EJF Environmental Justice Foundation
EMDR Eye Movement Desensitisation and Reprocessing
EMN European Migration Network
ESDP European Security and Defence Policy
EU European Union
FCFA Central and West African CFA Franc
FMP Fishery Management Plan
FRA Fundamental Rights Agency
GAATW Global Alliance against Trafficking in Women
GCC Gulf Cooperation Council
GDP Gross Domestic Product
GRETA Group of Experts on Action against Trafficking in Human Beings
HIV Human Immunodeficiency Virus
HTOR Human Trafficking for the Purpose of Organ Removal
IAC International Armed Conflict
ICAT Inter-Agency Coordination Group against Trafficking in Persons
ICC International Criminal Court
ICCPR International Covenant on Civil and Political Rights
ICD International Classification of Diseases
ICE Immigration and Customs Enforcement
ICMPD International Centre for Migration Policy Development
ICL International Criminal Law
ICT Information and Communication Technology
IDP Internally Displaced Person
IGO Intergovernmental Organisation
IHL International Humanitarian Law
IHRL International Human Rights Law
ILO International Labour Organisation
ILO- PATWA ILO Action Programme against Human Trafficking and Forced Labour in West Africa
IO International Organisation
IOM International Organization for Migration
ISIL Islamic State of Iraq and the Levant
IUU Illegal, Unreported and Unregulated
JIT Joint Investigation Team
LCC Labour Coordination Center
LNTS League of Nations Treaty Series
LOR Letter of Request
LPA Labour Protection Act
LPN Labour Rights Promotion Network
LRA Lord’s Resistance Army
MASH Multi-Agency Safeguarding Hubs
MDG Millennium Development Goal
MENA Middle East and North Africa
MLA Mutual Legal Assistance
MNO Mobile Network Operator
MoU Memorandum of Understanding
MVNO Mobile Virtual Network Operators
MWC Migrant Workers Convention
MSE Multiple System Evaluation
NATO North Atlantic Treaty Organisation
NAPTIP National Agency for the Prohibition of Trafficking in Persons in Nigeria
NET Narrative Exposure Therapy
NGO Non-Governmental Organisation
NIAC Non-International Armed Conflict
NPAO- IUU National Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing
NRM National Referral Mechanism
NV Nationality Verification
OAS Organisation of American States
ODIHR Office for Democratic Institutions and Human Rights
OECD Organisation for Economic Cooperation and Development
OHCHR Office of the High Commissioner for Human Rights
OIOS Office of Internal Oversight Services
OMCGs Outlaw Motorcycle Gangs
OPSC Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography
OSCE Organisation for Security and Cooperation in Europe
OSSC One Stop Service Centre
PEA Private Employment Agency
PIA Privacy Impact Assessment
PICUM Platform for International Cooperation on Undocumented Migrants
PIDC Pacific Immigration Directors’ Conference
PKO Peacekeeping Operation
PIPO Port-In-Port-Out
PSG Particular Social Group
PTSS/D Post-Traumatic Stress Syndrome/Disorder
RCF Regional Cooperation Framework
SADC Southern African Development Community
SAT Swift Action Team
SCSL Special Court for Sierra Leone
SDG Sustainable Development Goal
SEAFDEC Southeast Asian Fisheries Development Centre
SGB Secretary-General’s Bulletin
SOFA Status of Forces Agreement
SOP Standard Operating Procedures
SRSG Special Representative to the Secretary General on Children in Armed Conflict
STPP Support for Trafficked People Program
STV Foundation against Trafficking in Women [Stichting Tegen Vrouwenhandel]
THB Trafficking in Human Beings
TIP Trafficking in Persons
THO Council of Europe Convention against Trafficking in Human Organs
TP Trafficked Person
TRACE Trafficking as Criminal Enterprise
TRIANGLE Tripartite Action to Protect Migrants from Labour Exploitation
TRM Transnational Referral Mechanism
TVPA Trafficking Victims Protection ACT
UN United Nations
UNAMI United Nations Assistance Mission for Iraq
UNCTOC United Nations Convention against Transnational Organised Crime
UNHCR United Nations High Commissioner for Refugees
UNICEF United Nations Children’s Fund
UNIFEM United National Development Fund for Women
UNMIK United Nations Mission in Kosovo
UNMISET United Nations Mission of Support in East Timor
UNOCHCR United Nations Office of the High Commissioner for Human Rights
UNODC United Nations Office on Drugs and Crime
UNSCR United National Security Council Resolution
UNTS United Nations Treaty Series
UN.GIFT United Nations Global Initiative to Fight Human Trafficking
VMS Vessel Monitoring System
VPS Victim Personal Statement
VRR Victims’ Right to Review
WHO World Health Organization
WTO World Trade Organisation
Part 1
International and regional regimes on anti-trafficking
1
Genealogies of human trafficking and slavery
Jean Allain
Introduction
