Due diligence in the protection of victims of trafficking

: Responding to the securitisation of migration

Abstract

The securitisation of migration by European States, where irregular migrants are seen as threats to the State’s border security, continues to have negative consequences for victims of human trafficking. Instruments such as the Dublin III Regulation, the ‘hotspot approach’ and detention and deportation have been used to deal with victims of trafficking. In addition, States like Greece and Italy have used the so-called pushbacks and pullbacks and inadequate provision of legal aid to impede victims’ access to the protection mechanisms existing in the State. These have received criticism from academic literature and practitioners, mainly because victims of trafficking face human rights abuses from State actors. Human rights scholars have also advocated for a rights-based approach in the anti-trafficking discourse, where putting victims’ rights at the centre of migration policies is key to their protection. However, one strong critique of emphasising that victims have rights is that enough attention is not paid to what States should be doing. Victims of trafficking do have rights like every other human being. States have positive obligations to protect those rights, and these obligations can be asserted against the State and not individual traffickers. As such, there should be an increased focus and pressure on States because they are under international obligations to protect victims of trafficking.

In line with this, this thesis applies the concept of due diligence, which has been used concerning State obligations in public international law and international human rights law, to address the harmful State behaviour of securitising migration. Specifically, it uses due diligence to address detention and deportation; and pushbacks and pullbacks, including the lack of legal aid that impedes victims’ access to protection, even if protection mechanisms exist within the relevant State. There is limited academic literature concerning the use of due diligence in the obligation to protect, and it does not engage with the systemic problem of securitisation of migration as an aspect that adversely affects victims of trafficking. This limitation is also stark because due diligence is an adaptable standard that focuses on the vertical relationship between the State and the individual. It can contribute to the putting of pressure on States to fulfil their obligations. The thesis argues then that the value of due diligence lies in its potential to redefine existing standards in response to harmful State behaviour. Such potential can be used to delineate a corrective standard of conduct that can specifically address the problematic consequences of States’ securitisation of migration in victim protection. The significance is that a delineated standard of conduct through the use of due diligence can also form a template upon which to hold States accountable in respect of their international obligations. Concomitantly, this thesis contributes to understanding the role and purpose of due diligence in international law. Using due diligence to prescribe the standard of conduct in a specialised area is also underpinned by fragmentation theory in international law. As such, this thesis sits within the contestations between migration control and victim protection.

Thesis embargoed until 31 December 2026.

Date of Award	Dec 2021
Original language	English
Awarding Institution	Queen's University Belfast
Supervisor	Yassin Brunger (Supervisor) & Kevin J. Brown (Supervisor)