiving countries of trafficked women due to the shortage of women in China.[] The trafficking of human beings across the Vietnam-China border has forced governments from both countries to pass tough anti-trafficking legislations and work together towards a solution.[] Both China and Vietnam have criminal sanctions in their penal codes to prosecute human traffickers.[] Vietnam promulgated a new comprehensive anti-trafficking law in 2012 that expands the previous definition of human trafficking and includes victim care and trafficking prevention previsions.[] Additionally, the two countries have engaged in high level discussions on border security and crime.[]
In May 2000, government officials from both countries met in Vietnam to discuss a joint strategy to combat border trafficking.[] The U.N. Office of Drugs and Crime reports that in 2001, “Viet Nam and China signed a bilateral agreement on cooperation in preventing and combating crime, social order and security, which includes cooperation on human trafficking.”[] In 2005, after three meetings for the Coordinated Mekong Ministerial Initiative against Trafficking in the Greater Mekong Sub-region (COMMIT), Vietnam and China, along with four other Southeast Asian countries agreed on an action plan to fight human trafficking in the region.[]
Of course, these joint efforts have not been able to stop the trafficking problem, but they have resulted in several notable joint law enforcement stings and shutdowns of several human trafficking organizations.[] The joint effort led to the discovery of 46 human trafficking cases during the first six months of 2005, which led to the arrest of 75 traffickers and rescue of 109 victims.[] In fact, cooperative anti-trafficking operations have resulted in the rescue of hundreds of trafficking victims in 2005 and 2006 alone.[] As part of these efforts, UNICEF-China has helped to organize a six-month Vietnamese language learning course for Chinese law enforcement authorities at the Border Liaison Offices, allowing them to better communicate with Vietnamese authorities.[] In 2010, Vietnam and China signed memoranda of understanding to cooperate on human trafficking.[]
The two countries have worked together to punish the traffickers involved and to help the trafficking victims through their ordeal. Unlike the United States, China does not grant visa benefits to trafficking victims. Instead, it participates in transfer and rehabilitation centers for victims and repatriates them back to Vietnam. The countries also have awareness campaigns with UNICEF as a preventive measure. [] These bilateral efforts to train officers on human trafficking issues have changed the view of trafficking victims from criminal suspects who cross the border illegally to human beings who need protection and assistance.[] Unfortunately, even such cooperative efforts have not been able to stem the wave of human trafficking.[]
Thirdly, the research will evaluate the current international efforts by the United Nations and other organizations to stop human trafficking. In light of these endeavors, this paper examines the Vietnamese and Chinese governments’ cooperative legislative and enforcement approach to combat human trafficking, and compares it to a more unilateral legislative approach taken by the United States. The objective of this paper is to determine the effectiveness of each method in reducing human trafficking and what the appropriate measures may be.
A comparison study of the human trafficking situation in China-Vietnam and United States-Mexico will provide a great contrast of international policies pursued by the countries. The end goal is to determine which countries’ bilateral or unilateral approaches are most effective and what methods the international community should adopt in its global effort to stop human trafficking. The research concludes that an effective method is a hybrid strategy combining tougher punitive measures for traffickers, greater protection, rights, and benefits for victims, and better government and law enforcement cooperation among origin, transit, and receiving countries.
The United Nations Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children, G.A. Res. 55/25, annex II, U.N. GAOR, 55th Sess., Supp. No. 49, at 60, U.N. Doc. A/45/49 (Vol. I) (2001). This is one of two protocols that was part of initial international efforts to combat human trafficking. It declares a need for comprehensive international approach and measures to prevent and punish traffickers and to protect victims. It requires each state to criminalize trafficking, protect victims, and exchange information and training. Through this source, we can understand the obligations of each signatory. We also have a foundation for the requisites of international legislation and approach to fight human trafficking.
The United Nations Protocol against the Smuggling of Migrants by Land, Sea and Air, G.A. Res. 55/25, U.N. GAOR, 55th Sess., Supp. No. 49, at 65, U.N. Doc. A/45/49 (Vol. I) (2001). This protocol requires a comprehensive international approach to prevent trafficking of persons internationally. It also requires criminalization, protection, and information exchange. This source is important in context with the other United Nations convention and protocol.
