8 Honoré, A.M., “Ownership”, in Guest, A.G. (ed.), Oxford Essays in Jurisprudence (Oxford: Oxford University Press, 1961), p. 113.
9 See generally, Allain, J. (ed.), The Legal Understanding of Slavery: From the Historical to the Contemporary (Oxford: Oxford University Press, 2012).
10 Note the programme of the conference on Trafficking, Smuggling and Illicit Migration in Historical Perspective, held at the Birkbeck Institute for the Humanities, London, in June 2015; and see Laite, J., “Between Scylla and Charybdis: Women’s Labour Migration and Sex Trafficking in Early Twentieth Century” (2017) 62 International Review of Social History 37.
11 Nadelmann, E., “Global Prohibition Regimes: The Evolution of Norms in International Society” (1990) 44 International Organization 514.
12 Reanda, L., “Prostitution as a Human Rights Question: Problems and Prospects of United Nations Action” (1991) 13 Human Rights Quarterly 207; also see Demleitner, N., “Forced Prostitution; Naming an International Offense” (1994–1995) 18 Fordham International Law Journal 163.
13 Bullough, V. and Bullough, B., Women and Prostitution: A Social History (Buffalo: Prometheus Books, 1987), p. 263.
14 United Nations, Economic and Social Council, Commission on Human Rights, Report of the Special Rapporteur on violence against women, its causes and consequences, Ms. Radhika Coomaraswamy, on trafficking in women, women’s migration and violence against women, submitted in accordance with Commission on Human Rights resolution 1997/44, 29 February 2000, UN Doc. E/CN.4/2000/68, p. 10. See also Levine, P., Prostitution, Race, and Politics: Policing Venereal Disease in the British Empire (London: Routledge, 2003); and Doezema, J., “Loose Women or Lost Women? The Re-Emergence of the Myth of White Slavery in Contemporary Discourses of Trafficking in Women” (2000) 18 Gender Issues 23.
15 Chaumont, J.-M. and Machiels, C. (eds.), Du sordide au mythe: L’affaire de la traite des blanches (Bruxelles: La Découverte, 2009).
16 Chaumont places the origins of campaigns against the White Slave Trade as transpiring in Belgium in 1880, then in the United Kingdom in 1885, in France in 1902, and in the United States in 1907. See ibid., 235 (n. 849).
17 Chaumont, J.-M., “The White Slave Trade Affair (1880–1881): A Scandal Specific to Brussels?” (2011) 46 Brussels Studies 3.
18 Ibid., 2–4.
19 Ibid., 5.
20 Ibid., 4.
21 Chaumont, J.-M. and Machiels, C. (eds.), Du sordide au mythe: L’affaire de la traite des blanches (Bruxelles: La Découverte, 2009) p. 237. Translated from the French.
22 Articles 1 to 4, International Agreement for the Suppression of the White Slave Traffic, 18 May 1904.
23 See Allain, J., “The White Slave Traffic in International Law” (2017) 1 Journal of Trafficking and Human Exploitation 1. The International Convention for the Suppression of the White Traffic, 4 May 1910, read, in part:
Article 1: Whoever, in order to gratify the passions of another person, has procured, enticed, or led away, even with her consent, a woman or girl under age, for immoral purposes, shall be punished, notwithstanding that the various acts constituting the offence may have been committed in different countries.
Article 2: Whoever, in order to gratify the passions of another person, has, by fraud, or by means of violence, threats, abuse of authority, or any other method of compulsion, procured, enticed, or led away a woman or girl over age, for immoral purposes, shall also be punished, notwithstanding that the various acts constituting the offence may have been committed in different countries.
24 Flexner, A., Prostitution in Europe (1914); as reproduced in Chaumont, J.-M. and Machiels, C. (eds.), Du sordide au mythe: L’affaire de la traite des blanches (Bruxelles: La Découverte, 2009) p. 236.
25 Articles 1 and 6, International Convention for the Suppression of the Traffic in Women and Children, 13 September 1921.
26 United Nations, Economic and Social Council, Commission on Human Rights, Sub-Commission on Prevention of Discrimination of Minorities, Working Group on Slavery, Suppression of Trafficking in Persons and of the Exploitation of the Prostitution of Others: Note of the Secretary-General (16 June 1976, UN Doc E/CN.4/Sub.2/AC.2/5), p. 3.
27 Article 1, International Convention for the Suppression of the Traffic in Women of Full Age, 11 October 1933.
28 Articles 1 and 2, Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others. Emphasis added.
29 Article 6 of the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others reads:
Each Party to the present Convention agrees to take all the necessary measures to repeal or abolish any existing law, regulation or administrative provision by virtue of which persons who engage in or are suspected of engaging in prostitution are subject either to special registration or to the possession of a special document or to any exceptional requirements for supervision or notification.
30 Article 3, Palermo Protocol.
31 Anonymous, De l’organisation de la traite et de l’esclavage des blanches à Bruxelles (1880). It might be noted that the conflation continues, as there appears to be growing consensus of the use of ‘Modern Slavery’ as an umbrella term to capture both human trafficking and slavery, as well as forced labour. See for instance the International Labour Organisation, ILO Data Initiative on Modern Slavery (Geneva: ILO, 2015).
32 Chaumont, J.-M. and Wilbrin, A.-L., “Traite des noirs, traite des blanches: même combat?” (2007) 43 Cahiers de recherche sociologique 122–123.
33 Ibid., 123. Translated from the French.
34 Ibid., 125. Translated from the French.
2
Trafficking in human beings as a crime and as a human rights violation
Joachim Renzikowski
Introduction
The Preamble to the Council of Europe Convention on Action against Trafficking in Human Beings designates trafficking as “a violation of human rights and an offence to the dignity and integrity of human beings”. Similarly, Directive 2011/36/EU, Recital 1 calls human trafficking “a serious crime” and “a gross violation of fundamental rights”.1 This chapter assesses whether trafficking in human beings (THB) violates human rights, and considers the consequences for States.
