International Approaches to Human Trafficking: The Call for a Gender-Sensitive Perspective in International Law

International Approaches to Human Trafficking: The Call for a Gender-Sensitive Perspective in International Law

Dr. Coontz is an Associate Professor in the Graduate School of Public and International Affairs of the University of Pittsburgh. Dr. Coontz also has appointments in the departments of Sociology and Women's Studies. Catherine Griebel was a 2003-04 U.S. Fulbright Scholar to Chile where she also collaborated with the Latin American and Caribbean Women's Health Network as assistant editor. Ms. Griebel is currently working as a case manager in the anti-trafficking program of Safe Horizon, a New York non-profit organization. The authors may be contacted at categriebel@fulbrightweb.org or pcoontz@pitt.edu.

"The illegal trade in drugs, arms, intellectual property, people and money is booming. Like the war on terrorism, the fight to control these illicit markets pits governments against agile, stateless and resourceful networks empowered by globalization. Governments will continue to lose these wars until they adopt new strategies to deal with a larger, unprecedented struggle that now shapes the world as much as confrontations between nation-states once did."
- Moisés Naím, "The Five Wars of Globalization," Foreign Policy Magazine (Jan/Feb 2003)

Human trafficking has emerged as an important transnational, regional and national issue. It is estimated that between 1 and 2 million people are trafficked worldwide each year and that the majority are women and children.1 The proportions of the trafficking problem in terms of the illegal revenue generated, the disregard for human rights and its scale all figure in any analysis of the issue and state responses to it. In this article, we focus on the trafficking of women for prostitution and on various international legal remedies aimed at its prevention, punishment and eradication.

The international community's most recent response to trafficking is found in the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children.2 The media began reporting on Russian and Eastern European women being trafficked to the U.S. in the mid-1990s. Most recently, the New York Times reported on the invisible nature of the problem in the United States.3 In 2001, the U.S. State Department identified the United States as a "transit and destination" country.4

The UN Protocol, while ostensibly a comprehensive attempt to stop trafficking, does not represent an international consensus on the definition of trafficking. In large part, this is the result of the diverse views represented in UN institutions and of the loose and fragmented ways in which UN institutions function. Above all, trafficking is a social construction whose meaning varies with the culture and economic wellbeing of each country. Some argue that this has led to an overly broad definition of trafficking that in the end is too conceptually comprehensive to be effectively understood.

According to the UN Protocol, trafficking may include the recruitment and transfer of persons by means of the threat or use of force or coercion, fraud, deception or abuse of power for the purpose of exploitation. Exploitation is broadly defined to include the prostitution of others, sexual exploitation, forced labor or services, slavery, servitude or the removal of organs.5 Signatories of the Protocol are required to: 1) penalize trafficking, 2) protect victims of trafficking, and 3) grant victims temporary or permanent residence in the countries of destination.6 In short, there is a strong emphasis on criminalization as the primary remedy for trafficking and on state discretion in protecting victims and on their residency status.

Although the Protocol reflects a global recognition that mostly women and children are trafficked, the lack of an international consensus about what constitutes trafficking that would be valid across countries raises questions about the extent to which the Protocol (and other international instruments) can be effective tools to combat trafficking and forced labor.

This essay presents a history of the international community's response to trafficking with a particular interest in evaluating the current global antitrafficking public debate. We argue that a careful analysis of this history reveals a tension across States and within various international legal instruments that need to be addressed before legal anti-trafficking remedies can effectively ameliorate the problem.

Human Trafficking: Background, Definition and Current Treatment in International Law

While the term "human trafficking" is new, what it applies to is not. That is, the commodification of human beings dates back to antiquity. Altman argues that the sexual commodification of humans always has been accompanied by social change and industrialization.7 In the context of the current public debate, Altman's point is particularly relevant for understanding the range of perspectives on human trafficking.

That is, in a globalizing world, national and local boundaries are blurred by the movement of millions of people seeking economic opportunities in other countries and being displaced by civil war or environmental degradation every year. The economies of many countries depend heavily on this movement. Thus, the issue of human trafficking can be linked to the social and economic changes brought about by globalization.

As international law, human trafficking has been a part of the public discourse for nearly 100 years. In the Americas, trafficking and forced prostitution has a long history as part of the Spanish Conquest, the later abuse of native populations by other European colonizers, and forms of trafficking inherent in the African slave trade. In the United States, arranged marriages were also common and involved the transport of women from Japan, China and Korea during the Gold Rush and the Industrial Revolution in the mid-19th century.8 International projects, such as the construction of the Panama Canal, also triggered increased trafficking of women and local forced prostitution markets.

