Re-inventing the wheel: returning sex trafficking discourse to its basic human rights origins.
In 2009, a Tampep International Foundation study found that approximately 70% of the Netherlands' legal female prostitutes hail from foreign countries, often from Romania, Hungary, Bulgaria, and South America. (1) Other sources suggest that 80% of Amsterdam prostitutes are foreign, 70% do not have immigration papers, suggesting trafficking. (2) The phenomenon of "lover boys," or young teenage boys around ages 14-16, often explains the remaining 25% of native Dutch prostitutes in the Netherlands. (3) While sex trafficking advocacy work often contemplates that women forced into prostitution should be protected, other instances of more nuanced coercive forms of trafficking, such as that facilitated by the lover boys of the Netherlands, remain lesser known or appreciated. (4) Yet, these forms of trafficking exist side-by-side with internationally trafficked persons, even in the legalized prostitution industries of certain states like the Netherlands. (5) The evil of transnational sex trafficking becomes confounded once the international community seeks to classify the human rights violations inherent either in domestic trafficking, facilitated by lover boys; or transnational trafficking, facilitated by a number of international characters. (6) The international problem of sex trafficking requires a global solution. (7)
This note seeks to: (1) identify and analyze the various camps inherent in discourse surrounding sex trafficking, (2) distill the fundamental human rights and their consequences implicated by the current international anti-sex trafficking regime, and (3) suggest a new, basic rights-based model for international discourse regarding sex trafficking. (8) Ultimately, this method of rights-based discourse, utilizing the Universal Declaration of Human Rights as a beacon, will result in a greater, more cohesive international understanding of the country-specific problems and rights violations inherent in sex trafficking. (9) This will enable greater uniformity and efficiency among countries in their implementation of anti-trafficking efforts. (10) Part II outlines the rights inherent in the three camps--health-based, safe sex work advocates; the neo-abolitionists; and the world development supporters--within sex trafficking discourse. (11) Part III sets forth the policy and implementation consequences of important human rights and sex trafficking treaties currently in place that govern the coordination of anti-sex trafficking efforts internationally. (12) Part IV suggests a rights-based framework model based on the camps' positions to guide future international discourse on sex trafficking, and suggests how the disagreements among camps might be best resolved. (13)
The right to be free from sex trafficking does not comprise a single basic jus cogens norm in itself because many basic jus cogens norms inform our understanding of sex trafficking. (14) The three camps comprising modern anti-human trafficking discourse exemplify how differently people may prioritize the fundamental underlying human rights violations in human trafficking. (15) This problem of interpreting and enforcing human rights norms remains confusing because as Jacques Maritain noted, "[w]e agree about the rights so long as no one asks us why." (16) The Third Restatement of the Foreign Relations Law of the United States, mimicking other international treaties and conventions, highlights this confusing foundation of underlying rights within the human trafficking context by characterizing sex trafficking in other terms, such as "slavery" and "forced and bonded labor." (17) Similarly, within current trafficking discourse, because many experts cannot even seem to comprehend the empirical reality of sex trafficking, let alone distinguish the jus cogens norms that signal the evils inherent in human trafficking, international law cannot yet recognize the right to be free from sex trafficking as a singular jus cogens right. (18)
A. The Evils of Discrimination Against Sex Workers, and Unsafe Working Conditions
Under the feminist empowerment view, sexual rights are fundamentally human rights, and include the right to be free from discrimination against people in sex work. (19) Some radical feminists specifically cite gender discrimination as the primary evil associated with sex trafficking and prostitution, supporting instead an empowered sex worker ideal. (20) The radical feminist view concurrently looks to sex work as an occupation much like any other, and affirms the rights to "education, work, equal pay, decent working conditions, information and equal treatment." (21) This viewpoint is a rather recent development in human rights discourse, originating out of greater freedom regarding sexual conduct and partner choice, as well as personal bodily autonomy. (22) However, no international human rights treaty has established sex as a fundamental right by its original text. (23)
The feminist camp further rejects the voluntary versus involuntary sex work framework for conceptualizing sex trafficking, and advocates instead for alternate frameworks. (24) Feminists highlight how many women freely choose to engage in sex work, and indeed reject the label of victim in sex trafficking work. (25) Many feminists in this camp further believe that women seek liberation through sexually autonomous decisions in order to escape gendered or economically repressive societies. (26) Yet, feminists have trouble addressing other societal and economic factors affecting the true liberation of trafficked sex workers because coerced choices are not technically free choices. (27)
The feminist empowerment camp generates a multi-faceted set of policy implications. (28) Generally, feminists universally reject criminalization of prostitution as an adequate policy solution to voluntary sex work by trafficking victims because ideally women would voluntarily and profitably choose prostitution work. (29) This assumption presents several problems, because most trafficked persons experience some level of personal or societal coercion. (30) Many non-abolitionist feminists favor punishing forced or coerced trafficked sex work, but would ask governments to acknowledge and respect the personal agency, or decision-making capacity, of adult sex workers. (31) Feminists also differ in whether or not they advance the policy approach of decriminalization or legalization of voluntary prostitution, each of which carries different implications. (32) Decriminalization simply removes sex work out from under the microscope of government scrutiny and regulation, and does not encourage government regulation of the sex work industry. (33) Legalization of prostitution could cause the state to over regulate the sex work industry, further isolating, marginalizing, and stigmatizing sex workers. (34) Therefore, the feminist camp diverges in many respects on advocating for certain policies over others. (35)
B. The Evil of Slavery
Many modern activists assert that modern-day sex trafficking is a violation of the human right to be free from slavery. (36) A great number of scholars view sex trafficking as an inherently evil form of slavery, or a slavery-like practice, and advocate for anti-trafficking measures using this framework. (37) A faction of feminists fall under the abolitionist category, advocating the elimination of sexual slavery as a method of male domination over female sex workers, even where the sex worker has consented to allow that man to use her body for money. (38) The right to be free from slavery falls into the category of well-established jus cogens norms. (39) Although, given the feminist view of safely executed and freely chosen sex work as a legitimate profession, conceptualizing sex trafficking as slavery inevitably raises the question: can sexually trafficked persons consent to sexual slavery? (40)
Abolitionists argue that despite making slavery illegal, the modern-day slave-master paradigm has modernized slavery, which is currently on the rise globally. (41) Owners of slaves have fundamental ownership over their slaves, with total control over the slave's autonomy resulting in economic and sexual exploitation, which they ensure through coercion. (42) This modernized slavery remains a particularly virulent strain of slavery, though, because slave owners feel no incentive to maintain the health of their slaves, as they are easily replaced. (43) Modern slave owners also seek coerced contracts as justification of the enslavement, work through layers of middlemen to prevent contact with and identification by their own slaves, and systematically exploit a particular gender, social group, or minority, knowing that those groups are the most economically vulnerable in society. (44) Similarly, the phenomena of globalization and the "feminization of poverty" have added to the opportunist's long list of reasons to exploit economically vulnerable women in accordance with the abolitionist view of sex trafficking, as this has made it easier for potential slave owners to access and coerce women in particular into trafficking resulting in sex work. (45)
The abolitionist camp tends to favor policies that include protection of potential victims, investigation of possible sex trafficking, and the criminalization and punishment of offenders. (46) Abolitionists view sex workers as helpless, innocent victims, and desire to punish their traffickers as evil offenders against human dignity. (47) Moreover, as a policy matter, determining consent is not particularly probative or helpful for abolitionists, because a person cannot ever legally consent to slavery, and cannot sell him or herself into bondage. (48) Practically speaking, abolitionists have had much difficulty in homogenizing criminalization statutes of sex trafficking, because some countries promise much costlier punishments than others for sex trafficking offenses. (49) Prevention of sex trafficking enslavement, prosecution of the perpetrator, and protection of the victim are the three Ps of abolitionist policies. (50) Importantly, many of these abolitionists tend to focus more on the prosecution aspect of the three Ps, and less on the protection or prevention aspects, although more pro-abolitionist scholars are starting to suggest more policies that encourage overlap with the national development camp. (51)
C. The Evil of National and Personal Underdevelopment
Given the inherent difficulties in the personal human rights frameworks of abolition and radical feminism, scholar Jonathan Todres proposed an alternative framework to address sex trafficking issues, based upon eradicating those underlying, broader societal rights violations that perpetuate the industry and prey upon marginalized populations. (52) This framework seeks to address the root push factor of sex trafficking by limiting the available populations at risk of becoming marginalized by the opportunities presented in the sex trafficking industry. (53) Human rights abuses and economic difficulty rank high on the list of push factors causing marginalized individuals to become victims of sex trafficking. (54) Although the other camps of sex trafficking discourse remain distinct, scholars have become more willing to consider development problems as a root cause of sex trafficking that needs to be addressed through policy. (55) Sex trafficking, even more so than drug or gun trafficking, enables traffickers to profit continuously, as a person's services can be sold many, many times, whereas drugs and guns can only be sold once. (56) Eliminating these push and pull factors remains difficult because developed countries refuse to engage in efforts to economically develop at-risk populations abroad. (57)