The United Nations Convention against Transnational Crime, G.A. Res. 55/25, Annex I, U.N. GAOR, 55th Sess., Supp. No. 49, at 44, U.N. Doc. A/45/49 (Vol. I) (2001). This is the foundation for the other two United Nations protocols listed above. The purpose of this Convention was to “prevent and combat transnational crime.” It seeks to establish uniform criminalization of participation in an organized crime group and measures taken to get at assets. This Convention is important in context with the other two protocols.
Guidelines on International Protection No. 7: The Application of Article 1A(2) of the 1951 Convention and/or 1967 Protocol Relating to the Status of Refugees to Victims of Trafficking and Persons At Risk of Being Trafficked, U.N. High Commissioner for Refugees, U.N. Doc. HCR/GIP/06/07 (2006). The United Nations issued Guidelines to provide interpretative legal guidance for making determinations about refugee status. The Guidelines complement UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, and should be read in conjunction with other previously issued guidelines issued related to these protocols.
Counter-Trafficking in Persons Policy, U.S. Agency for International Development
(2012). The USAID launched this policy in 2012 to reinvigorate and focus Agency efforts to combat trafficking on concrete, measurable principles and objectives. The policy provides guidance on pursuing more effective, efficient, and evidence-based approaches in counter-trafficking.
2) Electronic Resources
United Nations Office on Drugs and Crime – Human Trafficking. This UN web site provides general information and links to materials produced by the UN related to human trafficking. The site provides access to UN tools and publication materials and the latest news on human trafficking and awareness campaigns. T his source is important to understand the various steps the United Nations has taken to combat human trafficking.
Coalition Against Trafficking in Women. This is the web site of an NGO that focuses on women’s rights and sex trafficking of women and girls around the world. The site provides information on various global campaigns, programs, and projects that combat human trafficking. It also is a good resource for news articles about human trafficking in countries throughout the world.
Polaris Project. This NGO web site provides information on national and local programs to increase awareness of human trafficking and to protect victims. It also is a good source to access legislation and the latest news on human trafficking.
American Bar Association Rule of Law Initiative – The Human Trafficking Assessment Tool. This site provides a study and evaluation of countries’ compliance with UN protocols related to human trafficking. It is a comprehensive resource for the comparison of international efforts worldwide.
United States Agency for International Development – Trafficking. The USAID is the federal government agency primarily responsible for administering civilian foreign aid. This site details its involvement in counter-trafficking efforts.
Ryszard Piotowicz, The UNHCR’s Guidelines on Human Trafficking, 20 Int’l J. Refugee L. 242 (2008). This paper reviews the UNHCR Guidelines on the application of the Refugee Convention to trafficking victims and analyzes how refugee laws can apply to these victims. It provides a comprehensive overview of the Guidelines and how they can be used to benefit victims of trafficking.
Kalen Fredette, Revisiting the UN Protocol on Human Trafficking: Striking Balances for More Effective Legislation, 17 Cardozo J. Int’l & Comp. L. 101 (2009). This paper reviews the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, as well as various national and international efforts to combat human trafficking. It analyzes the Protocol with new data on human trafficking and proposes national and international legislation to increase the Protocol’s effectiveness.
Mohamed Y. Mattar, Incorporating the Five Basic Elements of a Model Antitrafficking in Persons Legislation in Domestic Laws: From the United Nations Protocol to the European Convention, 14 Tul. J. Int’l & Comp. L. 357 (2006). Article gives a comparative study of various anti-trafficking legislations and provides a model framework for trafficking legislation. It gives five requirements: 1) criminalizing of all forms of trafficking, 2) identifying victims and guaranteeing basic human rights, 3) adopting comprehensive prevention, protection, provision, prosecution, and participation approaches, 4) targeting all actors in human trafficking organization, and 5) acknowledging human trafficking as an international crime. It is a great article for a basic framework of anti-trafficking legislation, with a broad overview and evaluation of the various legislations already in place in the international system. Furthermore, its model framework idea is extremely helpful as a launch pad for a more comprehensive recommendation to the international community.
Note, Remedying the Injustices of Human Trafficking Through Tort Law, 119 Harv. L. Rev. 2574 (2006). The note explores a novel idea about the potation for civil redress for human trafficking victims under tort claims in the United States. The paper first gives an overview of tactics used by traffickers to bring victims into the United States and then examines the forced labor conditions. It then critiques the protections afforded to victims under the current legislative framework and argues for civil causes of action, using California law as a model. The article helps the research in understanding how traffickers lure their victims and the conditions of forced labor within the United States. Additionally, the argument for tort claims is an interesting and new idea that can possibly be explored further to determine its feasibility in the international legal framework.
