Of Rights and Rhetoric: Discourses of Degradation and Exploitation in the Context of Sex Trafficking

Date01 June 2008
DOIhttp://doi.org/10.1111/j.1467-6478.2008.00437.x
Publication Date01 June 2008
AuthorVanessa E. Munro
JOURNAL OF LAW AND SOCIETY
VOLUME 35, NUMBER 2, JUNE 2008
ISSN: 0263-323X, pp. 240±64
Of Rights and Rhetoric: Discourses of Degradation and
Exploitation in the Context of Sex Trafficking
Vanessa E. Munro*
International condemnations of people trafficking (particularly of
women and girls for prostitution) as a human rights violation have
proliferated in recent times. The deployment of human rights in this
context has been supported by those who seek to challenge narrow
victim hierarchies, but these accounts fail to clearly articulate which
particular aspects of the activity violate which particular rights, and
how. This article examines the applicability of protections against
slavery and inhuman/degrading treatment, arguing that, in the context
of the diversity and complexity of contemporary people trafficking,
their limitations become apparent. The final part considers the concept
of exploitation as an alternative basis for grounding a human rights
claim. It cautions that invoking this concept without further elabora-
tion (particularly in relation to the relevance of harm and consent) may
be counter-productive, both i n terms of theoretical clarity an d
practical implementation.
240
ß2008 The Author. Journal Compilation ß2008 Cardiff University Law School. Published by Blackwell Publishing Ltd,
9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
*School of Law, University of Nottingham, University Park, Nottingham
NG7 2RD, England
vanessa.munro@nottingham.ac.uk
With the usual caveats, I would like to thank Susan Marks, Sandy Ghandi, Clare
McGlynn, Jill Marshall, Rob Wintermute, and Aileen McColgan for their advice and
encouragement during the early stages of drafting this paper. An earlier version was
presented at the Universities of Westminster, Strathclyde, and Warwick during 2007. I am
grateful to the audience at each of these events, and to my co-presenters, for their helpful
comments and encouragement. I am also much indebted to the British Academy and the
ESRC for funding a series of workshops on `The Supply/Demand Dynamic in
Prostitution' (co-organized with Marina Della Giusta) in which some of the ideas
presented here were developed, and I am grateful to those involved in these workshop
discussions, as well as those at the Sex Work Event at Keele in October 2007.
While the phenomenon of cross-border trafficking in human beings is far
from new to the international community,
1
its contemporary incidence has
clearly become the focal point for renewed legislative, media, and cam-
paigning attention. Official documents condemning this criminal activity
have proliferated, produced by a wide range of global/regional institutions
(including the United Nations and the Council of Europe), in which its
prevention and punishment are put forward as key priorities. National laws
have been developed in which the components of this offence are set out
alongside options for the punishment of its perpetrators and the recompense
of its victims. In turn, international reports measuring the effectiveness of
these domestic responses have been published, purporting to rank countries
in a global hierarchy and encouraging thereby a dubious tendency to see
anti-trafficking commitment as in some way an index of `civilization'.
2
There can be little doubt, moreover, that this modern variant of people
trafficking exhibits a number of distinctive characteristics. Processes of
globalization and the proliferation of socio-economic displacements across
eastern Europe and the developing nations have promoted patterns of
widespread migration to the West.
3
This trend has typically been met with
241
1See, for example, the 1904 International Agreement for the Suppression of White
Slave Traffic, the 1910 International Convention for the Suppression of White Slave
Traffic, the 1921 International Convention for the Suppression of Traffic in Women
and Children, the 1933 International Convention on the Suppression of Traffic in
Women for Full Age, the 1949 UN Convention for the Suppression of the Traffic in
Persons and of the Exploitation of the Prostitution of Others, and the 1979 UN
Convention on the Elimination of All Forms of Discrimination Against Women.
2 The clearest example of this ranking can be found in the US State Department's
Annual `Victims of Trafficking and Violence Protection Act 2000: Trafficking In
Persons Report', the most recent of which is available at
rls/tiprpt/2007/>. For an overview of these emerging international and regional
responses, see, for example, H. Askola, Legal Responses to Trafficking in Women for
Sexual Exploitation in the European Union (2007); and UNHCR, Combatting Human
Trafficking: Overview of UNHCR Anti-Trafficking Activities in Europe (2005). For
discussion of the re-emergence of sex trafficking as a contemporary concern, see, for
example, S. Toepfer and B. Wells, `The Worldwide Market for Sex: A Review of
International and Regional Legal Prohibitions Regarding Trafficking in Women'
(1994) 2 Michigan J. of Gender and Law 83±128; L. Hauber, `The Trafficking of
Women for Prostitution: A Growing Problem Within the European Union' (1998) 21
Boston College International and Comparative Law Rev. 183±99; S. Farrior, `The
International Law on Trafficking in Women and Children for Prostitution: Making it
Live Up to Its Potential' (1997) 10 Harvard Human Rights J. 213±55; J. Chuang, `Re-
Directing the Debate Over Trafficking in Women: Definitions, Paradigms and
Contexts' (1998) 11 Harvard Human Rights J. 65±107; and K. Corrigan, `Putting the
Brakes on the Global Trafficking of Women for the Sex Trade: An Analysis of
Existing Regulatory Schemes to Stop the Flow of Traffic' (2001) 25 Fordham
International Law J. 151±214.
3 International Organization for Migration (IOM), New Challenges for Migration
Policy in Central and Eastern Europe (2002); and IOM, World Migration 2005:
Costs and Benefits of International Migration (2005).
ß2008 The Author. Journal Compilation ß2008 Cardiff University Law School
measured resistance by receiving countries. Their stipulation of stringent
financial, training or familial criteria within immigration policy, though
designed to restrict the flow of migration, has ironically generated a large
community of would-be migrants who, in the absence of avenues for legiti-
mate entry, have increasingly had recourse to networks or individuals
offering illicit alternatives. At the same time, though, it is apparent that a
significant number of those identified as contemporary victims of trafficking
have not in fact entered the destination country illegally. In some cases, these
migrants may have entered entirely independently ± often, though not
always, via short-term visitor or education visas ± only subsequently to find
themselves co-opted into exploitative arrangements. In other cases, they will
have been facilitated in some way by illegitimate third parties who, not
having been called upon to provide falsified documents or to assist in the
avoidance of legal detection at the point of entry, may instead finance the
trip, charge for assistance with the necessary visa applications, or provide
migrants with employment on arrival in exchange for a recruitment fee.
While this employment will often involve illicit or unregulated markets,
in its contemporary guise, trafficking activity has also diversified into a
range of industries in which there is an insatiable demand for cheap labour.
The `feminization of poverty', together with the emerging acceptance of sex
work as a legitimate form of labour in many states, has maintained a high
female representation within this migrant community, and a strong relation-
ship between migration and prostitution.
4
But the trafficking of men, women,
and children into domestic, agricultural, and factory work is also a fast-
growing phenomenon.
5
Against this backdrop, the development and implementation of effective
anti-trafficking policy has necessitated a complex engagement with various
(and often competing) agendas on ± amongst other things ± organized crime,
242
4 UN Office of Drugs and Crime, Trafficking in Persons: Global Patterns (2006)
. This existence of this link has been identified and discussed
in a number of reports over the past decade ± see, for example, IOM, Trafficking and
Prostitution: The Growing Exploitation of Migrant Women From Central and Eastern
Europe (1995); IOM, Analysis of Data and Statistical Resources Available in the EU
Member States on Trafficking in Humans, Particularly Women and Children for the
Purposes of Prostitution (1998); L. Kelly and L. Regan, Stopping Traffic? Exploring
the Extent of, and Responses to, Trafficking in Women for Sexual Exploitation in the
UK (2000); C. Somerset, What the Professionals Know: The Trafficking of Children
Into, and Through, the UK for Sexual Purposes (2001); IOM, Trafficking for Sexual
Exploitation: The Case of the Russian Federation (2002); and L. Kelly, Journeys of
Jeopardy: A Review of Research on Trafficking in Women and Children in Europe
(2002).
5 For discussion, see K. Bales, Disposal People: New Slavery in the Global Economy
(1999); B. Anderson, Doing the Dirty Work? The Global Politics of Domestic Labour
(2000); B. Anderson and B. Rogaly, Forced Labour and Migration to the UK (2005)
at ; and S. Dowling et al.,
Trafficking for the Purposes of Labour Exploitation: A Literature Review (2007).
ß2008 The Author. Journal Compilation ß2008 Cardiff University Law School
immigration, labour relations, and the regulation of prostitution. My previous
work in this area has looked at the ways in which these institutional agendas
have impacted upon national and international responses and has highlighted
the inadequate levels of victim support thus provided. In a context in which
the provision of victim support is often dependent on securing the sympathy
of the officials involved, and in which such support has to compete with
heavily politicized agendas of border control and/or criminal justice, I have
joined with others in questioning the tendency amongst policing, immi-
gration, and social service agencies, often in disregard of official policy, to
create hierarchies amongst victims, dependent upon the nature of the activity
for which they were trafficked and their level of consent thereto.
