Abstract

Trafficking in women is regarded as both a cause and consequence of human rights violations. This article situates trafficking within different, intersecting analytical frameworks, including gender, migration, labour law, criminal law and human rights.  It aims to contribute to the feminist project by highlighting the contested nature of the present discourse and, in particular, by paying attention to legal strategies of combating trafficking, exploitation and traditionally gendered labour division. This article examines relevant international treaties, such as the UN Trafficking Protocol, the Council of Europe Convention against Trafficking, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) as well as the recent South African Law Reform Commission Discussion Paper and proposed Draft Bill on Trafficking in Persons. It makes specific reference to feminist contestations around the issue of consent in the definition of trafficking.

Keywords

human rights, women, international law, feminism

Trafficking in persons is a serious crime and violation of human rights. In recent years, it has been put on top of the international policy agenda as a result of the apparent increase in trafficking, the gross violation of human rights associated with it, the involvement of organised crime syndicates and the national and international efforts to combat trafficking. Globalisation has been regarded as one of the most important factors in the sheer volume of international migration (Boswell and Crisp, 2004:6). Resulting skewed development patterns have created push and pull factors of migration. According to the Global Commission on International Migration, there are now between 189 and 193 million international migrants worldwide, of which almost 50 percent are women (GCIM, 2005).

With the increase in migration across the world and the continued restrictions on movement of labour, irregular migration such as trafficking and smuggling has increased significantly. According to the International Labour Organisation, ‘trafficking is also perhaps the most flagrant of societal and labour market failures that arise in the context of contemporary globalisation' (ILO, 2005:69).

They estimate that 2.5 million women, men and children are trafficked within and across borders at any point in time and that ‘at the very least, one third of these are trafficked for economic purposes other than sexual exploitation' (ILO 2005:46). Transnational trafficking has been estimated at 600,000 to 800,000 persons annually, of which 80 percent are women and 50 percent are minors (US Department of State, 2006), but recent research has shown that most figures are often no more than ‘guesstimates' (Laczko, 2005:11,  Piper, 2005:219).

Transnational trafficking is not only of concern to the domestic (national) law of the countries involved, but also to the international legal community because international crime requires international responses and cooperation between states. Moreover, trafficking is not only an international law and criminal law issue, but also a human rights, labour law, migration, gender and morality issue.

The majority of trafficked women are migrants who have made a conscious decision to migrate

This paper will situate trafficking within these different but intersecting frameworks and examine how the different lenses influence anti-trafficking measures and, in turn, are influenced by competing national and global discourses. As will be illustrated, the focus on a criminal justice framework has come at the expense of protecting the human rights of women and ignoring the reality of migration.

Viewing trafficking merely as a criminal offence and a law and order matter tends to relegate the related issue of demand for cheap and exploitable labour within globalising markets to the margins. This raises questions of what the dominant anti-trafficking discourse is, whose interests it serves and, more specifically, how it informs the law. The issue of women's consent to work in the sex industry, for example, has been highly contested and divided feminists into two - strongly opposing - camps. Not surprisingly, it is also the most controversial aspect of the proposed Draft Bill Combating Trafficking in Persons of the South African Law Reform Commission (SALRC).

This paper will explore how ideological factors shape the discourse and law around trafficking and its impact on women's rights. In doing so, it examines international legal standards and, where relevant, assesses the proposed South African legislation against these standards.

Push and pull factors

The majority of trafficked women are migrants who have made a conscious decision to migrate, while only a small percentage of trafficked persons are abducted or sold (Kaye, 2003). These migrants enter into a new country with or without legal permits or migrate within a country in search for better economic opportunities. Poverty, unemployment, lack of equal opportunity and discrimination are causes of migration and trafficking. The former Rapporteur on Violence against Women, Radhika Coomeraswamy (2000), puts it succinctly: ‘The lack of rights afforded to women serves as the primary causative factor at the root of both women's migration and trafficking.'