Linda Smith & Mohamed Mattar, Creating International Consensus on Combating Trafficking in Persons: U.S. Policy, the Role of the UN, and Global Responses and Challenges, 28 WTR Fletcher F. World Aff. 155 (2004). The paper gives a general overview of the United States’ and United Nations’ approaches to combating human trafficking. It identifies several problems in the international community that contributes to the proliferation of human trafficking. It also gives fairly broad recommendations for countries to take preventive, protective, and legislative measures to fight trafficking. This paper is good for research because it focuses more on the United Nations protocols and international framework.
Mohamed Y. Mattar, Trafficking in Persons: An Annotated Legal Bibliography, 96 Law Libr. J. 669 (2004). It begins with general information about human trafficking, giving an expansive definition. The bibliography itself covers a broad array of what the author considers to be human trafficking, and it also focuses on international human rights law and trafficking legislation in various countries including the United States, China, and Southeast Asia. This is an extremely comprehensive resource tool with annotations on dozens of articles in the field. It cuts out half of the research work. Great source to use for further research on human trafficking, although some of the articles are a bit old.
Shaheen P. Torgoley, Comment, Trafficking and Forced Prostitution: A Manifestation of Modern Slavery, 14 Tul. J. Int’l & Comp. L. 553 (2006). The paper looks at specific experiences of victims who were trafficked and forced into prostitution. It looks at the historical development of trafficking and prostitution, and then the modern recruitment of women for trafficking and prostitution. The conclusion explores a legal framework to combat the problem under the Thirteenth Amendment outlawing slavery and indentured servitude. This is a good source for information about prostitution and indentured servitude. It provides the Thirteenth Amendment as a unique argument and method for the legal fight against human trafficking.
Robin M. Rumpf, U.N. Reports, The New Slavery: The United Nations Interregional Crime & Justice Research Institute’s Global Program Against Trafficking in Human Beings, 19 N.Y.L. Sch. J. Hum. Rts. 879 (2003). This report provides an overview of the U.N.’s Global Program Against Trafficking in Human Beings. It discusses the four phases that will be implemented to track organized crime involvement in human trafficking. This is a good resource for more detailed information about the GPAT’s method to track organized crime.
Shelley Case Inglis, Expanding International and National Protections Against Trafficking for Forced Labor Using a Human Rights Framework, 7 Buff. Hum. Rts. L. Rev. 55 (2001). Article examines human trafficking within a human rights framework, specifically focusing on forced labor. It evaluates current proposed solutions by governments, international organizations, and NGOs to address the problems. The article lays the foundation for viewing human trafficking within a human rights framework.
Amy Fraley, Note, Child Sex Tourism Legislation Under the Protect Act: Does it Really Protect? 79 St. John’s L. Rev. 445 (2005). The article explores the problem of child sex tourism and focuses on the evolution of United States legislation including amendments adopted as part of the Prosecuting Remedies and Tools Against the Exploitation of Children Today Act of 2003. It then discusses a comparative analysis of the United States approach to the problem measured against approaches in several other Western countries. The paper concludes with “benchmarks” for effective legislation and calls for international collaboration and unity to prosecute child sex tourism. Although the article is not generally about human trafficking, it focuses on a very big effect of trafficking—child exploitation. This is an in-depth study of this particular area, which is perhaps the most dangerous and byproduct of human trafficking. Furthermore, it provides a great comparative analysis of methods utilized by the United States and other countries. It is a good starting ground for further research and recommendation for approaches to combating human trafficking and child exploitation.
Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386, 114 Stat. 1464 (2000). This legislation is the foundation of the United States’ legal framework in protecting victims of human trafficking. It establishes an office within the State Department to monitor trafficking and publish annual reports on human trafficking. It also provides a means for victims to remain in the United States if they satisfy certain requisites including cooperation with law enforcement and proof of specific hardships if returned. When analyzing the United States’ legal efforts to fight human trafficking, we must look to this statute to determine how it is treating victims. This will be our main source in the comparison analysis with other countries.
Victims of Trafficking and Violence Protection Reauthorization Act of 2003, Pub. L. No. 108-193, 117 Stat. 2875 (2003). This law renews the TVPA 2000 law. It creates a federal civil cause of action for trafficking victims to sue their traffickers. It also extends benefits to spouses and children of trafficking victims who qualify for visas. This legislation shows TVPA 2000 is still good law.
