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Simm, Gabrielle --- "Negotiating the United Nations Trafficking Protocol: Feminist Debates" [2004] AUYrBkIntLaw 6; (2004) 23 Australian Year Book of International Law 135

Negotiating the United Nations
Trafficking Protocol: Feminist Debates

Gabrielle Simm[∗]

Introduction

The current widespread phenomenon of women crossing borders to participate in the global sex industry is an important global issue.[1] Defining ‘trafficking’ and prostitution/sex work has been the focus of heated debates both between feminist non-governmental organisations (NGOs) and in the negotiation of a new treaty, the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations (UN) Convention against Transnational Organized Crime (the Trafficking Protocol).[2] Whether women on the move into the sex trade should be understood as victims of the trade in misery or as emancipated, independent agents acting in their own interest, or as fitting somewhere in between, depends to a significant degree on the extent of agency accorded them. This article addresses these issues through a discussion of the negotiation of the Trafficking Protocol, by comparative reference to the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the UN Convention against Transnational Organized Crime (the Migrant Smuggling Protocol).[3] It also examines the interventions by feminist NGOs and UN agencies into these negotiations where trafficking was defined at international law for the first time.

This article aims to examine how the texts of the Protocols were a key site for lobbying by NGOs and interventions by UN agencies over the distinction created between trafficked persons and irregular/ ‘illegal’ migrants and the implications of these distinctions in terms of the agency and subjectivity of the women involved. From the outset, it is important to note the difference terminology makes. The popular usage of the term ‘trafficking’, including by governments, sometimes equates to consensual facilitation of illegal migration; but at other times it can mean the abduction of a person who is subjected to slavery-like abuses. Particularly in some feminist circles, ‘trafficking’ is associated with forced prostitution, hence with women and female children;[4] for other feminists, prostitution is one of a range of occupations in which the trafficked person, who may be an adult or a child, male, female or transgender, is forced to work.

In the negotiations of the Trafficking Protocol, the interventions made and alliances formed were largely determined by whether the relevant feminist NGO or UN agency understood prostitution as sexual slavery or as sex work, and whether it saw trafficking as synonymous with prostitution or as capable of application to a wide range of forced labour activities. This article is organised into three parts. Part I outlines the different strands of feminism that form the theoretical background to the positions adopted at the negotiations. Part II situates the Trafficking Protocol in context and examines the key issues of the definition of trafficking, consent and the position of children to provide an evaluation on the Trafficking Protocol. Part III considers the challenge sex worker rights activists present to the dominant feminist positions adopted during the negotiations of the Trafficking Protocol. The feminist activism on trafficking represents a paradigmatic case with wider implications for feminists working in international law because of the ways in which some feminists represent trafficked women and migrant sex workers as victims rather than agents. The insights of postcolonial and postmodern feminism are particularly useful, given the issues raised by trafficking and global sex work.

I. International Legal Feminism

International law has been the object of sustained criticism by feminists over the last decade.[5] Initially, feminist critiques of international law drew on the work being done by feminists working in international relations,[6] attacking the assumptions that largely excluded women from the discipline of international law. However, feminism is both a methodology of critique that characteristically uses gender as its mode of analysis, as well as a discipline like international law, which is dynamic and evolving. This section aims to provide a theoretical analysis of different strands of feminism by comparing how each strand approaches the key issues under discussion, trafficking and the related question of prostitution. The two dominant positions adopted at the negotiations of the Trafficking Protocol, those that see prostitution as sexual slavery and alternatively as sex work, are associated with two strands of feminism, radical feminism and materialist feminism respectively.

My own position is that the materialist/sex work arguments are more convincing than those of radical feminism/sexual slavery. This is because sex work position acknowledges that where trafficking exists it should be punished, but that where sex workers make a decision to migrate, their agency should be acknowledged and respected. By contrast, the sexual slavery position disempowers sex workers by disregarding their decisions to migrate in the hope of better working conditions and labelling all women in migration as victims, regardless of whether they regard themselves as trafficked or not. However, I also regard postcolonial and postmodern strands of feminism as enabling crucial insights into the ‘blind spots’ of both the sex work (materialist) and sexual slavery (radical) feminist positions and hence into the politics of the negotiations of the Trafficking Protocol.

(a) Liberal feminism

Many liberal feminists’ approach to prostitution might be called a libertarian one, whereby women are free to work in the sex industry if they choose to do so, and should not be unduly hindered by state regulations. Hence domestically they adopt a decriminalisation and deregulation approach to prostitution. According to a liberal feminist analysis, where women choose to migrate for work, they should not be subject to any greater regulation or scrutiny than men. Where instances of coercion are found, they should be corrected, but this should not detract from the ability of women as a gender to work as prostitutes, just as men may do if they wish. There were no interventions at the negotiations of the Trafficking and Smuggling Protocols that fit closely within the liberal feminist category, although some sex worker rights positions may be seen as having libertarian feminist tendencies.

(b) Radical feminism

Prostitution appears in radical feminist accounts as a key site for the oppression of women as it amounts to sexual slavery.[7] Prostitution is seen as unequivocally damaging to all women because of the fact that if one woman is a prostitute this means that all women can be (treated as) prostitutes.[8] Kathleen Barry argues that it is impossible to distinguish between free and forced prostitution as the indiscriminate use by men of a woman’s body for their sexual satisfaction leaves no room for female subjectivity, sexuality or the possibility of consent.[9] Radical feminists typically do not distinguish between prostitution and trafficking, with women involved in prostitution being seen as victims of patriarchy.[10] Those who claim to choose prostitution as a viable work option, or even to enjoy their work, are seen as demonstrating a kind of ‘false consciousness’ explicable as a type of psychological defence, which makes them deny the damaging abuse to which they are subjected.[11]

In the context of the negotiations of the Trafficking Protocol, a number of feminist groups and individuals adopted a position, designated here as the ‘sexual slavery’ approach to prostitution, which does not distinguish between forced or voluntary prostitution or between prostitution and trafficking. They include the International Human Rights Network, comprising ‘over 140 NGOs including the Coalition Against Trafficking in Women (CATW), the Movement for the Abolition of Prostitution and Pornography (MAPP), the European Women’s Lobby, the International Federation of Human Rights, Equality Now’ and ‘other NGOs too numerous to mention’.[12] CATW in particular argued strongly against the inclusion of a requirement to prove lack of consent to prostitution, which it saw as synonymous with trafficking, as it sees all prostitution as the abuse of a position of vulnerability (patriarchy disadvantages all women in comparison to men). The UN Working Group on Contemporary Forms of Slavery of the Sub-Commission on the Promotion and Protection of Human Rights also adopted the prostitution as sexual slavery position.[13] In terms of the domestic legal regulation of prostitution, these groups advocate what is known as the abolitionist approach, which aims for the abolition of prostitution through criminalisation of the sex industry.

(c) Materialist feminism

Materialist feminists make a distinction between forced and voluntary prostitution, which they distinguish from trafficking.[14] They regard voluntary prostitution as sex work, which is no different from a range of other low status, marginalised jobs in which women engage.[15] From the ‘sex work’ approach it follows that freedom of migration for sex workers must be guaranteed, as for other workers. However, forced prostitution is regarded as sexual slavery and trafficking is defined as movement of people for the purposes of slavery or forced labour. This labour may be sexualised, as in forced prostitution, or as domestic, industrial, agricultural or part of a range of different types of work.[16]

In the negotiations of the Trafficking Protocol, a number of NGOs and all of the UN bodies that intervened (except the UN Working Group on Contemporary Forms of Slavery) argued that it was imperative to distinguish between forced and voluntary prostitution. Although they might not necessarily identify themselves as materialist feminists, their position is consistent with the materialist feminist approach that voluntary prostitution is sex work. This position was adopted by the Human Rights Caucus, a grouping of NGOs that included the Global Alliance Against Trafficking in Women (GAATW) (Thailand); the International Human Rights Law Group (US); Stichting Tegen Vrouwenhandel (Netherlands); La Strada (Poland, Ukraine, Czech Republic); Fundación Esperanza (Colombia, Netherlands, Spain); Women’s Consortium of Nigeria; Asian Women’s Human Rights Council; Women, Law and Development in Africa (Nigeria); Ban Ying (Germany); Foundation for Women (Thailand) and KOK (Germany).[17] On many watershed issues, the Human Rights Caucus agreed with the former UN Special Rapporteur on Violence against Women, the International Labour Organization, the United Nations High Commissioner for Human Rights, United Nations Children’s Fund (UNICEF) and the International Organization for Migration (IOM).[18] In terms of domestic law, the sex work approach to prostitution usually prescribes decriminalisation of the industry and the application of the employment law relating to union representation, occupational health and safety, workers’ compensation, taxation, insurance and related matters.