6
The upshot
of this, it has been argued, is the creation of a prototypical `ideal' trafficking
victim against whom the behaviour of, and treatment received by, `real'
victims is measured ± and often found to be wanting. This, of course, mirrors
the dichotomy between `deserving' and `undeserving' victims that much
feminist work has identified, deconstructed, and challenged in other areas of
sexual violence.
7
In the context of people trafficking, however, those who
fall short of this standard are not only disbelieved and stripped of any claim
to victimization, but also re-classified as criminally complicit agents to be
removed hastily from the host country as immigration offenders.
In an effort to make practice in this area live up to its policy-level
rejection of consent-dependent dichotomies between `trafficked victims' and
`smuggled accomplices', many commentators have come in recent times to
demand that any anti-trafficking response, if it is to be legitimate and
effective, must operate through a human rights lens.
8
This requires, amongst
243
6V.Munro, `A Tale of Two Servitudes: Defining and Implementing a Response to
Trafficking in Women for Prostitution in the UK and Australia' (2005) 14 Social &
Legal Studies 91±114; V. Munro, `Stopping Traffic? A Comparative Study of
Responses to the Trafficking in Women for Prostitution' (2006) 46 Brit. J. of Crim.
318±33 (I am indebted to the Nuffield Foundation for the funding on the basis of
which the fieldwork for this research was conducted ± reference SGS/00745/G).
7S.Estrich,Real Rape (1987); Z. Adler, Rape on Trial (1987); B. Brown, M. Burman,
and L. Jamieson, Sex Crimes on Trial (1993); S. Lees, Carnal Knowledge: Rape on
Trial (1996); J. Temkin, Rape and the Legal Process (2002, 2nd edn.); E. Finch and
V. Munro, `The Demon Drink and the Demonised Woman: Socio-Sexual Stereotypes
and Responsibility Attribution in Rape Trials Involving Intoxicants' (2007) 16 Social
and Legal Studies 591±614.
8E.Pearson, Human Traffic, Human Rights: Redefining Victim Protection (2002); M.
Kaye, The Migration-Trafficking Nexus: Combating Trafficking Through the
Protection of Migrants' Human Rights (2003); J. Goodey, `Sex Trafficking in
Women from Central and Eastern European Countries: Promoting a Victim-Centred
and Woman-Centred Approach to Criminal Justice Intervention' (2004) 76 Feminist
Rev. 26±45; T. Obokata, `A Human Rights Framework to Address Trafficking of
Human Beings' (2006) 24 Netherlands Q. of Human Rights 379±404. In the United
Kingdom context, see, for example, Joint Committee on Human Rights, Twenty-sixth
Report, Human Trafficking HC/HL (2005±06) and OSCE/ODIHR, Review on the
Protection of Trafficked Persons in the UK (forthcoming).
ß2008 The Author. Journal Compilation ß2008 Cardiff University Law School
other things, that trafficked persons are dealt with as victims of a crime rather
than as criminals, even where they consented to illegal migration or worked in
illicit markets. It demands that agencies provide basic humanitarian support
to victims, ensure that they have the opportunity to bring their treatment to the
attention of criminal justice agencies, offer appropriate advice and assistance
in regard to their migration status, and take steps to assist their repatriation
where it is safe and appropriate to do so.
9
In addition, this assertion that victims of trafficking are entitled, as victims
of a crime, to treatment that is sensitive to their human rights, has led, in some
quarters, to a further claim that the activity of people trafficking itself
constitutes a human rights violation. This entails that trafficked persons are
always, necessarily, not only victims of a crime but also victims of a human
rights abuse. It is reflected, for example, in the recent Council of Europe Anti-
Trafficking Convention, the preamble to which asserts that people trafficking
offends the dignity and inte grity of its victims, may res ult in their
enslavement, and constitutes a violation of basic human rights. Similarly,
paragraph 3 of the 2000 EU Framework Decision on Combating Trafficking
asserts that trafficking in human beings comprises a serious violation of
fundamental human rights and human dignity, and UN Treaty monitoring
bodies (including both the Human Rights Committee and CEDAW) have
recently identified people trafficking as a violation of human rights.
10
While this turn to human rights has become increasingly common in the
context of people trafficking, it has not been without its critics. Debates over
the philosophical and political value of rights abound in contemporary
academic discussion. On the one hand, the significance of being included in
a community of rights-bearers, the respect accorded to rights in the current
socio-political climate, the resoluteness of their form, and the allure of their
rhetoric in terms of securing popular recognition of a social wrong have been
emphasized. But on the other hand, the tendency for rights-based claims to
abstract individuals from social contexts, to oversimplify complex power
dynamics, to generate oppositional counter-claims, to prioritize entitlement
over capacity, and to emphasize protection from intervention over positive
and communal obligations has also been challenged.
11
Mirroring these
244
9InSecretary of State for the Home Department v. Lyudmyla Dzhyjun, the UK
immigration appeals tribunal adopted this kind of approach, accepting that Article 3
required them to grant asylum to a Ukrainian woman who had been trafficked into the
United Kingdom, since it was clear that repatriation would place her at risk of
persecution by her traffickers and that the Ukrainian government was not able to offer
the requisite level of protection: appeal no. CC-50627-99 (00
TH
00728), 13 April 2000.
10 UN Docs: CCPR/CO/79/LVA, dated 06/11/2003 and A/53/38/rev.1 respectively.
11 C. Smart, Feminism and the Power of Law (1989) at 83. For further discussion of the
positive and negative impact of rights-based claims, see P. Williams, The Alchemy of
Race and Rights: Diary of a Law Professor (1991); E. Kiss, `Alchemy or Fool's
Gold? Assessing Feminist Doubts about Rights' in Reconstructing Political Theory:
Feminist Perspectives, eds. M. Shanley and U. Narayan (1997); S. Palmer, `Feminism
and the Promise of Human Rights ± Possibilities and Paradoxes' in Visible Women ±
ß2008 The Author. Journal Compilation ß2008 Cardiff University Law School
concerns, a number of critics have argued that the deployment of rights
discourse in the context of people trafficking, even if well-intentioned, may
have counter-productive results. Freed from the insistence on coercion or
deception that previously marked its definitional distinction from smuggling,
the concept of people trafficking is at risk of becoming over-inclusive. As
Kapur has argued, applying a human rights approach in this context:
reproduces the flaws of earlier legal responses, focussing on the victimisation
of the trafficked person . .. and reinforcing the biases towards the `Other' that
have resonance with the colonial encounter.
12
More specifically, she argues that such an approach depends on dubious
claims about women's collective experiences, reinforces stereotypes of the
naive and culturally bounded non-Western woman (depicted as incapable of
consenting to her migration or prostitution), and invites remedies from the
state that have little to do with genuine empowerment.
13
It is not the aim of this article to take a definite position on the merits and
demerits of this turn to human rights in the context of people trafficking.
Indeed, in light of the recent (and often convincing) feminist scholarship that
has sought to transcend the polarity of previous debates, acknowledging the
need to avoid `policy essentialism' on the value of rights by deploying them
carefully and strategically, reconstructing them whe re necessary, and
remaining alert to their shortcomings, any such definitive position may
itself be untenable.
14
That said, it will be argued here that at least some of the
245
Essays on Feminist Legal Theory, eds. S. James and S. Palmer (2002); E. Kingdom,
What's Wrong with Rights? Problems for Feminist Politics of Law (1991); F. Olsen,
`Statutory Rape: A Feminist Critique of Rights Analysis' (1984) 63 Texas Law Rev.
387±432; M. Tushnet, `An Essay on Rights' (1984) 62 Texas Law Rev. 1375±403; M.
Glendon, Rights Talk ± The Impoverishment of Political Discourse (1991); M.
Minow, `Interpreting Rights ± An Essay for Robert Cover' (1987) 96 Yale Law J.
1860±928.
12 R. Kapur, `Faith and the Good Liberal: The Construction of Female Sexual
Subjectivity in Anti-Trafficking Legal Discourse' in Sexuality and the Law: Feminist
Engagements, eds. V. Munro and C. Stychin (2007) at 227.
13 R. Kapur, Erotic Justice: Law and the New Politics of Postcolonialism (2005) at 99±
100. For similar discussion, see, also, L. Agustin, `Migrants in the Mistress's House:
Other Voices in the ``Trafficking'' Debate' (2005) 12 Social Politics 96±117; L.
Agustin, Sex at the Margins: Migration, Labour Markets and the Rescue Industry
(2007); K. Kempadoo and J. Doezema (eds.), Global Sex Workers: Rights, Resistance
and Redefinition (1998); J. Doezema, `Ouch! Western Feminists' ``Wounded
Attachment'' to the ``Third World Prostitute''' (2001) 67 Feminist Rev. 16±38.