The first international legal instrument to address trafficking was the International Agreement for the Suppression of the White Slave Traffic of 1904 drafted by the League of Nations. This agreement was followed by the 1910 International Convention for the Suppression of the White Slave Traffic. The 1904 Agreement defined trafficking for prostitution as a moral problem related to "slavery." The language of both the 1904 and 1910 Conventions is instructive in that the intent of the instrument was to suppress "white slavery,"9 a code word for prostitution. After World War I, the League of Nations affirmed the earlier language of the 1904 and 1910 Conventions but added children to the International Convention to Combat the Traffic in Women and Children in 1921. In 1933, the International Convention distinguished adult women and female children in the Suppression of the Traffic in Women of Full Age in 1933. The 1933 Convention departed from earlier agreements by criminalizing "procurement" for prostitution-even with the consent of the woman.10 When the UN passed the 1949 Convention, the criminalization provision remained and set the standard for anti-trafficking instruments for several decades.

Concern about trafficking lay dormant throughout most of the Cold War, but interest was rekindled in the late 1980s with the growth of the sex industry, globalization and the collapse of the Soviet Union. By the early 1990s, trafficking again was a significant issue on the public agenda. Much of the renewed interest in trafficking among western governments was an extension of growing concern with transnational crime, particularly with such activities as money laundering, drug trafficking and the trade of weapons, human organs and people. In fact, it has been argued that most analyses of the international trafficking of women have focused on the role of organized crime groups in the supply and delivery of women into local sex markets.11

Women and men caught up in trafficking schemes are recruited in a number of ways and are vulnerable to trafficking for a number of reasons including high unemployment rates, the "flexibilization" of labor and the feminization of poverty. In the case of Latin American trafficking to the United States, a common scenario is for female victims to become involved in their local communities through dangerous and influential families (large and small) with criminal links to the United States. Sometimes jobs with good pay are promised as bait for making the trek north from an impoverished community. In other instances, women follow their "boyfriends," a powerfully deceitful ploy used by traffickers.

Other schemes begin simply as a smuggling offer, but upon arrival unexplainable costs are added to the initial agreement. Identification documents are withheld as collateral, and victims are literally trapped, extending the relationship beyond its original terms and introducing the elements of debt bondage and servitude. Victims often quickly realize that they have been duped but face real threats to their safety (and that of their families) if they try to escape. Capitalizing on victims' fear and isolation, traffickers make repeated profits from their victims' situation. This cyclical effect distinguishes human trafficking from other organized crimes like drug trafficking or human smuggling where profits are collected once based on a single service or product.

The implication of transnational criminal organizations in trafficking of women figured prominently in the section of the 2000 United Nations Convention against Transnational Crime dedicated to human trafficking. By way of the 2000 Convention, the involvement of criminal organizations is implied in the definition of trafficking established in the UN Protocol:

"Trafficking in persons" shall mean the recruitment, transportation, transfer, harbouring 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 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 prostitution, of others or of other forms of sexual exploitation, forced labor or services, slavery or practices similar to slavery, servitude or the removal of organs.12

The concepts of "coercion" and "fraud," which are contemporary iterations of earlier notions of "white slavery," also are evident in the Protocol. Poverty and the desire for a better life-either by being duped or being forced by "others"-are identified as motivations that lead women and girls to become the unwitting victims of trafficking cartels. This new definition of trafficking reflects state concern with the "exploitation" of women. Nonetheless, what is missing in the definition is a concept of agency among trafficked women.13

The key elements of the UN Protocol are the criminalization of traffickers, protection of victims, and prevention and cooperation with other States. Criminalization is the centerpiece of the Protocol. The articles dealing with criminal aspects have been framed with the strongest language- i.e., "all States shall adopt"- signifying state obligations versus mere recommendations.14 The criminal articles establish the liability of legal persons, the offenses punishable as determined by the definition of trafficking, and the penalties for corrupt and complicit state behavior in trafficking activities. Confiscation, seizure and disposal of confiscated proceeds from trafficking are also part of the criminal approach and determine what should be done with illegal profits.

The Protection section of the Protocol on Trafficking is comprised of five articles. The types of protection potentially available to victims include: information about court proceedings and "assistance to enable their views and concerns to be presented and considered at appropriate stages of criminal proceedings against offenders"; physical, social and psychological recovery of victims; appropriate housing, counseling and information; medical and psychological assistance; and employment and educational training.15 With regard to the use of victims to aid in criminal investigations against suspected traffickers, special stipulations that are sensitive to age, gender and other needs seek to safeguard victims from further trauma; witness protection is included. Closely related is the topic of repatriation and the safety of victims and their families. Fear of retaliation and rejection can be significant when victims have participated in court proceedings or have been engaged in prostitution while abroad.

