UNIVERSITEIT VAN AMSTERDAM
Prostitution &
Human Trafficking
The international regime on human trafficking and the lack of
legal assurances for victims involuntarily employed in the
prostitution industry
R. SimonseMaster thesis Public International Law Supervised by Dr. Markos Karavias
1
Section one: Introduction ……….………..…….. 1
Section two: The influence of societal attitudes about prostitution on the legal definition of human trafficking ….……….……….… 3
Section three: The emergence of a human rights approach to human trafficking …..….. 11
Section four: The human rights failures within the international regime on human trafficking …………..…..……….…. 18
Section five: Concluding remarks ………..….….….…. 30
Appendix: Bibliography ………..…..…….. 31
Appendix: Abstract ……….. 35
Section one: Introduction
In recent decades, recognition of human trafficking as a transnational problem – in need of an effective address by the international community – has been on the rise. The United Nations Office on Drugs and Crime has increasingly taken up this pursuit, commenting that the “exploitation of one human being by another is the basest crime.”1 Nevertheless, traffic in human beings remains a persistent global reality. Although estimates differ greatly, it is safe to conclude that hundreds of thousands of people worldwide are the victims of this form of exploitation. The US State Department and the International Organization for Migration place their global estimate of the number of victims at around 800.000 men, women and children.2
This thesis addresses a range of elements related to the international legal quest to combat human trafficking, scrutinizing the legal regime around trafficking from the perspective of prostitution legislation, and from that of those attempting to help people employed in the prostitution industry. Chief among the elements that will be discussed is the question of how the decision by UN members to fight trafficking within the framework of a wider struggle against transnational crime – the most important legal document on human
1 United Nations Office on Drugs and Crime, Global Report on Trafficking in Persons 2014 (United Nations,
Vienna & New York 2014) <http://www.unodc.org/documents/data-and-analysis/glotip/GLOTIP_2014_full_report.pdf> accessed 2 November 2016, 1
2 A Brysk and A Choi-Fitzpatrick, ‘Introduction: Rethinking Trafficking’ in A Brysk and A Choi-Fitzpatrick
(eds), From Human Trafficking to Human Rights: Reframing Contemporary Slavery (University of Pennsylvania Press, Philadelphia 2012) 1-2 & R Weitzer, 'Human Trafficking and Contemporary Slavery' (2015) 41 Annual Review of Sociology 227
2 trafficking is a Protocol to the Transnational Crime Convention – has affected the legal assurances left for those victimized by traffickers.3 Another important aspect is how societal attitudes about prostitution have influenced the legal regime around trafficking, and what the international law on human trafficking has to say about the legality of prostitution. Central to both those questions is the recent emergence of a human rights approach to human
trafficking. These elements will be discussed in three main sections, with section two describing the history of the international legal regime around human trafficking, section three dealing with the emergence of a human rights approach, and section four discussing the current legal regime on human trafficking and how it relates to prostitution. Some short concluding remarks close the thesis.
In academic literature on the topic, one is overwhelmed by the volume of normative statements made about the relationship between prostitution and human trafficking. Copious amounts of writing is conducted from the perspective of how the law should be. This thesis does not completely shy away from that – criticism is certainly directed at the drafters of the most important human trafficking treaties – but an attempt is made to describe the
relationship between prostitution and human trafficking, and between a human rights approach and a transnational crime approach, from a legal positivist angle. In my opinion, what is lacking in the literature on prostitution and human trafficking is an understanding of the legal tools stemming out of the international trafficking regime that are available to prostitution activists – and an acknowledgement of the areas where such legal tools are simply lacking – as opposed to how those activists would prefer the legal regime to be. As such, this thesis is primarily concerned with what states are currently obliged to – and the challenges this poses for activists and those they seek to assist – as opposed to what states should be obliged to.
To help achieve the foregoing, for the sections following the second section (which shows the fluctuation in legal definition between different times and treaties), the definition of human trafficking that is used in this thesis mirrors the one that has been embraced in the most recent legally binding UN document on trafficking – widely ratified by the international community – the 2000 Trafficking Protocol.
3
United Nations Convention against Transnational Organized Crime (adopted 15 November 2000, entered into force 29 September 2003) 2225 UNTS 209 (Transnational Crime Convention) & Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (adopted 15 November 2000, entered into force 25 December 2003) 2237 UNTS 319 (2000 Trafficking Protocol)
3 Section two: The influence of societal attitudes about prostitution on the legal definition of human trafficking
In 2000, half a year before the adoption of the Trafficking Protocol, the then UN Special Rapporteur on Violence against Women, Radhika Coomaraswamy, stated the following in a report to the UN Commission on Human Rights:
“Historically, anti-trafficking movements have been driven by perceived threats to the “purity” or chastity of certain populations of women, notably white women.”4
In the current section this history will be described, showcasing that concerns about the sexual conduct of women – in effect often manifested as moral opinions on prostitution – were instrumental in generating international legislation on human trafficking. Furthermore, attention will be paid to how the reemergence of international legal action on human
trafficking in the last decades of the twentieth century has led to a more diversified legal definition – broadened to include exploitation for non-sexual purposes and taking on a gender-neutral perspective – which through a last-minute compromise, reached to ensure state sovereignty in the area of prostitution legislation, fails to definitively settle the crucial question of how the continued existence of prostitution relates to the problem of human trafficking. Overall, this section will serve to introduce the processes which shaped the legal definition of human trafficking to become the one that is currently in effect, and will provide a foundation for the discussions in section four on the human rights failures within the international legal regime on traffic in human beings.
In his book Slavery in International Law, Jean Allain traces the history of attempts to combat human trafficking through international legal means to 1873, more specifically to a report “presented to the International Medical Congress (…), which called for an end to State regulation of brothels and prostitution.”5 This early report laid the groundwork for a close relationship between international legal efforts to combat human trafficking and societal
4 Report of the Special Rapporteur on violence against women, its causes and consequences, Ms. Radhika
Coomaraswamy, on trafficking in women, women’s migration and violence against women, submitted in accordance with Commission on Human Rights resolution 1997/44, United Nations Economic and Social
Council, Commission on Human Rights, 56th Session, Agenda Item 12(a) (29 February 2000) UN Doc E/CN.4/2000/68
5 J Allain, Slavery in International Law: Of Human Exploitation and Trafficking (Martinus Nijhoff, Leiden
4 concerns about prostitution, or more broadly the sexual conduct of – primarily – women.6 Anne T. Gallagher goes as far as to state that the “concept of “white slavery”” – around which the early anti-trafficking treaties revolve – “was originally developed by activists intent on abolishing systems of regulated prostitution in Europe.”7 The first actual treaty dealing with the topic of human trafficking – the 1904 International Agreement for the Suppression of the “White Slave Traffic” – would eventually not truly attempt to abolish prostitution, but the drafters were nonetheless highly concerned about the sexual conduct of – in this case exclusively white – women. Article 2 of the 1904 Agreement for example states that “[e]ach of the Governments undertakes to have a watch kept, especially in railway stations, ports of embarkation, and en route, for persons in charge of women and girls destined for an immoral life.”8 Although not containing provisions directly outlawing any behavior – and as such not explicitly outlawing the concept of trafficking – the treaty was principally agreed upon with the aim of combatting the transportation of women to other states to be employed in the prostitution industry. 9 As such, it captured an element of the modern-day definition – today termed ‘exploitation of the prostitution of others’ – while igniting the process of interstate legal action which would eventually lead to the current international anti-trafficking regime.