This camp of human trafficking has gained ground, although scholars find it difficult to articulate how to implement such long-term, broad minded development policy goals. (58) Essentially, scholars can point to the need for development, emphasizing that sex trafficking will not stop until children and women receive access to health care and education provided by a self-sustainable development program; however, scholars cannot suggest what these development initiative policies would practically look like on the ground. (59) Moreover, scholars of nation development acknowledge that such work requires both an adherence to human rights and a concerted effort toward country development, but that these efforts will not be easy. (60)
D. The Elephant in the Room: Prostitution and its Sex Trafficking Implications
Much of the debate regarding human trafficking concerns the issue of consent in prostitution work. (61) Even in locations where prostitution is legal, studies show high occurrences of violence, verbal abuse, and psychological harm among prostitutes. (62) Contrary to empowering prostitution causes women to lose their sense of self, and to believe that their personal value lies in the commodification and objectification of their bodies. (63) A process of compartmentalization often results, which allows the prostitute to numb parts of her body as though they were disconnected from the rest of her self. (64) Trauma victims, including prostitutes, often react with this kind of dissociation as a means of psychological defense against overwhelming pain, shame, and rage. (65) Moreover, prostitution acts as a violation of the right to freely consent to sexual intercourse, and both male and female prostitutes experience difficulty with sexual intimacy outside of their prostitution work. (66) The prostitutes themselves often choose to engage in sex work because of broader societal pressures, as though they have no other choice. (67)
A. The Beginnings of Human Rights in Sex Trafficking Discourse: the Universal Declaration of
Human Rights (UDHR)
The newly-formed General Assembly of the United Nations adopted the UDHR in 1948, serving as the first, idealistic step toward recognizing the violation of human rights at their most fundamental level. (68) The UDHR, in part, mimicked the protection of rights granted by the United States Constitution, and sought to protect "freedom, justice and peace in the world" by seeking "recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family." (69) Although the UDHR is non-binding, several conventions and other instruments have codified the rights contained in the UDHR. (70)
The UDHR claims to be a "common standard of achievement for all peoples of all nations," yet several problems have plagued its success in reaching this common criterion. (71) Politicking by foreign interest groups and various states substantially affected which rights made the UDHR list, and left interpretation of these rights open for discussion. (72) Even though the emphasis shifted from promoting individual interests to creating a universal document after the Human Rights Commission held its first session in 1947, many nations still claimed that the document represented Western, not universal, rights, and that the U.S. and other powerful states planned to utilize the UDHR as a powerful foreign policy tool. (73) Additionally, the very universality sought by the UDHR would significantly weaken its potency, and its ability to be implemented uniformly across member states, would result in interpretive ambiguities. (74)
B. Trafficking-Specific Treaties
In 1949, the UN adopted the Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others (1949 Convention). (75) The 1949 Convention combined four previous treaties relating to the trafficking of women, and sought to effectively and comprehensively address sex trafficking issues by punishing persons for trafficking other persons, and also for offenses related or serving as a precursor to the sex trafficking of others, even if the trafficking victim gave his or her consent to be trafficked. (76) Although the 1949 Convention's call for prosecution of various trafficking and trafficking-associated offenses, victim assistance programs, and international extradition agreements served to further the discourse on sex trafficking, the Convention's lack of ratification and insufficient enforcement provisions made it largely ineffective. (77) Regardless of its overall ineffective enforcement, the 1949 Convention set forth sex trafficking terms that may be ultimately far more definite than those in other trafficking agreements. (78)
In 2000, the UN adopted the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime (2000 Protocol). (79) The 2000 Protocol internationalized the definition of trafficking and obligated signing nations to criminalize trafficking. (80) Although ratifying nations have technically adopted the 2000 Protocol's definition of trafficking, and therefore the obligation to criminally prosecute traffickers for committing that trafficking, several of these ratifying nations have failed to include the 2000 Protocol's language explicitly negating the legal value of the victim's consent within the definition of trafficking. (81) As a result, on the ground level, many national courts can dismiss cases against traffickers who obtained consent from their victims, thus directly contravening the definition of trafficking in the 2000 Protocol. (82) The discrepancies between national and international definitions of trafficking are disturbing not only because they result in unpredictable criminal enforcement of the 2000 Protocol, but also because they indicate a persistent and underlying misunderstanding of exactly which crimes are intended to be punished by sex trafficking legislation. (83)
C. Results of International Anti-Trafficking Efforts
While recognizing the inherent multifaceted nature of sex trafficking has proven a difficult task for the international community, the more challenging undertaking of creating an effective approach to eliminate sex trafficking remains elusive. (84) In the past, international decision makers bore sex trafficking law and policy out of infinite isolated discussions focusing on the victimization of trafficked persons, prostitution, and word selection in establishing an international definition of human trafficking. (85) To add insult to injury, these discussions largely ignored those non-decision makers who hold critical understandings of sex trafficking and can assist in creating effective policies to combat it. (86)
Initially, at least, anti-sex trafficking efforts focused mostly on the abolitionist view, which is a limiting policy approach that seeks to establishing law enforcement mechanisms and encouraging international cooperation. (87) In the 1970s, in the wake of the advent of the human rights movement, governments and nongovernmental organizations (NGOs) began focusing on the human rights dimensions of sex trafficking; specifically, addressing the human rights of exploited women and children. (88) This new focal point of human rights did not supplant law enforcement as a means of controlling sex trafficking, perhaps due to its neat fit among the current law enforcement tactics to combat drug trafficking and organized crime. (89) Although the 2000 Protocol requires treaty members to enact law enforcement mechanisms to prevent trafficking, states are not required under the 2000 Protocol to enact the victim protection measures offering healthcare, psychological care, and provisional housing to trafficked persons. (90)
The law enforcement approach provides a target to punish for rights violations in sex trafficking and can be implemented effectively in most countries with a standard criminal regime. (91) Unfortunately, the law enforcement regime also burdens the international community with the well impossible task of establishing a uniform definition of trafficking. (92) These core elements include disagreements over prostitution, consent, and the trafficker's purpose in trafficking. (93) Additionally, utilizing a law enforcement-based policy unfortunately ignores the conduct of non-traffickers, refuses to hold states accountable for complicity with trafficking flows, and causes difficulties in identifying trafficked persons. (94) With the unlikely potential of defining trafficking as a singular human rights violation in the background, the international community increasingly views sex trafficking as a comprehensive problem requiring comprehensive solutions. (95)
Although international consensus on the evil of sex trafficking has produced an internationally recognized definition of human trafficking, current domestic legislation and implementation in countries across the world largely lacks uniformity. (96) This lack of uniformity stems from a lack of understanding of the issues and actors involved in sex trafficking and by extension, a lack of commitment to agreed-upon societal wrongs that must be cured through anti-sex trafficking efforts. (97) The international community cannot remain divided on issues of sex trafficking or else it risks selective or interpretive implementation of human rights treaties and norms. (98) By looking more closely at the prioritized jus cogens human rights norms underlying the various camps surrounding international sex trafficking discourse, nations can better frame an adequate and cohesive understanding of the multifaceted nature of sex trafficking discourse and execute better and broader, more collaborative anti-trafficking efforts. (99) Upon taking up this task, nations will likely find overlap in their ways of thinking by enabling key players to frame their discussions in terms of basic human rights rather than in terms of enforcement mechanisms, which can factor in various other economic and diplomatic concerns. (100)
A. The Heart of the Matter: Sifting through Camps to Find Rights-Based Discourse
Feminists, abolitionists, and development advocates all share the same basic concern; they care about basic human rights of the individual to be provided or assured by the state. (101) Although each of these camps does not present a singular and consistent conceptualization of basic human rights violations inherent in sex trafficking, they do offer a window into the current frameworks of thought used by various governmental and non-governmental actors. (102) By parsing these current methods of dialogue, state actors can develop a toolkit of human rights terms with which they can discuss and negotiate sex trafficking issues in an understandable way and reach consensus internationally, even through cultural differences in understanding of sex trafficking issues. (103)