The United Nations Trafficking Protocol requires that states parties address the root causes of trafficking by alleviating poverty, unemployment and other economic and social shortcomings as well as the lack of rights. Governments should also address the demand that fosters all kinds of exploitation. Both the Beijing Platform of Action (1995) and the Vienna Declaration and Programme of Action of the World Conference on Human Rights (1993) call upon governments to deal with the root causes.

Trafficking intersects with other forms of migration, including smuggling. The main differences between trafficking and smuggling are (i) that trafficking always contains a non-consensual element, as traffickers use coercive, deceptive or abusive means, (ii) trafficking is done for the purpose of exploiting the labour or services of the trafficked person, whereas in the case of smuggling migrants are recruited with the consent of the smuggled person, and the relationship between the smuggler and the smuggled person comes to an end after the illegal entry into the state, and (iii) smuggling is always transnational.

But, in practice, the distinction is not always easy to make, and there are instances when a journey contains elements of both smuggling and trafficking (Gallagher, 2001:1000). Often, gendered perceptions play a role in the categorisation - men are usually treated as being smuggled, while women as being trafficked.

Trafficking as a gender-based harm

Trafficking is regarded a specific, gender-based harm. The majority of trafficked persons are women. Women are trafficked for the purposes of exploitation in - most often - typical gender-specific labour, such as forced prostitution, sex tourism, domestic work or into commercial marriages and suffer gender-specific harm, such as rape and other forms of violence. Unequal access to education, traditional practices, limited possibilities for women to access or own land and property and other forms of gender discrimination increase the vulnerability of women and girls to trafficking.

It is acknowledged that trafficking is a form of violence against women. Both the Vienna Declaration and the Beijing Platform of Action identify trafficking as a form of gender-based violence. The Committee on Elimination of All Forms of Discrimination against Women in General Recommendation No 19 on Violence against Women (CEDAW, 1993) refers to trafficking within the context of violence against women.

Only recently international consensus was reached on  a precise and unambiguous definition of trafficking

General Recommendation No 19 emphasises that traditional attitudes that regard women as subordinate to men or as having stereotyped roles perpetuate widespread practices involving violence and coercion. It also links poverty and unemployment to increased vulnerability to trafficking, forcing women into prostitution, domestic work and organised marriages. Prostitutes are especially vulnerable to violence due to their marginalised status in society.

Article 6 of CEDAW imposes an obligation on states: ‘States parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women.' Trafficking is incompatible with the equal enjoyment of rights by women and puts women at special risk of violence and abuse.

Article 4 of the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa1 obliges states to take appropriate and effective measures to prevent and condemn trafficking in women, prosecute the perpetrators and protect women most at risk. The heads of state and government of the African Union, agreed on a Solemn Declaration on Gender Equality in Africa (2004)

‘to initiate, launch and engage within two years sustained public campaigns against gender-based violence as well as the problem of trafficking in women and girls [and] reinforce legal mechanisms that will protect women at the national level and end impunity of crimes committed against women in a manner that will change and positively alter the attitude and behaviour of the African society'.

UN definition of trafficking.

Trafficking is not a new phenomenon. Yet, only recently international consensus was reached on a precise and unambiguous definition of trafficking. The four early international treaties on trafficking (1904, 1910, 1921 and 1933) were consolidated in 1949 by the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others. This treaty connects trafficking to prostitution across borders and within a country.

The preamble of the 1949 convention states that

It aims at punishing those who procure, entice, lead away or exploit a person for the purposes of prostitution ‘even with the consent of that person' as well as those keeping or financing brothels.

However, the treaty has not been widely accepted and, after half a century, only 74 of the (now) 191 member states of the United Nations have ratified the 1949 convention. 

According to Wijers and Lap-Chew (1999:26), reasons for non-ratification varied from ‘constitutional incompatibility to criticism of the basic assumptions of the text', more specifically the fact that ‘many national governments permit highly regulated forms of prostitution and are not willing to sign a treaty that requires its elimination'. 

In the 1980s, trafficking was put back on the international agenda and, at the end of 2000, the United Nations Convention against Transnational Organised Crime and its three Optional Protocols were adopted by the UN General Assembly. The main focus of the convention and the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children is crime prevention and combating transnational organised crime. The protocol entered into force on 25 December 2003.

