Title:   HUMAN TRAFFICKING, HUMAN FRAILTY, AND HUMAN VULNERABILITY: IS NULLIFICATION OF CONSENT AS A RELEVANT CONSIDERATION IN TRAFFICKING CASES JUSTIFIABLE UNDER INTERNATIONAL HUMAN RIGHTS LAW?

Abstract
Because the central goal of international human rights law is to protect individual liberty and freedom, it would seem redundant to simultaneously characterize that same law as a constraint upon human freedom. Nevertheless, human rights law does, in fact, at least in a few instances, constrain human freedom. One of such instances, contained in the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children (Palermo Protocol), which is a human rights centered legal instrument, is the annulment of consent on the part of individuals being trafficked, including adults, as a relevant consideration in determining culpability. This is quite paradoxical and raises at least three critical questions. First, in nullifying consent as a defense to a charge of trafficking, is human rights law violating the principle of individual autonomy – itself a core human rights concept? If the response is positive, as this paper seeks to affirm, the next logical question becomes, can a legal action be instituted on the basis of the infraction? If not – and this is the third question – is the constraint upon freedom to consent to being trafficked justifiable? Responding to these perplexing paradoxes of international human rights law is the task of this paper.
Keywords: Human trafficking, consent, vulnerability, Palermo Protocol, human rights

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Publication Date: 2022-03-03