Feminists on the whole generally concern themselves with violations of a sexually trafficked person's rights against violations of life, liberty, and property, torture, inhuman or degrading treatment, discrimination, and forced labor, and particularly concern themselves with women's rights. (104) By contrast, abolitionists primarily espouse concerns about human rights violations relating to life, liberty, security, slavery, torture, cruel or degrading punishment, recognition of personhood, and property rights. (105) Development advocates seek to advance broader societal rights, particularly emphasizing the rights to life, liberty, and property; economic, cultural, and social rights; just and fair work; an adequate standard of living; education; cultural participation in community; and a social international order in which their rights and freedoms can be realized. (106) These camps share a fundamental concern for the life, liberty, and property of individuals but operate distinctively. (107)
By recognizing that not all sex trafficking discourse originates in the same founding human rights principles, and by recognizing the overlap that comes with this discourse, state actors can then realize consensus with other states through concerted efforts at dialogue. (108) The three defined camps have already started merging in certain respects. (109) For example, the abolitionist movement increasingly incorporates development goals into its policy suggestions because the abolitionists realize that their anti-slave mentality alone cannot solely encompass the multifaceted problem of sex trafficking. (110) Additionally, the feminist movement shares with the developmentalists certain broad, overarching concerns about the oppressive structures of society, and seeks to reform them in the same broad, developmental manner. (111) In this way, the three camps have much to talk about and share several concerns about the development of the world that dig deeper into the more fundamental moving parts of the behemoth sex trafficking issue. (112)
B. Assembling the Puzzle: Getting to the Big Picture
Encouraging this discourse and consensus should remain top priority for states, NGOs, and individuals internationally, because transnational sex trafficking will not stop until countries are unified in their approach to combating each and every aspect of the trafficking issue. (113) Past approaches to trafficking that focused on combating the known trafficking enemy have failed largely because trafficking law enforcement lacks unification in focus and implementation. (114) Ultimately, the most important concern in sex trafficking should be agreeing and reaching for a feasible and reasonable solution to the problem of sex trafficking and implementing it effectively. (115) While reaching this consensus will likely require great effort and time on the part of international decision-makers, and force them to discuss controversial issues like prostitution, consent, and purpose, it will also save time that would have been devoted to debating these lesser core elements of sex trafficking. (116)
Although the three camps do share some overlap, the three camps base themselves in fundamentally distinct visions of human dignity within the sex trafficking context. (117) The feminist, pro sex-work camp highlights what they deem women's rights, taking the form of rights against liberty, torture, inhuman or degrading treatment, discrimination, and forced labor. (118) These rights center around a vision of female sexual liberation and autonomy that is distinctly different from the other camps. (119) Abolitionists, by contrast, focus distinctively on the right to be free from slavery and also focus on a victim and perpetrator analysis. (120) The feminist view directly disclaims the victim label, claiming it to be a detriment to the pro-women's rights reform for which feminists advocate. (121) Because of these fundamentally distinct frameworks, the international community must invest the time required to discuss sex trafficking on a basic human rights-oriented level citing the priority of various rights above others. (122)
If these groups maintain their current highly divergent goals, they will never jointly realize the elimination of sex trafficking because they each perceive different problems. (123) The pro-sex work feminists predominantly seek female bodily and social autonomy, the abolitionists seek to punish perpetrators and protect victims from unwilling abuse, and the developmentalists desire an improved international, developmental framework of human rights, although they remain largely unsure of how to accomplish this. (124) When these groups start to discuss their various positions on core sex trafficking issues, such as prostitution, utilizing human rights standards derived from the UDHR to argue their positions will give them each a common language. (125) Having a common set of standards and definitions will enable them to negotiate and reach consensus on important sex trafficking policy questions. (126)
C. Beginning to Utilize and Strengthen Old Frameworks
Reinvigorating the human rights principles rooted in the UDHR would benefit anti-sex trafficking efforts internationally, allowing individual countries to reap the benefits of increased clarity and greater voice in international human rights discourse. (127) The UDHR represents an aspirational, almost miraculous achievement of international diplomacy, meant to protect human rights; yet it remains often misused or underutilized in creating anti-sex trafficking policies and enforcement procedures. (128) The three camps of thought represent very different human rights origins, and therefore, they should dialogue at a very basic level in order to reach a mutual understanding about policy priorities. (129) These kinds of discrepancies between differing understandings of the rights preserved by basic human dignity manifested themselves during the rights-formation process of the UDHR, leaving some countries dissatisfied by the rights formation process. (130) Using this experience, the anti-sex trafficking movement can recognize the differing state opinions on which human rights abuses occur in sex trafficking in order to reach a more unified and deliberative consensus. (131)
By re-incorporating the fundamental rights of the UDHR into international sex trafficking discourse, countries would gain a globally understood voice in determining the means by which enforcement would take place. (132) Combining the re-invigoration and re-investment in the UDHR, states would then also feel empowered to utilize the current, existing rights frameworks implicated by the three camps of thought on sex trafficking discourse, in order to advocate the states' own anti-trafficking enforcement prerogatives. (133) This would result in much additional dialogue, but rights-based dialogue would root this discourse firmly in the UDHR's fundamental human rights norms, rather than attempting to conceal and manipulate those rights under the nebulous classification of a right against sex trafficking. (134) Open human rights-based discussions also prevents confusion in referring to feminist, abolitionist, or development policy goals and arguments, as often these three camps overlap in attempting to address the multifaceted problem that is sex trafficking. (135)
D. The Policy Problem: Reaching an International Consensus
International dialogue on the problem of sex trafficking, and determining which human rights lie at the core of sex trafficking, generates an additional, unanswered question: how will sex trafficking policy be implemented, while all this dialogue happens? (136) Reaching a consensus on these issues will take time, and, in that time, thousands of sex trafficking cases will remain undiscovered and unaddressed. (137) States must adopt a new, more cohesive international plan to combat sex trafficking while engaging in more fundamental rights-based dialogue. (138)
Although international discourse produced a useful universal definition of human trafficking, much work remains at the national level in order to effectively implement the criminalization and enforcement of trafficking against the 2000 Protocol's interpretation of human trafficking. (139) The discrepancies in the implementation process reflect a deeper misunderstanding about or lack of attention to the basics of this complicated definition of human trafficking. (140) States must incorporate a settled, unified international definition of human trafficking into their own national legislation and laws in order to provide an effective remedy to sex trafficking. (141) In order to do this, states must first understand the fundamental jus cogens human rights norms inherent in this definition, and start dialoguing with other states about disagreements in how they perceive those fundamental norms. (142) Only in this manner can these states internationally coordinate effective and sustainable legislation against human trafficking. (143)
In order to adopt such a cohesive definition of human trafficking, international human rights monitoring bodies, and the United Nations in particular, should continue emphasizing the 2000 Protocol as the agreed-upon international definition of trafficking. (144) This will at least allow states and NGOs to work with a textual definition of trafficking when advocating their views in the international forum. (145) While this definition remains standing, the United Nations should invite all states to dialogue openly about their particular emphasis on the human rights which they seek to prioritize in anti-sex trafficking efforts. (146) This dialogue has already begun in certain areas, with the abolitionist and feminist camps sharing similar views on sex work. (147) States, upon taking up positions within one or more of the three camps above, will similarly find that they can meaningfully discuss their positions and understand the positions of others when they use rights-based discourse to describe their sex trafficking policy priorities. (148)
The three camps of sex trafficking discourse could reach a great compromise in agreeing to first focus on legislating and realizing Article 3 of the UDHR, which claims every person's "right to life, liberty, and security of person [...]." (149) Discussing different national values that inform the interpretation of each of those three terms will give countries the opportunities to feel vested in the trafficking policy creation process. (150) At the same time, this kind of basic, interpretive rights-based dialogue offers individuals and NGOs an opportunity to voice their concerns about what Article 3 means in the context of their own understandings and agendas. (151) This can only result in a more incorporative and democratic policy-making process for the international community. (152)
At its essence, sex trafficking remains an evil to be eradicated from the international sphere. (153) But, many plaguing questions still exist as to which "evils" the international community can collectively deem worthy of collaborative policy-making. (154) By doing the "dirty work" of discussing these difficult rights-based issues like prostitution, even if the international community cannot reach a uniform consensus on a sex trafficking definition, at least all states will feel incorporated into the process. (155) In this manner, the three sex trafficking camps can begin to reconcile, and produce more effective and long-lasting sex trafficking policy. (156)
(1) See NFS Impact: The Netherlands, NOT FOR SALE: END HUMAN TRAFFICKING AND SLAVERY, http://www.notforsalecampaign.org/global-initiatives/netherlands/ (last visited Apr. 12, 2013), (citing TAMPEP INTERNATIONAL FOUNDATION, SEX WORK IN EUROPE REPORT: A MAPPING OF THE PROSTITUTION SCENE IN 25 EUROPEAN Countries 20 (2009), available at http://tampep.eu/documents/TAMPEP%202009%20European%20Mapping %20Report.pdf) (noting statistics regarding Amsterdam's Red Light District).
