Human trafficking is a complex legal, human rights and feminist issue. While the number of trafficked persons is rising each year, the globalized economy and political market offers a transnational area of action, in which global uniformity to tackle the issue has serious limitations and weaknesses. Human trafficking is a crime that affects both men and women, but it disproportionately touches the safety and liberty of women and girls (as it is depicted on the positive discrimination and asymmetric character of the international policies, e.g.: the ccc). The lack of accurate estimates of the number of victims and the unwillingness of the global actors to negotiate their state sovereignty, leads to various obstacles in the formation and enforcement of hard law policies and regulations (Levit, Verchick, & Minow, 2016).
The most important and prominent international action to combat human trafficking is the ‘Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children’ (Trafficking Protocol), which was adopted by the United Nations (UN) General Assembly resolution 55/25 in 2001, and entered into force on December, 25, 2003 (OHCHR, n.d.). This Protocol is a supplement to the UN Convention against Transnational Organized Crime and up until today it has 179 parties. According to the Trafficking 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.”1 (OHCHR, n.d.).
By this definition it is clear that the trajectory of consent is now settled. Consent stops to be a relevant argument on whether or not the crime of human trafficking is recognized as such. This is a big step for the international community, which recognizes the vulnerable position of the victims that may lead them to this consented decision. What more needs to be underlined in this Protocol is that it constitutes a text of hard law, which means that it legally binds all the state parties to adopt legislative measures in order to independently and collaboratively criminalize human trafficking (article 5 and 10) and at the same time protect the trafficked victims (articles 6 to 8). It binds states to provide proper physical, psychological, legislative and humanitarian aid to the victims and, specifically, to provide permission to stay in the receiving country temporarily or permanently until further aid for repatriation is facilitated (articles 7 and 8) (Levit et al., 2016).
Under the United Nations family, one can found further protection acts regarding trafficking of persons. The UN Office on Drugs and Crime (UNODC) has worked on the publishing of five reports up today, with the most recent being the “Global Report on Trafficking in Persons” in 2020, in which it investigates 148 countries trying to map the patterns and flows of the crime (UNODC, 2020). In addition to this, the ‘Trafficking and HIV/AIDs Project’ by the UN Educational, Scientific and Cultural Organization (UNESCO) aims to protect ethnic and indigenous minorities by researching and implementing programs regarding human trafficking and HIV/AIDS (Smith, 2010). Finally, when it comes to soft law, the UN High Commissioner for Human Rights has adopted the Recommended Principles and Guidelines on Human Rights and Human Trafficking which encourages states to stop prosecuting victims and implement a sensitivity education program for their law enforcement instruments (e.g., police) (OHCHR, 2003, Guidelines 5 and 6).
All these actions seem to be a good first step on the elimination of the crime and the protection of the victims. Nevertheless, there are some important gendered perspectives that need to be under serious consideration. Firstly, some feminist scholars argue that, by putting an emphasis on women, the Trafficking Protocol enhances the patriarchal, stereotypical perceptions regarding women being the victims without agency, while men being the actors who act autonomously. “This gendered distinction follows long-standing stereotypes of women as victims and men as less able to be victimised” (Ditmore & Wijers, 2003, p. 82). Moreover, by putting women and children in the same vulnerable category, it entails a lack of adulthood for women and locks them in the mothering and caretakering stereotype, overshadowing women’s independence as economic migrants searching for a better future for themselves. That is why, it is suggested that the term ‘victim of trafficking’ should be replaced with the more appropriate term ‘ trafficked person’, in order to underline the specificity in place and time of the crime and emphasize “that trafficked persons are not only victims of a crime, but also, and more importantly, persons having rights under international human rights law” (Ditmore & Wijers, 2003, p. 83).