14 For further discussion, see R. West, Re-Imagining Justice: Progressive Inter-
pretations of Formal Equality, Rights and the Rule of Law (2003); C. MacKenzie and
N. Stoljar, Relational Autonomy: Feminist Perspectives on Autonomy, Agency and the
Social Self (2000); S. Mullally, Gender, Culture and Human Rights: Reclaiming
Universalism (2006); Kiss, op. cit., n. 11; Palmer, op. cit., n. 11; N. Lacey, `Feminist
Legal Theory and the Rights of Women' in Gender and Human Rights, ed. K. Knop
(2006); V. Munro, Law and Politics at the Perimeter: Re-Evaluating Key Debates in
Feminist Theory (2007).
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ways in which the lens of human rights is currently being deployed in the
trafficking context are potentially problematic. This article does not dispute
that victims of trafficking, as victims of a crime, are entitled to treatment that
is respectful and responsive; and nor does it deny that there may be many
situations in which the conduct involved in trafficking does indeed violate
human rights. But in what follows, the legitimacy of any blanket claim that
people trafficking violates fundamental rights in all cases will be interro-
gated. More specifically, it will be argued that if this claim is to offer
anything beyond well-intentioned rhetoric, the exact nature of the wrong-
doing involved, as well as of the content and boundaries of the human rights
engaged, must be more clearly articulated than they have been to date.
Frustratingly, those who advocate this position often assert the link to
human rights more as a piece of self-evident dogma than as the outcome of
careful scrutiny. Obokata, for example, has stated that:
it may be easy to establish a link between trafficking of human beings and
human rights, because many people are coerced or deceived in the process,
and are exploited sexually or otherwise after they reach their destination.
15
But while the existence of such coercion, deception or exploitation would
certainly provide a basis on which to condemn trafficking activity, it is by no
means clear that it gives rise in itself to a human rights abuse. Indeed, lest we
reduce the concept of a `human rights violation' to an amorphous category
that can be stretched unreflectively to encompass any behaviour of which we
disapprove, it seems that a number of further questions need to be asked here
about the extent of the coercion, the nature of the deception, and the context
of the exploitation, both to support this assertion and to link it to an
established rights claim.
16
While protections against slavery or inhuman and degrading treatment are
perhaps the most obvious human rights candidates to drive this blanket
position, discussion in the first two sections suggests that there are grounds for
concern about their ability to deal with trafficking in all its diversity. In a
context in which empirical work demonstrates that trafficking is a complex
246
15 T. Obokata, `Human Trafficking, Human Rights and the Nationality, Immigration and
Asylum Act 2002' (2003) 4 European Human Rights Law Rev. 410±22, at 411.
16 Obokata goes on in later work to illuminate potential avenues for this exploration:
the major causes of trafficking, such as poverty, discrimination based on gender, race
and other distinctions, and humanitarian crises all raise human rights concerns. In
relation to the process of trafficking, the use of coercive measures such as abduction
is also a common method of recruitment for traffickers. Trafficked people are also
placed under inhuman or degrading conditions during their journey. Many are forced
to travel in overcrowded trucks and shipping containers for long periods of time.
Because of these conditions, many people suffer from exhaustion, dehydration and
malnutrition. Further, once they reach their destination, many of those trafficked are
exploited by transnational corporations, farmers, restaurant owners and others, and
are forced to work long hours with minimal pay in order to clear the debts imposed
by the traffickers, raising the issues of slavery and forced labour.
Obokata, op. cit., n. 8, at p. 383.
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phenomenon with variable levels of control on the part of those we might wish
to refer to as its victims, it is unclear how these human rights claims are to be
engaged in all cases without their contortion (or even distortion); and the
danger of unintentionally re-affirming the victim hierarchies highlighted above
re-emerges. In light of this, it is perhaps not surprising that recent commentary
has tended to invoke instead a general claim to human rights grounded in the
traffickers' wrongful exploitation of another. While the concept of exploitation
has much to offer here, the third part of this article suggests that it has been
under-theorized to date. Key questions remain about the relevance of consent
and harm to the existence and moral force of exploitation, and in the absence of
a free-standing abolitionist objection to prostitution, the point at which
instrumental but tolerable conditions of work turn into objectifying and
intolerable ones remains as uncertain in the context of sex trafficking as it does
in regard to its labour counterpart. While investigating these questions in the
context of people trafficking may be difficult, it is necessary in order to ensure
analytical clarity and practical enforcement.
TRAFFICKING AND SLAVERY-LIKE PRACTICES
The 1926 Slavery Convention defines slavery as `the status or condition of a
person over whom any or all of the powers attaching to the right of owner-
ship are exercised'. Article 4 of both the European Convention on Human
Rights and the Universal Declaration of Human Rights state unequivocally
that no person is to be held in such slavery or servitude. While it is widely
acknowledged that the traditional forms of chattel slavery have all but
disappeared, evidence suggests that practices analogous to slavery continue
today. Thus, the 1956 Supplementary Convention on the Abolition of
Slavery extended its remit to cover slavery-like practices, such as debt
bondage, serfdom, and forced marriage, as well as the transfer of children
under eighteen for exploitation and labour.
Emphasizing the UN's flexible approach to the identification of new
forms of slavery or practices analogous to it, many commentators have
argued that it would be fitting to extend this to contemporary people
trafficking activity.
17
As Rassam puts it:
while not meeting all of the criteria of the classical definition of slavery, the
practices of sex trafficking, forced prostitution, debt bondage, forced labour, and
exploitation of immigrant domestic workers do share similar elements that deem
them obvious candidates for inclusion in the term `modern forms of slavery'.
18
247
17 S. Drew, `Human Trafficking: A Modern Form of Slavery' (2002) 4 European
Human Rights Law Rev. 481±92, at 483.
18 A. Rassam, `Contemporary Forms of Slavery and the Evolution of the Prohibition of
Slavery and the Slave Trade Under Customary International Law' (1998) 39 Virginia
J. of International Law 303±52, at 320.
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More specifically, it has been argued that these practices all contain an
element of extreme and direct physical or psychological coercion that gives a
person control over another's life. In addition, it has been claimed that these
practices all implicate the state in that denial of subjectivity since, even
where the state does not recognize the legal ownership over another person,
it can nonetheless be seen to be complicit via its lack of enforcement of its
domestic laws.
19
At the same time, however, there is authority which indicates that
trafficking and slavery, while potentially related, should not be too closely
assimilated. In Prosecutor v. Kunarac,
20
the Appeals Chamber of the
International Criminal Tribunal for the former Yugoslavia (ICTY) acknow-
ledged that the concept of slavery under international law had evolved to
encompass contemporary forms of enslavement in which, as a result of the
exercise of any or all of the powers attaching to the right of ownership, there
was some destruction of the juridical personality. At the same time, though,
it emphasized that whether a particular phenomenon constituted a form of
enslavement would depend on a range of factors, including the level of
control displayed, the measures taken to prevent escape, the use of force or
coercion, any evidence of abuse, and so on. In particular, the Chamber noted
the statement of the trial court that the mere ability to buy, sell or trade a
person, although important, is not in itself sufficient to determine whether
there was enslavement.
21
According to Obokata, this suggests that, in the
context of people trafficking, something more than the mere transferral of a
person may be required. More specifically, he suggests that in situations in
which the recruiter or transporter terminates their relationship with the
person on arrival, with others coming to exploit that person thereafter, this
cannot be so easily regarded as a case of slavery.
22
248
19 Certainly, this approach is supported by the fact that the UN Economic and Social
Council Working Group on Contemporary Forms of Slavery has steadily extended its
remit beyond chattel slavery, such that it now covers sex tourism, the use of child
soldiers, exploitation of migrant workers, sexual exploitation of women during
wartime, illegal adoptions, traffic in human organs and tissues, and violence against
women: Report of the Sub-Commission on Prevention of Discrimination and
Protection of Minorities: Report of the Working Group on Contemporary Forms of
Slavery,UNESCOR, 45th Sess, at 27±32, UN Doc e/CN.2/Sub.2/1993/45 (1993);
Report of the Working Group on Contemporary Forms of Slavery,UNESCOR, 48th
Sess, UN Doc E/CN.4/Sub.2/1996/24 (1996) at 11.
20 Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vokovic (12 June 2002)
available at .
21 IT-96-23 (22 February 2001) 542.
22 T. Obokata, `Trafficking of Human Beings as a Crime Against Humanity: Some
Implications for the International Legal System' (2005) 54 International and Com-
parative Law Q. 445±58. This would certainly seem to be supported by experience of
applying slavery provisions to deal with people trafficking in the domestic context.
