States can combine strict border controls with the protection of human rights

Primary Responsibility for Human Rights Rests with the State This line of reasoning is valid as far as it goes, but in our opinion, it does not go far enough. For it is also true that genuine human rights protections for migrants, whether trafficked or not, can only be enforced and upheld by sovereign states or by intergovernmental and nongovernmental organisations (NGOs) working with their assistance. Ultimately, the primary responsibility rests with the state to address trafficking in persons and uphold the migrants’ human rights. This is the reality that a feasible and meaningful discussion on the role of border controls in anti-trafficking responses must take into account. To ignore or deny it will only serve to worsen the present situation. States are not going to open their borders to the free flow of migrants, no matter how much they are criticised. Even if one concedes that states are losing control, having a sense of control over one’s border, as Will Kymlicka argues, is of the utmost importance.23 First, it reduces fear, makes citizens feel secure, and takes some of the heat out of political debates on migration. Second, in most countries, there is little support for large-scale migration as well as a strong moralistic objection to rewarding irregular migrants who enter under false pretences. Third, it is easier for migrants to integrate into countries like Australia and Canada, where migration is managed and the result of state selection because large numbers of irregular migrants often result in a backlash against multiculturalism.24 None of these points makes a case as to why border controls should have a role to play in anti-trafficking responses per se; rather, they show that sovereignty and nationalism are still powerful norms influencing border controls and migration policies. Yet, however one appraises the overall relationship between border controls, regulated migration systems, trafficking in persons, and human rights, the analysis and suggestions that follow are constructed on a premise that few critics can dispute. Our premise is that most state border controls, as they currently stand, are neither preventing trafficking nor upholding the human rights of victims. For the most part, border controls worldwide fail to prevent and detect trafficking in persons. However, this needs to be fixed. States See Border Control as an Important Element to Anti-trafficking Interventions Given that it is the sovereign right of each state to control its border and regulate migration, it is also imperative that we see how the human rights of migrants can fit within the realpolitik of migration control. Again, one might ask why? To this question, our response is straightforward. States, for the most part, have adopted a criminal justice approach to address trafficking in persons. The main principles that form the basis of this approach are captured in the Trafficking and Smuggling Protocols as well as other international agreements, such as the Council of Europe Convention on Action against Trafficking in Human Beings. As of September 2013, 117 countries have ratified the Trafficking Protocol, requiring states to criminalise all forms of trafficking, prosecute and punish traffickers, strengthen national borders to combat the problem, promote cooperation among states, and protect and assist victims. As Chantal Thomas argues, ‘These international instruments suggest that states have not relinquished sovereign territorial prerogative – they have employed international law to enhance rather than to impede it.’25 Because both Protocols acknowledge the sovereign right of states to control their borders and regulate migration, UNODC fully supports this position and works with states, as part of its mandate, to promote adherence to the two Protocols and assist states in their implementation. Admittedly, the anti-trafficking frameworks developed by a number of states have more to do with political prerogatives than the legal obligations of the Trafficking Protocol. Nonetheless, as Gallagher and Holmes note, ‘The securing of general agreement on the nature of the problem [trafficking in persons] and the direction and scope of required solutions is widely lauded as evidence of real and tangible progress.’26 Regardless of arguments against it, the instrument is a clear signal that trafficking in persons, at least in the eyes of the states, is a criminal justice issue of which border controls are an important part. Does it suggest the reluctance of states to respect the rights of migrants? Perhaps to some, but as Susan Kneebone points out, the weak support for the UN Convention on the Protection of the Rights of All Migrant Workers intimates that the ‘security-criminal justice dialogue succeeded when a rights dialogue failed’.27 Notwithstanding the support states give to the Trafficking Protocol and its Article 11, which mandates the strengthening of border controls to prevent and detect trafficking in persons, significant practical challenges remain in doing this effectively and with a human rights approach.