Another problem with the association between women and children is that consent cannot be given by underage children, which is then linked to the lack of consent and innocence of women as well. The naivety in kidnapping and trafficking of women “represents the least likely scenario of human trafficking, as many women willingly leave their homes to join traffickers; it is the subsequent enslavement or coercion that constitutes trafficking” (Lobasz, 2009, p. 341). Thus, by creating a psychological profile of the ideal victim – the childlike, young, naive, innocent, sexual trafficked woman – an hierarchy of who ‘truly’ needs protection is established. The Protocol has addressed the issue of consent but not entirely. Consent may be given by the trafficked person without any use of force or coercive measures, as article 3 suggests. The problematization of consent mostly concerns the illegality or legality of sex work, and whether prostitution and any kind of sex work should be totally criminalized. This is something that falls into each state’s legal sovereignty and an international Protocol does not have the power to define. So, better policies around sex work are often proposed by the feminist scholars, in order to eliminate the danger of women and girls being trafficked for sexual servitude.“Legalizing prostitution” and eliminating the social and legal stigma around it “provides resources for sex workers to use, if they so choose, to protest abusive” and trafficking “conditions without rejecting the entire industry” (Lobasz, 2009, p. 338).
Additionally, it is clearly depicted under article 11 of the Trafficking Protocol (OHCHR, n.d.) that a traditional securitization approach is being adopted. This means that for the international legislative actors trafficking is seen as a threat for the state, which needs to strengthen its border security and prevent any illegal migration that may shadow a human trafficking crime. “The act of securitization itself shifts an issue beyond and above the margins of the non-political and political” (Hirschauer, 2014, p. 25), establishing an existential threat for both the national and international community. This leads to a neglect of the trafficked victims, since the first and most serious threat is imposed to the state and not the persons being trafficked. Thus, the human rights violations are being placed to the background. A feminist security approach would then suggest a more sensitive approach towards the victims, especially women, by establishing social services and better migration policies, so that “trafficked individuals be viewed as vulnerable humans rather than dangerous threats” (Lobasz, 2009, p. 330). This securitization approach leads to another issue as well. Not only the trafficked persons are neglected as victims, they are often treated as the criminals. International human trafficking goes hand in hand with undocumented border crossing, imposing to the victims the identity of ‘illegal migrants’ with all the legal sanctions this implies. It also uses weak and not commanding language, such as ‘in appropriate cases’ and ‘to the extent possible’ (Lobasz, 2009, p. 332). Moreover, repatriation and deportation policies may lead to a re – victimization of the persons. By being returned to their country of origin, their vulnerability is not erased, but rather enhanced, since the socioeconomic situation remains the same and another attempt on migrating may be their only option, which easily leads to re – trafficking.
1 Emphasis added by the author.
Ditmore, M., & Wijers, M. (2003). The negotiations on the UN Protocol on Trafficking in Persons. Nemesis, 4, 79–88. https://documentation.lastradainternational.org/lsidocs/6%20The%20negotiations%20on%20the%20UN%20Protocol%20(NEMESIS).pdf
Hirschauer, S. (2014). Securitization Theory: A Matter of Words. In The Securitization of Rape (pp. 24–63). Palgrave Macmillan, London. https://doi.org/10.1057/9781137410825_2
Levit, N., Verchick, R. R. M., & Minow, M. (2016). Feminist Legal Theory and Globalization. In Feminist Legal Theory: A Primer (2nd ed., pp. 221–236). NYU Press. http://www.jstor.org/stable/j.ctt15zc6kc.13
Lobasz, J. K. (2009). Beyond Border Security: Feminist Approaches to Human Trafficking. Security Studies, 18(2), 319–344. https://doi.org/10.1080/09636410902900020
OHCHR. (n.d.). Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime. Retrieved October 25, 2022, from https://www.ohchr.org/en/instruments-mechanisms/instruments/protocol-prevent-suppress-and-punish-trafficking-persons
OHCHR. (2003). Recommended Principles and Guidelines on Human Rights and Human Trafficking. Office of the High Commissioner for Human Rights. https://www.ohchr.org/sites/default/files/Documents/Publications/Traffickingen.pdf
Smith, H. M. (2010). Sex Trafficking: Trends, Challenges, and the Limitations of International Law. Human Rights Review, 12(3), 271–286. https://doi.org/10.1007/s12142-010-0185-4
UNODG. (2020). Global Report on Trafficking in Persons. United Nations : Office on Drugs and Crime. https://www.unodc.org/documents/data-and-analysis/tip/2021/GLOTiP_2020_15jan_web.pdf