The Australian Slavery and Sexual Servitude Act was created to cover situations in
which a trafficker exercised any of the powers attaching to a right of ownership over
another person. But fieldwork conducted with officers tasked with implementing this
ß2008 The Author. Journal Compilation ß2008 Cardiff University Law School
This, of course, raises the question of whether, even if such situations
cannot be properly captured within the framework of slavery itself, the
broader notion of placing a person in servitude via a slavery-like practice
could nonetheless apply, focusing attention on the end-point abuser in order
to establish a trafficking related human rights violation. The European Court
of Human Rights considered precisely this question in Siliadin v. France.
23
In this case, the applicant (then aged 15) came to France on the under-
standing that she would undertake housework for a Mrs D until she had paid
back the cost of her air fare and that, in return, arrangements would be made
to regularize her immigration status and to enrol her in education. On arrival,
Mr and Mrs D took the applicant's passport from her and after having her
work for them for some months, they `lent' her to their friends, Mr and Mrs
B, to assist them with household chores. The applicant worked for Mr and
Mrs B from 07.30 to 22.30 every day, was never paid any salary, and slept on
a mattress in their children's bedroom. The Court concluded that the
applicant had not been held in slavery, since although she had been deprived
of her personal autonomy, Mr and Mrs B had not exercised a right of
ownership over her. Nonetheless, it concluded that she had been held in
servitude and had been subjected to forced labour, contrary to her Article 4
rights. In reaching this conclusion, the court emphasized that the applicant
had worked for many years without respite, both against her will and without
pay. In addition, they stressed that the applicant, being a minor on arrival,
was particularly vulnerable and, having had her passport taken from her, was
at the mercy of adults who played on her fear of arrest and deportation (due
to her irregular migration status) to ensure compliance.
This decision clearly supports the claim that there will be some situations
in which the treatment received by a trafficked person at the hands of
traffickers or third parties will be sufficiently controlling and abusive to
constitute a condition of servitude that in turn violates Article 4 rights.
24
Without disputing this, it is not clear, however, that a blanket position on all
trafficking scenarios can be derived from this. Empirical work conducted
with those who have been trafficked, as well as with those involved in
offering support to such persons, indicates substantial variability in the
treatment afforded to its victims. There are undoubtedly situations, as in this
249
provision indicated that this had been difficult since, in the wake of the law,
traffickers had simply changed their behaviour, distancing themselves from this
culture of ownership by `renting' women's services to brothels on a casual basis
rather than `selling' them outright: Munro, op. cit., n. 6.
23 Siliadin v. France 27 July 2005 (415) ECtHR.
24 For further discussion of the Siliadin decision and its implications, see, for example,
V. Mantouvalou, `Servitude and Forced Labour in the Twenty-First Century: The
Human Rights of Domestic Workers' (2006) 35 Industrial Law J. 395; and B. Rudolf
and A. Eriksson, `Women's Rights Under International Human Rights Treaties:
Issues of Rape, Domestic Slavery, Abortion and Domestic Violence' (2007) 5
International J. of Constitutional Law 507±25.
ß2008 The Author. Journal Compilation ß2008 Cardiff University Law School
case, in which the person is relieved of her documents, denied freedom of
movement, prevented from contact with the outside world, subjected to
threats and intimidation, and compelled to work or provide services in
intolerable conditions and without remuneration. But it is by no means the
case that this is necessarily so, or at least not that all these contributing
conditions will co-exist. Reports from women trafficked into the sex industry
indicate, for example, that in some cases (particularly after a period of time
post-arrival) they were permitted a level of independence and freedom,
allowed to keep their documents, and not subjected to working conditions
that differed radically from those of non-trafficked women.
25
This is not to
say that these women were not also perhaps the victims of abuse, but it is to
say that their experiences would not neatly fall within the paradigm of
slavery or servitude.
26
Underpinning the decision in Siliadin v France,ofcourse, was not just a
preoccupation with the controlling conditions under which the applicant was
kept by Mr and Mrs B, but also a condemnation of the fact that the labour
conducted by the applicant was non-consensual. The right not to be sub-
jected to forced labour is supported by a number of international documents.
The 1930 International Labour Organization convention no. 29, for example,
covers `all work or service which is exacted from any person under the
menace of any penalty and for which the said person has not offered himself
voluntarily.' While in the Siliadin case, the existence of compulsion was
bolstered by the extreme levels of control and by the fact that the applicant
was a minor, the exact role that consent plays in the context of forced labour
is unclear. On the one hand, in W, X, Y and Z v. UK, the European Com-
mission on Human Rights stated that consent, once given, deprived work of
its compulsory character.
27
But at the same time, the European Court has
held that the mere fact of consent is not in itself conclusive, since it has to be
looked at in all the circumstances to ensure that the consent in question was
appropriately informed.
28
Again, there are a number of difficulties with applying this to the broad
ambit of people trafficking scenarios that may arise. Certainly, there are
250
25 See, for example, J. O'Connell-Davidson, `Will the Real Sex Slave Please Stand Up?'
(2006) 83 Feminist Rev. 4±22; Agustin, op. cit. (2007), n. 13; L. Brockett and A.
Murray, `Thai Sex Workers in Sydney' in Sex Work and Sex Workers in Australia,
eds. R. Perkins et al. (1994) 191±203; A. Murray, `Debt Bondage and Trafficking:
Don't Believe the Hype' in Kempadoo and Doezema, op. cit., n. 13, pp. 51±65.
26 This is particularly so in a context in which the European Court of Human Rights, in
Van Droogenbroeck v. Belgium (App. No. 7906/77), Report of 9 July 1980 [Series B,
No 44], indicated at p. 12 that:
in addition to the obligation to provide another with certain services, the concept
of servitude includes the obligation on the part of the `serf' to live on another's
property and the impossibility of changing his condition.
27 W, X, Y and Z v. UK (App. No. 3435-3438/67, Admissibility Decision of 19 July
1968).
28 Van der Mussele v. Belgium (App. No. 8919/80, Judgment of 23 November 1983).
ß2008 The Author. Journal Compilation ß2008 Cardiff University Law School
instances of people trafficking in which the victim is removed forcibly from
her home, taken without her will to another country, and subjected to high
levels of intimidation and control to compel her to conduct services or
labour. But the realities of trafficking indicate an array of variations to this
pattern. For one thing, empirical work with women trafficked into sex work
indicates that in at least some cases the women have come to the destination
country with the intention to work as prostitutes.
29
Granted, many of these
women may not have been aware in advance of the exact conditions of their
employment ± for example, as to how many hours they would need to work
or what kinds of services they would need to provide ± but it is an open
question as to whether ignorance of these facts is in itself sufficient to render
their consent uninformed, and thereby to reassert the claim to forced labour
in this context.
Of course, where the labour involved is sexual, there are those who would
question the very notion of informed consent, arguing that any apparent
choice to act as a prostitute is the result of structural false-consciousness or
situational coercion, and so should be irrelevant.
30
Such a position is prob-
lematic, however. For one thing, while this approach would conceptualize all
sex trafficking as forced labour in contravention of Article 4, it would do
nothing to prevent the questions raised above arising in non-sexual contexts.
What's more, it would render Article 4 exceptionally wide, including in its
remit not only sex trafficking but also migrant and domestic prostitution. In a
context in which many states have legalized sex markets, to assert that
prostitution as such is forced labour is controversial and conflates the
experiences of trafficked women with domestic prostitutes in a context in
which there may be good grounds for maintaining a distinction.
TRAFFICKING AND INHUMAN/DEGRADING TREATMENT
Article 3 of the European Convention on Human Rights echoes the provision
under Article 5 of the Universal Declaration of Human Rights, which states that
no one shall be subjected to torture, or to inhuman or degrading treatment.
While it is established that torture can mean simply an extreme form of
inhuman or degrading treatment,
31
the jurisprudence on what exactly con-
251
29 See publications cited in n. 25 above.
30 See, for example, S. Jeffreys, The Idea of Prostitution (1997); C. MacKinnon,
`Prostitution and Civil Rights' (1993) 1 Michigan J. of Gender and Law 13±31; and
K. Barry, The Prostitution of Sexuality: The Global Exploitation of Women (1995).
31 General Assembly Resolution 3452 of 1975, Article 1: `torture constitutes an
aggravated and deliberate form of cruel, inhuman and degrading treatment or
punishment.' Similarly, Article 1 of the UN Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment defines it as:
any act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person for such purposes as obtaining from him or a
ß2008 The Author. Journal Compilation ß2008 Cardiff University Law School
stitutes inhuman or degrading treatment itself is limited. There is no universally
agreed definition, although the European Commission has observed that
`inhuman treatment covers at least such treatment as deliberately causes severe
suffering, mental or physical, which in the particular situation is unjustifiable'
and that `treatment or punishment of an individual may be said to be degrading
if it grossly humiliates him before others or drives him to act against his will or
conscience.'
