The Global Compromise: The U. N. Trafficking Protocol (2000)
As global feminists rekindled the U. N.’s attention to trafficking through the yearly Commission on the Status of Women (Ucarer 1999), the conflict between antiprostitution and sex-work feminists shaped the debate. In 2000, after more than a year of contentious discussion, the U. N. passed a protocol on “Trafficking in Persons, Especially Women and Children.” The conceptualization of trafficking in the final version represented an uneasy compromise. Throughout, while formally addressing “trafficking in [gender-neutral] persons” (more in line with sex-work feminism), the protocol frequently invokes the particular situation of “women and children” (more in line with antiprostitution feminism). More closely reflecting the stance of sex-work feminism, the Trafficking Protocol differentiated “prostitution” from “trafficking in persons,” defining the latter as
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. (United Nations 2000)
But the protocol also appears to reflect the antiprostitution stance on consent and on criminalizing at least the use of prostituted persons.3
The protocol also reveals the greater influence of other interests and viewpoints on trafficking, especially those from the U. S. and Western European governments, who were most concerned about illegal migration and organized crime. The protocol, a part of the Transnational Convention against Organized Crime, is not a human rights agreement. First and with the most conviction, the protocol calls for criminalization of trafficking and prosecution of traffickers (Art. 5.1). Second, with less stringent requirements, the protocol calls for the provision of social services to those who have been trafficking (e. g., Art. 6.3). Third, similarly less stringently, the protocol calls for states to “endeavour to undertake” preventive action “such as research, information and mass media campaigns and social and economic initiatives to prevent and combat trafficking in persons” (Art. 9.2). The U. N.’s approach is not unique. Even the more social policy-friendly EU, especially its European Commission, has prioritized prosecution over assistance (Goodey 2004, 30).
Most global feminists sought these criminal justice and social policy reforms,
what are commonly called the “3 Ps”—prevention of victimization, prosecution of offenders, and protection of and assistance to victims—but not with the same prioritization. By focusing on criminalization, states are given increased coercive powers (which are often implemented by men with guns) while women are cast as only victims, like children, who require protection (see Enloe 1993). The Trafficking Protocol includes frequent references to “protection,” the need to protect victims of trafficking, especially women and children, a language not used to refer to adult men. The U. N. Trafficking Protocol empowered strong states’ foreign ministers (nonfeminist and mostly male) to become entrepreneurs while disempowering TFNs, who were given no formal role. Unlike the international documents that constitute the global norms for sexual assault and domestic violence, the U. N.’s protocol denied global feminists descriptive representation even though they had broached the issue.
Nevertheless, the U. N.’s adoption of new antitrafficking legislation did inject some concern about human rights into an international debate once shaped by the view of trafficking as a migration problem. For instance, the intergovernmental International Organization for Migration (IOM), which had begun antitrafficking initiatives in 1994, had defined trafficking as fraudulent border crossing, prolonged stay often illegal, facilitated by a third party (Ucarer 1999, 232).4 Focusing on the demand-pull factors that attract migrants to particular countries and the supply-push factors, such as poverty or instability, that encourage emigration, its migration approach led countries to beef up border control and to cast trafficked women as illegal migrants. Global feminist pressure to mainstream gender and the U. N. protocol led the IOM to adopt the protocol’s definitions and to begin to collect and distribute information, in some ways similar to human rights monitoring. In 2002, the intergovernmental Council of Europe, of which Russia has been a member since 1996, also called on countries to examine their legislation and adopt the 3 Ps and emphasize victims’ human rights.5 In 2005, the council passed its own antitrafficking convention, leading to a new multinational campaign. Similarly, the Organization for Security and Cooperation in Europe (OSCE) has added trafficking as one of their main issue areas, including it as a human rights violation. Moving beyond the 3 Ps, the OSCE advocates a National Referral Mechanism, which formalizes cooperative partnership between state actors and civil society, including developing a system for referring trafficked persons to the variety of state and non-state services as a way to ensure their human rights.
While the human rights focus also classifies women as victims, it does so with a concern for the empowerment of the victim. As Jo Goodey (2004) notes, the re-classification of trafficked women, who had heretofore been seen only as illegal immigrants and shameful prostitutes, can be seen as a positive development despite some feminists concerns with this classification. For women trafficked abroad, being cast as a victim can given them important rights and privileges that they would not normally have in their destination or source country (34). Perhaps more problematically, for most states and intergovernmental agencies, social benefits of protection are dependent on the trafficking victim’s cooperation with prosecution (31). A human rights approach can bring to light that this requirement is both dangerous and unfair, with low prosecution rates for trafficking and the limited evidence that most trafficking victims have on the masterminds of their trafficking (37).