(2) See Sex Trafficking, Human Trafficking (Apr. 12, 2013), http://humantraffickingsgp.weebly.com/amsterdams-red-light-district.html (detailing problems with human trafficking in legalized prostitution areas like Netherlands).
(3) See Julia Rooke & Caroline Page, Witness: Lover Boys, Al JAZEERA (May 15, 2012), available at http://www.aljazeera.com/programmes/witness/2012/05/201251115345899123.html (describing tactics used by lover boys to push their girlfriends into prostitution).
(4) See Sex Trafficking, supra note Error: Reference source not found (detailing grooming of Dutch girlfriends by lover boys, with intent of guiding girlfriends into prostitution).
(5) SEE U.S. DEP'T STATE, TRAFFICKING IN PERSONS REPORT 2008--THE NETHERLANDS (June 4, 2008), available at http://www.unhcr.org/refworld/docid/484f9a2f3c.html (highlighting various forms of trafficking in Netherlands).
(6) See infra Part II (describing different camps of thought within sex trafficking discourse).
(7) See Katrin Corrigan, Note, 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, 25 Fordham Int'l L.J. 151, 208 (2001) (identifying need for international cooperation as well as consensus in solutions to sex trafficking).
(8) See infra Parts II-V (identifying issues analyzed).
(9) See Michelle Madden Dempsey, Carolyn Hoyle & Mary Bosworth, Defining Sex Trafficking in International and Domestic Law: Mind the Gaps, 26 EMORY INT'L L. REV. 137, 138-39 (2012) (noting discrepancies among countries' definitions of sex trafficking, as well as lack of coordinated effort). See also Geneva Brown, Women and Children Last: The Prosecution of Sex Traffickers as Sex Offenders and the Need for a Sex Trafficker Registry, 31 B.C. THIRD WORLD L.J. 1, 8 (2011) (describing lack of cohesiveness among international anti-sex trafficking efforts). According to scholar Geneva Brown, "The ideological paradigms of governments, non-governmental organizations (NGOs), and legal and human rights communities influence the choice of how to view and combat sex trafficking. Groups develop different strategies to reduce or eliminate sex trafficking enterprises that are aligned with their understanding of the issues and actors involved." Id.
(10) See generally Dempsey, supra note Error: Reference source not found (detailing lack of uniformity among countries in implementing sex trafficking control efforts); Brown, supra note Error: Reference source not found (highlighting need for group strategies).
(11) See infra Part II (presenting overview of policy implications of three different camps in sex trafficking discourse).
(12) See infra Part III (assessing current international law aimed to prevent human sex trafficking).
(13) See infra Part IV (setting forth framework to guide future international discourse on sex trafficking).
(14) See Janie A. Chuang, Rescuing Trafficking from Ideological Capture: Prostitution Reform and Anti-Trafficking Law and Policy, 158 U. Pa. L. Rev. 1655, 1664-72 (2010) (discussing views of different camps on human trafficking discourse).
(15) See infra Part II.A-C (discussing application of human rights concepts to human trafficking). Michelle Madden Dempsey, along with several other scholars, simply distinguishes between two groups: abolitionists and non-abolitionists (who essentially encompass pro-sex work feminists). See Michelle Madden Dempsey, Sex Trafficking and Criminalization: In Defense of Feminist Abolitionism, 158 U. PA. L. REV. 1729, 1730 (2010) (introducing two views on issue of sex trafficking). She concisely distinguishes between abolitionists and pro-sex work feminists, noting that both groups seek to end sex trafficking, but abolitionists seek to end prostitution, whereas pro-sex work feminists do not. Id.
(16) See Mary Ann Glendon, The Bearable Lightness of Dignity, First Things (May 2011), http://www.firstthings.com/article/2011/04/the-bearable-lightness-of-dignity (quoting Jacques Maritain) (describing issue with Universal Declaration of Human Rights).
(17) See Sarah H. Cleveland, Norm Internalization and U.S. Economic Sanctions, 26 Yale J. Int'l L. 1, 25-27 (2001) (citing RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES [section] 702 (1987)) [hereinafter Restatement] (identifying terms associated with sex trafficking). Listing "(a) genocide; (b) slavery or slave trade; (c) summary execution or causing the disappearance of individuals; (d) torture or other cruel, inhuman, or degrading treatment or punishment; (e) prolonged arbitrary detention; (f) systematic racial discrimination; and (g) a consistent pattern or gross violations of internationally recognized human rights" as internationally accepted jus cogens norms. Id. Notably, Cleveland highlights that "[t]he international law prohibition against slavery reasonably may be read to include the prohibition against forced and bonded labor, including exploitative child labor, and other slave-like practices [such as sex trafficking]." Id. at 27 (emphasis added) (highlighting absence of definitive jus cogens norm against trafficking). Therefore, these international jus cogens norms do not necessarily include a definitive right to be free from sex trafficking directly, but rather the right to be free from jus cogens violations inherent in sex trafficking. Id. Interestingly, the eight core U.N. human rights treaties also failed to explicitly list a provision prohibiting violence against women. See Alice Edwards, Violence Against Women as Sex Discrimination: Judging the Jurisprudence of the United Nations Human Rights Treaty Bodies, 18 TEX. J. WOMEN & L. 1, 3-4 (2008) (noting no textual recognition for gender-based violence as well as its classification as sexual discrimination).
(18) See Sara Dillon, What Human Rights Law Obscures: Global Sex Trafficking and the Demand for Children, 17 UCLA WOMEN'S L.J. 121, 169 (2008) (describing "empirical reality" problem). Sara Dillon sums up the difficulty in determining the origins of the evil of sex trafficking rather succinctly: "It is paradoxical that our attention has been captured by the idea of human trafficking, whereas our sense of the causes and of the empirical reality of sex trafficking is incredibly tenuous." Id. See generally Edwards, supra note Error: Reference source not found (providing empirical figures of sex trafficking).
(19) See International Council on Human Rights Policy (ICHRP), Sexuality and Human Rights: Discussion Paper, 7-8 (2009), available at http://www.ichrp.org/files/reports/47/137_web.pdf (noting wide range of sexual rights issues covered by term "sexual rights"). See also Anna Gekht, Shared but Differentiated Responsibility: Integration of International Obligations in Fight Against Trafficking in Human Beings, 37 DENV. J. INT'L L. & POL'Y 29, 37-40 (2008) (implicating rights against torture, inhuman or degrading treatment, discrimination, as well as forced labor). These rights correspond to Articles 3, 5, 7, 23, and potentially 24 and 25, of the Universal Declaration of Human Rights (UDHR) that provide:
Everyone has the right to life, liberty and security of person....
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Article 7.
All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination....
(1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.
(2) Everyone, without any discrimination, has the right to equal pay for equal work.
(3) Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.
(4) Everyone has the right to form and to join trade unions for the protection of his interests.
Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.
(1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
(2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.
U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. A/810 (Dec. 12, 1948) at art. 3, 5, 7, 23-25 [hereinafter UDHR].