32
In addition, it is apparent that the ill-treatment in question must
pass a threshold test of severity in order to engage Article 3. As the European
Court of Human Rights emphasized in Ireland v. UK, the assessment of this
minimum is relative, since:
it depends on all the circumstances of the case, such as the duration of the
treatment, its physical or mental effects and, in some cases, the sex, age and
state of health of the victim.
33
It appears that emotional distress, although a factor, is not enough, and that
the fact that the treatment is intended to debase or humiliate, while relevant,
is not requisite.
34
Just like its Article 4 counterpart, there is no question that Article 3 of the
European Convention on Human Rights represents a living provision that
has been developed in light of changing times. While its origins may lie in a
post-Holocaust `undertaking by Contracting Parties not to drift back into an
era when torture and ill-treatment were considered an inevitable and even a
respectable tool of government policy',
35
it is clear that, over time, the remit
of Article 3 has been expanded to cover situations beyond those that the
drafters may initially have had in mind. For one thing, while Article 3 is
primarily intended to offer protection against inhuman and degrading
treatment by officials, the right has been interpreted to include treatment
252
third person information or a confession, punishing him for an act he or a third
person has committed or is suspected of having committed, or intimidating or
coercing him or a third person, or for any reason based on discrimination of any
kind, when such pain or suffering is inflicted by or at the instigation of or with the
consent or acquiescence of a public official or other person acting in an official
capacity.
32 Greek Case, Yearbook 12 (1969) Part II 186. In Raninen v. Finland, the Commission
affirmed this idea of degradation:
a measure which does not involve physical ill-treatment but lowers a person in
rank, position, reputation, or character may also constitute degrading treatment,
but again provided it attains a minimum level of severity, thereby interfering with
human dignity . . . It may suffice that the victim is humiliated in his own eyes.
(No. 20972/92, 24 October 1996 (Commission Report), paras. 50-52.)
33 Ireland v. UK,25ECtHR (series A) para. 65, 18 January 1978. Affirmed in Av. UK
(1998) 27 EHRR 611.
34 R (on the application of T) v. Secretary of State for the Home Department [2003]
EWCA Civ 1285.
35 N. Grief and M. Addo, `Is There a Policy Behind the Decisions and Judgments
Relating to Article 3 of the European Convention on Human Rights?' (1995) 20
European Law Rev. 178±93.
ß2008 The Author. Journal Compilation ß2008 Cardiff University Law School
perpetrated by private individuals where the state can be shown to have
failed to provide adequate protection under its domestic laws.
36
Such
development has not gone wholly unchallenged
37
but in Selmouni v. France,
the European Court of Human Rights appeared to approve of this, stating
that:
the increasingly high standards being required in the area of the protection of
human rights and fundamental liberties correspondingly and inevit ably
requires greater firmness in assessing breaches of the fundamental values of
democratic societies.
38
In contemporary times, Article 3 has been invoked to establish the
existence of a breach in a wide range of circumstances, some of which may
be pertinent to sex trafficking. In Aydin v. Turkey, for example, the European
Court of Human Rights concluded that there had been a violation in a case in
which the applicant, in an effort to get her to provide information about
suspected terrorists, was hit, kicked, stripped naked, and raped.
39
The Court
253
36 In Av. UK, the Court stated that:
the obligation on the high contracting parties under Article 1 of the Convention to
secure to everyone within their jurisdiction the rights and freedoms defined in the
Convention, taken together with Article 3, requires States to take measures
designed to ensure that individuals within their jurisdictions are not subjected to
torture or inhuman or degrading treatment or punishment, including such ill-
treatment administered by private individuals.
Av. UK ECtHR, no. 100/1997/884/1096, 23 September 1998, at para. 22. See, also, Z
v. UK ECtHR, 10 May 2001; and MC v. Bulgaria ECtHR, 4 December 2003
(discussed below). For discussion of the implications of such developments for
private domestic violence, see E. Grdinic, `Application of the Elements of Torture
and Other Forms of Ill-Treatment, as Defined by the European Cou rt and
Commission of Human Rights, to the Incidents of Domestic Violence' (1999) 23
Hastings International and Comparative Law Rev. 217±60.
37 For example, Sir Gerald Fitzmaurice's dissenting judgment in Ireland v. UK
distinguished between `categories of torture or of what is inhuman ± categories
which, both of them, imply treatment reaching a serious, even an extreme degree of
cruelty, barbarity or severity' and conduct such as the interrogative techniques in the
present case which, though to be condemned, were mild in comparison and were not
appropriately dealt with under the framework of the Convention (Ireland, op. cit., n.
33, at pp. 106±7). Discussed further in Grdinic, id. Notably, Sir Gerald Fitzmaurice
adopted a similarly restrictive interpretation in his dissenting judgment in Tyrer v. UK
(ECtHR no. 5856/72, 25 April 1978) in which he argued that corporal punishment of
juvenile offenders, while not a good thing, is not `degrading treatment' within the
meaning of Article 3 (at paras. 12±13).
38 Selmouni v. France ECtHR, 28 July 1999 at para. 101. For further discussion of the
implications of this in the context of gender, see A. Edwards, `The Feminizing of
Torture Under International Human Rights Law' (2006) 19 Leiden J. of International
Law 349±91. And for more general discussion, see J. Marshall, `Torture Committed
by Non-State Actors: The Developing Jurisprudence from the Ad Hoc Tribunals'
(2005) 5 Non-State Actors and International Law 171±82; and S. Sivakumaran,
`Torture in International Human Rights and International Humanitarian Law: The
Actor and the Ad Hoc Tribunal' (2005) 18 Leiden J. of International Law 541±56.
39
Aydin v. Turkey (App 23178/94), judgment of 25 September 1997 (1998) 25 EHRR 251.
ß2008 The Author. Journal Compilation ß2008 Cardiff University Law School
echoed the Commission's earlier sentiment in this case that rape by a person
in authority should be regarded as `treatment or punishment of an especially
severe kind', the nature of which `strikes at the heart of the victim's physical
and moral integrity' and so `must be characterised as particularly cruel and
as involving acute physical and psychological suffering'.
40
To the extent that
trafficked women are sometimes raped as a precursor to their prostitution,
the identification of rape as a potential form of inhuman and degrading
treatment is important. In addition, since it has been argued that in situations
in which a trafficked woman has been forced to sell sex against her will,
there may be grounds upon which to argue that she has been raped by her
male clients,
41
this interpretation of Article 3 has the potential to impact
significantly upon the conceptualization of sex trafficking (if not labour
trafficking) as a human rights violation.
At the same time, though, it is unclear whether all rape or violence in the
context of sex trafficking does, or should, come under Article 3. While some
statements in Aydin v. Turkey suggest general applicability, it was ack-
nowledged by both the Court and the Commission that the fact that the rape
was committed by someone with authority over the victim constituted an
aggravating factor, to be situated alongside the co-existence of a range of
other degrading forms of treatment. Case law elsewhere suggests that in
situations in which the conduct involved would not otherwise constitute
inhuman or degrading treatment, the fact it was perpetrated by an official
upon a victim who was deprived of their liberty may be sufficient aggrava-
tion to ground an Article 3 claim. In Tomasi v. France, for example, the
Commission stated that, even though the injuries experienced may have
appeared as slight, they supported a claim to inhuman and degrading
treatment because they evidenced the use of physical force on an individual
who had been deprived of liberty and was in a position of inferiority.
42
Similarly, in Ribitch v. Austria, the Court concluded that repeatedly insulting
and physically assaulting (so as to cause bruising, vomiting, and headaches)
apersonheldinpolicecustody const ituted inhuman and degrading
treatment, because `in respect of a person deprived of his liberty, any
recourse to physical force which has not been made strictly necessary by his
own conduct diminishes human dignity.'
43
Of course, being raped represents
a form of violation the severity of which exceeds the `slight injuries' in
Tomasi or the insulting and bruise-inducing physical force in Ribitch, but
applying this authority to the context of sex trafficking, it might be
254
40 Aydin v. Turkey (App 23178/94), 7 March 1996 (Commission Report) at para. 189.
41 For further discussion of some of the issues raised by this proposal, see D. Archard,
`Criminalising the Use of Trafficked Prostitutes: Some Philosophical Issues' in
Demanding Sex? Critical Reflections on the Regulation of Prostitution, eds. V.
Munro and M. Della Giusta (2008, forthcoming).
42 Tomasi v. France ECtHR no. 27/1991/279/350, 25 June 1992.
43 Ribitch v. Austria ECtHR no. 42/1994/489/571, 21 November 1995, at para. 38.
ß2008 The Author. Journal Compilation ß2008 Cardiff University Law School
questioned whether rape by someone who is not acting in an official capacity
±bethat a trafficker or a male client ± or who is not depriving the victim of
liberty, while no doubt criminal, would necessarily constitute a violation of
Article 3.
This remains the case, moreover, despite the increased, and often
optimistic, discussion about invoking Article 3 protections in sexual assault
cases in the wake of the recent decision of the European Court of Human
Rights in MC v. Bulgaria.