In just a few years, 103 states have ratified the trafficking protocol, which goes beyond trafficking for the purposes of forced prostitution by criminalising the recruitment, transportation and exploitation of persons for all forms of forced labour. Article 3 of the United Nations Trafficking Protocol, or Palermo Protocol, defines trafficking as follows:

This definition of trafficking in persons has three elements: action, means and purpose.
All three have to be present to constitute trafficking. However, with regard to children,
only action and purpose are sufficient, even if this does not involve any of the means listed above. Thus, the recruitment of a child for the purpose of exploitation is considered
trafficking.

Article 3(b) provides that 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'. This means that even if the victim initially consented to migrate and work for a low wage or work in the sex industry, it becomes irrelevant if the victim has been forced, coerced or deceived.

It is clear, that there is no consent when one is forced, coerced or deceived into prostitution, domestic work or marriage, but when is there an abuse of vulnerability? According to the trafficking protocol, consent is irrelevant if coercion, deception, fraud or the other listed means are used. In all other instances, consent is relevant. However, in the case of children, all consent is irrelevant. Thus, the UN trafficking protocol, and rightly so, clearly distinguishes between children and adults.

According to the trafficking protocol, consent is irrelevant if coercion, deception, fraud or the other listed means are used

Deviating from the UN trafficking protocol, the SARLC proposes, in Discussion Paper 111 and the Draft Bill Combating Trafficking in Persons, that all consent is irrelevant for adults and children alike and requires only action (such as transport, receipt) and purpose (exploitation) by any means. This is particularly relevant in the context of linking trafficking with prostitution. The proposed South African Trafficking Bill opens the door to including voluntary adult sex work in the scope of trafficking.

According to the United Nations Interpretative Note, the terms ‘exploitation of the prostitution of others' and ‘sexual exploitation' were intentionally left undefined so that each state can decide for itself how to deal with laws regulating adult voluntary sex work or prostitution. Unfortunately, the SALRC (2006) has proposed a broad definition of sexual exploitation.

Although the SALRC has indicated it would not anticipate the outcome of the discussion around prostitution in general, the proposed legislation increases the probability of including voluntary adult sex work into the definition of sexual exploitation and thereby trafficking. It would have been better if the SALRC had made use of unambiguous terms only - terms which are defined or accepted in international law, such as forced labour or services, slavery or practices similar to slavery and not included the controversial term sexual exploitation. Forced prostitution would already be covered by forced labour or services or practices similar to slavery.

Feminist versus feminist on consent

During the Vienna process, which led up to the UN trafficking protocol, agreement was reached on a coercion-based definition of trafficking that excludes consensual migration for prostitution (Chuang, 2006:437; Gallagher, 2001: 986; Simms, 2004). This reinforces the distinction between migrant smuggling and trafficking, as smuggling happens with the consent of the person involved. According to the UN trafficking protocol, the alleged consent of a victim cannot be used as a defence by traffickers if coercion, deception, abuse of power or other listed means have been used.   

During the negotiating process, states and non-governmental organisations (human rights and women's NGOs) were divided broadly into two camps: those who oppose all forms of prostitution (abolitionist) and others who sought to exclude voluntary migrant sex work from the definition of trafficking. The first group intends to preserve the abolitionist nature of the 1949 Convention on the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others by linking trafficking to all forms of prostitution including voluntary or consensual adult sex work. 

Those who oppose all forms of prostitution, such as the Coalition against Trafficking in Women (CATW), came together under the umbrella of the International Human Rights Network, and those NGOs and UN agencies that excluded voluntary sex work from the definition of trafficking under the Human Rights Caucus.

Except for the UN Working Group on Contemporary Forms of Slavery of the Sub-Commission on the Promotion and Protection of Human Rights, all other UN agencies, such as the UN High Commissioner on Human Rights, UN High Commissioner on Refugees and UNICEF, argued that it was necessary to distinguish between voluntary and forced prostitution (Gallagher, 2001:1002).