(20) See Shelley Cavalieri, Between Victim andAgent: A Third-Way Feminist Account of Trafficking for Sex Work, 86 Ind. L.J. 1409, 1429 (2011) (discussing liberal feminist theory). Shelley identifies the liberal feminist concept to include "a vision of women autonomously choosing to engage in sexual labor as they would choose any other form of employment." Id. at 1429. She further suggests a distinction between "victims and volunteers" in prostitution work, noting that the former has affected and unfairly biased the prevailing negative attitude toward the latter. Id. at 1420-21. See also A. Yasmine Rassam, Contemporary Forms of Slavery and the Evolution of the Prohibition of Slavery and the Slave Trade Under Customary International Law, 39 Va. J. Int'l L. 303, 346-47 (1999) (affirming right of free from discrimination as primary focus of feminist anti-trafficking movement).
(21) See Shelley Case Inglis, Expanding International and National Protections Against Trafficking For Forced Labor Using A Human Rights Framework, 7 Buff. Hum. Rts. L. Rev. 55, 87 (2001) (suggesting legalization of trafficking as affirmation of women's equal labor rights). Radical feminist scholars have generally suggested that the inherent inequality between men and women in the human trafficking context generates an oppressor-victim framework, effectually reinforcing the male dominance over women and denying a non-male-centric understanding of female sexuality. Id.
(22) See Mindy Jane Roseman & Alice M. Miller, Normalizing Sex and Its Discontents: Establishing Sexual Rights in International Law, 34 HARV. J.L. & GENDER 313, 323 (2011) (considering identity, belief, as well as "meanings of sexuality" as factors in assigning sexual rights).
(23) See id. at 343 (discussing absence of sexuality from original language of any human rights treaty).
(24) See Cavalieri, supra note Error: Reference source not found, at 1435-36 (noting current, as well as suggested feminist frameworks).
(25) See Cavalieri, supra note Error: Reference source not found, at 1437 (recalling women's decisions in actively choosing sex work, but returning to it after being rescued). But see Melissa Farley, Prostitution, Trafficking, and Cultural Amnesia: What We Must Not Know in Order To Keep the Business of Sexual Exploitation Running Smoothly, 18 Yale J.L. & Feminism 109 (explicating inherent violence, coercion, as well as different types of abuse in prostitution).
(26) See Cavalieri, supra note Error: Reference source not found, at 1437-38 (arguing for liberationist view of feminist empowerment in sex trafficking). This vision of liberation from other forms of oppression through sexually autonomous decision-making inherent in sex work should be distinguished from radical feminist theories, which advance "sex workers' subversive use of sexual power in a patriarchal society." Id.
(27) See Cavalieri, supra note Error: Reference source not found, at 1442-44 (classifying differing concepts of coercion as it impacts sex worker rights). The author distinguishes between the "traditional liberal model of coercion" which requires "explicit force or fraud," and the soft, social oppression-based coercion that underlies a woman's choices. Id. at 1443. Women may not even be aware that they have been coerced into making a decision by a broader societal impact, though, so this soft form of coercion often goes unnoticed. Id. See also supra notes Error: Reference source not found-Error: Reference source not found and accompanying text (noting prevalence of lover boys who coerce trafficked persons into prostitution using romantic relationships).
(28) See Chuang, supra note Error: Reference source not found, at 1670-71 (stating non-abolitionist feminist approach to policy).
(29) See Chuang, supra note Error: Reference source not found, at 1670-71 (noting anti-criminalization police approach among non-abolitionist feminist movement).
(30) See Cavalieri, supra note Error: Reference source not found, at 1442-44 (classifying varying levels of coercion). See also supra notes 2-5 (classifying domestic forms of coercion in Dutch context).
(31) See Chuang, supra note Error: Reference source not found, at 1671 (highlighting policy implication differences between coerced and non-coerced sex work).
(32) Id. (highlighting distinction between decriminalization and legalization).
(33) Id. (listing policy implications inherent in decriminalizing prostitution).
(34) Id. (noting potential negative policy implications of legalization).
(35) Id. at 1670-71.
(36) See Terry S. Coonan, Human Rights in the Sunshine State: A Proposed Florida Law on Human Trafficking, 31 FLA. ST. U. L. REV. 289, 301 (2004) (arguing human trafficking is different form of slavery and "trading in human flesh"). These activists implicate Articles 3, 4, 5, 6, 17, and possibly Article 23, of the UDHR. See Gekht, supra note Error: Reference source not found (implicating rights against slavery, work without remuneration, and deprivation of liberty or property). See UDHR, supra note 19, at arts. 3, 5, and 23. Articles 4, 6, and 17 of the UDHR state the following:
No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.
Everyone has the right to recognition everywhere as a person before the law.
(1) Everyone has the right to own property alone as well as in association with others.
(2) No one shall be arbitrarily deprived of his property.
Id. at arts. 4, 6, and 17.
(37) See, e.g. Karen E. Bravo, Understanding Human Trafficking and Its Victims: The Role of the Transatlantic Slave Trade in Contemporary Anti-Human Trafficking Discourse, 9 Seattle J. Soc. Just. 555, 560 (2011) [hereinafter Bravo Seattle] (comparing modern-day human trafficking with trans-Atlantic slave trade and highlighting similar economic and exploitative qualities). See also Susan W. Tiefenbrun, Sex Sells But Drugs Don't Talk: Trafficking of Women Sex Workers, 23 T. JEFFERSON L. REV. 199, 206-8 (2001) (linking crimes of slave trade and sex trafficking and disaffirming interpretation of trafficking as cultural practice); Rassam, supra note Error: Reference source not found, at 348-50 (noting benefits of classifying sex trafficking within ambit of slavery in international human rights discourse). See generally Karen E. Bravo, Exploring the Analogy Between Modern Trafficking in Humans and the Trans-Atlantic Slave Trade, 25 B.U. Int'l L.J. 207 (2007) [hereinafter BRAVO BU] (comparing human trafficking with trans-Atlantic slave trade).
(38) See Janet Halley, Prabha Kotiswaran, Hila Shamir & Chantal Thomas, From the International to the Local in Feminist Legal Responses to Rape, Prostitution/Sex Work, and Sex Trafficking: Four Studies in Contemporary Governance Feminism, 29 Harv. J.L. & Gender 335, 348-50 (2006) (distinguishing "structuralist" feminists as concerned with male domination in female sexual slavery). "Structural" feminists additionally affirm the underlying principle of the autonomy of the female body. Id.
(39) See Rassam, supra note Error: Reference source not found, at 310, n.23 (noting well-established jus cogens norms prohibiting "slavery, genocide, torture and other cruel, inhuman and degrading treatment").
(40) See Terry Coonan, Anatomy of a Sex Trafficking Case, 5 Intercultural Hum. Rts. L. Rev. 313, 350-52 (2010) (distinguishing prostitution from sex trafficking, and claiming lack of agency of women in criminalizing prostitution).
(41) See A. Yasmine Rassam, International Law and Contemporary Forms of Slavery: An Economic and Social Rights-Based Approach, 23 PENN ST. INT'L L. REV. 809, 828 (2005) [hereinafter Rassam Penn] (providing overview of modernized slavery).
(42) Id. at 824 (noting characteristics of contemporary forms of slavery).
(43) Id. (highlighting dangerousness of modernized slavery and its manifestations).
(44) Id. (characterizing modern day slavery and its problems).
(45) See Rassam Penn, supra note 41, at 825-26 (extrapolating modern day slavery's exacerbating factors).
(46) See Siddharth Kara, Designing More Effective Laws Against Human Trafficking, 9 Nw. J. Int'l Hum. Rts. 123, 125 (2011) (noting requirement to protect potential victims, investigate cases, and prosecute and punish offenders).
(47) See, e.g., Susan Tiefenbrun, The Saga of Susannah: A U.S. Remedy for Sex Trafficking in Women: The Victims of Trafficking and Violence Protection Act of 2000, 2002 UTAH L. Rev. 107, 111-13 (2002) (embodying classic language distinguishing victim sex worker from evil trafficker-perpetrator). In this article, the author further emphasized this victim paradigm, writing, "ironically it is the defenseless and enslaved victims who are penalized, not the perpetrators." Id. at 112 (emphasis added).
(48) Id. at 122-23 (citing why individuals cannot legally consent to slavery).
(49) Id. at 154-55 (noting discrepancies in domestic punishments for trafficking).
(50) Id. at 114-15 (distinguishing three purposes of passing anti-trafficking legislation).