44
In that case, the Court made it clear that
domestic criminal laws or procedures will fall foul of the Convention if they
systematically fail to recognize or prosecute as rape instances of sexual
assault in which the complainant, though not consenting, did not offer
physical resistance. This has been welcomed by many feminist commenta-
tors as representing a significant step forwards, not least because it
`recognises that the investigation and prosecution of rape raises human
rights issues for victims as well as defendants'.
45
In turn, it has also been
suggested that, in due course, this judgment may provide a basis upon which
to lodge challenges closer to home ± perhaps in Scotland where the law on
rape has only recently abandoned the force requirement,
46
or in England and
Wales where, despite having formally moved to a consent threshold in the
mid-nineteenth century, conviction rates continue to belie legal doctrine.
47
While all this may be so, and is indeed welcome, it is important to bear in
mind here that the judgment is primarily concerned not with insisting that
sexual assault itself constitutes an incontrovertible violation of Article 3 but
with ensuring the adequacy of domestic laws that respond to this criminal
activity. The trigger for condemnation, then, is not necessarily that the rape
at issue constituted a human rights violation (although, depending on our
reading of Aydin v. Turkey,itmay have done)
48
but that it constituted a
criminal act which the state then fa iled to properly recognize and
investigate, infringing thereby the human rights of its individual victim.
Granted, the line between these two triggering conditions may at times be
255
44 MC v. Bulgaria 2003-XII ECtHR 1, App. no. 39272/98, Decision of 4 December
2003. For discussion of this case and its implications, see, for example, Rudolf and
Eriksson, op. cit., n. 24; C. Pitea, `Rape as a Human Rights Violation and a Criminal
Offence: The European Court's Judgment in MC v Bulgaria' (2005) 3 J. of
International Criminal Justice 447±62; and J. Conaghan, `Extending the Reach of
Human Rights to Encompass Victims of Rape: MC v Bulgaria' (2005) 13 Feminist
Legal Studies 145±57.
45 Conaghan, id., at p. 153.
46 Lord Advocate's Reference (No 1 of 2001) [2002] SCCR 435; [2002] SLT 466.
47 For discussion of many key issues relating to attrition in rape cases, and its
relationship to the tenacity of the force requirement, see in particular L. Kelly, J.
Lovett, and L. Regan, A Gap or a Chasm? Attrition in Reported Rape Cases (2005).
48 See, for example, C. McGlynn, `Rape as Torture? Catharine MacKinnon and
Questions of Feminist Strategy' (2008) 16 Feminist Legal Studies 71±85. I am
grateful to Clare McGlynn for our helpful discussions on this point.
ß2008 The Author. Journal Compilation ß2008 Cardiff University Law School
difficult to distinguish and they may be inter-related in complex ways, but
they do remain distinct.
49
In any event, and perhaps more fundamentally important to our
assessment of the blanket applicability of Article 3, it is by no means clear
that all trafficked women suffer physical or sexual violence at the hands of
their trafficker. Many women trafficked into sex work have previous
experience as prostitutes and so the process of indoctrinating them via rape is
not always deemed to be necessary. Similarly, these and other women may
be willing to provide sexual services in exchange for cash and to that extent,
any claim that the intercourse with male clients is non-consensual seems to
falter (unless, that is, we adopt an abolitionist approach that disputes the
possibility of consent). Furthermore, in many of the situations in which
trafficked women do suffer physical or sexual violence, it is apparent that the
incidence and severity of this can be comparable to that experienced by non-
trafficked prostitutes.
50
To identify the trafficked but not the domestic
woman as a victim of a human rights abuse here would seem untenable (or
would, at least, raise difficult questions about where and why we draw lines
between bad working conditions, illegal harms, and human rights abuses in
this context). At the same time, though, to equate them would seem to accept
that the trigger is not in fact trafficking related as such.
TRAFFICKING AND EXPLOITATION AS A HUMAN RIGHTS ABUSE
One response to these obstacles to the blanket claim that people trafficking,
in all its manifestations, constitutes a violation either of the right not to be
held in slavery or servitude or alternatively the right not to be subjected to
inhuman or degrading treatment, might be to simply reduce the category of
persons recognized as `victims' to those who fit these moulds. But this sits
somewhat at odds with the more inclusive spirit (marked by an explicit
rejection of narrow victim hierarchies) that sparked the turn to human rights
in anti-trafficking policy in the first place. EU free movement entitlements
and non-national entry predicated on tourism or education have created a
complex and fluctuating relationship between regular and irregular status for
many migrants. Global distributions of socio-economic resources, security,
and opportunity have been unequal, and are left largely unaddressed by the
remedial responses offered by prosperous nations whose legal and illegal
256
49 See, also, the decision of the European Court of Human Rights in SW & CR v. UK,
app. no. 20166/92, Decision of 22 November 1995 (1996) 21 EHRR 363.
50 See, for example, O'Connell-Davidson, op. cit., n. 25; Agustin, op. cit. (2007), n. 13;
Brockett and Murray, op. cit., n. 25. For general discussion of the risks associated
with sex work, see, also, N. McKeganey and M. Barnard, Sex Work on the Streets:
Prostitutes and Their Clients (1996); and T. Sanders, Sex Work: A Risky Business
(2005).
ß2008 The Author. Journal Compilation ß2008 Cardiff University Law School
industries abound with an entrepreneurial spirit that seeks out (with varying
levels of scruples) the cheapest and most compliant labour force. In this
context, migrants who, through cross-border movement and employment,
negotiate strategies for self-improvement ± or, arguably, survival ± exhibit a
range of vulnerabilities, not always adequately captured by frameworks that
look for evidence of servitude, force, non-complicity, violence, control or
degradation. Per haps unsurprisingl y, therefore, such approaches have
increasingly been rejected in favour of an alternative that locates the
essence of trafficking, and the basis for its condemnation, in the concept of
exploitation.
Anti-trafficking discourse, both nationally and internationally, has
become regularly punctuated by the claim that it is a practice that involves,
by definition, the exploitation of persons. The UN General Assembly has
defined people trafficking as `the illicit and clandestine movement of persons
across national and international borders' with `the end goal of forcing
women and children into sexua lly and economically oppress ive and
exploitative situations.' More recently, the UN Optional Protocol on People
Trafficking has taken a similar, albeit broader approach, focusing on the
combination of transportation and exploitation. Under Article 3, it states that
`trafficking in persons shall mean the recruitment, transportation, transfer,
harbouring, or receipt of persons . . . for the purposes of exploitation.'
Notably, while this provision does not define exploitation as such, it does
give some guidance as to what it would, as a minimum, include in this
context: namely, `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.' Thus, this provision works to
bring the divergent forms of sex and labour trafficking into closer alignment
by uniting them under the nexus of being `for the purposes of exploitation'
whilst making it clear that the exploitation at issue can include, but is not
limited to, forms associated with slavery, servitude or forced labour.
51
In turn, of course, this raises concerns about the circularity of defining the
exploitation inherent in sex trafficking by reference to the exploitation in
257
51 A similar position is also adopted under the EU Council Framework Decision on
Combating Trafficking in Human Beings, Article 1 of which describes trafficking as:
the recruitment, transportation, transfer, harbouring, subsequent reception of a
person, including exchange or transfer of control over that person, where: (a) use
is made of coercion, force or threat, including abduction, or (b) use is made of
deceit or fraud, or (c) there is an abuse of authority or of a position of
vulnerability, which is such that the person has no real and acceptable alternative
but to submit to the abuse involved, or (d) payments or benefits are given or
received to achieve the consent of the person having control over another person,
for the purposes of exploitation of that person's labour or services, including at
least forced or compulsory labour or services, slavery or practices similar to
slavery or servitude, or for the purpose of the exploitation of the prostitution of
others or other forms of sexual exploitation, including in pornography.
OJ L 203/1, 1 August 2002.
ß2008 The Author. Journal Compilation ß2008 Cardiff University Law School
prostitution, and it begs questions over the additional forms of exploitation
that might be involved in labour trafficking, beyond the ownership or forced
utilization of a person prohibited under Article 4. Unfortunately, however,
when we probe these issues further, it becomes clear that the meaning and
remit of the concept of exploitation deployed here is ill-defined. John
Lawrence Hill has argued that the concept of exploitation has been so widely
and ambiguously applied in contemporary moral, political, and legal
discourse that it has taken on `an open-textured and almost all-encompassing
meaning'.
52
Echoing this sentiment, Alan Wertheimer has argued that `the
concept of exploitation is typically invoked without much analysis or
argument', performing the role of a mere `rhetorical placeholder for
expressing disapproval'.
53
The context of people trafficking appears to offer
no exception, since legal and policy responses have rarely provided any
detailed discussion of the nature or locus of the exploitation they purport to
identify and condemn.