Three treaties followed in the thirty years after the 1904 Agreement, respectively the 1910 International Convention for the Suppression of the White Slave Traffic10, the 1921 International Convention for the Suppression of the Traffic in Women and Children11, and the 1933 International Convention for the Suppression of the Traffic in Women of Full Age.12 Article 1 of the 1910 Convention is noteworthy for two reasons, in it we find the first
international articles explicitly outlawing human trafficking, but the drafters also
unambiguously designate that the consent of the victim of trafficking is here not to be seen as a valid justification for the transportation:
6 J Allain, Slavery in International Law (2013) 341
7 AT Gallagher, The International Law of Human Trafficking (Cambridge University Press, Cambridge 2010) 55 8 International Agreement for the Suppression of the “White Slave Traffic” (adopted 18 May 1904, entered into
force 18 July 1905) 1 LNTS 83 (1904 Agreement) art 2
9 B Balos, 'The Wrong Way to Equality: Privileging Consent in the Trafficking of Women for Sexual
Exploitation' (2004) 27 Harvard Women's Law Journal 143 & 1904 Agreement. Articles 1 and 2 of the treaty speak of transportation for “immoral purposes” or “for an immoral life”, article 3 explicitly names prostitution.
10 International Convention for the Suppression of the White Slave Traffic (adopted 4 May 1910, entered into
force 5 July 1920) <http://treaties.fco.gov.uk/docs/pdf/1912/TS0020.pdf> accessed 21 September 2016 (1910 Convention)
11 International Convention for the Suppression of the Traffic in Women and Children (adopted 30 September
1921, entry into force 15 June 1922) 9 LNTS 415 (1921 Convention)
12 International Convention for the Suppression of the Traffic in Women of Full Age (adopted 11 October 1933,
5 “Whoever, in order to gratify the passions of another person, has procured, enticed, or led away, even with her consent, a woman or girl under age, for immoral purposes, shall be punished, not-withstanding that the various acts constituting the offence may have been committed in different countries.”13 Here is the first clear and concise ban on the practice of human trafficking, and not only is it solely concerned with trafficking to procure women for prostitution – the perceived “immoral purpose” – it also considers the potential consent of the victim as irrelevant in establishing wrongdoing.14 In the 1910 Convention this merely applies to those under 20 years of age, but – after the age limit was raised to 21 in the 1921 Convention – the 1933 Convention extends this lack of legal relevance of the potential consent of transported persons to all female victims.15
Besides the aforementioned, the 1910 Convention is furthermore relevant for establishing a duty on each signing state to “prohibit, prevent, prosecute, and punish trafficking.”16 The subsequent convention, signed in 1921, extended the prohibition on trafficking – and the responsibility of states – to situations where the victim was not a white woman, the sole concern of the first two treaties. From the 1921 Convention on, the
definition was broadened to all women, and to children of both sexes.17 Besides the extension of the irrelevance of a trafficking victim’s possible consent to all ages, no other real
groundbreaking steps were taken in the 1933 Convention.18
The four early treaties were superseded by the 1950 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, which – through article 28 – nullified the previous instruments to the extent that they were in effect between state parties to the 1950 Convention.19 By this time, international action on trafficking in human beings was still merely dealing with trafficking for sexual purposes, thereby limiting the Convention’s sphere of application to transnational traffic for this
13 1910 Convention art 1. Article 2 extends the ban to those using “fraud, or (…) means of violence, threats,
abuse of authority, or any other method of compulsion”.
14
In the preceding 1904 Agreement the topic of consent was nowhere mentioned.
15 S Scarpa, Trafficking in Human Beings: Modern Slavery (Oxford University Press, Oxford 2008) 50-51 16 B Balos, 'The Wrong Way to Equality' (2004) 27 Harvard Women's Law Journal 143
17 Ibid & 1921 Convention. The Convention does not contain a designation on until what age one is considered
to be a child.
18 1933 Convention & J Allain, Slavery in International Law (2013) 343-344
19 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others
(with Final Protocol) (adopted 21 March 1950, entered into force 25 July 1951) 96 UNTS 271 (1950 Convention) art 28
6 objective.20 As such, the legal concern over human trafficking was still tightly entwined with societal attitudes about prostitution. The 1950 Convention is a prime example of this
entwined relationship, with the preamble to the document plainly portraying the drafters’ estimation of sex work. In it, prostitution – “and the accompanying evil of the traffic in persons for the purpose of prostitution” – is described as being “incompatible with the dignity and worth of the human person”, as well as a treat to “the welfare of the individual, the family and the community”.21 The 1950 Convention copies the stance of the earlier treaties that any potential consent of a victim is irrelevant, but extends this to exploitation of the prostitution of others. Not only do the drafters outlaw traffic in human beings, but the state parties also agree to “punish any person who, to gratify the passions of another: (…) [e]xploits the prostitution of another, even with the consent of that person.”22
The strict language on prostitution in the 1950 Convention seems to suggest that the Convention directs state parties to completely ban all forms of prostitution.23 Not only does the text dictate that states punish any person responsible for exploiting the prostitution of another (irrelevant of the victim’s consent), persons holding ties to brothels should also be punished.24 Furthermore, state parties are required to abolish any form of governmental oversight of prostitution, and as such should refrain from any action legalizing prostitution.25 This has led to some debate in academic circles about whether the 1950 Convention takes a complete abolitionist approach to prostitution. There is widespread agreement over the overall abolitionist approach the preamble takes, but whether this extends to the text to an extent that it bans all forms of prostitution, or only forced prostitution, has been cause for debate.26 Some have argued that it clearly does (for example Beverly Balos)27, others (for example Silvia Scarpa) that it does not go that far.28 Even Scarpa however, who argues that “apart from the moral condemnation of prostitution contained in the preamble, the
Convention aimed at targeting trafficking in persons and the related exploitation of
prostitution”, goes on to state that the “adoption [by the drafters of the 1950 Convention] of
20 S Scarpa, Trafficking in Human Beings (2008) 54 21 1950 Convention preamble
22
Ibid art 1
23 Importantly, the treaty takes a gender, race and age neutral stance, thereby distancing itself from its four
predecessors. S Scarpa, Trafficking in Human Beings (2008) 52
24 1950 Convention art 2 25
Ibid art 6
26 B Balos, 'The Wrong Way to Equality' (2004) 27 Harvard Women's Law Journal 150 & S Scarpa, Trafficking
in Human Beings (2008) 52-55
27 B Balos, 'The Wrong Way to Equality' (2004) 27 Harvard Women's Law Journal 150 28 S Scarpa, Trafficking in Human Beings (2008) 52-55
7 the abolitionist model to manage prostitution” contributed to the lack of success of the treaty. The abolitionist model adopted in the treaty “did not convince many States that preferred to adopt or maintain other models so that, for this reason, they did not ratify this treaty.”29 This, combined with the limited applicability of the Convention (merely concerning itself with trafficking for sexual purposes), and with the fact that the treaty lacks a clear definition of what exactly entails human trafficking – or prostitution for that matter (as is seen by the confusion over which forms of prostitution it bans) – led to the 1950 Convention eventually being widely held to be an ineffective tool to fight human trafficking.30