(51) See Rassam Penn, supra note 41, at 842 (highlighting modern treaties and proclivity to criminalize trafficking offenses, where significant development has not been addressed). See also Iris Yen, Comment, Of Vice and Men: A New Approach to Eradicating Sex Trafficking By Reducing Male Demand Through Educational Programs and Abolitionist Legislation, 98 J. Crim. L. & Criminology 653, 656-57 (2008) (emphasizing underlying development problems buried in sex trafficking issue). There seems a limit to the effectiveness of modern abolitionist discourse, as new authors increasingly point to the need for addressing development, which would incorporate efforts to recognize economic and social rights for slaves and potential slaves. See Rassam Penn, supra note 41, at 843. Rassam states that, "[i]f the international community is genuinely committed to eradicating slavery, it must create new solutions to age-old problems." Id.
(52) See Jonathan Todres, The Importance of Realizing "Other Rights" to Prevent Sex Trafficking, 12 Cardozo J.L. & GENDER 885, 888 (2006) (discussing importance of sustainable development among marginalized populations to prevent victimization through sex trafficking). "These rights include: (1) the right to be free from gender-based violence and discrimination; (2) the right to be free from other forms of discrimination; (3) the right to birth registration; (4) health rights; and (5) the right to education." Id. (listing five rights underlying abuses of human rights within sex trafficking industry). See also Diane L. Fahey, Can Tax Policy Stop Human Trafficking?, 40 Geo. J. Int'l L. 345, 358-59 (2009) (discussing role of social issues in perpetuating sex trafficking industry).
(53) See Bravo BU, supra note 37, at 231-32 (curtailing supply of vulnerable populations at risk of being trafficked as alternative to law enforcement provisions). See also Alexandra Amiel, Integrating a Human Rights Perspective into the European Approach to Combating the Trafficking of Women for Sexual Exploitation, 12 BUFF. Hum. Rts. L. Rev. 5, 7 (2006) (analyzing push and pull factors of trafficking).
(54) See Christa Foster Crawford, Cultural, Economic and Legal Factors Underlying Trafficking in Thailand and Their Impact on Women and Girls from Burma, 12 CARDOZO J.L. & GENDER 821, 835 (2006) (noting economic and social push factors). Development advocates implicate violations of Articles 3, 22, 23, 25, 26, 27, and 28, and possibly Articles 6, 12, 13, 17, and 24 of the UDHR. See Todres, supra note 52 (listing human developmental rights associated with human trafficking); UDHR, supra note 19, at art. 3 and 23-25; UDHR, supra note 36, at art. 6 and 17. Articles 12, 13, 22, 26, 27, and 28 of the UDHR state the following:
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.
(1) Everyone has the right to freedom of movement and residence within the borders of each state.
(2) Everyone has the right to leave any country, including his own, and to return to his country.
Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.
(1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.
(2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.
(3) Parents have a prior right to choose the kind of education that shall be given to their children.
(1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
(2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.
See id. at art. 12, 13, 22, 26 and 28.
(55) See Rassam Penn, supra note 41 and accompanying text (noting overlap between abolitionist and development camps, where development addresses prevention of sex trafficking).
(56) See Yen, supra note 51, at 658-59 (noting benefits to selling and reselling women as opposed to guns or drugs). Estimates indicate that the global sex trade industry nets a profit of USD7 billion to USD 12 billion dollars annually. Id. at 659.
(57) See Sarah Leevan, Comparative Treatment of Human Trafficking in the United States & Israel: Financial Tools to Encourage Victim Rehabilitation and Prevent Trafficking, 6 CARDOZO PUB. L. POL'Y & ETHICS J. 773, 800 (2008) (noting difficulty in forcing United States and Israel to recognize and address trafficking push-pull factors).
(58) See, e.g., Yen, supra note 51, at 685-86 (encouraging opportunities for girls and women abroad "critical," but implicating less feasible than targeting male demand).
(59) See Todres, supra note 52, at 906-07 (highlighting need for implementing self-sustainable development programs, but not providing practical implementation suggestions for policy).
(60) See id. (noting importance of development and rights-upholding goals, but admitting difficulties in implementation).
(61) See Cavalieri, supra note Error: Reference source not found, at 1442-44 (distinguishing between varying degrees of societal coercion or personal consent in sex trafficking work); see also supra notes Error: Reference source not found-Error: Reference source not found (highlighting nuanced coercion in Dutch sex work).
(62) See Farley, supra note Error: Reference source not found, at 110-12 (emphasizing significance of detrimental health effects of prostitution on women where prostitution remains legal). Posttraumatic Stress Disorder (PTSD) is common among prostitutes. See Melissa Farley & Ann Cotton, et. al., Prostitution and Trafficking in Nine Countries: An Update on Violence and Posttraumatic Stress Disorder, 2 J. of TRAUMA PRAC. 33, 47 (2003) (noting 68% of women across nine countries should be diagnosed with PTSD). The more involved prostitutes became in the world of sex work, the more intense their physical and psychological trauma. Id. at 56-57 (noting link between length of time working as prostitute and negative health ramifications). Additionally, 95% of prostitute workers experienced sexual harassment, and 70-95% experienced physical assault while working. Id. at 56 (describing detrimental effects of prostitution on prostitutes in results of study).
(63) See Farley, supra note Error: Reference source not found, at 115, 126 (explaining devastating effects of prostitution on identity and feelings).
(64) See id. at 115 (describing internal disconnectedness of prostitutes).
(65) See id. at 116 (highlighting psychological process of dissociation).
(66) See id. at 117 (noting damage to sexuality and constant sense of abuse).
(67) See Melissa Farley, Prostitution Harms Women Even If Indoors, 11 VIOLENCE AGAINST WOMEN, 950, Vol. II No. 7, (July 2005) (detailing one woman's traumatic experiences in upscale prostitution).
(68) See generally UDHR, supra note Error: Reference source not found (discussing Preamble). Specifically, the Preamble states:
Now, Therefore THE GENERAL ASSEMBLY proclaims THIS UNIVERSAL DECLARATION OF HUMAN RIGHTS as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.
Id. at Preamble. See also William A. Edmundson, An Introduction to Rights 85 (2d ed. 2012) (recognizing influence of war in promoting acceptance of UDHR). The Soviet bloc, Saudi Arabia, and South Africa abstained from adopting the UDHR, but all other members of the General Assembly unanimously adopted the UDHR. Id. By contrast, the U.N. did not address issues of sex tourism until 1978, and the world's consciousness of human trafficking victims' rights did not develop until the 1990s, after the Cold War. See Bravo BU, supra note Error: Reference source not found, at 223 (noting development of global consciousness of human rights in sex trafficking victim context).
(69) See EDMUNDSON, supra note Error: Reference source not found, at 85-86 (citing UDHR Preamble). Edmundson identifies U.S. constitutional rights as a precursor to rights listed in UDHR. Id. at 86.
(70) See Sarah H. Cleveland, Norm Internalization and U.S. Economic Sanctions, 26 Yale J. Int'l L. 1, 21-22 (2001) (citing various conventions and instruments). The International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR) form the foundational base of the binding treaty law promulgated by the UDHR. Id. Particularly, the ICESCR seeks to protect the "inherent dignity" of the human person and works in accord with the UDHR to allow everyone to "enjoy his economic, social and cultural rights, as well as his civil and political rights." International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI), U.N. Doc. A/RES/2200A (XXI) (Dec. 16, 1966), at Preamble. Several additional Conventions have further codified certain rights contained within the UDHR, including the 1949 Geneva Conventions, the 1977 Additional Protocols, the Genocide Convention, the Torture Convention, the Convention to Eliminate All Forms of Racial Discrimination, the Convention to Eliminate All Forms of Discrimination Against Women (CEDAW), and the Convention on the Rights of the Child. See Cleveland, supra.
(71) See supra notes Error: Reference source not found-Error: Reference source not found and accompanying text (stating ways in which UDHR has failed to attain its ultimate goal of standardizing international human rights); see also UDHR, supra note Error: Reference source not found (quoting Preamble).
(72) See Tai Heng Cheng, The Universal Declaration of Human Rights at Sixty: Is It Still Right for the United States?, 41 CORNELL INT'L L.J. 251, 255 (2008) (noting backdoor politicking and ambiguities inherent in creation of UDHR).
