Understanding Trafficking in Human Beings as Mixed Migration: The European ‘Area of Freedom, Security and Justice’ and Its Global Width

When the European Union (EU) promises to ensure justice and security, and thereby combat crime, the legal framework for doing so is chiefly constructed through preventive regulation and the notion of meeting the need for the EU to attain a high level of security. A central component of this mission, and as part of the EU project of ensuring a high level of rights protection, is the fight against trafficking in human beings. Indeed, as the EU Charter of Fundamental Rights proclaims, trafficking in human beings is prohibited, as it goes against the basic idea that all human beings are entitled to equality and freedom. Therefore, freedom from trafficking is considered an essential presupposition of any minimum definition of a decent life in modern society and, as such, is based upon the rule of law and human rights. In the following, I set out to explore the question of how trafficking understood as mixed migration fits into the EU constitutional framework and why criminalisation is important. The chapter is structured as follows. First, I will briefly paint the background picture of what we mean by EU security regulation, what we are discussing, and why it matters in the context of trafficking in human beings. Subsequently, the chapter tentatively looks at the implications of a constitutional structure for understanding trafficking and the importance of constitutionalism in this process. Finally, the chapter will look at the specific function of courts, both the EU Court of Justice as well as, more specifically, the role of national courts and the possible implications of fiduciary obligations.