Incorporation of the Palermo Protocol
Although the provisions of the TVPA and the anti-trafficking statutes of the Caribbean region are similar in some of their provisions, the precise form of the TVPA was not adopted in the Caribbean.
The TVPA does not set out a comprehensive legislative regime that can be easily transplanted because it includes amendments to existing United States legislation. It devotes much of its attention to laying down the minimum requirements demanded of other countries and the sanctions for non-compliance. The Palermo Protocol 2000, which was ratified by all three Caribbean countries, provided a recent and more comprehensive framework for satisfying the United States’ Minimum Standards.[671] [672] The three Caribbean territories transplanted it with its peculiarities and its deficiencies.A. Why States Comply with Treaty Obligations
Oona Hathaway offers two central dynamics that influence state decisions to commit to or comply with human rights treaties: domestic legal enforcement and collateral consequences.[673] The first examines how the treaty will be enforced against the government within the state itself. Hathaway highlights the absence of an international enforcing body for most human rights treaties making domestic legal enforcement the determinative factor. Where powerful extra-governmental actors can hold the government accountable to its international obligations, there tends to be a higher level of commitment.[674] One expects these forces to exist to a greater extent in democratic states.[675]
The second, collateral consequences, arises from the reaction of domestic or transnational actors to the state’s decision to commit to a treaty and may prove to be equally, if not more, vital in influencing state compliance than the scope for legal enforcement.[676] On the domestic level, the existence of a vast number of human rights pressure and advocacy groups, particularly non-governmental organizations (NGOs), increases the probability of a state complying with international treaty obligations.[677] Collateral consequences can also originate from transnational actors whose reaction to a state’s compliance is of particular concern to the state.[678] Collateral consequences, Hathaway highlights, may also take the form of the withholding of foreign aid, a decision by investors to invest or to withhold funds, or even through negative publicity that shapes the way a country is viewed by the international community, which brings with it far-reaching consequences of its own.[679] The rate of ratification of a treaty within a region may also prompt a state’s decision to commit to such a treaty as a means of securing smooth relations with neighbouring states by demonstrating its commitment to shared norms.[680]
The Convention against Transnational Organized Crime and the Palermo Protocol on trafficking are not governed by an international enforcement mechanism.
Using Hathaway’s model to rationalize not only ratification but compliance with these treaty obligations, there is no indication that private entities, NGOs or human rights advocacy groups attempted to hold governments of Belize, Guyana and Jamaica accountable to these international obligations. In Jamaica for example, the five-year lapse between signing the Protocol in February of 2002 and the introduction of the Act in February 2007 is indicative of a lack of pressure on the government to provide for domestic legal enforcement of its international obligations under the Protocol.B. Functional Legal Transplantation
It is not doubted that human trafficking is an issue affecting Caribbean territories and as such, legislative intervention is welcomed.[681] Legal drafters are expected to take into account the state’s international obligations with a view to ensuring there will be no conflict between the two. Consequently, international law not only informs domestic legislation but often serves as a catalyst for drafters to expedite the legislative process.[682] It has been argued that countries �cannot claim good records in areas such as international human rights, protection of the environment and anti-corruption efforts without importing some foreign or international models.’[683] Therefore, it is expected that in order to meet international commitments and coexist with international neighbours, domestic lawmaking must necessarily include some transplantation. The Palermo Protocol represents the international standard for the combating of human trafficking. Domestic legislation must have reference to the Protocol. The question is whether the Caribbean was well served by wholesale transplantation of the Protocol in domestic legislation.
Using Jonathan Miller’s typology of legal transplants, Caribbean human trafficking statutes could be described as �externally-dictated transplants.’[684] Miller indicates that the externally-dictated transplant will operate irrespective of how efficient the transplant proves to be in the recipient country as long as the external pressure or incentives outweigh the inefficiency.[685] It has been suggested that any of these transplants can be successful regardless of its origin, if it is functional and able to serve the receiving legal system well.[686] The success of the transplant depends on an assessment of the social and political context into which it is placed and its ability to conform to its new environment.
Even an externally-dictated transplant may prove effective if it is suited to the social demands of the recipient state and is, in that regard, functional.[687]Functionalism, however, demands an assessment of the extant circumstances in the recipient state.[688] Legislation that targets a particular societal issue should be preceded by an assessment of the nature and scope of that issue. It is only through this systematic evaluation that provision can be made to effectively tackle the problem.[689] There is no evidence of a proper evaluation process in the three Caribbean territories before the introduction of the respective anti-trafficking statutes. As a result, they do not reflect a response tailored to the needs of these particular countries. The Acts were developed substantially, if not entirely, on what the legislators perceived the expectations of the TIP Office to be. The three governments failed to conduct their own, contextÂspecific assessment of the issue in its Caribbean and local reality and as such, these acts have not proved, and possibly will not prove, to be an effective means of combating human trafficking in the Caribbean.
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