The third component of the UN Trafficking Protocol involves prevention and cooperation. According to Article 9, paragraph 2 of the Protocol, States shall "endeavor to undertake measures such as research, information and mass media campaigns, and social and economic initiatives to prevent and combat trafficking in persons."16 States are also to take steps to ensure that "re-victimization" does not occur. Poverty, underdevelopment and the lack of equal opportunity-factors that disproportionately affect women and thus are related to trafficking-are also to be targeted through state legislation.

Throughout the drafting of the UN Trafficking Protocol, government representatives and NGOs expressed a special concern about trafficking for sexual exploitation. This is due to the closely related issue of prostitution and how different governments have sought to deal with it historically-i.e., by regulating or prohibiting it. Nations have always tried to control prostitution within or beyond their borders. Outshoorn17 notes that the way in which prostitution is defined-e.g., as a criminal problem, a human rights problem, an economic problem, or a public health problem-determines how it will be controlled.

The current definition of trafficking was influenced considerably by the ongoing prostitution debate, still a point of contention among many feminists.18 At stake is the extent to which trafficking involves a form of prostitution and whether this constitutes a human rights issue (and therefore one of exploitation) or an economic issue (and thus reflects an economic struggle between the developed and developing worlds, regardless of the national boundaries within which these "worlds" exist).

The view that trafficking of women and female children involves prostitution and subsequently is a violation of human rights and should be abolished has roots in the earlier iterations about morality and white slavery. This is the perspective advocated by the U.S.-led Coalition Against Trafficking in Women (CATW), the Movement for the Abolition of Pornography and Prostitution (MAPP) and the European Women's Lobby. During the 1999 UN Trafficking negotiations, these groups formed a lobby called the International Human Rights Network. Their platform regards all prostitution (voluntary or forced) as a violation of human rights and believes that all migrating sex workers are victims of trafficking.

The other perspective of trafficking as a function of the clash between economic powers-i.e., the developed versus the developing world-is led by the Thailand-based Global Alliance Against Traffic in Women, whose perspective is arguably nonwestern. The Global Alliance distinguishes between forced and voluntary prostitution and believes that the vast majority of trafficked women are migrant laborers and should be protected by international labor legislation. Other NGOs advocating this position include Global Rights, Fundación Esperanza and the Foundation Against Trafficking in Women-who were all present at the 1999 drafting of the UN Protocol and formed the Human Rights Caucus. Some advocates, including the Global Alliance, argue that the Protocol collapses all forms of prostitution into one category-"forced" prostitution. The problem with this focus is that it defines any migration that involves sex work as "exploitation" and that it downplays all the other forms of trafficking not involving sexual exploitation. Thus, all migrating sex workers will be treated as victims of trafficking. Others suggest that the definition's focus on "forced" prostitution encourages States to abolish all prostitution as the only remedy to trafficking. Such differences in the interpretation of the Protocol raise legitimate concerns about whether and to what extent the Protocol (or any international standard) can adequately address the issue of trafficking when such a crucial ideological paradox is left unresolved at the international level.

"Where shall I go to seek justice?"

"As all normal school girls, I too had dreamt of going to Kathmandu to find better work and education opportunities. I felt that opportunity came when my close friend Nanu Maya told me that she had an uncle, Babu Krishney, in Kathmandu who was willing to help me get a good job.

"So we were brought to Kathmandu by Nanu's uncle and kept in a rented room where we were not allowed to go anywhere or contact our relatives. After confronting him about what had happened to his promise of finding me a job, he and his friend took me to a restaurant where I was told that I had to wear very revealing clothes, cut my hair short and wait on tables. I didn't like that job so I told them that I didn't want to work there and fought with them to take me home. During this time, Ramchandra, a friend of Babu Krishna's, came to the room and read my palm and told me that I could earn a fortune if I went to India. Nanu's uncle kept insisting that we should not contact our parents or tell anyone that we were there with them, and started to plan to take us to Pokhara for sightseeing.

I began to doubt their intentions. I was pretty sure that I was going to be sold to some brothel in India. I thought of running back to my village. But Nanu prevented me from doing so. So one day I cooked up a story and told Nanu that her mother was taken to the police post for questioning about our whereabouts. Nanu agreed to go to prove her mother's innocence. The next day without informing Nanu's uncle we headed to our village, but by coincidence, Nanu's mother was actually taken to the police post by my parents for questioning.