Victims of Trafficking and Violence Protection Reauthorization Act of 2005, Pub. L. No. 109-164, 119 Stat. 3558 (2005). The law extends TVPA for an additional two years and authorizes new programs to serve trafficking victims and included a pilot program to shelter minors. It expands federal criminal jurisdiction to allow prosecution of U.S. government personnel and contractors who commit trafficking offenses while abroad.
Victims of Trafficking and Violence Protection Reauthorization Act of 2008, Pub. L. No. 110-457, 122 Stat. 5004 (2008). The latest extension authorizes TVPA through 2011. Continuing with expansions of federal criminal jurisdiction, this version of the law covers U.S. citizens and permanent residents who travel engaged in human trafficking activities outside of the United States.
146 Cong. Rec. H2675 (daily ed. May 9, 2000) (statement of Rep. Smith). The debate is from the House’s consideration and passage of bill H.R. 3244, which ultimately was enacted as TVPA 2000. The record shows the text of the original bill, and the representative’s speech on the floor of the House highlights all of the important concerns during deliberations and passage of the Act. Knowing the legislative history is important to understand the particular methods the United States has chosen to take in combating human trafficking.
United States of America Department of State, Trafficking in Persons Report (July 2001). The first report by the State Department was 102-pages black and white, shedding light on the “severe forms of trafficking in persons” into the United States that had been mostly ignored by law enforcement officials and unnoticed by the general public. That year, the State Department estimated at least 700,000 persons were trafficked across international borders each year, and specifically, 45,000 to 50,000 people were trafficked into the United States annually. The report set out the minimum standards for eliminating trafficking, and evaluated every country according to a three-tier system. This is a great resource to compare country conditions at the beginning of the millennium and see if progress has been made.
United States of America Department of State, Trafficking in Persons Report (June 2012). The State Department’s latest report is 396-pages of color with comprehensive information about not only country evaluations, but also victims’ stories and international programs and campaigns. This report provides a great depth of information to understanding the current state of human trafficking and the United States’ perspective and active role in the situation.
2) Electronic resources
U.S. Department of State – Office to Monitor and Combat Trafficking in Persons. This is the web site for the office that was established by TVPA 2000. The office provides general information and fact sheets about human trafficking and efforts to combat trafficking by both U.S. and foreign governments. Notably, the Office publishes the annual “Trafficking in Persons Report” each summer. The site has links to download all of the reports.
U.S. Department of Homeland Security – U.S. Citizenship and Immigration Services – Victims of Human Trafficking & Other Crimes. This site provides information about the immigration reliefs available to trafficking victims. There is a detailed Question and Answer section regarding T and U visas.
U.S. Department of Homeland Security – Immigration and Customs Enforcement, Human Trafficking and Smuggling Fact Sheet. This site provides general information about human trafficking, explains ICE’s role in combating trafficking, and outlines recent “anti-human trafficking successes.”
U.S. Department of Homeland Security – Immigration and Customs Enforcement, News Releases. This site contains many government news releases about arrests and prosecutions of immigration violators, including human trafficking cases.
U.S. Department of Education – Office of Safe and Drug-Free Schools, Human Trafficking of Children in the United States – A Fact Sheet for Schools. This site provides information for schools to identify victims of human trafficking and links to resources and publications on human trafficking.
U.S. Department of Health and Human Services – Administration for Children & Families, The Campaign to Rescue & Restore Victims of Human Trafficking. This site contains comprehensive information as the National Human Trafficking Resource Center.
Salvador A. Cicero-Dominguez, Assessing the U.S.-Mexico Fight Against Human Trafficking and Smuggling: Unintended Results of U.S. Immigration Policy, 4 Nw. U. J. Int’l Hum. Rts. 303 (2005). The article focuses on the U.S.-Mexico relationship with particular emphasis on the Mexican legal system and law enforcement cooperation between the two countries. It criticizes the United States’ unilateral deportation policies and more stringent immigration rules, which may contribute to the increased criminal activity in human trafficking. The paper also reviews new developments and proposed social and policy measures to address the situation. This article is probably the most recent evaluation of the U.S.-Mexico relationship and human trafficking situation, so it provides current information about the policies both countries are pursuing to stop human trafficking. It also has an evaluation of the current state practices and the effects and impacts of those practices on each country. This information is probably difficult to discover elsewhere.
