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Phd Thesis for Jason Haynes Durham E-Theses Re-thinking Anti-Tracking Law and Practice: European and Commonwealth Caribbean Perspectives HAYNES, JASON,KENROY How to cite: HAYNES, JASON,KENROY (2015) Re-thinking Anti-Tracking Law and Practice: European and Commonwealth Caribbean Perspectives, Durham theses, Durham University. Available at Durham E-Theses Online: http://etheses.dur.ac.uk/11217/ Use policy The full-text may be used and/or reproduced, and given to third parties in any format or medium, without prior permission or charge, for personal research or study, educational, or not-for-prot purposes provided that: • a full bibliographic reference is made to the original source • a link is made to the metadata record in Durham E-Theses • the full-text is not changed in any way The full-text must not be sold in any format or medium without the formal permission of the copyright holders. Please consult the full Durham E-Theses policy for further details. Academic Support Oce, Durham University, University Oce, Old Elvet, Durham DH1 3HP e-mail: [email protected] Tel: +44 0191 334 6107 http://etheses.dur.ac.uk 2 Re-thinking Anti-Trafficking Law and Practice: European and Commonwealth Caribbean Perspectives Jason Haynes A thesis submitted for the degree of Doctor of Philosophy Durham Law School Durham University 2015 Re-thinking Anti-Trafficking Law and Practice: European and Commonwealth Caribbean Perspectives Jason Haynes ABSTRACT Human trafficking has increasingly been referred to in academic circles as ‘modern slavery’. It thrives in conditions of poverty, prejudice, inequality and discrimination, and has a deleterious impact on its victims. Its perpetrators come from all walks of life, and are actively involved in myriad forms of exploitation, which generate billions in profits on an annual basis. Since the passage of the Trafficking Protocol in 2001, there has been a marked increase in anti- trafficking policy and legislation at the international, regional and domestic levels. Notwithstanding this, however, the effectiveness of these measures remains a hotly contentious issue. It is against this backdrop that this thesis has been conceptualised; the overarching aim being to critically assess the existing law and practice on human trafficking at the European and Commonwealth Caribbean levels, and to explore and evaluate possibilities for an enhanced regulatory framework. To achieve this aim, several objectives are actively pursued over the course of nine chapters. The first objective involves a deconstruction and critical evaluation of the various 'hegemonic assumptions' that underlie the conventional criminal justice and human rights approaches to human trafficking. The second involves a critical examination of the existing law and practice on human trafficking at the European and Commonwealth Caribbean levels from a comparative socio-legal perspective. The main argument advanced is that, at present, there is a ‘disconnect’ between anti-trafficking law and practice, which has an adverse impact on the prevention of human trafficking, the prosecution of traffickers and the protection of trafficked victims. The final objective involves an exploration of a non-exhaustive list of possibilities for reform that are aimed at ameliorating this ‘disconnect’. The methodological approaches of the thesis to its research question involve doctrinal analyses, comparative analyses, as well as socio-legal analyses. 1 TABLE OF CONTENTS DECLARATION ...................................................................................................................................... 7 STATEMENT OF COPYRIGHT ........................................................................................................... 8 ACKNOWLEDGEMENTS ..................................................................................................................... 9 LIST OF ABBREVIATIONS ................................................................................................................ 10 LIST OF FIGURES ................................................................................................................................ 11 TABLE OF CASES ................................................................................................................................. 12 TABLE OF STATUTES ........................................................................................................................ 14 CHAPTER 1 ............................................................................................................................................ 19 INTRODUCTION ................................................................................................................................. 19 1.1. RESEARCH GAPS ..................................................................................................................... 20 1.2. EXPECTED CONTRIBUTION OF THIS THESIS .............................................................. 23 1.3. RESEARCH QUESTION .......................................................................................................... 24 1.4. RESEARCH AIM ....................................................................................................................... 24 1.5. RESEARCH OBJECTIVES ....................................................................................................... 24 1.6. STRUCTURE OF THESIS ....................................................................................................... 25 CHAPTER 2 ............................................................................................................................................ 28 BACKGROUND AND METHODOLOGY ........................................................................................ 28 INTRODUCTION ................................................................................................................................. 28 A. REGULATORY APPROACHES TO HUMAN TRAFFICKING ............................................. 28 2.1. THE CRIMINAL JUSTICE APPROACH ............................................................................... 30 2.2. General ......................................................................................................................................... 30 2.3. 'Hegemonic Assumptions' ............................................................................................................ 34 2.3.1. Persons not rescued by law enforcement officials are unlikely to be trafficked victims. ......... 34 2.3.2. A ‘real’ victim is a passive foreign girl or woman who has been trafficked for the purpose of sexual exploitation. ................................................................................................................................... 35 2.3.3. Only a person who cooperates with law enforcement officials in the institution of criminal proceedings and who can act the part of a good witness is truly worthy of support and assistance. ........ 36 2.3.4. A decrease in the prevalence of trafficking-related incidents or, alternatively, an increase in trafficking-related prosecutions/convictions, are strong and reliable indicators of ‘success’ in responding to human trafficking. ................................................................................................................................ 38 2.4. THE HUMAN RIGHTS APPROACH .................................................................................... 39 2.5. General ......................................................................................................................................... 39 2.6. 'Hegemonic Assumptions' ............................................................................................................ 41 2 2.6.1. Preventative measures aimed at raising awareness about human trafficking always result in positive attitudinal changes. ...................................................................................................................... 41 2.6.2. Measures taken to protect victims of trafficking always operate in their best interests ............ 43 2.7. Summary ...................................................................................................................................... 44 B. THEORETICAL PERSPECTIVE ................................................................................................ 45 2.8. General ......................................................................................................................................... 45 2.9. The Socio-Legal Theory .............................................................................................................. 46 2.9.1. Appropriateness of the Socio-Legal Theory ............................................................................ 47 2.9.2. Typology of Action .................................................................................................................. 48 'INI' TYPOLOGY ................................................................................................................................... 50 C. METHODOLOGY ........................................................................................................................ 51 2.10. General ..................................................................................................................................... 51 2.11. Doctrinal Approach ................................................................................................................
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