This does not mean that all groups and individuals associated with the latter hold a monolithic position or are supporters of prostitution or the sex industry. But what unites those opposing the ‘abolitionist' group is recognition of the agency of women to make choices in life and, above all, that conflating trafficking and prostitution would divert attention from combating trafficking effectively.

Libertarians, who subscribe to the idea of individual liberty of a person, and other feminists (including those who recognise that many women's free choice is limited due to economic and other circumstances) do not want to criminalise (migrant) adult prostitution. With it comes the reality of police harassment through arrest and raids on brothels and corruption - factors that make sex workers' lives even harder.

The ‘abolitionists', on the other hand, argue that no distinction can be made between forced and voluntary prostitution because prostitution does not exist as a free choice: it is always a form of violence against women. Prostitution reduces women to sex objects and is morally unacceptable. Leidholdt (2000:419) maintains that sex trafficking and organised prostitution are ‘inextricably connected'. Women are regarded as victims of male oppression and patriarchy.

This argument is linked to theories of domination and made visible by radical feminists, such as Catherine MacKinnon and Andrea Dworkin. MacKinnon (1993:28) states that ‘if prostitution is a free choice, why are women with the fewest choices the ones most often found doing it'? 

But in more recent years, this approach has been challenged by postmodernist feminists who have become circumspect of modernist and ‘grand' theoretical explanations of dominance and victimisation. They embrace what Sandra Harding has called ‘the fractured identities of modern life' and emphasise the local and the specific context of women's real life experiences (Harding in Charlesworth and Chinkin, 2000:44).

‘If prostitution is a free choice, why are women with the fewest choices the ones most often found doing it?'

Together with liberal and libertarian feminists, they emphasise individual choice, agency and freedom to choose work (including sex work). Ratna Kapur (2002:6) questions the hegemonic victim subject with its focus on violence against women, which reinforces the depiction of women ‘in the Third World as perpetually marginalised and underprivileged' and enforces gender and cultural stereotypes.

Giving voice to the individual experience has added new dimensions of understanding to feminist theories by recognising the agency, autonomy and resilience of individual women. Abusing the vulnerability of women should be confined to situations where there is ‘no real and acceptable alternative but to submit to the abuse involved' (Travaux préparatoires, 2000). Do adult migrant sex workers who consent to engage in this work really want to be treated as trafficked and be rehabilitated?

The ‘rescue and rehabilitation' strategy promotes a gender essentialism that fails to take into account multiple and contradictory subject positions. Such strategies do not empower women but actually add to controlling women and policing their bodies. While patriarchy and contemporary discourses have produced a dominant masculinity, rescuing women does not present a solution but becomes just another technique of power, contributing to the production of the helpless victim.

A more empowering solution would be to acknowledge consent, protect women's labour rights in the sex industry and reduce exploitative practices in the work environment. In the end, the UN trafficking protocol adopted a coercion-based definition of trafficking. Even ‘abuse of vulnerability' should be interpreted as a psychological and non-physical form of coercion or threat.

Rescuing women does not present a solution but becomes just another technique of power

Notwithstanding the UN Protocol, the SALRC (2006) takes a different approach. It proposes to make action and purpose by any means or by abusing vulnerability sufficient to fulfil the elements of trafficking. If the SALRC proposal in the present format goes to parliament, South Africa will be turning back the clock to the position of the - not very effective - 1949 Convention.

A counter-trafficking discourse that brings voluntary sex work in the scope of trafficking impacts on the development of anti-trafficking measures. This is likely to impact negatively on the possibility of effective strategies, as resources would be diverted to combating prostitution rather than the very serious crime of trafficking. Within the context of trafficking, prostitution is always unacceptable, because it is done under coercive circumstances for the purposes of exploitation. But this should be separated from including all (adult) consensual recruitment or migration for sex work as trafficking.

For example, the European Court of Justice in Jany and Others v Staatssecretaris van Justitie2 held that the Netherlands could not refuse to give residence permits to migrant prostitutes from Poland and the Czech Republic who were self-employed. This conforms with the argument brought forward in this paper that the debate on regulating and (de)criminalising prostitution should be separated from and held outside of the context of trafficking.