(d) Postcolonial and Third World feminism

In relation to trafficking and prostitution, different groups of postcolonial and Third World feminists support different approaches. Some adhere to the sexual slavery approach, others to the sex work approach. There is a perception that women in developing countries turn to prostitution as a last resort, whereas women in industrialised countries have other options and therefore those working in the sex industry are either drug addicts or victims of child sexual abuse.[19] However, First World sex workers dispute the claim that they are all drug addicts or victims of child abuse. Moreover, feminists advocating the right of Third World sex workers to work where they wish, condemn as racist and imperialist some accounts of prostitution as sexual slavery.[20] The First World/Third World divide is further complicated by the many Third World women now working in First World countries, including as academic feminists and as sex workers. Their arguments have much to add to debates surrounding prostitution and trafficking, which have been stated at times in terms of a First World/Third World divide, although ideological positions frequently cross-cut this divide, for example in relation to the sex work/sexual slavery debate.[21]

(e) Postmodern feminisms

Postmodern feminism is a feminism of difference that draws on the insights of poststructuralism.[22] Poststructuralism is suspicious of grand theories that claim to explain the world, such as Marxism or theories of universal patriarchy, as it contends that such purported universalism obscures the local and particular.[23] Poststructuralism identifies language and its structure of binary oppositions, in which one term is always implicitly valorised over and defined in relation to another term, as having certain effects that help to construct lived reality.[24] Some examples include white/black, coloniser/colonised, agent/victim, masculine/feminine, heterosexual/homosexual, innocent/guilty, self/other, forced/voluntary, madonna/whore. Postmodernism is characterised by heterogeneity and interest in the differences within categories, rather than the differences between categories, which are made to appear self-evident. So using the example of men/women, postmodern feminists advocate awareness of the differences between women (based on age, sexuality, ethnicity, disability, class and so on), rather than assuming the fundamental difference to be between women and men. Postmodern feminists would also see the term ‘feminism’ as a false universalism that erases different varieties of feminism, and would therefore prefer the term ‘feminisms.’[25]

In the context of prostitution, in accordance with the value accorded to heterogeneity, postmodern feminists emphasise the need to accord due recognition to the subjectivity of sex workers.[26] Postmodern feminists argue against the imposition of external moral strictures and in favour of attention to sex workers’ own views and understanding of prostitution and trafficking. So although there were no obviously postmodern interventions in the negotiation of the Protocol, postmodern feminists would caution against constructing fixed deviant sexual identities, such as ‘the prostitute’, as such rhetorical constructions help to shape reality but fail to acknowledge that practices change over time. For example, a woman who initially makes a decision to migrate for sex work may later find herself in a situation of forced labour equivalent to trafficking.[27] Postmodern feminists have contributed to raising suspicion regarding the validity of monolithic categories such as ‘women’ or ‘sex workers’ and have raised awareness among other feminists who may assume that the categories ‘feminist’ and ‘prostitute’ are mutually exclusive.[28]

An understanding of the history and politics of different feminist theories serves to explain why certain negotiating tactics were adopted and strategic alliances formed during the negotiations of the Trafficking Protocol. Clearly, the debate was dominated by two positions: sexual slavery versus sex work. Adherents of the radical feminist position argued that prostitution is inseparable from trafficking, as consent to prostitution is impossible to achieve under the present patriarchal social system. Those advocating a sex work position, however, consistent with materialist feminist analyses, saw labour as key to women’s exploitation as a class. Sex work advocates argued that where prostitution is forced, it is akin to slavery and that trafficking falls into this category. However, prostitution that is not forced is sex work and sex workers are entitled to labour rights like other workers. The next section considers key issues including the context and the text of the Trafficking Protocol and elucidates how the feminist debates were reflected in the text that was eventually adopted.

II. The Trafficking Protocol

(a) Contextualising the Trafficking Protocol

Trafficking is the subject of a plethora of activities and programs currently being conducted by a range of UN agencies, states and international organisations.[29] It is important to note from the outset the complexity of the definition of trafficking at international law, and how it is related to the international legal regulation of prostitution. The ILO Conventions prohibiting slavery[30] and the generally acknowledged jus cogens[31] against slavery[32] are relevant if trafficking and forced prostitution are regarded as slavery. Seeing prostitution as sex work raises the applicability of international legal instruments on migrant workers such as the ILO Conventions on Migrant Workers[33] and the UN Convention on the Rights of Migrant Workers and their Families,[34] but the failure of states to see prostitution as sex work and the low protection accorded to migrant workers are both reasons why this remains an important academic debate[35] with implications for the development of strategy towards securing sex worker rights.[36] Illegal and irregular migration is also a topic of current international interest, with a number of regional processes aimed at preventing irregular migration flows.[37] The following provides a brief outline of the international legal context for the development of new treaties relating to prostitution, trafficking and migration.

The Trafficking Protocol was negotiated in a framework of other international legal instruments relevant to trafficking and migration. Foremost among these is the 1949 UN Trafficking Convention,[38] which represents a consolidation of the White Slave Traffic Treaties negotiated in the early twentieth century.[39]

The Trafficking Convention’s significance lies in the fact that it treats trafficking (forcible movement of people, usually understood to be across borders) and prostitution (sexual labour within one country) as equivalent as may be ascertained from the opening paragraph to the Preamble:

Prostitution and the accompanying evil of the traffic in persons for the purposes of prostitution are incompatible with the rights and dignity of the human person and endanger the welfare of the individual, the family and the community.

For the first time, it defines prostitution as an issue at international law.[40] The Trafficking Convention was widely regarded as ineffective due to the lack of effective monitoring mechanisms[41] and the fact that it was limited to trafficking for the purposes of recruitment into prostitution, complicated by the differing legal status of prostitution in different states. Although ‘sexual slavery’ feminists generally advocated ratification of the Trafficking Convention, some condemned what they saw as its implicit acknowledgment that prostitution can be voluntary as it targets ‘pimping, procuring and brothels because they constitute coercion’.[42] Feminists who see prostitution as sex work, and sex worker rights activists argued conversely that the Trafficking Convention conceives of women as in need of protection and fails to see them as agents who can voluntarily choose to engage in prostitution.[43] The ineffectiveness and anachronistic nature of the Trafficking Convention were important reasons for the development of new instruments on trafficking.

In the context of a perceived unprecedented rise in the illegal movement of people across borders, the UN General Assembly directed an Ad Hoc Committee to develop a Convention against Transnational Organized Crime, with Protocols relating to the movement of people.[44] The primary focus of the negotiations, hosted by the UN Crime Commission, was on transnational crime and controlling borders to prevent illicit trafficking or smuggling, rather than a concern for protecting the human rights of smuggled migrants or trafficked persons. [45]

As the parent Convention to the Protocols, the Convention on Transnational Organized Crime provides an important context for interpretation of the Protocols.[46] It applies to the offences established by the Convention and to serious crime (punishable by four or more years’ imprisonment) where the offence is transnational in nature and involves an organised criminal group (art 3). Article 3(2) of the Convention on Transnational Organized Crime states that an offence is transnational if:

(a) it is committed in more than one state;

(b) it is committed in one state but a substantial part of its preparation, planning, direction or control takes place in another state;

(c) it is committed in one state but involves an organized criminal group that engages in criminal activities in more than one state; or

(d) it is committed in one state but has substantial effects in another state.

Article 2(a) of the Convention defines ‘organized criminal group’ as:

A structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in accordance with this Convention, in order to obtain, directly or indirectly, a financial or other material benefit.

These definitions of transnational organised crime are important because they limit the scope of the Protocols (art 4, both Protocols). The definition of ‘transnational’ effectively polices the boundary of what is considered an international issue and what is ‘merely’ domestic. The definition of ‘transnational’ is also relevant to the hotly contested definition of ‘trafficking,’ especially as to whether ‘trafficking’ can occur within the borders of one country.