(73) See id. at 259, 267-69. (recognizing failure of good intentions in assuring universal origins of rights). Although the rights listed in the UDHR seek universality in application to individuals all over the world, "the Declaration as a whole may not reflect a truly global consensus on the prioritization and selection of rights for inclusion in the Declaration." Id. at 269.
(74) See id. at 269-70 (highlighting benefits and drawbacks of vague, soft norms contained within UDHR). States which do not accept the legitimacy of the UDHR, or do not see the benefit to upholding the rights contained therein, are often the worst violators of the very rights that the UDHR seeks to protect. See Mary Ann Glendon, At Century's Dawn: The Future and Past of Human Rights and the Rule of Law: The Rule of Law in the Universal Declaration of Human Rights, 2 Nw. U. J. Int'l Hum. Rts. 5, [paragraph] 33 (2004) (stating "human rights are best protected not by international treaty but by constitutions of democratic states"). Glendon, citing Michael Ignatieff, further notes that individual state sovereignty upholds human rights where the international system cannot uphold them. Id. at [paragraph] 30.
(75) See 1949 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, Mar. 21, 1950, 96 U.N.T.S. 271, available at https://treaties.un.org/doc/Publication/UNTS/Volume %2096/v96.pdf [hereinafter 1949 Convention] (detailing components of 1949 Convention treaty adopted in 1949 and signed in 1950); see also Elizabeth M. Bruch, Models Wanted: The Search for an Effective Response to Human Trafficking, 40 STAN. J. INT'L L. 1, 9-10 (2004) (noting significant details of trafficking in UN 1949 Convention). The 1949 Convention sought to punish sex traffickers and assign states with the responsibility to warn potential trafficking victims and help repatriate victimized trafficked persons. Id. These measures were considered weak and ineffective and did not reflect the modern rights-based approach to sex trafficking. Id. at 10-11.
(76) See 1949 Convention supra note Error: Reference source not found (stating treaty consolidation and addressing multiple sex trafficking offenses); see also Laurie Hauber, The Trafficking of Women for Prostitution: A Growing Problem Within the European Union, 21 B.C. Int'l & Comp. L. Rev. 183, 190-92 (1998) (highlighting provisions of 1949 Convention). The four consolidated agreements included in the 1949 Convention are "the International Agreement of 18 May 1904 for the Suppression of the White Slave Traffic, as amended by the Protocol approved by the General Assembly on 3 December 1948"; "the International Convention of 4 May 1910 for the Suppression of the White Slave Traffic, as amended by the above-mentioned protocol"; "the International Convention of 30 September 1921 for the Suppression of the Traffic in Women and Children, as amended by the Protocol approved by the General Assembly on 20 October 1947"; and "the International Convention of 11 October 1933 for the Suppression of the Traffic in Women of Full Age, as amended by the above-mentioned Protocol." Id. at 191, n.67 (detailing four consolidated agreements). Although the Article I of the 1949 Convention directly addresses the trafficking offense itself, and requires punishment whether consent is given by the victim or not, subsequent articles agree to also punish those who assist in the financing of brothels, or allow traffickers to rent or use space for those brothels. Id. at 190-92 (citing 1949 Convention). Moreover, the 1949 Convention lists preparatory acts and attempts to commit trafficking as punishable. See 1949 Convention, supra note Error: Reference source not found, at Art. III (classifying otherwise tangential trafficking offenses as also punishable by domestic law).
(77) See Hauber, supra note Error: Reference source not found (discussing historical significance of 1949 Convention as well as drawbacks). Individual victims could not bring claims against those punishable in the treaty, and only signatory nations to the treaty could bring claims against another signatory nation. Id. at 192 (noting difficulties in enforcement of 1949 Convention by provisions contained therein).
(78) See Corrigan, supra note Error: Reference source not found, at 169-70 (citing benefits of 1949 Convention). The 1949 Convention's preamble took an explicitly moral stance on its reason for pursuing the prosecution of sex traffickers and associated persons, asserting that "prostitution and the accompanying evil of the traffic in persons for the purpose of prostitution are incompatible with the dignity and worth of the human person and endanger the welfare of the individual, the family and the community." 1949 Convention, supra note Error: Reference source not found, at 272 (highlighting both sex trafficking and prostitution itself require attention of international community).
(79) See Bruch, supra note Error: Reference source not found, at 13-14 (detailing Protocol's purpose and provisions).
(80) See Convention Against Transnational Organized Crime, Protocol To Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Nov. 15, 2000, T.I.A.S. 13127 [hereinafter 2000 Protocol]; Dempsey, supra note Error: Reference source not found and accompanying text (discussing definition of trafficking in 2000 Protocol). None of the 147 ratifying states signing onto the 2000 Protocol have made any reservation to this definition of trafficking. Id. According to the 2000 Protocol:
"Trafficking in persons" shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs [...]. 2000 Protocol at Art. 3.
(81) See Dempsey, supra note Error: Reference source not found, at 147-48 (listing countries failing to adopt U.N. definition of trafficking). Armenia, Azerbaijan, Bosnia and Herzegovina, Denmark, Gambia, Ghana, Macedonia, Moldova, Mozambique, Montenegro, Portugal, the Russian Federation, Romania, Rwanda, Saudi Arabia, Serbia, Sierra Leone, South Africa, Sweden, Thailand, Trinidad and Tobago, Turkmenistan, Ukraine, the United States, and Zambia all failed to adopt the U.N. definition of "trafficking." Id.
(82) Id. at 149-50 (noting impact of gaps between domestic and international definitions of trafficking); see also Costas Douzinas, The End(s) of Human Rights, 26 MELB. U. L. REV. 445, 459 (2002) (distinguishing universal human rights from way in which those rights are implemented at national level).
(83) See Dempsey, supra note Error: Reference source not found, at 160 (noting plausible explanation for discrepancies between national codes and 2000 Protocol).
(84) See Bruch, supra note Error: Reference source not found, at 3 (highlighting international community oversimplification of sex trafficking frameworks led to creation of ineffective sex trafficking policies).
(85) Id. (listing flaws of current approaches to sex trafficking policy).
(86) Id. (noting lack of input from critical voices).
(87) Id. at 11 (highlighting first wave of international anti-sex trafficking law); see also Kenneth Cmiel, The Recent History of Human Rights, 109 Am. Hist. Rev. 117, 118 (2004) (tracking growth of human rights and characterizing most recent wave of human rights activism). According to Cmiel, health rights and women's rights activism began in the late 1980s as an expansive movement of human rights organizations. Id.
(88) See Bruch, supra note Error: Reference source not found, at 12-13 (synthesizing international view of human trafficking during second wave of trafficking discourse post-1970s).
(89) Id. at 16 (focusing on law enforcement requirements of 2000 Protocol and contextualizing sex trafficking as facet of organized crime).
(90) Id. at 16-17 (emphasizing law enforcement as top priority with secondary emphasis on other international policies).
(91) Id. at 17-18 (noting benefits of current law enforcement regime).
(92) Id. (highlighting difficulties in creating definition because of lack of consensus on "core elements" of trafficking). The refusal to focus on actors other than traffickers themselves remains particularly troubling, because states often perpetrate numerous human rights abuses by their ignorance or willing acquiescence to human trafficking occurring at or within their borders, leaving thousands of trafficking victims undetected by the rest of society. Id.
(93) See Bruch, supra note Error: Reference source not found, at 18 (highlighting "core elements" or internal moving parts of current disagreement on trafficking).
(94) Id. at 20-22 (identifying problems with law enforcement regime).
(95) See Corrigan, supra note 7, at 201-02, 208 (detailing need for concrete, comprehensive, binding international solution to sex trafficking).
(96) See Dempsey, supra note 9 and accompanying text (noting lack of uniformity among national law and implementation of trafficking control measures).
(97) See Dillon, supra note 18 and accompanying text (citing failure to form cohesive understanding of issues and actors as reason for lack of uniformity).
(98) See Corrigan, supra note 7, at 201-02, 208 (noting international solutions required for international problems).
(99) See supra notes 19, 36, 54 and accompanying text (listing UDHR human rights violations associated with each strand of thought within sex trafficking discourse).
(100) Id. (noting similar concerns among different camps).
(101) Id. (noting similar human rights concerns among camps).
(102) Id. (suggesting discrepancies in rights conceptualizations within and across various camps).
(103) See supra notes Error: Reference source not found-Error: Reference source not found and accompanying text (noting intersection between communal understanding of issues and anti-trafficking policy formation and dialogue).