In the decades after the 1950 Convention, both academic output and international legislative concern on the topic of human trafficking was relatively minor.31 Nonetheless, in the discussions that sporadically sprung up, the narrow link between societal concerns about prostitution and legal opinion and policy on human trafficking remained intact. A 1959 UN Study – instituted to consider the effectiveness of the 1950 Convention – is explicit in its equation of the existence of prostitution and its effect on human trafficking. In it, the authors state that “[a]s long as commercialized prostitution, which is at the very root of the traffic in persons, remains unchecked, there will always be a tendency towards that traffic”.32 The Study continues with the statement that “any programme of action to combat the traffic should necessarily include in its scope the problem of prostitution itself.”33 In 1983, the UN Special Rapporteur on the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others took this idea one step further, stating that he “considered prostitution to be a form of slavery”.34
After a couple of decades of relative non-interest by both scholars and policy makers, concern about cross-border sexual exploitation of women heavily increased in the late
29 S Scarpa, Trafficking in Human Beings (2008) 52-55 30
Ibid 54-55
31 AT Gallagher, The International Law of Human Trafficking (2010) 15-16. Human trafficking is briefly
mentioned in the 1979 Convention on the Elimination of all Forms of Discrimination against Women, article 6 urging states to “take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women.” Convention on the Elimination of All Forms of Discrimination against Women (adopted 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13
32 United Nations Department of Economic and Social Affairs, UN Study on Traffic in Persons and Prostitution
(United Nations, New York 1959) UN Doc ST/SOA/SD/8
<https://babel.hathitrust.org/cgi/pt?id=umn.31951002580544a;view=1up;seq=5> accessed 23 September 2016, 6 & B Balos, 'The Wrong Way to Equality' (2004) 27 Harvard Women's Law Journal 151
33 UN Department of Economic and Social Affairs, UN Study on Traffic in Persons and Prostitution (1959) 6 34 J Allain, Slavery in International Law (2013) 346 & B Balos, 'The Wrong Way to Equality' (2004) 27 Harvard
8 eighties and the early nineties.35 Studies and reports showed the extent and the seriousness of the problem, and clear divisions on the legal definition of human trafficking – and how it relates to prostitution – were laid bare by the increasing academic attention.36 By the mid-nineties, this debate had been adopted into a broader discussion on the fight against transnational crime, which had emerged as a real concern of the United Nations and as a problem in need of global co-operation.37 Under UN guidance, this led states to adopt the 2000 United Nations Convention against Transnational Organized Crime, and its
accompanying Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children.38
Article 3 of the Trafficking Protocol centers on the legal definition of human trafficking:
““Trafficking in persons” shall mean the recruitment, transportation, transfer, harboring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;”39
The article continues to state that “[t]he consent of a victim of trafficking in persons (…) shall be irrelevant” when one of the mentioned means have been used.40
The definition set out in the Trafficking Protocol consists of three key elements: the action undertaken (“recruitment, transportation, transfer, harboring or receipt of persons”),
35 AT Gallagher, The International Law of Human Trafficking (2010) 16 36 Ibid
37 S Scarpa, Trafficking in Human Beings (2008) 55
38 Transnational Crime Convention & 2000 Trafficking Protocol 39 2000 Trafficking Protocol art 3
40
9 the means used, and “the purpose of exploitation”.41 Of those, the means element is not a necessary component when the victim is a person under the age of 18.42
The 2000 definition differs from the 1950 definition in three crucial ways. Critically, the more recent definition is not solely confined to trafficking for the purpose of prostitution (as was the case in 1950), the drafters of the 2000 Protocol recognize that there are many possible purposes for which trafficking is performed.43 Secondly, where the 1950 definition does contain the requirements of purpose and action, the means requirement was completely absent. And finally, the updated definition is more explicit when it comes to the topic of consent. Because of the addition of the means requirement, prostitution – when consented to and performed by a person of 18 years or older – seems not to be easily constructed to be a form of trafficking. In the 1950 Convention this was at the very least left highly ambiguous. For example, where the 1950 Convention directs state parties to “punish any person who (…) [e]xploits the prostitution of another, even with the consent of that person”, the Trafficking Protocol merely includes the exploitation of prostitution in the legal definition of human trafficking when this exploitation is a result of the use of one of the means named in article 3.44
The fact that prostitution – when consented to – seems not to be easily constructed to be a form of human trafficking as defined by the 2000 Protocol, did not lead the contracting states to proclaim that prostitution as such is thus not a form of trafficking. Indeed, the
travaux préparatoires accompanying the Protocol explicitly state that the document is
“without prejudice to how States Parties address prostitution in their respective domestic laws.”45 Not only did the drafters not choose to explicitly rule out prostitution as a form of human trafficking, discussions were had about doing the exact opposite. In her book
Trafficking in Human Beings Silvia Scarpa states that “the delegates who participated in the
Ad Hoc Committee on the Elaboration of a Convention against Transnational Organized
41 2000 Trafficking Protocol art 3 & Office of the United Nations High Commissioner for Human Rights,
Human Rights and Human Trafficking (United Nations, Geneva & New York 2014) OHCHR Fact Sheet No. 36
<http://www.ohchr.org/Documents/Publications/FS36_en.pdf> accessed 27 October 2016
42
Ibid
43 Interesting to note is that according to Anne T. Gallagher, “the European states” held “a strong preference
(…), right up to 2000, to restrict the concept of trafficking to the various processes through which women and children are subject to sexual exploitation outside their country of origin.” AT Gallagher, The International Law
of Human Trafficking (2010) 22
44 1950 Convention art 1 & 2000 Trafficking Protocol art 3
45 Report of the Ad Hoc Committee on the Elaboration of a Convention against Transnational Organized Crime
on the work of its first to eleventh sessions, United Nations General Assembly, 55th Session, Agenda Item 105
10 Crime discussed at length whether voluntary adult prostitution should be considered as human trafficking”, ultimately not finding “an agreement on the issue”.46 This led to a last-minute compromise to explicitly leave the terms ‘exploitation of the prostitution of others’ and ‘other forms of sexual exploitation’ undefined.47 The then Special Rapporteur on Trafficking in Persons hailed this choice as “[o]ne of the many benefits of the Protocol definition”, because she hoped it would provide “a foundation upon which anti-trafficking discussion, research, and policy development may transcend the general debate about the rights and wrongs of prostitution to a significant extent.”48 The choice certainly proved a benefit for getting states to accept the treaty, the ambiguity cleared the way for a broad ratification, thereby avoiding the fate of the 1950 Convention, where the strong abolitionist stance taken had scared some states from ratifying. It nonetheless – as shall be seen in section four – supplied ample room for the omnipresent discussions on what forms of prostitution should be considered to be human trafficking, and as such has made the Protocol miss a crucial opportunity to definitively settle the critical question of how the continued existence of prostitution relates to the problem of human trafficking. As will be discussed later, not only did the choice not allow experts to “transcend the general debate about the rights and wrongs of prostitution”, it kept them stuck in a perpetual discussion on the legality of
prostitution under international human trafficking law, with little hope for legal positivists to point to a clear stance taken by the international legislature.