(b) The Trafficking Protocol

In keeping with the aims of the main Convention, which creates new offences and enables international cooperation among states,[47] the Protocols aim to prevent transnational organised crime by imposing obligations on states to criminalise the offences established by Protocols. The Trafficking Protocol has been criticised for its lack of focus on human rights.[48] Persistent lobbying by NGOs and interventions by UN agencies resulted in some references to human rights in the Protocols.[49] The aims of the Protocols are stated to be the prevention of trafficking and smuggling respectively; the protection of and assistance to victims of trafficking and the protection of the rights of smuggled migrants; and the promotion of cooperation among states (art 2, both Protocols). In the context of the other provisions of the Protocols, the primary aim appears to be the maintenance of state control over borders and cooperation between states to combat a threat to state power, that is, transnational organised crime.

What are the differences between smuggled migrants and trafficked persons?[50] How are these differences constituted in the legal texts and NGO representations of smuggled migrants and trafficked persons? Are the differences sufficiently obvious to enable law enforcement officials, such as immigration, customs and border police, to identify a trafficked woman and treat her differently from a smuggled migrant? These questions are raised by the way the Protocols distinguish between trafficked persons and smuggled migrants. The next section examines the definition of trafficking, the issue of consent and the position of children as key issues that illustrate the debates between advocates of sexual slavery and sex work positions at the negotiations.

(i) Definition of trafficking

Article 3(a) of the Trafficking Protocol defines trafficking in persons as:

the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other form 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.

The definition of ‘trafficking’ does not specifically require borders to be crossed, unlike the definition of ‘smuggling’ in the Smuggling Protocol. Nevertheless, for the Trafficking Protocol to apply, the offence must be transnational as the scope provision of the Protocol (art 4) refers to offences that are ‘transnational’. ‘Transnational’ is defined in article 3(2) of the Convention against Transnational Organized Crime and may include cases ‘where purely domestic offences were committed by foreign offenders or as part of a larger transnational organized crime scheme’.[51] This is a narrower definition than that proposed by the former UN Special Rapporteur on Violence against Women. She advocated a definition of trafficking that included ‘placing the victim in an unfamiliar milieu, where the person is culturally, linguistically, or physically isolated and denied legal identity or access to justice’.[52]

The Smuggling Protocol defines ‘smuggling of migrants’ as:

the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of person into a State Party of which the person is not a national or a permanent resident (art 3(a)).

The element of financial or other material benefit does not appear in the definition of trafficking, and is one of the factors that distinguishes people trafficking from migrant smuggling. In addition, the definition of smuggling refers specifically to obtaining the illegal entry of a person into a state, making the element of crossing borders much clearer than it is in the definition of trafficking. In fact, the attention given by groups lobbying at the negotiations to the relationship between trafficking and smuggling is not reflected in the Protocols. The former Special Rapporteur and the Human Rights Caucus both state that:

Laws and policies on immigration designed to combat or prohibit illegal migration or migrant smuggling may cause or contribute to trafficking by lessening access to legal measures by trafficked parties.[53]

This is exacerbated by measures taken by source countries that attempt to prevent trafficking by imposing legal and administrative restrictions on its citizens considered to be at risk of trafficking.[54] This translates into restricting the legal freedom of movement by young women, who are then more likely to turn to illegal migration and traffickers to facilitate their travel to a destination country.[55] The illegality of work in the sex sector further contributes to the vulnerability of women wishing to migrate for sex work and to their reliance on traffickers.[56]

In a useful article outlining the debates between the different feminist NGOs which participated in the negotiations, Barbara Sullivan traces the heated battle over the definition of trafficking between feminists who see all prostitution as sexual slavery and those who distinguish between prostitution which is forced (slavery) and that which is voluntary (sex work).[57] Arguing from a position that prostitution is sexual slavery, CATW claims that it ‘led and won a decisive battle to effect [sic] a strong and inclusive definition of trafficking’, including specific mention of prostitution and the term ‘victims of trafficking’, in order to ensure that the Protocol ‘would protect all victims of trafficking, not just those who could prove that they had been forced’.[58] The inclusion of language straight out of the Trafficking Convention, ‘the exploitation of the prostitution of others’, and the inclusion of ‘sexual exploitation’ in the definition certainly represents a victory for CATW, which claims its views are shared by a range of developed and developing countries.[59]

By contrast, the Human Rights Caucus sought to ensure that the Protocol distinguished between forced and voluntary prostitution and referred to ‘trafficked persons’ rather than victims of trafficking. Like the former High Commissioner for Human Rights, it advocated a definition of ‘trafficking’ that focused on forced or bonded labour and servitude, as a way of avoiding the implementation difficulties ‘inherently associated with undefined, imprecise and emotive terms such as “sexual exploitation” when used in connection with adults’.[60] The Human Rights Caucus was frustrated by the efforts of ‘the Philippines, Belgium, the Vatican and several NGOs in distracting attention from the real issues at stake and wasting time’. According to CATW, the views of the Human Rights Caucus were shared by ‘wealthy western and other industrialized countries – many of them receiving countries for victims of trafficking’.[61] In general, the line of division between the sexual slavery/sex work positions follows that of the parties/non-parties to the Trafficking Convention.[62]

Both the ‘sexual slavery’ feminists and those advocating a distinction between prostitution and trafficking drew on debates over the relationship of prostitution to trafficking in other international legal instruments to support their campaigns over the definition of trafficking in the Trafficking Protocol. CATW claims that the Trafficking Protocol ‘reverses the trend in recent year[s] to separate prostitution from trafficking’ and locates the Convention on Transnational Organized Crime ‘within existing international human rights law, especially making it continuous with the 1949 Convention [the Trafficking Convention] and Article 6 of [the Convention on the Elimination of All Forms of Discrimination Against Women] CEDAW’. Article 6 provides that ‘States Parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women.’[63]

The former Special Rapporteur provides a different reading of prostitution in CEDAW, which supports her view that prostitution is not synonymous with trafficking at international law. She argues that the travaux préparatoires or interpretative notes[64] to article 6 indicate that during the negotiations of CEDAW, Morocco’s proposal ‘to abolish prostitution in all its forms’ was rejected in favour of an emphasis on trafficking and the exploitation of prostitution.[65] This reading is accepted by both sex worker feminists and some sexual slavery feminists who understand it to mean that the ‘exploitation of prostitution’, rather than prostitution itself, should be suppressed. The former Special Rapporteur draws on the approach adopted in the Rome Statute of the International Criminal Court, where article 17(2)(e) defines ‘enslavement’ as:

The exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in person, in particular women and children.[66]

Although hailed as a ‘victory’ by CATW, the definition of trafficking adopted in the Protocol is better regarded as a compromise text that includes elements advocated by both sex work and sexual slavery feminists. The inclusion of ‘sexual exploitation’ pleased CATW while the former High Commissioner for Human Rights argued against the inclusion of such ‘emotive’ and ‘imprecise’ terms. On the other hand, the Human Rights Caucus could be pleased to have achieved the inclusion of a wide range of other (non-sexual) practices included in the definition of exploitation, including ‘forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs’, all of which have relatively clearly defined meanings at international law.[67] The inclusion of ‘sexual exploitation’ in the definition of trafficking sidesteps the issue of whether prostitution can be voluntary, with this issue being seen as too difficult to resolve to the point of inclusion in the treaty text. Leaving ‘sexual exploitation’ undefined enables states to interpret it according to their domestic legal regulation of prostitution. While this may have resolved the issue as regards trafficking for the purposes of international cooperation, the related issue of whether prostitution can be voluntary has been deferred, which is an unsatisfactory result for migrant sex workers.

(ii) Consent

Article 3(b) deals with the issue of consent:

The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used.

CATW argues that it should not be necessary to prove lack of consent to trafficking, which it conflates with prostitution, as prostitution is inherently exploitative. The logic of its argument requires that economic coercion be treated as force and as vitiating consent.[68] CATW argues by analogy with rape cases where it is necessary to prove lack of consent by women who allege rape, resulting in a very low rate of successful prosecutions. CATW wishes to avoid the evidentiary problems faced by the prosecution in rape cases.

An argument that would appear to support the CATW position is that economic hardship itself constitutes coercion such that it vitiates consent. Linda Malone argues that:

a shift away from the issue of consent refocuses the legal inquiry from the victim and onto the actions of the trafficker/exploiter, reflecting a recognition that deception or coercion nullifies any meaningful, fully informed consent.[69]

However, Malone’s argument seems to be aimed at shoring up the rights of women to ‘choose to migrate and to choose their form of labour’.[70] She goes on to cite GAATW’s Draft Minimum Standard Rules for the Treatment of Victims of Trafficking in Person, Forced Labor and Slavery-like Practices (1997) and point out that they do not explicitly include economic hardship as constituting coercion,[71] whereas other feminists consider it particularly relevant in the case where women are at risk of re-trafficking because of lack of economic means.[72]

Although Malone’s intent appears to be to ensure that the right of women to migrate voluntarily is recognised, as she recognises, there will always be a problem in determining the level of economic hardship sufficient to constitute coercion in individual cases.[73] States will likely seize on this difficulty as a reason not to recognise that a crime of trafficking has been committed where economic hardship is argued to constitute coercion. Moreover, an argument that economic hardship forces women into trafficking rhetorically undermines the autonomy of women who have decided to migrate to work as prostitutes, despite knowing the bad conditions that await them, as making the best of the limited options available to them.