Jennifer M. Chacon, Misery and Myopia: Understanding the Failures of U.S. Efforts to Stop Human Trafficking, 74 Fordham L. Rev. 2977 (2006). This Article situates the Trafficking Act within the framework of its legal antecedents in an effort to illustrate the ways in which the inability of the TVPA to substantially meet its goals of
preventing trafficking and protecting trafficking victims stems from more general failures of domestic immigration policy. By broadening the scope of the inquiry concerning the shortcomings of the TVPA, this Article seeks to clarify the ways in which the TVPA actually may be interacting in a detrimental way with other immigration and labor policy choices.
Dina Francesca Haynes, (Not) Found Chained in Bed in a Brothel: Conceptual, Legal, and Procedural Failures to Fulfill the Promise of the Trafficking Victims Protection Act, 21 Geo. Immigr. L.J. 337 (2007). The article outlines issues that need to be addressed to accomplish the original TVPA goals for protecting victims of human trafficking. It critiques the ongoing policy of punishing trafficking victims through arrest, detention, and deportation. The paper highlights a procedural policy, misinterpretation, and misapplication of the law by the U.S. government and personnel that it deems is contrary to the purpose of the TVPA. The article suggests an alternative approach for the U.S. government and agency personnel to reframe its view of human trafficking.
Anne T. Gallagher, A Shadow Report on Human Trafficking in Lao PDR: The US Approach vs. International Law, 16 Asian & Pac. Migr. J. 525 (2007). The article evaluates the U.S. unilateral approach for evaluating and ranking countries in its annual Trafficking in Persons Report. It suggests that the United States should adopt the international standards that are already in place to accurately assess country conditions according to established international rules.
The following are news articles about the U.S. anti-trafficking efforts:
• Department of Homeland Security, Immigration Customs Enforcement, News Release, 3 Plead Guilty to Charges Involving Forcing Young Mexican Women into Sexual Slavery in N.Y.: Prosecution is one largest sex trafficking cases to date under the Trafficking Victims Protection Act, Apr. 5, 2005.
• Police bust large Arizona human trafficking ring, Reuters, Oct. 30, 2006.
• Sex trafficking victim’s lives in visa limbo, Houston Chronicle, Nov. 28, 2008.
• Human trafficking in Mexico targets women and children, CNN, Jan. 13, 2010.
• Mexico first country in the world to launch the “Blue Heart” campaign against human trafficking, UNODC Press Release, Apr. 14, 2010.
• Department of Homeland Security, Immigration Customs Enforcement, News Release, U.S., Mexico convene binational summit on human trafficking , July 13, 2012.
1) Government Resources
Decision of the Standing Committee of the National People’s Congress Regarding the Severe Punishment of Criminals who Abduct and Traffic in or Kidnap Women or Children, Sept. 4, 1991, available at www.lawinfochina.com . The 1991 criminal law is designed to protect “personal safety of women and children and maintain the public security order.” It proscribes 5-10 years imprisonment and fines of up to 10,000 yuan for certain offenders, and the death sentence and confiscation of property for ringleaders and other more severe crimes related to trafficking and kidnapping of women and children. This seems like a very powerful domestic law to deal with human trafficking.
Law of the People’s Republic of China on the Protection of Rights and Interests of Women, Oct. 1, 1992, rev. Aug. 28, 2005, eff. Dec. 1, 2005, available at www.lawinfochina.com. The law provides equal rights to women and men. In the original October 1, 1992 provisions, Article 36 of the law specifically prohibited abducting, trafficking, or kidnapping women as well as buying women who have been abducted, trafficked, or kidnapped. The provision further required that the government and relevant agencies must rescue women who have been abducted, trafficked, or kidnapped, and return them home. This law was revised in 2005, and Article 36 was renumbered to Article 39. Additional language was included to prohibit discrimination of the victims and to require that the women’s federation make cooperative efforts to rescue the victims and handle problems arising in each case. This appears to be a strong foundation to build the framework for combating human trafficking and punishing traffickers.
Supplementary Provisions of the Standing Committee of the National People’s Congress on the Severe Punishment of the Crimes of Organizing or Transporting Other Persons(s) to Illegally Cross the National Border (Frontier), Mar. 5, 1994, available at www.lawinfochina.com. The law proscribes 2-7 years imprisonment and fines for offenders who transport people across China’s borders illegally. It provides the death sentence for offenders who engage in more serious crimes (e.g. murder, rape, etc.) during the commission of the transport. The law also punishes fraudulent documentation. This is another good law to deal with human trafficking, especially through the China-Vietnam border.