There are currently 170 state parties to the Trafficking Protocol.49 In addition some states are dually bound, not only by the Trafficking Protocol, but also by a regional treaty on human trafficking. These regional documents mostly differ in the obligations they impose on states, but variations in definition also occur. Nonetheless – and although the definition contained in the Trafficking Protocol only arose after much debate – it has since 2000 been the benchmark for subsequent regional treaties, as well as being widely used by UN agencies, other intergovernmental bodies, in the domestic legislation of many states, and by
nongovernmental organizations.50 For example, the 2005 Council of Europe Convention on Action against Trafficking in Human Beings uses the exact same definition.51 The South
46 S Scarpa, Trafficking in Human Beings (2008) 5-6. See also: J Doezema, Sex Slaves and Discourse Masters:
The Construction of Trafficking (Zed, London 2010) 27-29
47 Ibid 48
S Scarpa, Trafficking in Human Beings (2008) 6
49
<https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-12-a&chapter=18&clang=_en> accessed 30 December 2016
50 AT Gallagher, The International Law of Human Trafficking (2010) 42 51
11 Asian Association for Regional Cooperation however, adopted the 2002 Convention on Preventing and Combatting Trafficking in Women and Children for Prostitution, therein limiting the scope of application merely to women and children, and to the trafficking done with the purpose of supplying sex work.52
The arrival of the Trafficking Protocol signaled the first nearly universally ratified legal definition of human trafficking. After the late eighties and the early nineties marked an increase in concern about the transnational exploitation caused by trafficking, the new millennium led to an explosion of both global – the Trafficking Protocol, increased action by UN bodies – and regional or domestic – the many regional treaties, increasing state
legislation – legal output, which had remained relatively absent after the early treaties that arose out of societal concerns about perceived sexual dangers facing (initially mainly white) women.53 The reemergence of concern about transnational exploitation of women and girls – directly linked to evidence showing increasing sexual exploitation, especially in south-east Asia and eastern Europe – was a direct cause for the return of support for international legal action to combat trafficking practices.54 In this context one has to place what will be
discussed in the next section, namely the arrival of narratives arguing for the need of a “human rights approach”, which marks the development visible in the last couple of decades of increasingly treating trafficking in human beings as a human rights issue.
Section three: The emergence of a human rights approach to human trafficking In the upcoming section attention is shifted to the attempts by academic authors and UN experts to alter the perspective that policy makers adopt when combatting human trafficking to an approach that is more in line with the human rights obligations of states. This
emergence of a ‘human rights approach’ (sometimes termed ‘human rights-based approach’) will be scrutinized, with special emphasis on organizational reports, academic works, and developments in jurisprudence that portray this alteration in legal argumentation. Besides a more general discussion of the emerging approach, which will include an attempt at
concretely defining this diffuse phenomenon, a couple of explicit suggestions of the approach
52 AT Gallagher, The International Law of Human Trafficking (2010) 43
53 Notably, in both the early and the late twentieth century increase in concern about the trafficking in human
beings growing worry about sexually transmittable diseases played a supplementary part. The earlier increase is in the literature linked to state concern about a broad range of venereal diseases, the second wave coincides with the global worry about HIV/AIDS. J Allain, Slavery in International Law (2013) 340-341 & AT Gallagher, The
International Law of Human Trafficking (2010) 16
12 will be more thoroughly discussed. This will hopefully shed light on the ways in which the human rights approach tries to distance itself from the traditional point of view.
At the start of this section it is crucial to give a preliminary definition of what it means to pursue a human rights approach. The term is used in many academic works and organizational reports – in a far from uniform way – so to concretely discuss the potential benefits and pitfalls of a human rights approach an attempt will have to be made to define this phenomenon in the most palpable way possible. The basis for the preliminary definition here chosen originates out of a sentence in the collected work From Human Trafficking to Human
Rights, where Laura Hebert defines the approach as follows:
“[T]he human rights approach foregrounds the physical, psychological, and/or sexual injury perpetrated against the trafficked person, regardless of any criminal behavior she may have engaged in during transit or in the performing of forced labor.”55
This definition is very suitable, chosen for both its conciseness, and for its concrete statement on the core of any human rights approach, the centrality of the victim. As such, it is highly powerful in illustrating the shift in perspective that results from choosing such an approach. However, it fails to mention that this perspective-shift does not merely result in extra attention and concern for the victim, but that it has tangible legal consequences for both the victim and the state. These consequences do not arise out of the approach, but become increasingly evident because of it. In effect, a human rights approach illuminates the reality that certain obligations are owed to the victim. As a result, for this article the preliminary definition will be a combination of Laura Hebert’s definition, and a recommendation given in a UN Human Rights Council Resolution, where states are urged to “reinforc[e] the centrality of [the] human rights [of victims] (…) when devising actions to combat human trafficking.”56 Added to Laura Hebert’s definition, the preliminary definition used in this section becomes as follows:
55 L Hebert, ‘The Sexual Politics of U.S. Inter/National Security’ in A Brysk and A Choi-Fitzpatrick (eds), From
Human Trafficking to Human Rights: Reframing Contemporary Slavery (University of Pennsylvania Press,
Philadelphia 2012) 93
56 Resolution adopted by the Human Rights Council, 14/2: Trafficking in persons, especially women and
children: regional and subregional cooperation in promoting a human rights-based approach to combating trafficking in persons, United Nations General Assembly, Human Rights Council, 14th Session, Agenda Item 3
13 “A human rights approach foregrounds the physical, psychological, and/or sexual injury perpetrated against the trafficked person, as well as serving to reinforce the centrality of the human rights obligations owed to the trafficked person, regardless of any criminal behavior that person may have engaged in during transit or in the performing of forced labor.”