But this is problematic, since the meaning of exploitation is itself complex
and contested. As Arneson reminds us, although we can all agree with a
simplistic assertion that A exploits B when A takes unfair advantage of B,
54
when we try to develop a fuller account, we will discover `as many com-
peting conceptions of exploitation as theories of what persons owe to each
other by way of fair treatment.'
55
Debates have arisen, for example, over
whether the essence of exploitation lies in the instrumental use of a person as
a means to another's end or in the resultant outcome that one person gains
disproportionately at the expense of another. Buchanan, on the one hand,
adopts a Kantian conception which defines exploitation as involving `the
harmful, merely instrumental utilisation of (another person) or his capacities,
for one's own advantage'.
56
Meanwhile, on the other hand, Levine asserts
that exploitation occurs when there is an exchange `in which the exploited
party gets less than the exploiting party, who does better at the exploited
party's expense'.
57
These different understandings have recently been
characterized by Wilkinson as `wrongful use' and `disparity of value'
respectively.
58
For those who adopt the former approach, it seems that the
wrong of exploitation lies in a person's being objectified and instru-
mentalized inappropriately. By contrast, for those who adopt the latter
approach, the wrong lies primarily in the fact that a person's vulnerability is
taken advantage of to under-reward her role within a given transaction.
258
52 J.L. Hill, `Exploitation' (1993±94) 79 Cornell Law Rev. 631, at 632.
53 A. Wertheimer, Exploitation (1996) 5.
54 id., at p. 10.
55 R. Arneson, entry in The Encyclopedia of Ethics, eds. L. Becker and C. Becker (2001,
2nd edn.) at 350.
56 See A. Buchanan, Ethics, Efficiency and the Market (1985) at 87.
57 A. Levine, Arguing for Socialism (1988) at 66.
58 S. Wilkinson, Bodies for Sale: Ethics and Exploitation in the Human Body Trade
(2003).
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In the context of people trafficking, charges of exploitation could be
targeted at either, or indeed both, of these wrongs. Not only may a trafficked
person provide services for limited remuneration whilst others generate
considerable profit therefrom, but she may be treated by those others in ways
that reduce her dignity, render her a mere commodity to be bought and sold,
or instrumentalize her labour or sex in the service of their own enrichment or
gratification. For current purposes, one benefit of seeing the exploitation
involved in people trafficking in the first guise ± as closely bound up with
the instrumentalization of a person ± is that it allows the wrong to be slotted
more comfortably into pre-existing human rights frameworks, as a particular
instance of inhuman and/or degrading treatment.
59
But this can only take our
analysis so far. After all, in every day life we regularly instrumentalize
others ± and often do so in morally unproblematic ways. Distinguishing the
conditions under which such use is unacceptable, and identifying the
threshold beyond which disrespectful treatment escalates into something
inhuman or degrading, will often also rely on a `disparity of value' concept
in which our condemnation is triggered by the existence of an intolerable
gulf between value and reward. At the same time, though, it is clear that the
mere fact that a trafficked person may fail to benefit from a fair rate of
exchange does not in itself lead inexorably to a human rights claim. Marxist
analyses of labour relations aside,
60
there are clearly many vulnerable
workers who are compelled by the instruction of those with more power to
work longer hours than they would like to, for less pay than they deserve,
and in worse conditions than they would hope for. Answering key questions
about why labour under these conditions is a human rights violation for
some, but not for others, often requires us to consider the point at which the
vulnerable party is so under-rewarded that they have become a pawn in the
game of maximization, thereby being instrumentalized in a way that exhibits
exploitation of the `wrongful use' genre. Thus, at the heart of the exploita-
tion claims that animate anti-trafficking discourse, there lies a complex, and
sometimes even circular, relationship between these different forms of its
manifestation.
Doubtless, people trafficking represents one of many contexts in which
these different versions of exploitation can be seen to interconnect, overlap,
support, and even conflict with one another. But it is submitted here that the
lack of conceptual clarity that this generates in the current context is
particularly, or at least potentially, problematic. Legal and policy responses
259
59 Toepfer and Wells, op. cit., n. 2, at p. 120. See, also, Corrigan, op. cit., n. 2.
60 For evaluation of such approaches in the context of exploitation theory, see, for
example, J. Wolff, `Marx and Exploitation' (1999) 3 J. of Ethics 105±20; J. Roemer,
`Should Marxists be Interested in Exploitation?' (1985) 14 Philosophy and Public
Affairs 30±65; H. Laycock, `Exploitation via Labour Power in Marx' (1999) 3 J. of
Ethics 121±31; and a number of chapters in Exploitation, eds. K. Nielsen and R. Ware
(1997).
ß2008 The Author. Journal Compilation ß2008 Cardiff University Law School
to trafficking activity have been marked by discussions relating to the
relevance of harm and consent, yet the role which each of these concepts
plays in the determination of exploitation claims remains unclear. According
to Wilkinson, most theorists who adopt a `wrongful use' view of exploitation
tend to see some kind of harm as essential, whilst those who adopt a
`disparity of value' approach are often willing to entertain the possibility that
a person may be exploited while nonetheless gaining as a net result of the
transaction. On first sight, of course, this claim that a person can both be
exploited and benefit from it may seem counter-intuitive, but as Wertheimer
reminds us, we are concerned with an `all things considered' assessment, and
there may well be situations in which, while a party gains less from a
transaction than they would be entitled to under fair conditions of exchange,
they nonetheless benefit relative to their pre-transaction baseline.
61
In turn,
moreover, these disagreements over the role of harm relate directly to
debates over the relevance of consent in defining and responding to
exploitation. Indeed, while some have argued that a party cannot be regarded
as having been exploited unless the transaction or treatment in question was
forced upon her, or her apparent consent to it laboured under some kind of
crucial (personal or structural) qualitative defect,
62
others have insisted that
there can be exploitation `despite the exploitee's full and voluntary con-
sent',
63
and have pointed to the vulnerabilities that exist in the pre-
transaction position to highlight the extent to which informed and deliberate
entry into such exchanges would not only be likely but also profoundly
rational.
64
To the extent that these disagreements are mirrored in the long-
standing, and highly-polarized, debates around prostitution, moreover, it is
clear that any distinctive claim to `wrongful use' exploitation in the context
of sex trafficking ± grounded in an abolitionist approach that sees the
selling of sex, even under preferential value conditions, as unacceptable
260
61 Of course, the pre-transaction baseline is not the only one against which this benefit
might be measured ± Wilkinson, for example, suggests alternatives grounded in a
`closest possible world baseline' which focuses on what would have occurred if the
exploitee had entered into the same kind of transaction with someone other than the
exploiter, and a `normative baseline' which focuses on what the position would have
been had the exploitee had the level of welfare she ought to have had: Wilkinson, op.
cit., n. 58, at pp. 60±4.
62 R. Arneson, `What's Wrong With Exploitation?' (1981) 91 Ethics 202; See, also, J.
Reiman, `Exploitation, Force and the Moral Assessment of Capitalism: Thoughts on
Roemer and Cohen' (1987) 16 Philosophy and Public Affairs 3.
63 S. Munzer, A Theory of Property (1990) at 171; see, also, Wolff, op. cit., n. 60. For
further discussion of debates over the relationship between consent, harm and
exploitation, see J. Tormey, `Exploitation, Oppression and Self-Sacrifice' (1974) 5
Philosophical Forum 206±21; Wilkinson, op. cit., n. 58; B. Moore, Reflections on the
Causes of Human Misery (1973); A. Wertheimer, `Remarks on Coercion and
Exploitation' (1996) 74 Denver University Law Rev. 889±906; and A. Wood,
`Exploitation' (1995) 12 Social Philosophy and Policy 135±58 (reproduced in Nielsen
and Ware, op. cit., n. 60).
64 Wertheimer, op. cit., n. 53, at p. 270.
ß2008 The Author. Journal Compilation ß2008 Cardiff University Law School
objectification ± defers rather than answers questions about its substantive
legitimacy.
65
The current discussion around exploitation in the context of people
trafficking fails fully to acknowledge, let alone address, these debates. Yet,
their resolution is crucial, in terms both of analytical clarity and of practical
consequences. The fact that exploitation may exist despite being freely
entered into and mutually advantageous does not necessarily mean that the
differences that exist between overall harmful and overall harmless exploita-
tive transactions, or between giving consent under conditions of constrain
and under conditions of full freedom, must be ignored. It does, however,
mean that a finding of exploitation represents the beginning (and not the end)
of a process of critical inquiry through which we decide, as a society, how
best to respond. Considerations of harm and coercion, while not necessary
for the identification of exploitation, may continue to be of relevance when it
comes to assessing what Wertheimer refers to as the `moral weight' of the
violation itself, as well as the `moral force' that in turn supports any
condemnatory, punitive or preventive social response.