I gave a statement against them and the police also agreed that my case had to do with trafficking and called me after three days to record my statement officially. But when I went to them, the police changed their position, saying that we had gone to Kathmandu voluntarily. I learned that the traffickers had bribed the police. I filed a petition in the court against those who took me to Kathmandu. Once the legal proceedings began, the traffickers threatened my family and the organization that was supporting us. They bribed the public prosecutor and also offered me a large sum of money to keep quiet. The police threatened the NGO volunteers who were helping me on the grounds that they were impinging on the police's day-to-day work. During the trial, when the advocate was asking me personal questions, the judge did not intervene.

Despite political pressure to give up the case, we succeeded in punishing three guilty people who were sent to prison for two and a half years. However, others who were in a stronger financial situation were not charged. When I see them moving about freely, I feel hurt, and I really question the legal system of this country. I am not satisfied with that verdict and want to see those who tricked me duly punished. But there are no legal provisions to pursue my case in this country.

What shall I do and where shall I go to seek justice?

Bilmala Tamang
Nepal

Source: Casting Curious Shadows in the Dark, a publication of the South Asia Court of Women on the Violence of Trafficking and HIV/AIDS, Dhaka, Bangladesh: Asian Women's Human Rights Council/UNDP, August 2003.

The UN Trafficking Protocol and CEDAW: At Legal Odds

Despite the comprehensive legal approach to trafficking in persons represented by the UN Trafficking Protocol, from a feminist and human rights perspective the document is flawed. Through its indirect treatment of women and tentative language regarding the obligations of the State to guarantee victims' civil rights, such as due process and unconditional protection, the Protocol fails to extend meaningful rights.

The focus of the UN Protocol is on criminalization, deportation and border control strategies, resulting in a supply-side approach that places primary responsibility on law enforcement and pays scant attention to the demand side of the problem or to factors of economic inequality between developing and developed nations. The total neglect of a fundamental actor-the trafficked person-in many ways reinforces the structural factors that give rise to human trafficking. This serious ellipsis likewise reveals the distance between new UN rhetoric concerning economic, social and cultural rights and non-discriminatory treatment of women on one hand and the enforceability of the instruments of international law on the other, which continues to depend on former notions of state sovereignty, notions that historically have been framed and carried out by predominately male UN assemblies. In so doing, the Protocol contradicts and compromises the gains that have been made to ensure gender equality through the international legal system.19

Such contradictions permeate the UN system. For example, the female subject is treated quite differently in the UN Trafficking Protocol and the 1979 Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW),20 the exemplary international legal document addressing women. To appreciate how the UN Trafficking Protocol resonates with a type of state-centered, paternalistic language reminiscent of former discriminatory international lawmaking, it is helpful to review three conceptual models regarding women's treatment in international law proposed by Natalie Kaufman Hevener.

Varying Conceptual Models in Feminist Law: Protective, Corrective and Non-Discriminatory Legal Action

In International Law and the Status of Women (Boulder, CO: Westview Press, 1983), Natalie Kaufman Hevener analyzed all the major international agreements dealing with women since 1945 and defined three categories: protective conventions, corrective conventions and non-discriminatory conventions.21 Even though they were first formulated two decades ago, Kaufman Hevener's classifications are still relevant to women's status and treatment in UN documents.

Protective Conventions
Kaufman Hevener describes the legal language of protective conventions as limiting the female to her role as wife and mother. In circumstances where the woman steps outside of this domain, "her presence may be seen as necessitating protection if her primary role is to be preserved."22 Kaufman Hevener explains that in any circumstance where the woman is acting outside of her societal boundaries (whether they be physical, conceptual or geographical), legal measures are put in place in order to "protect" her subordinate status: "...[women] are subjected to the paternal power of the State, which seeks to protect them by completely proscribing or restricting their participation in certain areas of activity."23

Classic examples of protective action at the international level are particularly evident in the economic sphere and include the original Convention Concerning Night Work of Women Employed in Industry, drafted by the ILO in 1919, and the 1935 and revised 1946 ILO Convention Concerning the Employment of Women on Underground Work in Mines of All Kinds.24

Corrective Conventions
Corrective international legal action affecting women typically addresses disparities between men and women and targets women in international legal conventions where men are not perceived to be victims or are not equally threatened by the illegal activity in question. Normally, corrective legal action is linked to protective or non-discriminatory conventions but serves to "right a wrong."25 Kaufman Hevener notes that corrective action "seeks to establish genuine equality before the law, something which solely nondiscriminatory action does not achieve without a lengthy waiting period, if it achieves it at all."26

The corrective legal approach was first used by the UN in a series of agreements addressing prostitution beginning in 1904.27 These international agreements emphasized the punishment of the organizers of prostitution and not the women. While these agreements were latent with protective language, they were the first such agreements focused solely on women, as men were not perceived as victims and therefore were not subject to the same legal treatment. Other important conventions using corrective techniques were the 1957 Convention on the Nationality of Married Women and a 1956 International Labor Organization Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery. This convention makes special reference to institutions that exploit women's marriage, property orinheritance rights.