Human trafficking and slavery are often conflated; these terms are often used synonymously, but also as umbrella terms meant to capture various types of human exploitation. This should hardly be surprising as, historically, the very genesis of what we today call ‘human trafficking’ was conceived in terms of the ‘white slave traffic’,1 thus equating prostitution with the visceral revulsion felt towards the African Slave Trade and slavery. In fact, and in law, these two regimes – human trafficking and slavery – are distinct conceptually, but also have separate historical origins, and only come together with the negotiations of the Palermo Protocol.
This chapter considers the genealogy of both human trafficking and slavery to demonstrate how two very distinct histories were brought together by a century-long pursuit to criminal-ise human exploitation. In so doing, the chapter provides both an understanding of the end of one element of the greater African Slave Trade – the Atlantic Slave Trade – and the origins of the White Slave Traffic; and how, over the twentieth century, the subject-matter of human trafficking grew beyond prostitution to its logical conclusion: to address any and all types of human exploitation.
Slavery and the Atlantic Slave Trade
Slavery has persisted since time immemorial, only having been curtailed internationally for the first time by the 1890 Final Act of the Brussels Conference.2 Previous to that, the slave trade in Africans, that very different species of enslavement which fuelled the European colonial venture into the Western Hemisphere, was not only legal but found its justification in the international law of its time. While natural law recognised that slavery was wrong, international law prescribed it with regard to prisoners of war, a
s an alternative to being put to the sword. In Roman Law, slavery was defined as ‘an institution of jus gentium by which, contrary to nature, a person is subjected to the dominion of another’.3 The nature of the Atlantic Slave Trade made of it something never before witnessed in human history: the industrial-scale enslavement and transportation, over a 350-year period, of more than 12.5 million African men, women, and children, destined to feed the New World plantations with labour.4
For reasons which continue to elicit debate, the United Kingdom went from being the greatest slaver nation before 1807 –ships flying its flag having been responsible for transporting more than half of all slaves up to that point – to abolishing the slave trade within its colonies and carrying out a century-long naval campaign to suppress the slave trade at sea more generally. British attempts to end the slave trade were frustrated by other countries, which saw not pious motives, but an attempt by an unrivalled Royal Navy to control the seas by seeking to transform a belligerent right it had grown accustomed to during the Napoleonic Wars into a peacetime right to visit foreign ships on the high seas on the pretext of suppressing the slave trade. Ultimately, the Grotian notion of the ‘freedom of the seas’ would prevail at the expense of British efforts but, in its wake, the UK would create a web of bilateral treaties with thirty-one different States which effectively put an end to the slave trade across the Atlantic Ocean. The 1890 Brussels Conference simply confirmed this by creating a maritime zone, not between Africa and the New World, but in the Indian Ocean where an artisan slave trade was funnelled through Zanzibar, with the enslaved destined for transport north, to various parts of the Arabian Peninsula. The death knell of the legal slave trade was sounded by the 1905 Muscat Dhows case before the Permanent Court of Arbitration; and with it, the slave trade at sea was abolished.5
While the fall of the Atlantic Slave Trade would coincide with the rise of the White Slave Traffic, the international abolition of slavery itself is a more recent phenomenon. The League of Nations introduced the Slavery Convention in 1926, calling on States to criminalise enslavement, and to put an end to slavery ‘progressively and as soon as possible’. In 1948, the Universal Declaration of Human Rights was proclaimed, stating, inter alia, that ‘slavery and the slave trade shall be prohibited in all their forms’. By 1956, the Members of the United Nations acted on this proscription, requiring States to end slavery forthwith in a Supplementary Slavery Convention. While some debate would persist as to whether slavery was in law internationally abolished, the 1966 International Covenant on Civil and Political Rights put the question beyond doubt, as the process of its negotiation crystallised international customary law not only of abolition, but the prohibiting slavery worldwide.