The Human Rights Caucus argued that ‘obviously, by definition, no one consents to abduction or forced labor, but an adult woman is able to consent to engage in an illicit activity [such as illegal migration or prostitution]. If no one is forcing her to engage in such an activity, then trafficking does not exist.’[74] The former Special Rapporteur cautioned that the ‘lack of informed consent must not be confused with the illegality of certain forms of migration. While all trafficking is, or should be illegal, all illegal migration is not trafficking. It is important to refrain from telescoping together the concepts of trafficking and illegal migration.’[75] The Human Rights Caucus also argued that:

The issue of ‘consent’ is a matter of evidence, not definition, because, once the prosecution presents evidence proving the existence of forced prostitution, forced labor, slavery or servitude, ‘consent’ is irrelevant. It is only when the prosecution fails to present adequate evidence that consent is relevant.[76]

Hence, governments should not try to solve the problems in their police and prosecutorial capacities by including a lack of consent in the definition of trafficking. Instead, they should ‘improve their investigation and prosecutorial skills’ in order to discharge the evidentiary burden of proving a lack of consent. The Human Rights Caucus discusses the issue of consent in the context of the need for separate provisions applying to children, as it saw both as crucial to a distinction between children (of either sex) and (adult) women.[77]

The inclusion of an evidentiary need to prove consent is a setback for CATW, which argued that women can never consent to trafficking, in which they include prostitution. However, the fact that the consent was included acknowledges the autonomy of migrant sex workers and the possibility that they might consent to migration for sex work, underscoring the distinction between adult women and children, which CATW seeks to undermine.

(iii) The position of children

Article 3(c) and (d) provides a definition of ‘child’ and modifies the definition of trafficking in relation to children.

(c) The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered ‘trafficking in persons’ even if this does not involve any of the means set forth in subparagraph (a) of this article;
(d) ‘Child’ shall mean any person under eighteen years of age.

At international law, states must recognise the special rights and needs of children. Most are already under an obligation to prevent the sexual (art 34) and economic (art 32) exploitation of children and the abduction, sale of or traffic in children for any purpose or in any form (art 35) under the almost universally binding Convention on the Rights of the Child (CROC).[78] The Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography commits states to more specific obligations in relation to these issues.[79] The ILO Convention on the Worst Forms of Child Labour (No 182) obliges ILO member states immediately to prohibit and eliminate the worst forms of child labour, which include:

(a) all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour, including forced or compulsory recruitment of children for use in armed conflict;
(b) the use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic performances;
(c) the use, procuring or offering of a child for illicit activities, in particular for the production of trafficking of drugs […];
(d) work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children.[80]

UNICEF also referred to the concerns of the Committee established to monitor implementation of the Convention on the Rights of the Child 1989[81] regarding the acknowledgment that children are trafficked for a range of purposes, including for adoption, sexual exploitation and for use as child soldiers. The special situation of children and the different factors affecting their trafficking aid weight to the suggestion by the Office of the UN High Commissioner for Human Rights, UNICEF and the International Organization for Migration that the definition of trafficking in children be dealt with in a separate section.[82]

During the course of the negotiations, the title of the Trafficking Protocol changed from the provisional instrument against ‘Trafficking in Women and Children’ to its final form of ‘Trafficking in Persons, Especially Women and Children’.[83] The final formulation goes some way to satisfying the concerns of UN agencies and ‘sex work’ NGOs that the title ‘Trafficking in Women and Children’ effectively conflated the idea of prostitution and trafficking. To focus exclusively on women and children would ignore the fact, first, that men and transgender persons are also trafficked,[84] and second, that people are trafficked into a wide range of occupations, including domestic, manual and industrial work and marriage, adoptive or other intimate relationships.[85] The title ‘Trafficking in Persons’ would ignore the gendered reality that most trafficked persons, adult and children, are female. However, an exclusive focus on ‘Women and Children’ would risk equating adult women with children. The fact that some feminists also approach trafficking and prostitution from a perspective that does not distinguish between women and children indicates the complexity of the issue.[86]

The provision on children was not one that was argued strongly by CATW, but the Human Rights Caucus regarded it as crucial to a distinction between women and children. Sheila Jeffreys, whose writings on prostitution provide an important theoretical basis for CATW’s arguments, challenges the distinction made between adults and children in prostitution. She argues that the quality of injury suffered by adult women in prostitution is no different to that suffered by children. She argues also that child prostitution is so integrated into adult prostitution, because of the fact that many women’s experience in prostitution begins when they are legal minors, that it is difficult to separate the two in terms of law enforcement.[87] The Human Rights Caucus and the then Special Rapporteur on Violence against Women argued against the conflation of issues surrounding women and children on the ground that such a conflation suggests that women are not able to exercise agency as adult persons. It also fails to acknowledge the special needs and different legal status of children.

The Trafficking Protocol mentions the special position of children in article 3(c) and (d), however, it fails to accord children adequate protection. This is because the obligations on states to provide assistance and protection to victims of trafficking in persons specified in article 6 are extremely weak, much weaker than the witness protection obligations and the provisions relating to compensation payable by governments out of the proceeds of crime. Hence, although states are under an obligation to take into account the ‘age, gender and special needs of victims of trafficking in persons, in particular the special needs of children’ (art 6(4)) it is couched in language which makes it merely recommendatory rather than mandatory. CATW obviously did not regard a distinction between women and children as a key issue, however, the Human Rights Caucus did. While there is some acknowledgment of the special needs of children, child rights advocates would be disappointed that the preeminent obligation under the Convention on the Rights of the Child to act in the best interests of the child was not made more specific.

(c) Evaluating the Trafficking Protocol

The Trafficking Protocol represents an agreement on the international legal regulation of human trafficking unprecedented since 1949 and has raised the profile of the issue enormously. Nevertheless, its status as an instrument of international criminal law, rather than as an international human rights law instrument, means that the rights of trafficked persons will not always be the primary consideration. Indeed, solid lobbying was needed before these protections, most of which are merely exhortatory rather than mandatory, were included by governments in the text of the Protocol. Further, the Trafficking Protocol risks being used as a tool of anti-immigration policies of rich countries attempting to prevent migration flows under the rubric of border protection, rather than protecting the human rights of would-be migrants by facilitating labour migration, and making it legal and safer, thereby reducing the demand for the services of human traffickers.

The outcome of the negotiations was a compromise text, a result of differing state interests and interventions by UN agencies and NGOs. Difficult issues, such as whether prostitution could be voluntary, were debated for a year, then ultimately deferred as unresolvable through the inclusion of terms such as ‘sexual exploitation’, which remains undefined at international law. The definition of trafficking includes ‘something for everyone’: both ‘the exploitation of the prostitution of others’ and ‘sexual exploitation’, as advocated by proponents of the sexual slavery position; and ‘forced labour or services, slavery or practices similar to slavery’, as advocated by those who see a distinction between forced and voluntary prostitution. The inclusion of an acknowledgment that consent was possible and of the special position of children went some way to acknowledging the sex work position that adult women are different to children and, unlike children, may consent to migrate for sex work. However, its lack of specificity in regard to the rights of the child disappoints child rights advocates and could be argued to represent a recognition of the sexual slavery argument that women are as equally violated by prostitution as are children.

Article 6 of the Trafficking Protocol, which deals with assistance to and protection of trafficked persons, is perhaps the most disappointing aspect of the treaty. Although it covers the provision of various forms of assistance to ‘victims of trafficking’, (including legal advice, housing, counselling, interpreting, medical, psychological and material assistance; and employment, education and training) the obligations are very weak. For example, states are obliged to protect the privacy and identity of trafficked persons only ‘in appropriate cases and to the extent possible’. Where protection of a trafficked person’s identity may be necessary to protect her from re-trafficking, murder, and targeting of her family, privacy and witness-protection obligations on states should be much stronger. The result of these discretionary ‘obligations’ under article 6 is that states are not required to provide a number of important protections and NGOs will continue to ‘bear the burden of caring for the needs of trafficked persons’.[88] In this context, CATW’s jubilant cry of ‘Victory in Vienna’ appears naïve and premature.