Above all, the introduction of corrective legal action indicated an opening in international law for increased attention to women and their equal claims to fundamental human rights under the UN Charter.

Non-discriminatory Conventions
The watershed for the third category was the drafting of the 1979 Convention on the Elimination of Discrimination against Women (CEDAW), which represents the first bill of rights for women. According to Kaufman Hevener, the nondiscriminatory approach was designed to "revise the legal system in such a way that sex will no longer be a basis for the allocation of benefits and burdens in society."28 However, the author emphasizes that accompanying corrective measures are still needed and that to achieve a progressive realization of equal rights for women in the law, the two approaches must coincide.

The first objective of a non-discriminatory approach to international law is to create and promote a new language of gender equality while the second is to acknowledge and make amends for former discriminatory laws.29 This shift from "protecting" and limiting women's roles to explicitly acknowledging, correcting and setting new benchmarks for future legal and public policy affecting women is significant; globally, the treaties provide evidence of social attitudes moving gradually toward the equal treatment of women in all spheres of daily life.

Evaluating the CEDAW and the UN Protocol

The CEDAW was a watershed for women's rights in the UN system because it obliged the international community and signatory States to make redress for discriminatory language of earlier UN documents and pushed for more progressive roles of men and women. However, a comparison of the documents reveals a discrepancy between women's treatment in the more recent UN Protocol and in CEDAW. This is particularly evident in the CEDAW Articles dealing with civil and employment rights.

Civil Rights
In the civil rights arena, a major hallmark of CEDAW was its declaration that women worldwide have the same claim to civil liberties-such as property rights, the right to vote and hold office-as men, regardless of the national or cultural context. For example, Article two of Part I of CEDAW states:

State Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake: (a) to embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical realization of this principle; (b) to adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women; (c) to establish the legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination.

Similarly, in Part IV, Article 15 of CEDAW, women's legal rights under law are reintroduced. The document specifies:

1. State Parties shall accord women equality with men before the law. 2. State Parties shall accord to women, in civil matters, a legal capacity identical to that of men and the same opportunities to exercise that capacity. In particular, they shall give women equal rights to conclude contracts and to administer property and shall treat them equally in all stages of procedure in courts and tribunals.

With these provisions women, like men, are guaranteed due process as victims of a crime and are responsible actors in those crimes committed against them with a full range of legal options. However, the Trafficking Protocol is vague and ultimately non-committal with respect to the right to due process and in other provisions.

For example, the opening phrase of the Protection of Victims section of the Protocol states: "1. In appropriate cases and to the extent possible under its domestic law, each State Party shall the protect the privacy and identity of victims of trafficking in persons, including, inter alia, by making legal proceedings relating to such trafficking confidential" [emphasis ours]. Under item 2 of the same section the Protocol reads:

Each State Party shall ensure that its domestic legal or administrative system contains measures that provide to victims of trafficking in persons, in appropriate cases: (a) information on relevant court or administrative proceedings; (b) assistance to enable their views and concerns to be presented and considered at appropriate stages of criminal proceedings..." [emphasis ours].

The intent of the CEDAW clearly was to place women on an equal plane with men under the law and to reverse a global perception of women as third parties to the legal process. And yet as the binding language of the Protocol reveals, women take a backseat to the criminal justice process. The U.S. model similarly relies almost entirely on criminal law involving the State as the voluntary investigator, prosecutor and plaintiff. In the case of human trafficking cases tried in the U.S., federal prosecutors are unlikely to try cases they cannot win, leaving the trafficking victim entirely dependent on the will and benevolence of the Department of Justice and Attorney General's office.30 As legal scholar Ratna Kapur writes in response to legal treatment of violence against women, "There is no space in this construction [of the victim subject] for...the articulation of a subject that is empowered....Additionally, [the victim construction] encourages States to resort to the criminal law to address women's rights issues, an arena of law in which nation-states enjoy the powers of moral surveillance and regulation."31

A related issue is the treatment of proceeds confiscated from convicted traffickers. The UN Convention against Transnational Organized Crime (which addresses restitution for human trafficking) states: "1. Proceeds of crime or property confiscated by a State Party pursuant to articles 12 and 13, paragraph 1, of this Convention shall be disposed of by that State Party in accordance with its domestic law and administrative procedures." Item 2 goes on to stipulate that:

"When acting on the request made by another State Party in accordance with article 13 of this Convention, State parties shall, to the extent permitted by domestic law and if so requested, give priority consideration to returning the confiscated proceeds of crime or property to the requesting State Party so that it can give compensation to the victims of the crime or return such proceeds of crime or property to their legitimate owners [emphasis ours].