While mention is made of slavery in the Palermo Protocol’s definition of trafficking in persons – which will be considered in more detail in due course – the 1998 Rome Statute of the International Criminal Court, for its part, introduced both the crimes against humanity and the war crimes of enslavement and sexual slavery. With regard to slavery in its contemporary manifestation, while the definition of slavery found in the 1926 Convention and reproduced, in substance, in both the 1956 Supplementary Convention and in the 1998 Rome Statute, was acknowledged as having abolished slavery, that is to say, having ended the legal right to enslave another human being, it was only recently that this definition was shown to also apply to cases of de facto slavery. The 2012 Bellagio-Harvard Guidelines on the Legal Parameters of Slavery appear to have been a watershed. Building on a determination by the High Court of Australia in the 2008 Tang case, the Guidelines demonstrate how the legal definition of slavery can be read so as to be applicable to cases of contemporary slavery. This was confirmed by the Inter-American Court of Human Rights in 2016, when it determined, as a matter of international law, that the Bellagio-Harvard Guidelines set out the means by which to conceptualise the reading of the definition of slavery in law.
That definition of slavery, first set out in 1926, reads: ‘slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised’. As the High Court noted in Tang: ‘status is a legal concept’, while ‘the evident purpose of the reference to “condition”’, the Court noted, is ‘to cover slavery de facto’.6 Where the 2012 Bellagio-Harvard Guidelines on the Legal Parameters of Slavery have provided conceptual clarity is to engage with the definition’s property paradigm and set out the parameters of those ‘powers attaching to the right of ownership’ by reference to those commonly understood instances of ownership: to possess, to use, to manage, to profit, to transfer, and/or to exhaust. Reference to possession is both the linchpin of ownership and of the conceptual understanding of contemporary slavery.
That conceptual clarity of the Bellagio-Harvard Guidelines was recognised by the Inter-American Court of Human Rights in the 2016 Fazenda Brasil Verde case against Brazil, as the Court accepted the Guidelines’ reading of the exercise of those powers attaching to the right of ownership.7
The Bellagio-Harvard Guidelines acknowledge that possession, in law, is about control. Just as a person can no longer own another person, so too can it be said that in most jurisdictions one cannot own a kilo of heroin. In the situation of the drug dealer before the law, the judge will not ask whether the dealer ‘owns’ the heroin, but rather did he or she possess the drug; did he or she control it? In the same manner, in cases of enslavement, the question turns on control tantamount to possession: did a person have control of another as they would a thing which he or she possessed? As Antony Honoré noted in his canonical writing on the subject, possession is ‘the foundation on which the whole superstructure of ownership rests’; as such, only once control tantamount to possession has been established can we understand that the powers attaching to the right of ownership amount to enslavement.8 Thus, we would not consider the mere use of a person to be enslavement, nor would we accept that the management of a person is slavery. But if control is established which is tantamount to possession, then, whether it be in law or in fact, slavery exists. The added value of the Bellagio-Harvard Guidelines is that while engaging with the property paradigm of a definition established nearly ninety years ago, it also captures the lived experience of those enslaved in a contemporary situation.9
Human trafficking and the White Slave Traffic
By contrast to slavery and the Atlantic Slave Trade, human trafficking had its origins in seeking to address the ‘White Slave Traffic’ in late nineteenth-century Europe, that is: the prostitution of women and girls. While the past forty years have seen an explosion of scholarship around the history of both the African Slave Trade and, more generally, slavery; the same cannot be said for the history of trafficking, or its origins as the white slave traffic. While human trafficking has embedded itself as a fundamental component of the contemporary international landscape, only recently has scholarship emerged to scrutinise the origins of the white slave traffic.10 As such, considerations have yet to hit a critical mass, thus what follows can only be considered as a tentative understanding of the origins of the regime of human trafficking: the birthing process of the white slave traffic.