Criminal Law of the People’s Republic of China, Jan. 1, 1980, rev. Mar. 14, 1997, available at www.lawinfochina.com. Human traffickers can be prosecuted under various offenses of China’s criminal code. Article 236 proscribes 3-10 years imprisonment for rape and life imprisonment or the death penalty for sexual exploitation of girls under the age of 14. Article 240 provides a 10-year to lifetime sentence or the death penalty for abducting or trafficking women or children. Article 241 proscribes imprisonment up to 3 years for buying women or children who have been abducted. This law is helpful in providing the criminal punishments that are available for human traffickers.
Law of the People’s Republic of China on the Protection of Minors, Jan. 1, 1992, rev. Dec. 29, 2006, eff. June 1, 2007, available at www.lawinfochina.com. Article 41 of the revised version of this law outlaws trafficking, kidnapping, and sexual exploitation of minors. This is an example of China’s recent ongoing efforts to combat human trafficking and protect victims.
Vietnam Penal Code. The English translation shows that Vietnamese domestic laws have various sections that may be pertinent to human trafficking. Sections 114 and 115 is on sexual abuse of children, and section 120 is prohibits the trade or fraudulent exchange of children. Section 119 deals with trafficking in women, and section 128 makes forced labor illegal. For the research, it is helpful to know what domestic laws are available to prosecute traffickers and protect victims.
UNODC, Press Release, Viet Nam, China and UNODC Meet in Ho Chi Minh City for Cross-Border Cooperation to Fight Human Trafficking, June 21, 2006. The press release discusses a 2001 bilateral agreement that Vietnam and China signed on cooperation to combat crime and human trafficking. An English source of the agreement has not been found, but the press release is a secondary source to show such agreements have been signed between the two countries.
UNICEF, UNODC, and Vietnam Ministry of Justice, Assessment of the Legal System in Vietnam: In Comparison with the United Nations Protocols on Trafficking in Persons and Smuggling of Migrants, Supplementing the United Nations Convention Against Transnational Organized Crime (Apr. 2004). The report examined Vietnam’s legal compliance with the UN Protocols on Human Trafficking. It follows a six-week training program that UNICEF and the UNODC carried out in Vietnam during the Spring 2004. It is a great report to understand the state of Vietnamese law enforcement capacity, legislation, and judicial responses to human trafficking.
Memorandum of Understanding on Cooperation against Trafficking in Persons in the Greater Mekong Sub-Region. This agreement was signed by the governments of Cambodia, China, Laos, Myanmar, Thailand, and Vietnam in October 2004. It lays the framework for a cooperative network among the signing nations to develop national and international policy against human trafficking, to adopt and enforce appropriate legislation prosecute traffickers and to protect victims, and to develop programs to shelter, recover, and reintegrate victims. It affirms the international commitment of these Asian countries to jointly fight human trafficking.
Combating Human Trafficking in Asia: A Resource Guide to International and Regional Legal Instruments, Political Commitments and Recommended Practices (U.N. Publications: New York City 2003). This resource guide identifies the international and regional legal instruments that can be used to combat the trafficking in persons and other related forms of exploitation such as human rights, slavery and slavery-like practices, migration, labor and gender. It also provides recommendations to governments in strengthening and improving their law enforcement response to meet the requirements of international instruments. Important United Nations conventions on human rights, slavery, transnational organized crime, migrant workers, women, labor, wages, and child welfare examined. The guide is mainly targeted to governments in the Asia region and law enforcement officials to increase their capacity to effectively combat trafficking in persons.
2) Web Resources
United Nations Inter-Agency Project on Human Trafficking. This UN web site is the online resource for the UNIAP, providing the latest information on the UN initiatives and coordinated responses to human trafficking in the Greater Mekong Sub-region. The site has the latest updates and extensive information and statistics about human trafficking in these countries and about the SIREN and COMMIT initiatives. This is a wonderful source for information on the various efforts the UN and the Southeast Asian nations are undertaking.
International Labour Organization, Project to Combat Trafficking in Children and Women. The ILO web site provides information on the Mekong Sub-Region’s effort to eliminate human trafficking, focusing mainly on child labor. It covers Vietnam and the Yunnan Province of China, among other countries. The site provides analysis and research reports on the situation of labor exploitation in the region. It is a great research tool for background information and links to research and publications.