A genuine concern for women engaged in prostitution might have motivated the SALRC. Another motivating factor to link trafficking and prostitution is the blend of gender and morality arguments that has become institutionalised and internationalised through the United States' sanctions system. The American Trafficking Victims Protection Act of 2000 (TVPA, as supplemented by the 2003 and 2005 TVPR Acts) establishes a sanctions regime that authorises the US president to withdraw United States non-trade-related, non-humanitarian financial aid from countries who are not sufficiently compliant with the minimum standards for the elimination of trafficking as determined by the US.

Thus, as Chuang (2006:437) states, ‘in assuming such extraterritorial reach, the United States has proclaimed itself global sheriff on trafficking'. South Africa is listed on the Tier 2 watch list because it does not fully comply with the minimum standards and has failed to provide evidence of increasing efforts to combat trafficking in persons (US Department of State, 2006).   

To assist foreign governments to become compliant, the US Trafficking in Persons (TIP) office provides countries with a draft plan of action and a document that employs a ‘trafficking definition that mirrors the Palermo Trafficking Protocol but for one critical difference - how it defines the term "exploitation"'(Chuang, 2006:437). The Bush Administration is taking a strong stance against legalised and tolerated prostitution and, by American law, no US grants are awarded to foreign, non-governmental organisations that promote, support or advocate the legalisation of prostitution.

The US government, through assistance in drafting domestic anti-trafficking legislation and the funding requirements, is advocating for an abolitionist view in the context of trafficking (Chuang, 2006:437). Although the US' efforts have propelled many governments into action against trafficking, imposing - by the threat of sanctions - its own ideological understanding on other states undermines the international law standards set out in the UN trafficking protocol.

Forced labour

The conditions of work, the absence of legal protection and ways to eradicate forced labour or services, instead of the nature of work should be at the centre of efforts to combat trafficking. Men and women are trafficked for purposes of exploitation in domestic work, agriculture, sweatshops, construction work, for sexual services and marriage. Even the US Department of State (2006) has admitted that, if domestic trafficking is taken into account, trafficking for forced labour or ‘slave labour' purposes might be much greater in size than trafficking for sexual exploitation.

Marjan Wijers and Lin Lap-Chew (1999:39) state that the nature of labour is confused with the conditions of labour. They point out that

With increasingly restrictive migration policies in many countries, criminal elements seize opportunities by facilitating migration by demanding large sums of money for border-crossing with promises of employment. They extract further profits by exploiting the labour of the ‘migrated' person at the place of destination. Trafficked forced labourers generate huge profits, according to ILO (2005:55) estimates more than $30 billion annually.

The recent case of Siliadin v France3, in which the European Court of Human Rights (ECHR) held that France had violated the European Convention on Human Rights, is illustrative of an approach that focuses on the exploitation suffered by a trafficked person. The state has obligations to provide adequate criminal legislation to afford the applicant practical and effective protection against being subjected to servitude and treatment contrary to Article 4 of the European Convention on Human Rights (prohibition of slavery, servitude and forced labour).

Her passport was confiscated, and she was required to perform forced labour as a domestic worker

The applicant, a minor of 15 years, had arrived in France from Togo under false promises. She was held in debt bondage and servitude and forced to work without freedom of movement or free time. Her passport was confiscated, and she was required to perform forced labour as a domestic worker in the house of her employers for 15 hours per day, seven days a week. The court case centred around the forced labour or slavery-like outcomes of trafficking, exploitation, working and living conditions and the level of constraint imposed on the victim, rather than on the technicalities of the trafficking process.

Even regular migrant workers are in vulnerable positions and face multiple forms of discrimination in the country of employment on the basis of race, gender, religion, ethnic or social origin, nationality and economic position. Those in irregular situations, such as persons trafficked into exploitative labour situations and held in debt bondage or servitude, are worse off. Women, in particular, are vulnerable to labour exploitation in the sectors they are typically employed in, including domestic work, child care, looking after the elderly and sex work.