The white slave traffic appears to have its origins in a Victorian paternalism of the latter half of the nineteenth century: a reaction to the ability of women to travel unaccompanied during the Age of Steam. Steam revolutionised the safety of travel, as it meant that passengers no longer feared the highwayman: the speed of travel was beyond the brigand, who preyed upon horse-drawn travel and exposed female travellers to, amongst other things, attacks upon their virtue (a euphemism for rape). During this era, European colonialism, which came to fruition through the large movement of troops made possible by the expansion of railways and steamships, came a call to restrict the movement of European women, who, it was said, put that expansion-ist project at risk through their sexuality. Or at least, through the sexuality of ‘fallen’ women, as calls would emerge to control the movement of women so as ‘to better re
gulate venereal disease’; this being part of a larger Victorian movement with its noblesse oblige, manifest in causes of public morality such as temperance and the evil of prostitution.11
The need to control sexually transmitted diseases had become acute during the second half of the nineteenth century, as mass prostitution had been ‘organized to serve the needs of colonial troops’.12 Thus, the origin of what would come to be known as the white slave traffic finds its source in a report presented to the International Medical Congress in 1873, which called for an end to State regulation of brothels and prostitution.13 As such, issues were deemed to be exclusively within the domestic jurisdiction of States (predating, as they did, twentieth-century liberal internationalism, manifest in the multilateralism of the League of Nations and, later, the United Nations), an internationalist campaign emerged which focused rather on the cross-border movement of women and the perceived threats to the ‘purity’ or chastity of certain populations of women, notably white women.14
The movement which ultimately led to the development of international instruments addressing the white slave traffic finds its impetus through those who sought to abolish prostitution and the involvement of States in licensing of brothels; and their use of the scandal which broke in Brussels, in 1880, of English girls in Belgian brothels.15 Yet, as Jean-Michel Chaumont shows in his pioneering research into that overall affair, the events in Belgium were limited in nature, yet the moral panic which was fomented allowed for a movement to develop which, at its core, sought to abolish not only the exploitation of sex work, but prostitution more generally, by drawing overt comparison to the abolitionist movement which was in the midst of putting an end to the Atlantic Slave Trade.16
In what was dubbed in Brussels the ‘White Slave Trade Affair’, more than a dozen people, including brothel owners, were ‘sentenced for incitement of minors to immoral behaviour’. More than anything, the scandal resulted from the negligence of police and doctors who administered the so-called French system, which had emerged during the Napoleonic era, requiring the mandatory registration of prostitutes for ‘reasons of public health and public order’, and which ‘strongly encouraged’ the establishment of brothels. Under this system, girls under the age of 21 were allowed to ply their trade on the streets, but were precluded from work in brothels. However, this changed in Brussels in 1877, as brothel owners complained of ‘unfair competition from illegal brothels’ which employed underage prostitutes. While experienced underage girls were now allowed to work in brothels, proof of their experience was made possible by their prior registration as ‘street’ prostitutes. This included foreign prostitutes from France, Germany, and the Netherlands, who were also registered under the French system.17
Routledge Handbook of Human Trafficking Page 4
