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Take-home Examination
SUBMISSION INSTRUCTIONS:
The LAW5IHT take-home exam is due on Wednesday 12
th
September 2012 at 4pm via
LMS-Moodle. You will need to login to Moodle with your username and password at
https://www.latrobe.edu.au/lms/login/ then select the subject LAW5IHT and click on the
LAW5IHT ELECTRONIC EXAM SUBMISSION link and then select the “upload a
file” button.
Answer all of the questions in this take-home examination. Use your best efforts to
complete this assessment in no more than 5000 words. There is no need to do any
additional research for this exam. The reading materials assigned in this course should
suffice. You should cite the reading materials where appropriate.
Question 1 (for 10 total possible marks): What is the difference between “human
smuggling” and “trafficking in persons”? Why is it so important to distinguish between
these two concepts when designing anti-trafficking programs and enacting domestic laws
to prohibit human trafficking?
Question 2 (for 10 total possible marks): According to Anne T. Gallagher, has it been
helpful to address human trafficking as a matter transnational criminal law or would it
have been better to analyze human trafficking solely as a human rights issue? Do you
agree with Gallagher’s position on this issue? Why or why not? (See: “Human Rights
and Human Trafficking: Quagmire or Firm Ground? A Response to James Hathaway”,
49 Virginia Journal of International Law 789 (2009).)
Questions 3, 4, and 5 are all based upon the following hypothetical facts (the
questions appear at the end of the hypothetical facts):
You may assume that the Philippines and Argentina are both State Parties to the Protocol
to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children,
supplementing the United Nations Convention Against Transnational Organized Crime
(referred to as the Trafficking Protocol). You may also assume that the Philippines and
Argentina are both State Parties to the International Convention on the Protection of the
Rights of All Migrant Workers and Members of their Families.
Lyn was born in raised in a rural village in the Philippines. On her 18
th
birthday, Lyn ran
away from home and moved to Manila. Lyn quickly ran low on money and could not find
a job in Manila. But she found an advertisement, posted by Excel Agency, which stated:
“Come and work in Argentina as a nurse’s aid while training to be a nurse.” Lyn
answered the advertisement because she had always wanted to travel abroad and liked the
idea of gaining a professional qualification. Ms. Bi, the manager at Excel Agency (a
company registered in the Philippines) interviewed Lyn and told her that she would be an 2
excellent candidate for the “nurses’ training program” in Argentina. Ms. Bi asked Lyn to
sign two forms, which Ms. Bi described as application forms for the training program and
visa. When Lyn started to read the forms, Ms. Bi said, “Hurry up, there are many girls
waiting if you do not want to join this class.” Lyn quickly signed the two forms, without
reading them, and gave her passport to Ms Bi. Ms. Bi then gave Lyn a book entitled
“Introduction to Nursing” and told her that she could sleep in the dormitory of Excel
Agency and study the book while she waited for her visa and airline ticket.
Two weeks later, Ms. Bi took Lyn to the airport where she boarded a plane (accompanied
by Ms. Bi and five other teenaged girls). When Lyn arrived in Argentina, she was
separated from the other girls and brought to Mr. Pedres, a taxi driver who drove Lyn to a
small private Hospital for elderly patients. The Manager of the Hospital told Lyn that he
had paid a large fee to Ms. Bi and also paid for Lyn’s air ticket and visa. The Hospital
also informed Lyn that she would have to work full-time, for six months, to repay these
expenses before taking any nursing classes. Lyn was very disappointed but agreed
because she had no money and no way to get home. Lyn worked 7 days per week, for 10
hours each day, cleaning hospital rooms and bathrooms and doing laundry. Lyn was
required to sleep in the basement and to eat her meals (which were provided to her at no
charge) in the kitchen of the Hospital. She was not paid any salary and was not allowed to
leave the Hospital during her rest periods.
At the end of four months, a Labour Inspector came to the Hospital and inspected the
premises. The Inspector asked to see the foreign workers’ passports (which were locked
in the office of the Hospital Manager). It turned out that Lyn’s passport contained only a
tourist visa, which did not allow her to work in Argentina. The Inspector gave the
Hospital Manager a warning and told him that the Hospital could lose its license if any
more irregular migrants were found working in the Hospital. Lyn was arrested that day,
detained for one month in a prison cell, and then deported to Manila. When Lyn arrived
in Manila, she was met by a government official who scolded her for working abroad on
a tourist visa and suggested that she return to her parents. But Lyn has very little money
and is now looking for jobs in Manila again. Ms. Bi has invited Lyn to come back to
Excel Agency to discuss other job opportunities.
Question 3 (worth 30 marks): In your opinion, was Lyn a victim of “trafficking in
persons,” as defined by the Trafficking Protocol? Explain your answer.
Question 4 (worth 25 marks): Has the government of Argentina fulfilled its obligations
under international law? Explain your answer. If not, then please explain what it should
have done differently or should do now.
Question 5 (worth 25 marks): Has the government of the Philippines fulfilled its
obligations under international law? Explain your answer. If it has not fulfilled its
obligations, then explain what it should have done differently or should do now.
END OF EXAM
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