This method of approaching the problem of human trafficking is not yet fully accomplished, and was certainly not the approach taken in the early days of international action on trafficking. Some attention will thus be paid to how a human rights approach started emerging as a more central part of the international legal framework within which the anti-trafficking fight is undertaken.
As Alison Brysk notes in her From Human Trafficking to Human Rights, the traditional view is that the nineteenth century “fight against slavery is seen as the first international human rights movement”.57 Human trafficking however, often described as ‘modern’ or ‘contemporary’ slavery, did not get its start as a movement undertaken from a human rights perspective. The early treaties – discussed in section two – are absent of what could be described as human rights language, and certainly do not “foreground the physical, psychological, and/or sexual injury perpetrated against the trafficked person”. Although concern with the perceived dangers facing the victims led to the adoption of the treaties, they mostly prescribe rules to states about the punishment – and potential extradition – of the people seen as responsible for the trafficking. They furthermore do not address what victims are entitled to, nor shield the victims of trafficking from criminal proceedings for behavior engaged in while being under the power of the trafficker.
As Anne T. Gallagher describes, “as recently as 2000”, human trafficking was still primarily discussed – not merely by state agents but also by NGO’s and media organizations – in the context of “unfortunate migration outcomes including illegal migration, forced migration, and migrant smuggling.”58 Crucially, the primary international document on human trafficking – the 2000 Trafficking Protocol – only arose as a result of a broader discussion attempted from the viewpoint of the fight against international organized crime.
57 A Brysk, ‘Rethinking Trafficking: Human Rights and Private Wrongs’ in A Brysk and A Choi-Fitzpatrick
(eds), From Human Trafficking to Human Rights: Reframing Contemporary Slavery (University of Pennsylvania Press, Philadelphia 2012) 73
58 A.T. Gallagher, ‘Using International Human Rights Law to Better Protect Victims of Human Trafficking: The
Prohibitions of Slavery, Servitude, Forced Labour and Debt Bondage’ in L.N. Sadat and M.P. Scharf (eds),
Theory and Practice of International Criminal Law: Essays in Honour of M. Cherif Bassiouni (Martinus
14 The treaty to which the Protocol is added – the United Nations Convention against
Transnational Organized Crime – was significantly not formed under the auspices of a UN human rights body, but under the guidance of the UN Office on Drugs and Crime.59 Although the Protocol – as opposed to the 1950 Convention – is much more interspersed with human rights language, presumably arising from the increased standing of international human rights law, the formation of the Protocol points towards the relative lack of importance of a human rights perspective towards the problem of human trafficking by the year 2000. As Laura Hebert describes, although “human trafficking [had] been widely framed (…) as an egregious
human rights violation, the decision of the UN to attach the Trafficking Protocol to the
[Convention against Transnational Organized Crime] has served to privilege trafficking as a subset of organized criminal activity under international law, rather than as a violation that imposes human rights obligations on states.”60
From this background, the explosion in the output of works and reports – both stemming out of the academic field and from UN bodies – advocating for a human rights approach to the problem of human trafficking is understandable. The emerging calls for what would evolve into a human rights approach come in the wake of the creation of the
Trafficking Protocol, and as a direct response to it. Although one should be wary to mark anything as a starting point – pleas for increased attention to the victims of human trafficking have certainly been made before – an interesting point of departure for the purposes of this thesis is Anne T. Gallagher’s 2001 Preliminary Analysis of the Trafficking Protocol. Although not yet containing a unified call for something as complete as a human rights approach, Gallagher criticizes the newly signed Protocol for its “absence of mandatory [human rights] protections and [its] failure to provide any guidance in the [victim]
identification process.”61 Both criticisms would become staples in most suggestions of human rights approaches.
A crucial step towards a wider acceptance of thoroughly taking human rights into account when tackling the problem of human trafficking was the 2002 release of the
Recommended Principles and Guidelines on Human Rights and Human Trafficking by the
59 S Scarpa, Trafficking in Human Beings (2008) 55-58
60 L Hebert, ‘The Sexual Politics’ in A Brysk and A Choi-Fitzpatrick (eds), From Human Trafficking to Human
Rights (2012) 91
61 Anne T. Gallagher, ‘Human Rights and the New UN Protocols on Trafficking and Migrant Smuggling: A
Preliminary Analysis’ (2001) 23 Human Rights Quarterly 1004. See for example also: AD Jordan, ‘Human rights or wrongs? The struggle for a rights-based response to trafficking in human beings’ (2002) 10 Gender and Development 28
15 then UN High Commissioner for Human Rights Mary Robinson.62 This document, adopted “to promote and facilitate the integration of a human rights perspective into national, regional and international anti-trafficking laws, policies and interventions”, consists of seventeen principles and eleven guidelines recommended by the High Commissioner to be used by states.63 The seventeen principles are categorized in four overall themes, consecutively ‘the primacy of human rights’, ‘preventing trafficking’, ‘protection and assistance’ and
‘criminalization, punishment and redress’.64 Although the 2002 Recommended Principles and Guidelines are not legally binding, they are a strong early indicator of what the bare bones of a human rights approach would demand of states.65
Throughout the first decade of the new millennium UN human rights agencies would increasingly involve themselves in the topic of human trafficking, advocating for increased attention to human rights in the anti-trafficking responses of its member states.66 The 2002 Recommended Principles and Guidelines are a careful starting point for this, rightfully deemed in a 2009 High Commissioner report to the Human Rights Council as the
“foundation” for the work done by the Office of the High Commissioner.67 In the conclusion of that report, a plea is made for a full adoption of a human rights approach:
“[A]ttempts to deal with the human consequences of trafficking remain largely ineffective. Some anti-trafficking efforts have even been harmful to the very people they aimed to protect, as victims of trafficking at times become “collateral damage” in law enforcement operations. With the increasing
international focus on human trafficking worldwide in recent years, it has been recognized that it will not be possible to effectively counter the global trade in human beings without shared commitments to human rights, human
62 Recommended Principles and Guidelines on Human Rights and Human Trafficking: Report of the United
Nations High Commissioner for Human Rights to the Economic and Social Council, United Nations Economic
and Social Council, Substantive Session 2002, Agenda Item 14(g) (20 May 2002) UN Doc E/2002/68/Add.1
63 Ibid foreword 64 Ibid 1-2
65 S Scarpa, Trafficking in Human Beings (2008) 73-75 66
Crucially, when the UN in 2004 installed a new Special Rapporteur solely working in the field of human trafficking, she was explicitly mandated to “focus on the human rights aspects of the victims of trafficking in persons”. Special Rapporteur on trafficking in persons, especially in women and children, United Nations, Office of the High Commissioner for Human Rights, 60th session (21 April 2004) UN Doc
E/CN.4/DEC/2004/110
67 Report of the Office of the United Nations High Commissioner for Human Rights on the latest developments
in the United Nations relating to combating trafficking in persons as well as on the activities of the Office on this issue, United Nations General Assembly, Human Rights Council, 10th Session, Agenda Item 2 (6 February