(104) See supra notes Error: Reference source not found-23 and accompanying text (surveying views on importance of certain human rights issues across feminist camp).
(105) See supra notes 37-38 and accompanying text (characterizing abolitionist camp thought on issues and rights implicated in sex trafficking and distinguishing from feminists).
(106) See Todres, supra note Error: Reference source not found and accompanying text (noting broader rights espoused by development advocate thought in relation to sex trafficking).
(107) See supra notes Error: Reference source not found, Error: Reference source not found, Error: Reference source not found (comparing particularities of each camp's view of human rights implications of sex trafficking).
(108) See Yen, supra note Error: Reference source not found and accompanying text (finding certain camps share certain fundamental human rights principles).
(109) See supra note Error: Reference source not found (highlighting need for interaction between camps).
(110) Id. (noting absorption of development ideas into abolitionist dialogue).
(111) See Cavalieri, supra note Error: Reference source not found and accompanying text (outlining rights-based, broad discourse of feminist movement seeking societal development and improvement of women's status worldwide).
(112) See supra notes Error: Reference source not found, Error: Reference source not found and accompanying text (noting similarities between camps).
(113) See Corrigan, supra note Error: Reference source not found and accompanying text (highlighting need for agreement on singular international approach).
(114) See Bruch, supra note Error: Reference source not found, at 9-10 (asserting problems with international sex trafficking law enforcement). Although the modern abolitionist view largely dominates modern sex trafficking discourse and informs policy decisions, these victim-perpetrator analyses remain insufficient to address sex trafficking where trafficked persons perhaps consented to sexual labor because they felt they had no choice. Id. at 11. See Tiefenbrun, supra note Error: Reference source not found and accompanying text (characterizing trafficked individuals as "defenseless" and "enslaved").
(115) See, e.g., supra note 76 (highlighting achievement of 2000 Protocol in reaching consensus on international sex trafficking definition and punishment policy).
(116) See Bruch, supra notes 75, 93 and accompanying text (distinguishing "core" elements of human rights discourse).
(117) See supra notes 19, 36, 54 and accompanying text (highlighting distinct human rights embedded in each camp).
(118) See supra note Error: Reference source not found (listing UDHR rights implicated by pro sex-work camp).
(119) See Cavalieri, supra note 20, at 1435-38 and accompanying text (distinguishing liberationist feminist theory).
(120) See supra notes 20, 36 (comparing distinction between abolitionist and feminist camps).
(121) Id. (distinguishing sentiments regarding term "victim" applied to sexually trafficked persons).
(122) See supra notes 19, 36, 54 (highlighting individual UDHR rights inherent in each camp of sex trafficking thought).
(123) See supra notes 19, 36, 54 and accompanying text (simultaneously categorizing various goals of three camps).
(124) See supra notes Error: Reference source not found-Error: Reference source not found and accompanying text (establishing sexual liberation and autonomy goals of feminist camp); Rassam, supra note Error: Reference source not found, at 842-43 and accompanying text (highlighting abolitionists' legislative efforts towards achieving goals and legislations' insufficient effects); Todres, supra note Error: Reference source not found, at 906-07 (describing difficulty in attaining developmental goals).
(125) See UDHR, supra note Error: Reference source not found, at Preamble (citing unifying purpose of UDHR for bringing together international concepts of inherent human dignity).
(126) See supra notes Error: Reference source not found, Error: Reference source not found, Error: Reference source not found and accompanying text (discussing UDHR, sex trafficking's connection to slavery, and alternative frameworks).
(127) See Edmundson, supra note Error: Reference source not found, at 140 (suggesting implementation problems with UDHR because of Cold War); see also Glendon, supra note Error: Reference source not found, [paragraph][paragraph] 35-36 (noting lack of global inclusion).
(128) See Edmundson, supra note Error: Reference source not found, at 140 (noting UDHR's past usage as propaganda for competing interests); see also UDHR, supra note Error: Reference source not found, at Preamble (detailing UDHR's goal for gaining universal, effective recognition and observance of enumerated rights contained therein).
(129) See supra notes Error: Reference source not found, Error: Reference source not found, Error: Reference source not found and accompanying text (isolating different human rights violations focused on within each camp); supra Part II.D. (describing policy implications of three camps in sex trafficking discourse).
(130) See Glendon supra note Error: Reference source not found, [paragraph][paragraph] 13-15 (citing disagreements over states' roles in assuring social, economic, and cultural rights).
(131) Id. (reiterating skepticism surrounding parts of UDHR formation process).
(132) See id. [paragraph] 36 (suggesting drafters' intent for recognition of rights where states' views are communicated, understood, and accepted worldwide). "[I]t is not necessary for one conception to triumph over another conception." Id.; see also Dempsey, supra note Error: Reference source not found at 138-39 (distinguishing between national definitions of and enforcement mechanisms against sex trafficking).
(133) See supra Section IV.A. (discussing various rights origins of each school of thought within sex trafficking discourse).
(134) See Chuang, supra note Error: Reference source not found at 1663-64 (citing conflicting views on prostitution reform).
(135) See supra Part II.A-C (outlining beliefs of each camp).
(136) See Bruch, supra note Error: Reference source not found, at 18 (noting root issues of sex trafficking including disagreements over prostitution, consent, and traffickers purpose in trafficking).
(137) See Brown, supra note Error: Reference source not found, at 8 (outlining problem of human trafficking in context of lack of consensus in international decision making).
(138) See supra note Error: Reference source not found and accompanying text (noting states failure in adopting international trafficking definition, and general lack of coordinated anti-trafficking effort).
(139) See Dempsey, supra note Error: Reference source not found, at 138-39 (noting discrepancies between 2000 Protocol definition of human trafficking and national definitions).
(140) See Dempsey, supra note Error: Reference source not found, at 156-61 (reflecting differences among states as to actual interpretation of 2000 Protocol definition).
(141) See Glendon, supra note Error: Reference source not found, [paragraph] Error: Reference source not found (emphasizing importance of national implementation of international human rights law in order to take practical effect).
(142) See supra Part IV.A (discussing classification of various rights underlying modern camps of thought on sex trafficking).
(143) See supra notes Error: Reference source not found, Error: Reference source not found, Error: Reference source not found and accompanying text (blaming lack of uniformity on failure to cohesively understand issues and actors in sex trafficking).
(144) See Dempsey, supra note Error: Reference source not found, at 143 (defining trafficking according to 2000 Protocol).
(145) See id. at 138-39 (noting singular agreed upon trafficking definition).
(146) See Glendon, supra note Error: Reference source not found, [paragraph][paragraph] 35-38 (highlighting Western domination of thought when concerning views on human rights).
(147) See Halley, supra note Error: Reference source not found at 348-50 (noting feminist support of certain abolitionist principles).
(148) See supra Part II.A-C (outlining differing views on sex work and trafficking); see Dempsey, supra note Error: Reference source not found and accompanying text (detailing two views on sex trafficking); see also supra notes Error: Reference source not found-Error: Reference source not found and accompanying text (observing overlap between various camps of sex trafficking thought).
(149) See UDHR, supra note Error: Reference source not found and accompanying text (setting forth text of Article 3 of UDHR).
(150) See Glendon, supra note Error: Reference source not found, [paragraph][paragraph] 35-36 (indicating Western groups disregard for parts of UDHR that were presumably important to other countries).
(151) See Bruch, supra note Error: Reference source not found, at 3 (criticizing lack of input from "critical" players in international forum).
(152) See Glendon, supra note Error: Reference source not found, [paragraph] 1 (indicating UDHR meant to feature right "to take part in the government of [one's] country").
(153) See 1949 Convention, supra note Error: Reference source not found, at Preamble (characterizing trafficking as "evil").
(154) See Bruch, supra note Error: Reference source not found, at 18 (distinguishing core elements of trafficking discourse).
(155) See Glendon, supra note Error: Reference source not found, [paragraph][paragraph] 34-38 (highlighting importance of incorporating all states in international dialogue to encourage compliance with ultimate policy decisions).
(156) See supra notes Error: Reference source not found, Error: Reference source not found, Error: Reference source not found and accompanying text (listing different rights inherent in each of three sex trafficking camps).
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|Publication:||Suffolk Transnational Law Review|
|Date:||Mar 22, 2014|
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