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

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Cited in

Date	01 June 2008
DOI	http://doi.org/10.1111/j.1467-6478.2008.00437.x
Published date	01 June 2008
Author	Vanessa 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 in terms of theoretical clarity and

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,

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'.

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.

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.

But the trafficking of men, women,

and children into domestic, agricultural, and factory work is also a fast-

growing phenomenon.

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).

5For 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.

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.

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.

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.

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 integrity of its victims, may result 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.

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.

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

00728), 13 April 2000.

10UN Docs: CCPR/CO/79/LVA, dated 06/11/2003 and A/53/38/rev.1 respectively.

11C. 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.

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.

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 where necessary, and

remaining alert to their shortcomings, any such definitive position may

itself be untenable.

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 andthe GoodLiberal: TheConstruction ofFemale Sexual

Subjectivity in Anti-Trafficking Legal Discourse' in Sexuality and the Law: Feminist

Engagements, eds. V. Munro and C. Stychin (2007) at 227.

13R. 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 furtherdiscussion, 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.

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.

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

15T. Obokata, `Human Trafficking, Human Rights and the Nationality, Immigration and

Asylum Act 2002' (2003) 4 European Human Rights Law Rev. 410±22, at 411.

16Obokata 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.

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'.

247

17 S. Drew, `Human Trafficking: A Modern Form of Slavery' (2002) 4 European

Human Rights Law Rev. 481±92, at 483.

18A. 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.

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,

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.

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.

248

19Certainly, 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 .

21IT-96-23 (22 February 2001) 542.

22 T. Obokata, `Trafficking of Human Beings as a CrimeAgainst 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.

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.

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.

24For 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.

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.

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.

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.

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

25See, 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.

26This 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.

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.

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,

the jurisprudence on what exactly con-

251

29See 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 Resolution3452 of 1975, Article1: `torture constitutesan

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.'

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.

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.

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',

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 January1978. 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.

Such

development has not gone wholly unchallenged

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 inevitably

requires greater firmness in assessing breaches of the fundamental values of

democratic societies.

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.

The Court

253

36In 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 Court 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.

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'.

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,

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.

Similarly, in Ribitch v. Austria, the Court concluded that repeatedly insulting

and physically assaulting (so as to cause bruising, vomiting, and headaches)

apersonheldinpolicecustody constituted 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.'

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.

41For 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.

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'.

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,

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.

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)

but that it constituted a

criminal act which the state then failed 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.

45Conaghan, 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.

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.

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

49See, 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.

50See, 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. Perhaps unsurprisingly, therefore, suchapproaches 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 sexually and economically oppressive 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.

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'.

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'.

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,

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.'

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'.

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'.

These different understandings have recently been

characterized by Wilkinson as `wrongful use' and `disparity of value'

respectively.

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

52J.L. Hill, `Exploitation' (1993±94) 79 Cornell Law Rev. 631, at 632.

53A. Wertheimer, Exploitation (1996) 5.

54id., at p. 10.

55R. Arneson, entry in The Encyclopedia of Ethics, eds. L. Becker and C. Becker (2001,

2nd edn.) at 350.

56See A. Buchanan, Ethics, Efficiency and the Market (1985) at 87.

57A. Levine, Arguing for Socialism (1988) at 66.

58S. 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.

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,

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

59Toepfer 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.

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,

others have insisted that

there can be exploitation `despite the exploitee's full and voluntary con-

sent',

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.

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

61Of 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.

62R. 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.

63S. 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).

64Wertheimer, 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.

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.

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.

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.

66Wertheimer, op. cit., n. 53, at p. 28.

67See, 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 define 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.

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.

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

68For further discussion, see Munro, op. cit. (2005) and (2006), n. 6.

69Contrast 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'.

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

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