Protecting and assisting trafficked women

Both the Special Rapporteur on Violence against Women and Children, Radhika Coomeraswamy, and the Office of the High Commissioner for Human Rights' Recommended Principles and Guidelines on Human Rights and Human Trafficking declare that trafficking in persons is a cause as well as a consequence of violations of human rights. It is therefore essential to place the protection of all human rights at the centre of any measures taken to prevent and end trafficking (Coomeraswamy, 2000; OHCHR, 2002; Kaye, 2003; Lansink, 2004). Anti-trafficking measures should not adversely impact on trafficked persons and address the issue of gender discrimination systematically.

States parties to the United Nations trafficking protocol are obliged to consider measures to provide for the physical, psychological and social recovery of victims of trafficking in persons, such as appropriate housing, counselling and information, in particular with regards to their legal rights, medical, psychological and material assistance, employment, education and training opportunities.

The Recommended Principles and Guidelines on Human Rights and Human Trafficking advocate for even greater protection: trafficked persons should be protected from further exploitation and harm and should have access to adequate physical and psychological care. Such protection should not be conditional on the willingness of the trafficked person to cooperate in legal proceedings (OHCHR, 2002).

The Council of Europe Convention on Action against Trafficking in Human Beings (2005) provides for the mandatory protection of a broad range of rights for trafficked persons. They are entitled to standards of living that can ensure their subsistence, through appropriate and secure accommodation, psychological and material assistance, translation, legal assistance to have their rights and interest presented at criminal trials against their offenders and access to education for children. The SALRC (2006) proposed Bill Combating Trafficking in Persons is not following suit.

Conclusion

It is imperative that victims of trafficking receive protection and assistance in accordance with generally accepted standards of international human rights law. In South Africa, these standards are found in the Constitution, other laws and the core human rights treaties. Included are the right to life, right to equality and non-discrimination, right not to be subjected to torture, cruel and/or degrading treatment and punishment, freedom from slavery, servitude and forced labour, right to be free from physical violence, right to security, freedom to choose residence and freedom of movement, right to health, right to work, right to safe and healthy working conditions, just and favourable remuneration, right to an adequate standard of living and right to marry with free and full consent and not to be sold in marriage.

Human rights should protect people against violations. The state must respect human rights and ensure compliance with human rights. It is liable for wrongs committed by private individuals if it fails to prevent, investigate or punish those who have violated human rights.

A human rights approach to trafficking needs to focus on the trafficked person, pay particular attention to the protection of the victim and safeguard his or her rights. Men and women are differently situated when accessing human rights. They are also trafficked in different ways and for different reasons. Trafficking violates the right to dignity and integrity of the trafficked person but is also a specific gender-based harm. Advocating for a human rights approach to trafficking does not diminish the importance of a criminal justice approach to human trafficking but rather integrates human rights into prevention, protection and prosecution.

There is another relevant layer: Since trafficking predominantly involves migrants in search of employment, it cannot be isolated from the broader migration framework and the violation of the rights of migrant workers. At the heart of the matter is the exploitation suffered by the trafficked person, whether for sexual or other economic exploitation.

This article has focused on the forced labour environment many trafficked victims find themselves in rather than on whether a person was performing sexual services or other kinds of work under coercive and exploitative conditions. It has been argued that effective anti-trafficking strategies start with the lived experiences of the trafficked person and acknowledge the coercion-based definition of trafficking that separates consensual migration for sex work from trafficking.

Notes

1. The Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa was adopted in Maputo by the African Union in July 2003 and entered into force in October 2005.
2. European Court of Justice Reports, Aldona Malgorzata Jany and Others v Staatssecretaris van Justitie 1-08615, judgment 20 November 2001.
3. European Court of Human Rigths, ECHR 73316/01, judgment 26 July 2005.

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 Annette Lansink holds law degrees, including two Masters degrees, from universities in the Netherlands and South Africa. She is a senior lecturer in the School of Law and the Institute for Gender Studies at the University of Venda, South Africa. Her research interests are in areas of international human rights law, gender, social justice and transformation of higher education. Lansink is Rapporteur of the Committee on Feminism and International Law of the London-based International Law Association and a consultant on trafficking and related topics for United Nations agencies. Email: This e-mail address is being protected from spam bots, you need JavaScript enabled to view it