In response to these Articles, Ann Jordon, author of The Annotated Guide to the Complete UN Trafficking Protocol, asserts that "National laws in many countries will need to be revised in order to ensure that disposal of assets is done in a manner that benefits trafficked persons....Governments should not keep the assets for other purposes, and those that do are guilty of profiting from the traffickers' criminal acts."32 Jordon articulates precisely the type of rights-based rhetoric found in CEDAW by pointing out the trafficked persons' legitimate claim to assets confiscated from the trafficker. She also points to the weakness of the UN Trafficking Protocol's restitution approach, which provides no definite process as to how a female trafficking victim actually goes about recovering assets from her trafficker. The UN Protocol further demotes female victims' rights by including the option of creating a law enforcement account with preference given to law enforcement efforts in developing and transition economies.33 These stipulations favor state agencies and law enforcement and cut female victims out of the legal process. While the law enforcement fund has notable benefits, the provision nonetheless begs the question of whether assets rightfully belonging to victims would be so easily redirected if trafficking were a crime affecting white men. In reality, of course, it primarily afflicts poor women.34

Women's Employment Rights and Economic Inequality
The sections of CEDAW addressing employment are also relevant to the analysis of the UN's current legal approach to trafficking in women and children. In Part III, Article 11, the Women's Convention asserts:

1. State Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular: (a) the right to work as an inalienable right of all human beings; (b) the right to the same employment opportunities, including the application of the same criteria for selection in matters of employment; (c) the right to free choice of profession and employment, the right to promotion, job security and all benefits and conditions of service...(d) the right to equal remuneration, including benefits, and to equal treatment in respect of equal value, as well as equality of treatment in the evaluation of the quality of work; (e) the right to social security, particularly in the case of retirement, unemployment, sickness, invalidity, and old age....

The UN system has been criticized frequently for its contradictions on issues of the poor and women. On the one hand, the UN created CEDAW and has provided a vital platform for advocating women's equality in the international order. However, the UN has failed to take a decisive stand on the failure of the dominant development paradigm (neoliberalism) to address structural inequalities and the adverse impact of austerity packages on women.

Although the deeper structural issues of women's social and economic rights are outlined clearly in CEDAW, the Trafficking Protocol hardly mentions the structural economic inequalities that create the endless supply of women vulnerable to the trafficking market in Africa, Eastern Europe, Asia and Latin America.

Although admittedly the problem of enforcement of economic and social rights at the international level is highly contentious, the Protocol's failure to give even minimal attention to the supply and demand aspects of trafficking is troubling. For example, the idea of sanctioning the clients of prostitution and thus taking a stab at demand is a difficult legal area to address internationally when the criminal target varies between pimp, procurer and prostitute in different national prostitution laws. Nonetheless, wholesale pardoning of the clientele is untenable for achieving the Protocol's long-term goal of eradicating trafficking. Just as the Protocol frames victims' protection using conditional phrases, demandside issues could likewise be addressed-especially sex tourism operations and the widely reported trafficking markets surrounding UN Peacekeeping and U.S. military missions. The total neglect of the issue of demand in the Protocol suggests that the UN instrument lacks a viable remedy for the deeprooted causes of trafficking.

Another solution is suggested by scholars and activists from the liberal feminist camp. They argue that the legalization of prostitution is a viable strategy for learning more about the sex industry and for meaningfully extending rights and services to migrant laborers involved in sex work. This approach recognizes worldwide social, cultural and economic inequalities and the nature of transnational legal and illegal commerce. As mentioned earlier, while "exploitation of prostitution" is intentionally left undefined in the Trafficking Protocol, the binding language is restricted nonetheless to criminal sanctions of traffickers, and the Protocol does not contemplate a labor regulation approach in the least. Thus, there is no room for the interpretation of an empowered migrant woman who is operating in response to global economic realities affecting her and her family. Nor is there a realistic contemplation of whether such women are better served by prosecution of their traffickers or by labor regulations and more gender-sensitive approaches to local development and labor force models. Instead, the UN Trafficking Protocol simply allows for state discretion regarding the criminalization of prostitution.