16 development and human security, and that human rights must be at the centre of any credible anti-trafficking strategy.”68
Later that year the Human Rights Council would stress its support for this plea made by the High Commissioner, in a Resolution aimed partly at “[affirming] that it is essential to place the protection of human rights at the centre of measures taken to prevent and end trafficking in persons”.69
Around this time a trend is also visible of international courts starting to adjudicate human trafficking cases under human rights law. The case law of the European Court of Human Rights serves as a useful guide for this progression. The 1950 European Convention on Human Rights (ECHR) is a treaty detailing the obligations owed by European states to the individuals residing within their borders, and its article 4 – which prohibits slavery and forced labor – was therefore traditionally read as a negative obligation on states, the obligation not to subject their residents to slavery or forced labor.70 It took until 2005 before the Court officially noted that article 4 ECHR also puts certain positive obligations on states, in effect a duty to protect individuals from becoming subjected by other private persons to slavery or forced labor.71 In 2010, the Court extended these positive state
obligations to cover human trafficking.72 Including the recent trafficking case L.E. v. Greece – decided upon in January 2016 – the Court has come to a decision in six cases involving private harm caused by individuals falling under the definition of article 4 of the European Convention, and has built a somewhat clear line of jurisprudence on the matter.73 Although this jurisprudence demonstrates the increasing attention towards finding states obligated to take proactive measures to protect the victims of trafficking or other forms of forced labor, it is notable that the first extensive academic analysis of the case from a human rights angle that
68 Report of the Office of the United Nations High Commissioner for Human Rights (2009) UN Doc
A/HRC/10/64, 21
69
Resolution adopted by the Human Rights Council, 11/3: Trafficking in persons, especially women and
children, United Nations General Assembly, Human Rights Council, 11th Session, Agenda Item 1 (16 October
2009) UN Doc A/HRC/11/37
70 Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 4 November 1950,
entered into force 3 September 1953) 213 UNTS 221 art 4
71 V Stoyanova, ‘L.E. v. Greece: Human Trafficking and the Scope of States’ Positive Obligations under the
ECHR’ (2016) 3 European Human Rights Law Review 290
72 Ibid 73
17 was published in a law journal directs some criticism towards the Court, arguing that it fails to formulate these state obligations in sufficiently stringent terms.74
An example of the criticism directed towards the Court in that article additionally serves as a good way to concretely describe an element of what a human rights approach would entail. In her analysis of L.E. v. Greece, Vladislava Stoyanova critiques the Court’s decision on four fronts, one of which is the statement by the judges that “the triggering of the positive obligation of taking protective operational measures does require official awareness of the predicament of the specific individual”. 75 Stoyanova concludes this requirement to be “unjustifiably demanding.”76 This certainly holds true when one considers the reality of human trafficking cases. To merely require of states to start protective operational measures – in effect to start vetting whether the individual is a victim of trafficking and, if this is indeed the case, to take steps to protect this individual – after being made explicitly aware by a person that he or she is a victim of human trafficking is highly dubious when one considers that trafficked victims are in an extremely vulnerable position. To expect from a victim an explicit notification is to underestimate the injury being perpetrated against these people. A step to the authorities is difficult to undertake when one is under constant fear and duress, when one is perhaps illegally residing in a state, or when one is engaged in the – under many legal systems criminal – prostitution industry.77
A related example of what a human rights approach would entail – which places the emphasis at a different point then the traditional approach to human trafficking – is the centrality of the call to ensure that victims are offered protection from criminal proceedings
74 V Stoyanova, ‘L.E. v. Greece’ (2016) 3 European Human Rights Law Review 299-300. The only other
journal article I have found which has so far (by December 2016) been published about the case is a short analysis conducted from a labor law perspective: J Coster van Voorhout, ‘A Comprehensive Approach to Human Trafficking: An Analysis of L.E. v Greece (ECtHR)’ (2016) 2 International Labor Rights Case Law 359
75 V Stoyanova, ‘L.E. v. Greece’ (2016) 3 European Human Rights Law Review 299-300 & L.E. v Greece (App
no 71545/12) ECHR 21 January 2016 par 73. The most notable of the other three fronts on which Stoyanova critiques the Court’s judgment is the minimal amount of scrutiny it devotes to Greek criminal law, basically not subjecting it to any human rights analysis. As a result of this, she contends that the European Court seemingly allows the victim identification procedure to be employed merely as a result or as a byproduct of criminal proceedings. V Stoyanova, ‘L.E. v. Greece’ (2016) 3 European Human Rights Law Review 299-300
76
Ibid
77 Stoyanova posits that a more logical approach for the Court would be to apply the criteria stemming from its
Osman case, a case on the right to life, which establishes that “the obligation [to take protective operational
measures] is triggered once the state authorities are aware or ought to have been aware of circumstances giving rise to a credible suspicion that a particular individual is at real and immediate risk” (V Stoyanova, ‘L.E. v. Greece’ (2016) 3 European Human Rights Law Review 296). I would argue that it is reasonable to expect – given the Court’s tendency to more generally apply the “are aware or ought to have been aware” principle – that the European Court will apply this principle in future human trafficking cases, once it dives further into the developing application of the ECHR in trafficking cases.
18 for activities they “may have engaged in during transit or in the performing of forced
labor.”78 This is what the High Commissioner for Human Rights stressed in her 2009 report to the Human Rights Council when she stated that “[s]ome anti-trafficking efforts have even been harmful to the very people they aimed to protect, as victims of trafficking at times become “collateral damage” in law enforcement operations.”79 Any human rights approach places the victim central, and ensures that the obligations owed to the trafficked victim include the necessity to shield them from being seen as perpetrators of criminal acts. With regards to prostitution this means that states that criminalize prostitution need to have
stringent protections in place that ensure that trafficked victims who are forced to work in the prostitution industry are not also subjected to criminal charges, and that states that heavily penalize illegal migration are proactive in differentiating those being migrated against their will from others illegally crossing their borders.
All in all a human rights approach can best be described as a shift in perspective. To the traditional perspective that human trafficking is a harmful transnational crime in need of international legal action, individuals advocating for a human rights approach add the moral as well as legal obligation to take the human rights of the trafficked person seriously. It demands of states that they not only criminalize trafficking, but also that they proactively shield the victims of human trafficking from the damaging additional consequences often associated with trafficking – most noticeably the victims’ legal categorization as illegal migrants or performers of criminalized activities. Section four will delve deeper into these criteria of a human rights approach, as well as into other aspects of such an approach, in discussing what a full adoption – as advocated for by a range of UN human rights bodies – would entail, both for states regulating prostitution and for those employed in the prostitution industry.