Interestingly, the CATW refers specifically to their attendance at the negotiations for the Smuggling Protocol, stressing ‘the need to make connections between the two Protocols’. According to CATW, ‘some [government] delegates noted that there had been little NGO concern about the Smuggling Protocol and its relationship to the Trafficking in Persons Protocol’.[89] This comparative neglect of the Smuggling Protocol may have been because of a focus on the Trafficking Protocol, which most saw as governing prostitution, including even those NGOs that fought to sever the nexus between trafficking and prostitution in the definition of trafficking.

The next section considers the movement towards migrant sex worker rights and whether these rights would be advanced by the Migrant Smuggling Protocol.

III. Migrant Sex Workers: critiquing the negotiations

The previous section discussed the negotiations of the Trafficking Protocol in terms of the feminist debates over trafficking and prostitution seen as sexual slavery and (migration for) sex work. This section outlines the development of a sex worker rights position in opposition first to a sexual slavery approach to trafficking and prostitution and later the sex work position. Sex worker rights activists found it necessary to oppose the potentially neo-colonial moves of some radical feminists that erase the subjectivity and possibilities for power and resistance claimed by global sex workers. In terms of the different strands of feminism outlined in Part I, the sex worker rights analysis owes most to the insights of postcolonial and postmodern feminisms.

(a) Sex worker rights versus sexual slavery

A key impetus for the sex worker rights movement is the need to respond to a categorisation by Kathleen Barry of Third World prostitutes as disabled by lower socio-economic development and greater patriarchal oppression. Barry regards these disabilities as making it impossible for them to exercise the economic independence and choice from which prostitutes in industrialised countries benefit.[90] Although Barry finds it difficult to concede that prostitution could be a choice for anyone, she sees prostitutes in the Third World as more victimised than those in the First World. Kempadoo points to the marginalising and disempowering effects of Barry’s account:

Seen to be trapped in underdeveloped states, Third World prostitutes continue to be positioned in this discourse as incapable of making decisions about their own lives, forced by overwhelming external powers completely beyond their control into submission and slavery.[91]

Although sometimes seen as a preserve of the west, the sex worker rights perspective is increasingly articulated from locations within the developing world and in postcolonial contexts. Sex worker movements began in the modern period with the strike of French prostitutes in 1975.[92] While the First and Second World Whores conferences were largely western dominated,[93] the publication in 1998 of Global Sex Workers: Rights, Resistance and Redefinition represents an important step towards dispelling the impression that sex worker rights advocacy is confined to the west. Global Sex Workers includes writings by sex workers and sex worker advocates from Australia, Brazil, the Caribbean, Côte d’Ivoire, Cuba, the Dominican Republic, Ecuador, Ghana, Japan, Malaysia, Mexico, the Netherlands, Senegal, South Asia, Suriname, Thailand, and the United Kingdom. It signals, if not a growing internationalisation of the sex worker rights movement, then perhaps a greater availability to English-speaking audiences of writings from a sex worker rights perspective.

(b) Sex worker rights versus sex work

While sex worker rights developed out of the sex work position, many sex worker rights advocates now see the distinction between forced and voluntary prostitution, central to the sex work position, as detrimental to the rights of sex workers. Jo Doezema, a sex worker activist, explains her dilemma at the 1995 Beijing Conference on Women, during which she lobbied for the text of the outcomes to refer to ‘forced’ prostitution, rather than just prostitution:

Ironically, I found myself lobbying for a recognition of the distinction between voluntary prostitution and forced prostitution, a distinction I and other sex worker activists had come to realize had been subverted in such a way that it had become a new justification for denying sex workers their human rights.[94]

Sex worker rights activists have historically intervened in international negotiations as part of a sex work delegation (eg, as part of the Bangkok-based GAATW or Washington-based International Human Rights Group delegations) rather than appearing in opposition to them or as a distinct third group. Strategically, their interests have been to prevent the sexual slavery position from being reflected in international legal texts, despite the recognition articulated above by Doezema, that the sexual slavery/sex work distinction was actually detrimental to the rights of sex workers.

Sex worker rights advocates have also levelled accusations of racism and imperialism at feminist accounts of trafficking from human rights organisations operating within a sex work framework. Asia Watch and the Women’s Rights Project (which later merged to become divisions of Human Rights Watch) published a report on the trafficking of Burmese Women to Thailand in 1993,[95] which was subject to extensive criticism by Alison Murray, an Australian academic and sex worker.[96] She accused the authors of the report, along with CATW, of racism, using non-participatory research methodologies and of creating an ‘erotic pathetic stereotype of the Asian prostitute which creates the possibility for middle-class women’s trafficking hysteria’.[97] She also criticised the Australian NGO, the International Women’s Development Agency, organisers of an Australian publicity tour by the researchers, of sensationalising the issues by linking the report to the trafficking of women from Thailand to Australia:

Logically there is no difference between debt-bonded Asian workers and Australian workers choosing to work for Hong Kong triads for more money than they could get in Sydney: it’s racism which says that the former are victims and the latter agents.[98]

While Murray makes some valid points in relation to imperialist modes by which some feminists operate in relation to Third World prostitution, she misrepresents the international legal regime in which discourses on trafficking and prostitution operate.[99] It is also not clear that Murray fully appreciates the political situation within Burma, where the military junta’s attacks on ethnic minorities and the dire economic situation of the country produce many refugees, leaving ethnic minority women in particular extremely vulnerable to trafficking.[100] Murray’s arguments might themselves be subject to criticism on the basis that she assumes that trafficking does not occur, and in doing so denies the wrongs that some women have undoubtedly suffered.

A more substantial criticism of the Human Rights Watch report would be Doezema’s argument that, despite their acknowledgment of sex work, feminists often take ‘the easy way out’ by focusing not on the rights of sex workers to do their job, but on the rights of those forced into prostitution and trafficking to be free from this form of slavery. Doezema also criticises Human Rights Watch, in this case, a statement from Human Rights Watch’s 1995 Women’s Rights Watch Report that acknowledges the right of governments to distinguish between ‘those who purposefully violate immigration laws and others who are victims of forced prostitution’.[101] Doezema states:

It is not only governments who prefer saving innocent women to giving rights to guilty ones. Most feminist discourse on trafficking limits itself to the fight against ‘forced prostitution’, the ‘voluntary’ prostitute is not condemned – she is ignored.[102]

Doezema argues that feminists who do not support sex worker rights create a dichotomy of ‘guilty’/voluntary versus ‘innocent’/forced prostitutes. According to Doezema, one of the effects of this dichotomy is that it becomes necessary to show that instances of abuse are in fact ‘forced prostitution’ either through the presence of deceit, the equation of poverty with force, or a focus on the youth of the victim:[103]

The most frightening division created by the voluntary/forced dichotomy is that it reproduces the whore/Madonna division within the category ‘prostitute’. Thus the Madonna is the ‘forced prostitute’ – the child, the victim of trafficking; she who, by virtue of her victim status, is exonerated from sexual wrongdoing. The ‘whore’ is the voluntary prostitute: because of her transgression, she deserves whatever she gets. The distinction between voluntary and forced prostitution, a radical and resistive attack on previous discourses that constructed all prostitutes as victims and/or deviants, has been co-opted and inverted, and incorporated to reinforce systems that abuse sex workers’ rights.[104]

Pickup notes that this results in a situation where those addressing trafficking in women are in an uncomfortable position of ‘feeling compelled to produce ever more horrifying victims’ stories, higher numbers, and younger girls’.[105] It also disavows the fact that trafficking in women is more complicated than the simple forced/voluntary dichotomy suggests: a woman may voluntarily decide to migrate for sex work but later find herself involved in prostitution under slavery-like conditions.[106] This is in fact the situation of the majority of Thai women whose experiences are analysed in the Human Rights Watch 2000 report on the trafficking of Thai women to Japan.[107]

While calls for states to ‘simply respect the rights of migrant workers’[108] have been made by the ILO and feminist activists in the west,[109] labour and human rights are increasingly invoked by sex workers in developing countries themselves. At a meeting in Siem Reap, Cambodia in March 2000, Asian sex workers from six countries demanded decriminalisation of adult prostitution while condemning child prostitution and trafficking:

Where traditional attempts, motivated by moralising impulses and pity, at ‘rehabilitating’ sex workers have failed to find workable alternative livelihood options for sex workers, the sex workers’ movement for their own rights and social legitimacy is perhaps the best way to ensure that sex workers get a real ‘choice’ in life. In the absence of better options, we choose to remain in sex work. We demand that our ‘choice’ be respected and recognised, however limited [it] may be.[110]

Ratna Kapur’s discussion of the imperialising implications of certain strategies used by feminists working in international law cites sex work and trafficking of women as its pre-eminent examples. Kapur argues that the rhetoric of violence against women, used by groups such as CATW and other sexual slavery feminists, creates a victim subject that is based on both gender essentialism and cultural essentialism. Such a victim subject is problematic for international feminist activism because it tends to represent Third World women as ‘thoroughly disempowered, brutalised, and victimised: a representation that is far from liberating for women’.[111] Kapur’s logic is compelling because it flows from her discussion of sati, dowry murders, honour killings and trafficking, and demonstrates how formerly progressive appeals to nationalism in South Asia have been transformed into a conservative focus on women’s bodies as representing the nation. Kapur outlines how sex workers, along with migrant women, the female weightlifter, beauty queens and the eunuch, disrupt both the gender and cultural essentialism that beset certain types of feminist politics in the international human rights arena, as well as in parts of the Third World.[112] Hence feminist debates around sex work and trafficking in women have a wider significance than the issues themselves, as they represent the issues at stake in feminist engagements with international law more generally.

Conclusion

The international legal regulation of trafficking in women is a crucial site for feminist interventions into international law. The negotiations of the Trafficking Protocol to the Convention on Transnational Organized Crime were subject to interventions by feminist NGOs and UN agencies that split according to their positions on the watershed issues of prostitution and the definition of trafficking. CATW and their negotiating allies understood prostitution as sexual slavery and as inseparable from trafficking. By contrast, the Human Rights Caucus and most UN agencies distinguished between forced prostitution, which correlates to the slavery-like practices that characterise trafficking, and voluntary prostitution, which they see as sex work. The resulting treaty text is a compromise between differing views of trafficking and prostitution. Its status as an international criminal law instrument, aimed at enabling states to better protect their borders, rather than an international human rights law instrument ensuring the protection of the human rights of trafficked persons, reduces its effectiveness as a tool for empowerment of trafficked persons and migrant sex workers.

Feminist engagements with the international regulation of trafficking and prostitution are significant in what they can teach us about feminist interventions in international law more generally. Sex worker rights activists’ interventions in international arenas have generally been in strategic coalition with sex work feminists, whereas trafficked women have not represented themselves as such. Sex worker rights activists, as well as sex work feminists, have criticised the approach of sexual slavery feminists as racist and imperialist in that it denies the possibility of agency and ignores the subjectivity of women who migrate to work in the global sex industry. However, sex worker rights activists have also criticised sex work feminists as ‘taking the easy way out’[113] by focusing on the plight of trafficked women, rather than advocating the rights of sex workers to perform sex work. Attention to the insights of postcolonial and postmodern feminism as raised by advocates of sex worker rights, gained through an examination of the issues of trafficking, prostitution and migration for sex work, can only contribute to the development of more sophisticated tools of critique within feminism in its engagements with international law.


[∗] This article is based on my Master of Arts thesis completed at the Centre for Women’s Studies at the Australian National University.
I would like to thank Jo Bindman for discussions in 1995, which led me to pursue this project; and Kirsty Munro, Victoria Coakley, Zaw Naing and especially Professor Jan Jindy Pettman for their valuable comments and generous support. I previously worked on trafficking in the Legal Branch of the Department of Foreign Affairs and Trade. I currently work as a refugee lawyer at Victoria Legal Aid. The opinions expressed in this article are my own and should not be attributed to either of these organisations.

[1] The US State Department estimates that every year 800,000 to 900,000 people are trafficked, most of them women and children. John Miller, Director of the Office to Monitor and Combat Trafficking in Persons, ‘On the Record Briefing on the Rollout of the June 2003 Trafficking in Persons Annual Report’ <www.state.gov/g/tip/rls/rm/21459pf.htm>.

[2] Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (the Trafficking Protocol) UN Doc A/55/383 <http://www.uncjin.org/Documents/Conventions/dcatoc/final_documents_2/convetion_%20traff_eng.pdf> .

[3] Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the UN Convention against Transnational Organized Crime (the Migrant Smuggling Protocol) UN Doc A/55/383 <http://www.uncjin.org/Documents/

Conventions/dcatoc/final_documents_2/convention_smug_eng.pdf>.

[4] This article will not address trafficking of men, nor will it address trafficking of children except where this relates to the different level of agency potentially attributable to an adult and to a child: see art 3(c) and (d), Trafficking Protocol.

[5] H Charlesworth, C Chinkin and S Wright, ‘Feminist Approaches to International Law’ (1991) 85 American Journal of International Law 613; H Charlesworth and C Chinkin, The Boundaries of International Law: a Feminist Analysis (2000); K Knop, ‘Re/Statements: Feminism and State Sovereignty in International Law’ (1993) 3 Transnational Law and Contemporary Problems 293; H Charlesworth, ‘The Sex of the State in International Law’ in N Naffine and R Owens (eds), Sexing the Subject of Law (1997).

[6] See eg Cynthia Enloe, Bananas, Beaches, Bases: Making feminist sense of international politics (1989); J Ann Tickner, Gender in International Relations: Feminist Perspectives on Achieving Global Security (1992); Christine Sylvester, Feminist Theory and International Relations in a Postmodern Era, (1994) Jan Jindy Pettman, Worlding Women: a feminist international politics (1996).

[7] K Barry, Female Sexual Slavery (1984).

[8] S Jeffreys, The Idea of Prostitution (1997).

[9] K Barry, The Prostitution of Sexuality (1995) 9-24.

[10] This flows in part from the radical feminist understanding of ‘compulsory heterosexuality’ and the nuclear family as inherently oppressive of women: A Rich, ‘Compulsory Heterosexuality and Lesbian Existence’, Blood, Bread and Poetry: Selected Prose (1986); A Dworkin, Intercourse (1987).

[11] For a critique of this approach, see P Alexander, ‘Feminism, Sex Workers, and Human Rights’ in J Nagle, Whores and Other Feminists (1997) 83.

[12] CATW website, <http://www.uri.edu/artsci/wms/hughes/catw/slavery.htm> 1.

[13] ‘Report of the Working Group on Contemporary Forms of Slavery on its twenty-fourth session’ 20 July 1999, UN Doc E/CN.4/Sub.2/1999/17, 5.

[14] L L Lim (ed), The Sex Sector: the economic and social bases of prostitution in South East Asia (1998). This book, commissioned by the ILO, outraged the CATW, which encouraged readers to send protest letters to UN Secretary-General Kofi Annan and Director-General of the ILO Michael Hansenne: J Raymond ‘Legitimating Prostitution as Sex Work: UN Labor Organization (ILO) calls for recognition of the Sex Industry’ (1998) <www.uri.edu/artsci/wms/hughes/catw/legit.htm>.

[15] By contrast, Kara Abramson locates the sex work approach within liberal, and I would argue, libertarian feminist discourse, with US prostitution advocacy group COYOTE as a key exponent: K Abramson, ‘Beyond Consent, Towards Safeguarding Human Rights: Implementing the United Nations Trafficking Protocol’ (2003) 44 Harvard International Law Journal 473, 483-84.

[16] ‘We support the evolving international consensus that trafficking must be understood to apply to all labor sectors, including, but not limited to, the sex industry, while being limited to those instances in which some form of coercion is present. This consensus reflects the recognition that persons ‘trafficked’ for various types of employment endure similar violations, as well as the conviction that distinguishing between voluntary and coercive acts is crucial to maintaining respect for the ability of women to purposefully and voluntarily migrate for work.’ Human Rights Watch, Owed Justice: Thai Women Trafficked in to Debt Bondage in Japan (2000) 50.

[17] Human Rights Caucus Press Release, ‘UN Trafficking Protocol: Lost Opportunity to Protect the Rights of Trafficked Persons’ 18 October 2000 <http://www.inet.co.th/org/gaatw/Bulletin/BulletinDec00.htm> .

[18] Human Rights Caucus, ‘Recommendations and Commentary on the Draft Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the Convention against Transnational Organized Crime’ July 1999 <http://www.inet.co.th/org/gaatw/RecomJuly.html> .

[19] R Bishop and L S Robinson, Night Market: Sexual Cultures and the Thai Economic Miracle (1998) 105.