HumanTrafficking.org. A great web resource for news and information on human trafficking East Asia and Pacific countries. There is great background information on the trafficking situation in both China and Vietnam, as well as agencies, laws, action plans/initiatives, and news updates related to human trafficking in the two countries.
Coalition to Abolish Modern-day Slavery in Asia. CAMSA is an NGO formed by a group of international organizations to advance anti-human trafficking efforts, particularly focusing on victims from Vietnam. Its web site provides access to legislation and statistics related to Vietnam and human trafficking.
Yi Wang, Trafficking in Women and Children from Vietnam to China: Legal Framework and Government Responses, Anti-Human Trafficking Program in Vietnam (Oxfam: Quebec 2005). This study is the profile overview of the human trafficking situation from Vietnam to China. It discuses the various international treaties the countries have or have not signed, and it also looks at the bilateral treaties between the two countries to combat human trafficking. Research information on the Vietnam-China cross-border trafficking problem is difficult to come by as most sources are in Chinese or Vietnamese. This study publication is a wonderful asset for the researcher to understand the China-Vietnam situation and see the types of bilateral efforts sustained in the process. Furthermore, the study leads to specific treaties and agreements to aid the research.
Nancie Caraway, Human Rights and Existing Contradictions in Asia-Pacific Human Trafficking Politics and Discourse, 14 Tul. J. Int’l & Comp. L. 295 (2006). The article examines debt bondage, prostitution, and forced labor human trafficking in Asia, particularly Southeast Asia. It looks at the supply-and-demand reason for trafficking, and argues complicity by Western nations as a reason for increased human trafficking. The author sees free market effects create a lack of punishment for trafficking because the market sees it as no crime committed. It is a great new concept and reasoning for human trafficking. The new concept is wonderful to read and look at it from an economics perspective, and seeing how the need by rich countries is actually proliferating the trafficking of the most vulnerable human beings. This is another reason to consider in the research for understanding push and pull mechanisms of human trafficking.
Susan Tiefenbrun, Human Trafficking in China, T. Jefferson Sch. L. Research Paper No. 1522603 (2008). The article reviews the human trafficking situation in China and explores the underlying causes in terms of China’s One Child Policy and a cultural preference for sons rather than daughters. It provides a comprehensive overview and evaluation of China’s laws related to human trafficking and suggests new policies for combating human trafficking in China. It is a good source to begin research in this area.
The following are news articles about China and Vietnam’s joint anti-trafficking efforts:
• China, Vietnam launch anti-trafficking campaign, People’s Daily Online, June 4, 2004.
• Campaign to stop trafficking in women and children between Viet Nam and China, UNICEF, June 3, 2004.
• Six Asian nations act to stop human trafficking, Reuters, Mar. 31, 2005.
• Vietnam-China trafficking on rise, BBC News, Jan. 24, 2006.
• China issues plan to combat human trafficking, Xinhua News, July 12, 2006.
• China, Vietnam vow to step up co-p against cross-border crimes, Xinhua News, Oct. 12, 2006.
• Foundation fights human trafficking, VietNamNet Bridge, Oct. 22, 2007.
• China joins Mekong countries in fighting cross-border human trafficking, Xinhua News, Nov. 29, 2009.
• Vietnamese authorities tackle human trafficking into China, Global Times, Feb. 24, 2010.
[] See U.S. and U.N. statutory definitions. Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386, 114 Stat. 1464 (2000) [hereinafter TVPA 2000]. G.A. Res. 55/25, annex II, U.N. GAOR, 55th Sess., Supp. No. 49, at 60, U.N. Doc. A/45/49 (Vol. I) (2001), available at http://www.uncjin.org/Documents/Conventions/dcatoc/final_documents_2/convention_%20traff_eng.pdf [hereinafter UN Protocol to Prevent Trafficking].
[] Blue Heart Campaign against Human Trafficking, http://www.unodc.org/blueheart/index.html; UN rallies public support to end human trafficking with Blue Heart campaign, UN News Centre, Mar. 5, 2009, available at http://www.un.org/apps/news/story.asp?NewsID=30096&Cr=Human+trafficking&Cr1.
[] UNGlobalCompact.org, Overview of the UN Global Compact, http://www.unglobalcompact.org/AboutTheGC/index.html.
[] U.N. Office on Drugs and Crimes, Trafficking in Human Beings, http://www.unodc.org/unodc/en/trafficking_human_beings.html.