Section four: The human rights failures within the international regime on human trafficking
Societal attitudes about prostitution have played an instrumental role in creating momentum for – and shaping perspectives on – international legal action to combat human trafficking. Section two demonstrated the influence of these moral attitudes on the construction of the
78 L Hebert, ‘The Sexual Politics’ in A Brysk and A Choi-Fitzpatrick (eds), From Human Trafficking to Human
Rights (2012) 93
79 Report of the Office of the United Nations High Commissioner for Human Rights (2009) UN Doc
19 legal definition of human trafficking, but also showed how the 2000 Trafficking Protocol failed to adopt a clear perspective on the relationship between trafficking and prostitution. In section three a description was given of the emergence of a human rights approach, which demonstrated the increasing groundswell for placing the human rights of victims central in anti-trafficking responses. The current section will build on these preceding sections in discussing the core elements of a human rights approach, which – by attempting to make up for the shortcomings in the trafficking regime – effectively serve to demonstrate the vital gaps left by the 2000 Trafficking Protocol. A primary concern arising from these gaps is the lack of basic legal assurances provided for the victims of human trafficking, which will be discussed later in this section. But insufficient legal positivist attention has been directed towards another crucial failure by the drafters of the Protocol, which is the lack of clarity the current regime provides on the legal status of persons employed in the prostitution industry.
When discussing this lack of clarity, one is forced to deal with the debate – referred to in section two – around which forms of prostitution should be deemed to be voluntary. One has to grapple with the notion made by some advocates that truly voluntary prostitution is not possible, that in reality prostitution is always “an act of inequality” where any real autonomy is absent.80 To start section four, this debate – in the literature often almost exclusively conducted with moral arguments – will be discussed from a legal angle. What does the international legal regime say about the distinction between voluntary prostitution – those forms of prostitution that the individual in question consented to – and involuntary (or forced) prostitution? And what are the legal consequences of this debate for those employed in the prostitution industry, and for the states tasked with regulating this industry?
As was described in section two, the drafters of the Trafficking Protocol consciously decided not to take a definitive stance on the relation that prostitution holds towards human trafficking. While this decision undoubtedly made the document more acceptable to states – thereby contributing to the high number of ratifying states – it failed to settle the crucial question of what forms of prostitution should be deemed to be legal under the human trafficking regime. This question is highly instrumental in dictating the scope of trafficking legislation, since the decision on what forms of prostitution are forms of human trafficking could potentially broaden – or reversely shrink – the pool of trafficking victims.
80
20 The argument for considering prostitution a form of human trafficking – irrespective of whether the prostituted person seemingly consents to the activities in question – is made by (among others) Beverley Balos. According to Balos, the debate boils down to an
“argument over whether prostitution is an act of inequality or an expression of sexual
autonomy.”81 Is prostitution inherently unequal, allowing those in power to have control over the bodies of other persons – persons who in reality are often under some level of influence of another person – or is prostitution actually a valid choice to make, one that does not necessarily originate from a position of inequality, and a decision which can be reached autonomously? To support her argument that all forms of prostitution should amount to trafficking – and that real autonomy is absent for those providing the supply for prostitution – Balos uses the analogy of organ purchasing:
“[American] federal law prohibits the purchase of any human organ for transplant purposes. Commentators do not express concern that outlawing the commodification of organs constrains the autonomy of (…) potential
sellers.”82
For Balos the argument about the relationship between prostitution and human trafficking is focused on policy and legislative direction, not on treaty interpretation. Balos is not making the legal argument that under the Trafficking Protocol prostitution is a form of human trafficking, she is making a moral plea to legal experts and policy makers that international policy choices and legislative efforts on the topic of trafficking should be increasingly geared towards combatting prostitution.
Nevertheless, the deliberate lack of clarity left by the drafters of the Trafficking Protocol makes it possible to attempt a legal argument that prostitution as such should already be considered a form of trafficking under international law. As described in section two, the definition set out in the 2000 Protocol consists of three key elements: the action undertaken, the means used, and “the purpose of exploitation”. From the perspective of customers – whom Balos argues should be targeted under anti-trafficking efforts – prostitution easily fits the method (“receipt of persons”) and exploitation (“exploitation of the prostitution of others”) criteria.83 What remains the biggest challenge for those trying to legally equate prostitution with trafficking is fitting prostitution under the means-criteria. Here further
81 B Balos, 'The Wrong Way to Equality' (2004) 27 Harvard Women's Law Journal 172 82 Ibid
83
21 explanation by the drafters would certainly have been welcome, since the question hinges on what fits under the umbrella of “by means of (…) the abuse of power or of a position of vulnerability”. An argument that all – or at least most – forms of prostitution could be seen as results of an abuse of power or of the abuse of a vulnerable position, can be made, and is often made by certain legal scholars and UN human rights experts. For example, Sigma Huda – the then UN Special Rapporteur on the human rights aspects of the victims in trafficking in persons, especially women and children – stated the following in a 2006 report to the
Commission on Human Rights:
“For the most part, prostitution as actually practised in the world usually does satisfy the elements of trafficking. It is rare that one finds a case in which the path to prostitution and/or a person’s experiences within prostitution do not involve, at the very least, an abuse of power and/or an abuse of vulnerability. Power and vulnerability in this context must be understood to include power disparities based on gender, race, ethnicity and poverty.”84
If one follows the UN Special Rapporteur, one can certainly frame all forms of prostitution (or at least most cases as practiced in reality) to be forms of human trafficking.
This stance is potentially reinforced by an exploration of article 9, paragraph 5 of the Trafficking Protocol, which obliges state parties to “adopt or strengthen legislative or other measures (…) to discourage the demand that fosters all forms of exploitation of persons (…) that leads to trafficking”.85 This touches on a commonly made argument, which states that “demand for prostitution fuels the market for persons trafficked into prostitution.”86 Some economic research has been conducted which would support such an argument. A 2013 study on the effects of differences in the domestic legality of prostitution on human trafficking flows between states concluded that “[o]n average, countries with legalized prostitution experience a larger degree of reported human trafficking inflows.”87 This finding – although tempered by the authors’ recognition that “[m]ore research in this area is definitely
84 Integration of the human rights of women and a gender perspective: Report of the Special Rapporteur on the
human rights aspects of the victims of trafficking in persons, especially women and children, Sigma Huda,
United Nations Economic and Social Council, Commission of Human Rights, Sixty-second session, Item 12 of the provisional agenda (20 February 2006) UN Doc E/CN.4/2006/62, 9
85 2000 Trafficking Protocol art 9(5) 86
Office of the United Nations High Commissioner for Human Rights, Human Rights and Human Trafficking (2014) OHCHR Fact Sheet No. 36, 44 & D Post, 'Legalization of Prostitution' (2011) 68 National Lawyers Guild Review 65
87 SY Cho, A Dreher and E Neumayer, 'Does Legalized Prostitution Increase Human Trafficking?' (2013) 41
22 warranted” – suggests that where prostitution is most accessible, higher numbers of
trafficking inflows occur.88 As such, demand for the labor necessary for prostitution seems to fuel human trafficking. Since state parties to the Trafficking Protocol are under an obligation to discourage the demand for trafficking and legalization of prostitution seems to increase the rate of human trafficking inflow, one could potentially attempt the argument that states are under a legal obligation not to legalize prostitution.