[20] K Kempadoo, ‘Introduction: Globalizing Sex Workers’ Rights’ in K Kempadoo and J Doezema (eds), Global Sex Workers: Rights, Resistance and Redefinition (1998) 12.

[21] Ibid 13.

[22] L Singer, ‘Feminism and Postmodernism’ in J Butler and J W Scott (eds), Feminists Theorize the Political (1992) 464, 470.

[23] For a materialist feminist response to postmodernism, see T L Ebert, After Ludic Feminism: Postmodernism, Desire and Labor in Late Capitalism (1996).

[24] E Grosz, Volatile Bodies: Towards a Corporeal Feminism (1994) 3.

[25] A similar point is made by Luce Irigaray in relation to ‘women’s liberation movements’: L Irigaray, ‘Questions’ in J A Kourany, J P Sterba and R Tong (eds), Feminist Philosophies (1992) 372, 376.

[26] L Law, Sex Work in South East Asia: A Place of Desire in a Time of AIDS (2000) 124.

[27] ‘While Thai women’s initial decisions to migrate for work were almost always voluntary, women typically were deceived from the time they made their decisions until their arrival in Japan, and most of the women experienced slavery-like abuses, prohibited under international law, during the course of their travel and job placement’ Human Rights Watch, above n 16, 2.

[28] Cf Nagle (ed), above n 11.

[29] For a useful overview, see ‘Report of the Secretary-General on Activities of United Nations bodies and other international organisations pertaining to the problem of trafficking in women and girls’ 25 November 1999, UN Doc E/CN.4/2000/66.

[30] Slavery Convention, Geneva, 25 September 1926 and amended by the Protocol, New York, 7 December 1953, 212 UNTS 1953; the Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices similar to Slavery, done at Geneva, 7 September 1956, entry into force 30 April 1957, 266 UNTS 3.

[31] Jus cogens is a peremptory norm of international law from which no derogation is possible. Hence a treaty that violates jus cogens will not be upheld: art 53, Vienna Convention on the Law of Treaties, 23 March 1969, 1155 UNTS 331. Examples of jus cogens include the prohibition on genocide, slavery, piracy, torture and systematic race discrimination and the right to life and self-determination. I Brownlie, Principles of Public International Law (5th ed, 1998) 515.

[32] L Hannikainen, Peremptory Norms (Jus Cogens) in International Law (1988) on slavery 444-456; on forced prostitution 453.

[33] Migration for Employment Convention (Revised) 1949 (No 97); Migrant Workers (Supplementary Provisions) Conventions 1975 (No 143) <http://ilolex.ilo.ch> .

[34] GA Res 45/158, UN Doc A/45/49 (1991). See further R Cholewinski, Migrant Workers in International Human Rights Law: their Protection in Countries of Employment (1997).

[35] Ryszard Cholewinski, ‘International Human Rights Standards and the Protection of Migrant Workers in the Asia Pacific Region’ <http://www.december18.net/paper1standards.htm> .

[36] M Wijers, ‘Trafficking in Women in the Context of Female Labour Migration’ NGO Consultations with UN/IGOs on Trafficking in Persons, Prostitution and the Global Sex Industry, Trafficking and the Global Sex Industry: Need for Human Rights Framework, 21-22 June 1999, Geneva; P Alexander, ‘Feminism, Sex Workers, and Human Rights’ in Nagel (ed), above n 11, 83, 90.

[37] These include the Asia Pacific Consultations; Manila Process (East, South East and South Asia); Puebla Process (Central and North America); Euromed partnership (European Union and 12 countries of Eastern and Southern Rim of Mediterranean; CIS Conference Process; Budapest Process (West, Central and Eastern Europe).

[38] Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, approved by GA Res 317 (IV) of 2 December 1949, done at Lake Success, New York, 21 March 1950; entry into force 25 July 1951, 96 UNTS 271 (the Trafficking Convention).

[39] International Agreement for the Suppression of the White Slave Traffic, Paris, 18 May 1904, 92 UNTS 19; International Convention for the Suppression of the White Slave Traffic, Paris, 4 May 1910, 98 UNTS 109; International Convention for the Suppression of the Traffic in Women and Children, Geneva, 30 September 1921, 53 UNTS 39, 65 UNTS 333, 76 UNTS 281, 77 UNTS 364; International Convention for the Suppression of the Traffic of Women of Full Age, Geneva, 11 October 1933, 53 UNTS 334, 76 UNTS 281, 77 UNTS 365.

[40] F Pickup, ‘Deconstructing Trafficking in Women: the Example of Russia’ (1998) 27 Millennium 995, 1002.

[41] Whilst the Trafficking Convention had 73 parties and art 21 required them to communicate annually with the Secretary-General on their domestic compliance, fewer than half reported. Since 1973 the UN Working Group on Contemporary Forms of Slavery has included consideration of states’ compliance with the Trafficking Convention in its annual meetings, despite its lack of official mandate. Report of the Working Group on Contemporary Forms of Slavery on its twenty-fourth session, UN Doc E/CN.4/Sub.2/1999/17, 25.

[42] United Nations Economic, Social and Cultural Organisation and Coalition Against Trafficking in Women, The Penn State Report: International Meeting of Experts on Sexual Exploitation, Violence and Prostitution (1992) 1.

[43] J Bindman, ‘An International Perspective on Slavery in the Sex Industry’ in Kempadoo and Doezema (eds), above n 20, 66.

[44] GA Res 53/114 (1998).

[45] A third ‘Protocol combating the illicit manufacturing of and trafficking in firearms, their parts, components and ammunition’ was concluded in March 2001, but will not be discussed here. See UN Doc A/55/383/Add.2. The General Assembly also referred to the Ad Hoc Committee the question of a study and possible negotiation of a further Protocol on the illicit manufacturing and trafficking in explosives, but this has not been taken further. Crime Prevention and Criminal Justice: 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, UN Doc A/55/383, 2.

[46] The Protocols also may not enter into force until the Convention does (art 17 Trafficking Protocol; art 22 Smuggling Protocol), and states must adhere to the Convention before the Protocols may enter into force for that state (art 37). The Convention entered into force on 29 September 2003 in accordance with art 38, which requires 40 states parties for entry into force. The Trafficking Protocol entered into force on 25 December 2003. The Smuggling Protocol entered into force on 28 January 2004. For details of current signatories and states parties, see <www.unodc.org/unodc/en/crime_cicp_signatures.html>.

[47] Office of Drug Control and Crime Prevention, ‘Summary of the United Nations Convention against Transnational Organized Crime and Protocols thereto’ <http://www.odccp.org/palermo/convensumm.htm> .

[48] Position paper on the draft Protocol to Prevent, Suppress and Punish Trafficking in Women and Children, submitted by the former Special Rapporteur on Violence against Women, UN Doc A/AC.254/CRP.13 (1999) 8.

[49] The Saving Clause, (art 14, Trafficking Protocol; art 19, Smuggling Protocol), saves existing rights and obligations under international humanitarian law and international human rights law, in particular the Convention Relating to the Status of Refugees (1951), 189 UNTS 150, and the principle of non-refoulement. It also includes a paragraph providing for interpretation of the Protocols in a way that is non-discriminatory to victims of trafficking or smuggled migrants on the basis of their status as such.

[50] The ILO noted the potential for overlap in any two instruments covering smuggled migrants on the one hand and trafficked women and children on the other: ‘Note by the International Labor Organization on the additional legal instrument against trafficking in women and children’ 16 June 1999, UN Doc A/AC.254/CRP.14, 9.

[51] United Nations Office of Drug Control and Crime Prevention, ‘Summary of the United Nations Convention against Transnational Organized Crime and Protocols thereto’ <http://www.odccp.org/palermo/convmain.html> .

[52] UN Doc E/CN.4/2000/68, 29 February 2000 (Special Rapporteur) 9.

[53] Ibid 17.

[54] Eg ‘the Government of Nepal restricts women under thirty from travelling outside of the country without the permission of a husband or male guardian as part of an anti-trafficking initiative’. J Sanghera and R Kapur, Report on Trafficking in Nepal: Policy Analysis – an assessment of laws and policies for the prevention and control of trafficking in Nepal (2001) 24, cited in R Kapur, ‘The Tragedy of Victimization Rhetoric: Resurrecting the “Native” Subject in International/Post-Colonial Feminist Legal Politics’ (2002) 15 Harvard Human Rights Journal 1, fn 18.