As a result, the UN Protocol ignores the socio-cultural ramifications of criminalizing prostitution. In receiving countries where prostitution is illegal, trafficking victims are often stigmatized for their "immorality," which is compounded by their problematic status as illegal migrants. As Nora Demleitner explains in her essay on migrant women trafficked into prostitution, "Not surprisingly enforcement of anti-trafficking laws is often absent or low. When the laws are enacted, their impact often falls on women rather than the traffickers, replicating enforcement patterns against prostitution generally."35 Overall, the realities of women working in prostitution-whether it be voluntary or forced-and the threats to their rights by traffickers, clients and law enforcement alike should be the focus of major research and policy attention. The Trafficking Protocol all but ignores this crucial issue of human rights and gender equity.

Conclusion

It is difficult to reconcile many of the issues this paper raises about the Trafficking Protocol: the use of conditional and vague language when referring to persons who are trafficked has little meaningful effect, and the lack of concrete international anti-trafficking measures is practically unimaginable given the transnational nature of human trafficking. These grave shortcomings-in addition to the divide in the current anti-trafficking debate-have resulted in a UN instrument illequipped to deal with flexible networks of criminals who understand and take full advantage of the limitations of the modern State, the economic inequalities between origin and destination countries, and the particularly discriminatory approach to women in legal systems around the world.

In its current form, the Protocol overemphasizes the criminalized aspects of trafficking and relegates the rights and needs of women and children to a subordinate position in the international legal framework. The fact that the UN High Commissioner and NGOs have rushed to publish complementary documents reminding the international community of the need for a more integral approach to human trafficking36 further calls attention to the disregard for women's rights and the double standard in international law.37

This brief and preliminary assessment of the UN Trafficking Protocol and CEDAW illustrates the work that needs to be done to make these two pieces of international law mutually reinforcing and beneficial for trafficked persons. For international agreements to address the complexities of human trafficking, a significant effort will have to be made to embrace the realities that women face, particularly women in developing countries. Likewise, women must be recognized as subjects of rights, especially those relating to freedom of movement, employment and the right to legal counsel, private claim of action and restitution in criminal proceedings. Because trafficking predominately affects women, the anti-trafficking model will perpetuate "protective" notions of women's treatment in international law until changes are made in these areas.

Further Reading

Claire Bishop, "The Trafficking Victims Protection Act of 2000: Three Years Later," International Migration 41, no. 5 (2003).

Wendy Chapkis, "Trafficking, Migration, and the Law: Protecting Innocents, Punishing Immigrants," Gender and Society 17, no. 6 (December 2003).

CLADEM, Prostitución: Trabajo o Esclavitud Sexual? (Lima, Peru: CLADEM, December 2003).

Lynellyn D. Long, "Anthropological Perspectives on the Trafficking of Women for Sexual Exploitation," International Migration 42, no. 1 (2004).

This article has been republished from Women's Health Journal, April 2004, pp. 47-57 (Latin American and Caribbean Women's Health Network, http://www.reddesalud.org)