[] G.A. Res. 55/25, U.N. GAOR, 55th Sess., Supp. No. 49, at 65, U.N. Doc. A/45/49 (Vol. I) (2001), available at http://www.uncjin.org/Documents/Conventions/dcatoc/final_documents_2/convention_smug_eng.pdf.
[] G.A. Res. 55/25, Annex I, U.N. GAOR, 55th Sess., Supp. No. 49, at 44, U.N. Doc. A/45/49 (Vol. I) (2001), available at http://www.uncjin.org/Documents/Conventions/dcatoc/final_documents_2/convention_eng.pdf.
[] Salvador A. Cicero-Dominguez, Assessing the U.S.-Mexico Fight Against Human Trafficking and Smuggling: Unintended Results of U.S. Immigration Policy, 4 Nw. U. J. Int’l Hum. Rts. 303 (2005), available at http://www.law.northwestern.edu/journals/jihr/v4/n2/2/Cicero-Dominguez.pdf.
[] See generally Yi Wang, Trafficking in Women and Children from Vietnam to China: Legal Framework and Government Responses, Anti-Human Trafficking Program in Vietnam (Oxfam: Quebec 2005), available at http://www.humantrafficking.org/uploads/publications/oxfam_antitrafficking_program_in_vietnam.pdf.
[] Eric Green, State Dept. Urges U.S., Mexico Fight Human Trafficking Together, Oct. 7, 2004, available at http://www.america.gov/st/washfile-english/2004/October/20041007114445AEneerG0.4730188.html.
[] Mexico first country in the world to launch the “Blue Heart” campaign against human trafficking, UNODC Press Release, Apr. 14, 2010, available at http://www.unodc.org/unodc/en/press/releases/2010/April/mexico-launch-blue-heart-campaign-against-human-trafficking.html.
[] Data on Victims of Trafficking in Person and Victims of Crime, available at http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=9c45211f28ff0310VgnVCM100000082ca60aRCRD&vgnextchannel=9c45211f28ff0310VgnVCM100000082ca60aRCRD.
[] Viet Nam and China: joint effort to fight cross-border trafficking of women, UNICEF, available at http://www.unicef.org/vietnam/reallives_562.html.
[] See e.g., Decision of the Standing Committee of the National People’s Congress Regarding the Severe Punishment of Criminals who Abduct and Traffic in or Kidnap Women or Children, Sept. 4, 1991, available at www.lawinfochina.com; Vietnam Penal Code §§ 114, 115, 119, 120, 128.
[] HumanTrafficking.org, Vietnam Government Action Plan, http://www.humantrafficking.org/action_plans/16.
[] UNODC, Press Release, Viet Nam, China and UNODC Meet in Ho Chi Minh City for Cross-Border Cooperation to Fight Human Trafficking, June 21, 2006, available at http://www.unodc.org/pdf/vietnam/PressreleaseChina_21_22June06.pdf.
[] China’s Human Rights, Border police rescue 37 in anti-human trafficking drive, (July 13, 2005), available at http://www.humanrights-china.org/news/2005-7-13/2005713104306.htm.
[] HumanTrafficking.org, News & Updates: Campaign Against Trafficking in Vietnam, http://www.humantrafficking.org/updates/119 (July 2005).
[] Fighting cross-border human trafficking, November 29, 2009, available at http://www.china.org.cn/world/2009-11/29/content_18973505.htm.
[] China joins Mekong countries in fighting cross-border human trafficking, Xinhua News, Nov. 29, 2009, available at http://news.xinhuanet.com/english/2009-11/29/content_12558880.htm.
[] United States of America Department of State, Trafficking in Persons Report, at 387 (June 2011). See also Miwa Yamada, Comparative analysis of Bilateral Memoranda on Anti-human Trafficking Cooperation between Thailand and Three Neighboring Countries: What do the Origin and the Destination States Agree Upon?, Institute of Developing Economies (March 2012) at 4, available at https://ir.ide.go.jp/dspace/bitstream/2344/1140/1/ARRIDE_Discussion_No.349_yamada.pdf.
[] Campaign to stop trafficking in women and children between Viet Nam and China, UNICEF, June 3, 2004, available at http://www.unicef.org/vietnam/media_521.html.
[] China joins Mekong countries in fighting cross-border human trafficking, supra note 49.
[] See Vietnam-China trafficking on rise, BBC News, Jan. 24, 2006, http://news.bbc.co.uk/2/hi/asia-pacific/4643110.stm (reporting that the number of known trafficking cases of women and girls from Vietnam into China doubled during 2005).