However, the foregoing – the argument that the international trafficking regime can lead to a ban on prostitution either through its legal definition or through the obligation held by states to combat the demand for trafficking – is not a unanimously shared conviction within the academic community, some authors would deem such legal interpretation to be part of a “potentially troubling expansionist trend.”89 Authors like James C. Hathaway see the tendency to equate prostitution and human trafficking as partially responsible for perceived gaps in the Trafficking Protocol.90 Hathaway is of the belief that the 2000 Protocol fails on human rights grounds, arguing that “skewed allocation of antislavery resources and the exacerbation of constraints on migratory freedom, with particularly acute consequences for refugees”, have caused the international anti-trafficking regime to be severely lacking.91 The argument made by Hathaway as to what led to this misguided direction, is effectively
summarized – although not necessarily supported – by Girish J. Gulati:
“Religious conservatives are joined by “radical” feminists who view
prostitution as exploitation of women and male dominance and a justification for continuing violence against women and gender inequality. Reminiscent of the move against “white slavery”, this coalition’s strategy has been to generate outrage among the (…) public in order to build support for more draconian solutions to combat prostitution and criminalize other elements of the sex industry.”92
88 SY Cho, A Dreher and E Neumayer, 'Does Legalized Prostitution Increase Human Trafficking?' (2013) 41
World Development 75-76
89 AT Gallagher, The International Law of Human Trafficking (2010) 50
90 JC Hathaway, ‘The Human Rights Quagmire of “Human Trafficking”’ (2008) 49 Virginia Journal of
International Law 42-46
91
Ibid 42
92 GJ Gulati, ‘Representing Trafficking: Media in the United States, Great Britain, and Canada’ in Alison Brysk
and Austin Choi-Fitzpatrick (eds), From Human Trafficking to Human Rights: Reframing Contemporary
Slavery (University of Pennsylvania Press, Philadelphia 2012) 51. For another example of an explanation that
23 Although not all authors criticizing attempts to equate prostitution and human
trafficking would do so in the strong terms used by Hathaway, and the perceived lacunae in the Trafficking Protocol caused by this equation differ strongly between various authors, the central point made is that an overemphasis on prostitution – mostly stemming from moral abomination about the practice – has led to misguided priorities taken in anti-trafficking responses, causing a severe lack of legal protection for what those authors consider to be the ‘real victims’ of human trafficking.
This remains a perpetual discussion, often fought from very absolute positions on both sides.93 However, when one adopts a purely positivist angle towards the Trafficking Protocol, one is struck by the difficulty of making definitive statements. In light of the lack of clarity of the document, an argument that the practice of prostitution as such is unlawful under the Trafficking Protocol is hard to make. Each commentator is free and able to make the case that in reality any real autonomy is absent, and as such prostitution will virtually always amount to “an abuse of power and/or an abuse of vulnerability”. This certainly holds true when one follows former UN Special Rapporteur Sigma Huda in noting that “[p]ower and vulnerability in this context must be understood to include power disparities based on gender, race, ethnicity and poverty.”94 The central point however remains that this
interpretation of the means-criteria of abuse of power or vulnerability is not based on any real positivist reading of the Trafficking Protocol. Nowhere does the Protocol state that those terms should be read that extensively, nor do the accompanying travaux préparatoires give one a strong positivist conviction that the Protocol should be read along those lines.95 What is left is the more subtle reality that every case should be seen in the light of its particularities. On a case by case basis legal professionals will have to decide whether the prostitution as practiced by that person should be seen as a manifestation of human trafficking. This does not
following: S Dewey, Hollow Bodies: Institutional Responses to Sex Trafficking in Armenia, Bosnia, and India (Kumarian Press, Sterling 2008) 47-49
93
For example: “One highly charged debate in the field [of human trafficking analysis] concerns the relationship between trafficking and prostitution-specifically, whether voluntary migration for prostitution
should be abolished as a form of trafficking on the theory that all prostitution is inherently
forced.” J Chuang, ‘Trafficking in Humans: Introductory Remarks’ (2005) 99 American Society of International Law Proceedings of the Annual Meeting 341.
94 Integration of the human rights of women and a gender perspective (2006) UN Doc E/CN.4/2006/62, 9 95 As a matter of fact, the opposite is the case, since the travaux préparatoires explicitly state that the Protocol is
“without prejudice to how States Parties address prostitution in their respective domestic laws.” Report of the Ad
Hoc Committee (2000) UN Doc A/55/383/Add.1, 12. The same line of reasoning combats any real attempt to
mark prostitution as illegal as an outcome of article 9, paragraph 5 of the Trafficking Protocol. The choice to remain “without prejudice” on the matter places states in the position of being unbound in what legal stance they decide to adopt on prostitution. Paragraph 5 of article 9 of the Trafficking Protocol would as such not seem to be enough to dictate a certain approach to the legality of prostitution.
24 take away from the crucial point that if more cases where undertaken against persons
profiting or benefiting from the services of those employed in the prostitution industry, a substantial amount could potentially trigger the applicability of international human
trafficking law. But the judges adjudicating those cases will be forced to grapple with the lack of clarity provided by the drafters of the Trafficking Protocol, making those cases highly unpredictable. I would argue that this avoidance to provide some sense of direction on prostitution should be seen as a disappointing failure on the part of the drafters of the 2000 Protocol.
As such, the debate around the status of prostitution illustrates a vital gap in the Protocol, namely that the persons the state parties intend to protect – the victims of human trafficking – are not clearly marked. By not providing a sense of direction on the status of persons employed in the prostitution industry under international trafficking law – flowing from the decision to grant states wide sovereignty in their handling of prostitution – the international legislature fails to indicate which persons should be deemed to be victims of trafficking. This section now turns to another concern stemming from the failure by the drafters of the Protocol to commit themselves to more far-reaching obligations, namely the lack of basic legal assurances provided for the victims of human trafficking. These gaps will be criticized through a discussion of the demands of those arguing for a human rights
approach. As will be illustrated, a human rights approach – which takes seriously the
commitment to victims both after the injury (by guarding from further victimization) but also before it (in the need to alleviate root causes) – requires a more active role which
governments have been unwilling to take up. A transnational crime approach simply demands less of those ratifying the treaties – as a smaller amount of clear active (or positive)
obligations are placed on states – than if the problem would have been primarily approached from a human rights angle.
To illuminate the foregoing, a return is here made to a discussion of the human rights approach, and as such it is beneficial to repeat the preliminary definition as it was used in section three:
“A human rights approach foregrounds the physical, psychological, and/or sexual injury perpetrated against the trafficked person, as well as serving to reinforce the centrality of the human rights obligations owed to the trafficked