[55] ‘Note by the Office of the United Nations High Commissioner for Human Rights, the United Nations Children’s Fund and the International Organization for Migration on the draft protocols concerning migrant smuggling and trafficking in persons’, UN Doc A/AC.254/27, 8 February 2000, 6.

[56] Special Rapporteur, above n 52 22.

[57] B Sullivan, ‘Trafficking in Women: Feminism and New International Law’ (2003) 5 International Feminist Journal of Politics 67.

[58] CATW, ‘Victory in Vienna’ <http://www.uri.edu/artsci/wms/hughes/catw/tocv.htm> .

[59] Argentina, Mexico, Venezuela, Colombia, China, Egypt, the United Arab Emirates, Syria, Algeria, Bangladesh, Pakistan, India and Burkina Faso, with a ‘special mention’ to Belgium, the Philippines, the Holy See, Cuba, France, Norway, Finland, Morocco, Togo and Madagascar. CATW ‘Victory in Vienna’, ibid 4.

[60] ‘Informal note by the United Nations High Commissioner for Human Rights’, 1 June 1999, UN Doc A/AC.254/16, 3.

[61] These countries included Holland, Germany, Denmark, Switzerland, Ireland, Australia, New Zealand, Japan, Thailand, Spain, Canada, and the United Kingdom. Thailand is an obvious exception to the ‘wealthy western’ label. CATW ‘Victory in Vienna’, above n 58, 4

[62] Exceptions are Spain and Japan, which are parties to the Trafficking Convention; Australia and Denmark have signed but have not ratified the Convention.

[63] Convention on the Elimination of All Forms of Discrimination Against Women, New York, 18 December 1979, entry into force 3 September 1981, 1249 UNTS 13.

[64] Art 32 of the Vienna Convention on the Law of Treaties permits ‘recourse to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion’, where the meaning is unclear.

[65] Special Rapporteur, above n 52, 13.

[66] Ibid.

[67] Ann D Jordan, ‘The Annotated Guide to the Complete UN Trafficking Protocol’, International Human Rights Law Group, May 2002 <www.hrlawgroup.org/initiatives/trafficking_persons/>9-10.

[68] Pickup, above n 40, 1016.

[69] Linda Malone, ‘Economic Hardship as Coercion under the Protocol on International Trafficking in Persons by Organized Crime Elements’ (2001) 25 Fordham International Law Journal 54, 61.

[70] Ibid 61.

[71] Ibid 62.

[72] Janie Chuang, ‘Redirecting the Debate over Trafficking in Women: Definition, Paradigms and Contexts’ (1998) 11 Harvard Human Rights Journal 65, 93.

[73] Malone, above n 69, 70.

[74] Human Rights Caucus, ‘Recommendations and Commentary on the Draft Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children, supplementing the Convention against Transnational Organized Crime, July 1999 <http://www.inet.co.th/org/gaatw/RecomJuly.html> 7.

[75] Special Rapporteur, above n 52, 9.

[76] Human Rights Caucus, ‘Urgent Action – UN Trafficking Protocol’, campaign email received 8 August 2000 from gaatw@mozart.inet.co.th, 4.

[77] Human Rights Caucus, ‘Recommendations’, above n 74, 8.

[78] High Commissioner for Human Rights, above n 60 4.

[79] Done at New York on 25 May 2000, entry into force on 18 January 2002. UN Doc A/RES/54/263.

[80] Art 1 and 3, ILO Convention 182 on the Worst Forms of Child Labour, Geneva, 17 June 1999. ILO member states will be subject to monitoring of their compliance with this convention regardless of whether or not they ratify it, as it is one of the ILO core conventions.

[81] [1991] ATS 4.

[82] Above n 55, 2.

[83] ‘Crime Prevention and Criminal Justice: 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.’ UN Doc A/55/383, 2 November 2000, 8.

[84] My discussion with social workers from Stichting Tegen Vrouwenhandel, (Foundation against Trafficking in Women) Utrecht, the Netherlands, in October 1995, revealed that they were dealing with increasing numbers of young men from Russia and Eastern Europe trafficked into the Netherlands for the purposes of forced prostitution.

[85] 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 Commisison on Human Rights resolution 1997/44, Special Rapporteur, above n 52, 10.

[86] See the debate between Heather Montgomery ‘Children, Prostitution and Identity: A Case Study from a Tourist Resort in Thailand’ in Kempadoo and Doezema (eds), above n 20, 139-50 and Sheila Jeffreys, ‘Challenging the Child/Adult Distinction in Theory and Practice on Prostitution’ (2000) 2 International Feminist Journal of Politics 359-79.

[87] Jeffreys, ibid 359.

[88] Human Rights Caucus, above n 17, 2. Unlike art 5 of the Smuggling Protocol, which protects smuggled migrants from criminal prosecution on the basis of their status as a smuggled migrant, the Trafficking Protocol contains no equivalent protection, arguably one of the most important factors in the well-being of trafficked persons. Art 7(2) of the Trafficking Protocol raises the possibility of victims of trafficking obtaining temporary or permanent residency.

[89] CATW ‘Victory in Vienna’, above n 58, 3

[90] Barry, above n 9, 51.

[91] Kempadoo, ‘Introduction’ Kempadoo and Doezema (eds), above n 20, 12.

[92] F Delacoste, ‘Les putes sont en greve’ (the Prostitutes are on strike) in F Delacoste and P Alexander, Sex Work: Writings by Women in the Sex Industry (1987) 11.

[93] Third World sex workers did not formally participate and prostitute advocates represented sex workers for Singapore, Thailand and Vietnam at Amsterdam (1985) and Brussels (1986): G Peterson (ed), A Vindication of the Rights of Whores (1989) cited in Kempadoo, ‘Introduction’ Kempadoo and Doezema (eds), above n 20, 20.

[94] J Doezema, ‘Forced to Choose: beyond the Voluntary v Forced Prostitution Dichotomy’ in Kempadoo, ‘Introduction’ Kempadoo and Doezema (eds), above n 20, 34.

[95] Asia Watch and the Women’s Rights Project, A Modern Form of Slavery: Trafficking of Burmese Women and Girls into Brothels in Thailand (1993).

[96] Murray co-authored one of the few studies of Asian Sex workers in Australia: L Brockett and A Murray, ‘Thai Sex Workers in Sydney’ in R Perkins, G Prestage et al (eds), Sex Work and Sex Workers in Australia (1994) 191-202.

[97] A Murray, ‘Debt Bondage and Trafficking: Don’t Believe the Hype’ in Kempadoo, ‘Introduction’ Kempadoo and Doezema (eds), above n 20, 51-64, 60.

[98] Ibid 60.

[99] Murray claims ‘existing Laws and Conventions cover the issues of slavery and similar practices, non-consensual sex and the exploitation of children, and there is already a Special Rapporteur on the Sale of Children’, ibid 63. It is difficult to point to a treaty status international legal prohibition on rape, although there is more evidence of the development of a rule of customary international law prohibiting sexual assault in the context of international criminal law. Charlesworth and Chinkin, above n 5, 322-24

[100] Images Asia, “Burmese women sex workers in Thailand’, paper prepared for the NGO Forum on Women, Beijing (1995).

[101] Doezema, above n 94, 46.

[102] Ibid 45.

[103] Ibid 43-44.

[104] Ibid 47.

[105] Pickup, above n 40, 997.

[106] Ibid 997.

[107] Human Rights Watch, above n 16.

[108] Statement by Misuko Horiuchi, ILO Asia Pacific Regional Director, to the International Symposium on Migration: Towards Regional Cooperation on Irregular/Undocumented Migration, Bangkok, 22 April 1999. <www.ilo.org/public/english/region/asro/bangkok/speeches/1999/iommigr.htm>.

[109] Jo Bindman in association with Jo Doezema, ‘Redefining Prostitution as Sex Work on the International Agenda’ Network of Sex Projects (1997) <www.walnet.org/csis/papers/redefining.html> 81-83. International instruments discussed include those dealing with discrimination, criminal law, employment conditions, salvery and slavery-like practices, migrant workers, children’s rights in addition to the major human rights instruments and a number of ILO Conventions.

[110] ‘Joint Statement of Asian Sex Workers’ Meeting, Siem Reap, 21-23 March 2000’, <www.inet.co.th/org/gaatw/JointState.htm> 2, 12-13. It is instructive that this statement by sex worker rights activists was published in the Bulletin of GAATW, demonstrating once again the links between sex work and sex worker rights advocates.

[111] Kapur, above n 54, 17.

[112] Ibid.

[113] Doezema, above n 94, 46.


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