Notes

1. Francis Miko, Trafficking in Women and Children: The U.S. and International Response, Congressional Research Report 98-649-C (May 10, 2000), 1.
2. The Convention appears on the United Nations Website, at http://www.odccp.org/crime_cicp_convention.html#final.
3. Peter Landesman, "The Girls Next Door," The New York Times, January 25, 2004.
4. U.S. Department of State, Trafficking in Persons Report (July 2001).
5. Mensenhandel (2002) as cited by Joyce Outshoorn, "Introduction: Prostitution, Women's Movements, and Democratic Politics" in The Politics of Prostitution, ed. Joyce Outshoorn (Cambridge: Cambridge University Press, 2004).
6. Outshoorn, "Introduction: Prostitution," 11.
7. Dennis Altman, Global Sex (Chicago, IL: University of Chicago Press, 2001), 13-14.
8. Suzanne H. Jackson, "To Honor and Obey: Trafficking in 'Mail Order Brides,'" George Washington Law Review 70, no. 3 (June 2002).
9. The language is also race-specific in that the target populations were white immigrant women. The terminology used in these original accords illustrates the extent to which the enslavement of other races was not considered morally abhorrent, only white slavery and prostitution.
10. Marjan Wijers, "European Union Policies on Trafficking in Women" in Gender Policies in the European Union, ed. Mariagranzia Rossilli (New York: Peter Lang), 212.
11. Ian Taylor and Ruth Jammison, "Sex Trafficking and the Mainstream of Market Culture," Crime, Law and Social Change 32 (1999): 257-278.
12. UN Optional Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children, Article 3, paragraph (a). Available online: http://www.uncjin.org/Documents/Conventions/dcatoc/final_documents_2/convention_%20traff_eng.pdf
13. By agency we refer to the female traffic victim's ability to actively participate and guide legal proceedings involving her in criminal and civil court settings. Agency also deals with the traffic victim's employment rights, her right to choose her job, receive a fair wage, organize and join labor unions. Finally, agency refers to the traffic victim's freedom of movement, without the moral supervision of the State.
14. Ann Jordon, The Annotated Guide to the Complete UN Trafficking Protocol (Washington, D.C.: International Human Rights Law Group, May 2002), 13-16. Obtained from the Internet on March 8, 2002, at www.hrlawgroup.org/initiatives/trafficking_persons/ www.hrlawgroup.org/initiatives/trafficking_persons/.
15. Ibid., 19-28.
16. Ibid., 29.
17. Outshoorn, "Introduction: Prostitution," 11.
18. There has been a long-standing debate in feminism about the agency of prostitutes. At the heart of the debate are the words like "consent" and "choice," which refer to a person's ability to make choices and take action under social and economic constraints that impede or shape these choices. One camp of this debate argues that prostitutes lack agency to make choice because of the constraints from patriarchal oppression. The other camp of this debate argues that while society imposes constraints on women's sexuality, sex work is like any other type of work. They contend that some women freely choose prostitution as a way to earn a living and that prostitution should be protected like any type of work.
19. The State Department has developed a three-tier system to reflect the extent to which governments comply with the "Victims of Trafficking and Violence Protection Act of 2000" passed by the U.S. Congress. Tier 1 countries (e.g., Austria, Canada and the UK) comply fully with the Victims' Act minimum standards for the elimination of trafficking. Tier 2 countries (e.g., Angola, Philippines, Guatemala and Brazil) are making progress toward compliance. Tier 3 countries (e.g., Belarus, Bahrain, Greece, Israel, Saudi Arabia and Russia) are making no progress. We believe this three-tier system is instructive because it illustrates the range of variance among States in their responses to trafficking.
20. CEDAW contains an article on prostitution that calls on States to take measures to "suppress all forms of traffic in women and the exploitation of prostitution" (Article 6). This article was not intended to include all prostitution.
21. Women Watch, the Website of the United Nations Division for the Advancement of Women, cites only one declaration drafted after (and subsequently not included in) Kaufman Hevener's work: the Declaration on the Elimination of Violence Against Women of 1993.
22. Hevener-Kaufman, Natalie. International Law and the Status of Women (Boulder, CO: Westview Press, 1983), 6.
23. Ibid., 7.
24. For a full explanation, see Hevener Kaufman, International Law and the Status of Women.
25. Ibid., 22.
26. Ibid., 9.
27. The original agreement was drafted in 1904 and extended through conventions in 1910, 1921, 1933, and 1947.
28. Hevener Kaufman, International Law and the Status of Women, 12.
29. Ibid., 18-22.
30. Interview with an official at the Midwest Immigration and Human Rights Center, April 15, 2004.
31. Ratna Kapur, "The Tragedy of Victimization Rhetoric: Resurrecting the 'Native' Subject in International/Post-Colonial Feminist Legal Politics," Harvard Human Rights Journal 15 (Spring 2002): 36-37.
32. Jordon, The Annotated Guide, 16.
33. The level of corruption and police violence against women in many countries targeted for these monies is a major concern; this stipulation in many ways further defeats a rights-based, feminist approach to trafficking. For a further discussion of this Convention Article, see Jordon, The Annotated Guide, 16.
34. Susan Tiefenbrun, "The Saga of Susannah, A U.S. Remedy for Sex Trafficking in Women: The Victims of Trafficking and Violence Protection Act of 2000," Utah Law Review 17 (2002): 111-113.
35. Nora Demleitner, "The Law at Crossroads: The Construction of Migrant Women Trafficked into Prostitution" in Global Human Smuggling in Comparative Perspective, eds. David Kyle and Rey Koslowski (Baltimore: Johns Hopkins University Press, 2001).
36. Examples of two such documents are Human Rights Standards for the Treatment of Trafficked Persons, coauthored by the Global Alliance against Traffic in Women, the Foundation Against Trafficking in Women and Global Rights; and the UN High Commissioner for Human Rights publication, Recommended Principles and Guidelines on Human Rights and Human Trafficking (http://www.unhchr.ch/huridocda/huridoca.nsf/(Symbol)/E.2002.68.Add.1.En?Opendocument)
37. For more information on these documents, see: http://www.globalrights.org/site/DocServer/Traff_AnnoProtocol.pdf?docID=203 and http://www.gaatw.org/