66
One of the upshots
of this is that the basis on which instances of exploitation might be deemed
to be problematic, even when unoccluded by the existence of harm or
coercion, will emerge more clearly. With this will come the opportunity for
more candid examination of the legitimacy of the strategic arguments ± often
lodged in contexts such as surrogacy, pornography or prostitution ± which
are driven less by a concern about those directly involved in the transaction
(who may be seen to benefit therefrom) and more by a desire to protect third
parties (in these cases, women) from the broader negative impact of
permitting such transactions to be undertaken by any of their group.
67
261
65 See, for example, P. Saunders, `Traffic Violations: Determining the Meaning of
Violence in Sexual Trafficking Versus Sex Work' (2005) 20 J. of Interpersonal
Violence 343. For further discussion of these debates and the issues that they raise,
see, for example, S. Marshall, `Bodyshopping: The Case of Prostitution' (1999) 16 J.
of Applied Philosophy 139±50; J. O'Connell-Davidson, `The Rights and Wrongs of
Prostitution' (2002) 17(2) Hypatia 84±98; J. O'Connell-Davidson, Prostitution,
Power and Freedom (1998); M. O'Neill, Prostitution and Feminism: Towards a
Politics of Feeling (2001); J. Phoenix, Making Sense of Prostitution (1999); Jeffreys,
op. cit., n. 30; B. Brooks-Gordon, `Clients and Commercial Sex: Reflections on
Paying the Price' (2005) Crim. Law Rev. 425±43; and J. Scoular, `The Subject of
Prostitution' (2004) 15 Feminist Theory 343±55.
66 Wertheimer, op. cit., n. 53, at p. 28.
67 See, for example, M. Dempsey, `Rethinking Wolfenden: Prostitute Use, Criminal Law
and Remote Harm' (2005) Crim. Law Rev. 444±55; A. Bainham and B. Brooks-
Gordon, `Reforming the Law on Sexual Offences' in Sexuality Repositioned: Diversity
and the Law, eds. B. Brooks-Gordon et al. (2004) 261±96; V. Munro, `Dev'l-in
Disguise? Harm, Privacy and the Sexual Offences Act 2003' in Munro and Stychin,
op. cit., n. 12, pp. 1±18; D. Hughes and C. Roche (eds.), Making the Harm Visible:
Global Sexual Exploitation of Women and Girls ± Speaking Out and Providing
Services (1999), available at .
ß2008 The Author. Journal Compilation ß2008 Cardiff University Law School
International and national documents that purport to def ine people
trafficking have too often obfuscated their position on these debates over
the relevance of consent and harm by embracing the concept of exploitation in
all its vagueness, and permitting thereby national legislators, official stake-
holders, and invested campaigners to interpret the provisions in line with their
own conflicting and multi-faceted agendas. The most recent UN Anti-
Trafficking Protocol, for example, upon which subsequent national and
regional policies (including the Council of Europe Convention) have been
explicitly developed, jettisons the need for force or deception at the level of
definition only to subsequently re-insert the consent threshold by an express
articulation of the conditions under which coercion of a relevant sort will be
presumed to have been established. Likewise, while it broadens its parameters
beyond trafficking for sexual purposes, it insists on recognizing and pre-
serving the `special relationship' to prostitution that has historically marked
anti-trafficking responses.
68
This, in turn, has allowed domestic states such as
the United Kingdom to claim compliance with the Protocol by responding to
the shared wrong of exploitation while at the same time creating laws that
impose the need for force in the context of labour, but not sex, trafficking.
69
Against this context, it seems that without greater attention to what
exploitation can, and does, mean, its deployment by those concerned to
transcend narrow victim hierarchies may ultimately prove futile. After all,
there is every reason to suspect that, in the current socio-political climate, the
malleability of this concept may be manipulated by destination states to deploy
force-inclusive interpretations or assessments of harm measured against a pre-
transaction baseline, thereby excluding from recognition as victims many
vulnerable people who have in important ways been wronged by others.
CONCLUDING REMARKS: EXPLORING EXPLOITATION
Discussion over the course of this article has been largely exploratory in
nature and in the final analysis it offers no grand, over-arching defence of, or
challenge to, the use of human rights in the context of people trafficking.
There is, however, good reason to resist the temptation towards sweeping
conclusions here, not just because of the complexity and diversity of the
phenomenon of trafficking, but also because many of the questions raised by
the concepts of exploitation, objectification, coercion, and disadvantage have
yet to be posed, let alone answered, in this context. The problems that have
been identified above with asserting that all instances of trafficking con-
262
68 For further discussion, see Munro, op. cit. (2005) and (2006), n. 6.
69 Contrast here ss. 57±59 Sexual Offences Act 2003 and s. 4 Asylum and Immigration
(Treatment of Claimants) Act 2004. For further discussion of this domestic approach,
see V. Munro, `Exploring Exploitation: Trafficking in Sex, Work and Sex Work' in
Munro and Dellagiusta, op. cit., n. 41.
ß2008 The Author. Journal Compilation ß2008 Cardiff University Law School
stitute a violation of the right to protection either against slavery, servitude or
forced labour, or from inhuman and degrading treatment, should not lead us
to ignore human rights abuses where they do arise, nor to reject necessarily
the project of seeing trafficking as a human rights abuse. But they should
encourage us to be conscious of the need, when dealing with a fluid and
diverse phenomenon, to avoid generalizations and to be clear-sighted about
which aspects of the activity violate which human rights, and equally
importantly, in which ways.
It is clear from the preceding discussion that these difficult questions
cannot be avoided through the invocation of a `fuzzy' claim to exploitation.
Indeed, on closer inspection, this claim also entails consideration of what
would constitute wrongful humiliation or objectification of another, of what
conditions of work and levels of reward are intolerable, and of what
relevance we should afford to the existence of consent and harm. That said, it
is clear that the claim that trafficking involves the exploitation of its victims
is one that has captured the political and moral imagination. In its favour, the
concept of exploitation leaves scope for identifying harms that may not be so
easily captured by pre-existing categories and forges a conceptual union
between sex trafficking and its less celebrated labour variant. In addition,
seeing the injury of trafficking through the lens of exploitation may
ultimately assist us in thinking through the complexities of the relationship
between consent, harm, and victimhood in the context of contemporary
people trafficking. But to fulfil its potential, the existence of exploitation
here cannot just be posited, but must be established, and the exact nature and
origins of that exploitation must be more clearly articulated, alongside the
guiding rationale for its condemnation.
It has been suggested above that, in the context of anti-trafficking policy,
one possible explanation for why exploitation, though widely and increas-
ingly invoked, has remained so vaguely defined relates to the pragmatic
benefits of flexibility and malleability in a political arena within which
competing perspectives must be mediated and negotiated towards a global
consensus. This article has called for a closer interrogation of the concept of
exploitation in order to develop a more clear-sighted policy response and a
stronger basis for any assertion of a human rights violation grounded in
exploitation claims. At the same time, it recognizes that, in the final analysis,
seeking to establish the essence of what it means to be exploited may prove
to be illusory, since ± as with the activity of people trafficking itself perhaps
± the concept of exploitation may best be understood not as a coherent and
consistent phenomenon that can be responded to uniformly, but as a concept
given its unity by the intersection and overlapping of a range of distinctive
manifestations, linked together in a complex way in a manner akin to
Wittgenstein's idea of `family resemblance'.
70
But the fact that this approach
263
70 L. Wittgenstein, The Philosophical Investigations, tr. G. Anscombe (2000). For
further discussion of the idea of family resemblance in general, see S. Mulhall,
ß2008 The Author. Journal Compilation ß2008 Cardiff University Law School
may prove more conducive to properly understanding exploitation ± in its
`wrongful use', `disparity of value' and potentially myriad other forms ±
does not supplant the need for this interrogation. On the contrary, it demands
ongoing interrogation and the development of a sense of exploitation(s) that
is permanently unclosed, sensitive to context, and engaged with the com-
plexities of what Wittgenstein calls `the rough ground' of lived experience.
264
Inheritance and Originality: Wittgenstein, Heidegger, Kierkeg aard (2003); B.
Rundle, Wittgenstein and Contemporary Philosophy of Language (1990); D. Pears,
The False Prison: A Study of the Development of Wittgenstein's Philosophy, vols. I
and II (1987, 1988); and H. Glock (ed.), Wittgenstein: A Critical Reader (2001). For
specific discussion of its usefulness in the context of feminist analysis, see, also, N.
Scheman and P. O'Connor (eds.), Feminist Interpretations of Ludwig Wittgenstein
(2002); A. Tanesini, Wittgenstein: A Feminist Interpretation (2004); and V. Munro,
`Resemblances of Identity: Ludwig Wittgenstein and Contemporary Feminist Legal
Theory' (2006) 12 Res Publica 137±62. I am indebted to Victor Tadros whose (in
progress) work applying Wittgenstein's idea of family resemblance to the wrong of
rape proved extremely helpful in my thinking.
ß2008 The Author. Journal Compilation ß2008 Cardiff University Law School

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