Human rights as rights of every human being
Human rights are defined as certain fundamental rights to which every human being is entitled just because she or he is a human being. They are inherent in all human beings,2 irrespective of colour, ancestry, sex, ethnic origin, or social status. As Kant puts it:
Freedom is independence of the compulsory will of another; and in so far as it can coexist with the freedom of all according to a universal law, it is the one sole original, inborn right belonging to every man in virtue of his humanity.3
Human rights are universal. Hence, the very concept of human rights entails a legal status independent of any political system. They are not benefits given by a State to its subjects.
Originally, human rights were intended as negative rights against State intervention: as areas of legally protected freedom which limited the power of the State administration. But there are also rights that create duties to act. A classic example is the right of habeas corpus: the guarantee of personal freedom, under Article 5 of the ECHR and Article 9 of the ICCPR, is institutionally secured by a procedure for the judicial examination of State detention.4 Furthermore, guarantees of human rights are extended to protect the individual from violations by others. The State has the duty to prevent harms by third parties, in particular by the use of the criminal law, and to investigate and prosecute such offences expeditiously and effectively.
This duty has been vested in the concept of human rights from the beginning. Because of their nature, being anterior to the State, there is a duty on persons to respect the human rights of others. Based on this, most political social contract theorists explicate the central goal of the State: because no individual can secure their rights
effectively in the state of nature, the State must fulfil this function. Every individual waives his natural right to self-defence in favour of a State monopoly on the legitimate use of coercion. In return, the State adopts the duty to secure the rights of all citizens, if necessary by legal coercion, and to install the requisite institutions (courts, police) to achieve this. So by defining human trafficking as a violation of the victim’s human rights, these rights are in no way privatised; nor are States relieved of their duty.
In this context, States can be held to account for remedial action; compensation is no longer only a matter of civil law involving private court action. The State itself has to ensure that compensation is paid, and take other actions; for example, the introduction of humanitarian residence permits, or psycho-social care for the victims. In this way, human rights are transformed from purely negative to positive rights. Also, the right to freedom from slavery and forced labour requires the existence of a right against others not to violate individual self-determination, and entails a right to require the State to take all necessary steps to prevent THB, and a right to access humanitarian aid.
Trafficking in human beings as a human rights violation
Manifestations of human trafficking
Human trafficking operates at different levels, starting with the recruitment, transportation, transfer, harbouring, or receipt of the victims, with the objective of actual exploitation. Culpability arises on each level. THB since the adoption of the Palermo Protocol entails the recruitment and the transfer of victims. The punishment of actual exploitation is a matter for national criminal law and is, as such, required by the Palermo Protocol. Thus, effective legal measures to address THB require more than the mere adoption of international definitions.
The pyramid of labour exploitation5
The top of the pyramid is made up of the classic types of THB – such as exploitation through forced labour that is usually accompanied by coercion or deprivation of liberty (see Figure 2.1).6 The middle layer consists of people who agree to adverse working conditions because of their vulnerability (e.g., particular predicament, lack of experience, lack of judgment, or personal weakness). The base consists of consensual labour – but with certain adverse working conditions that are not necessarily punishable at law. This does not have to be the result of exploitation. Many factors can convince people to work under such conditions. This practice grants considerable advantages over competitors who are not willing to expose their workforce to similar working conditions; but these forms of hidden exploitation can even be beneficial to both the labourers and the providers of informal work, because of the opportunities for tax evasion.
The pyramid shows that labour exploitation is characterised by a smooth transition from each individual level into the others.7 The discrepancy between the work done and the pay awarded is less important than the coercion to which a worker is exposed. In the case of slavery, basically any labour conditions can be enforced by that method. In the current discourse, ‘decent work’ and ‘forced labour’ are commonly used terms. ‘Decent work’ refers to objective benchmarks for the adequacy of an employment that are agreed upon by society, regardless of the intention of the employer and employee.8 Labour exploitation begins when actual working conditions fall short of those defined as ‘decent work’. This may start with subtle pressure, or where emergency situations or personal circumstances are abused, continues to employment that cannot be terminated by the employee, and ends in physical coercion (e.g., bonded labour). However, forced labour is not yet synonymous with low salaries and bad terms of employment. Moreover, it often seems that employment is entered into voluntarily, and then mutates over the course of time into exploitation.
Figure 2.1 Pyramid of labour exploitation
The metaphor of the pyramid shows that a human rights violation exists only in cases of coercion. Under it, the assessment is problematic, as the following judgment of the German Federal Court of Justice (Bundesgerichtshof) in 1997 demonstrates. A contractor had employed two Czech frontier workers as masons at a gross hourly wage of DM 12.70. The standard wage was DM 19.05 per hour, and the contractor paid his German workers DM 21 per hour. The court assessed the payment of one-third under the standard rate as wage extortion. The assumption that both workers had become victims because of their inexperience9 appears to be far-fetched, as there were good reasons to work in Germany. Both received monthly earnings of about DM 2,000 –which corresponded in the Czech Republic to an upper-middle class salary. By interpreting this labour relation as immoral exploitation, the German court deprived the Czech construction workers of a lucrative – from their perspective – source of income. They had no realistic prospect of being hired under standard German conditions. In fact, this judgment amounts to the protection of domestic workers against wage dumping by foreign workers in the above-mentioned industrial sector. Thus, no violation of the human rights of the Czech workers seems to exist. On the other hand, the question arises: at what point can a decision to accept certain working conditions no longer be deemed to have been an autonomous one, given the vulnerability of the employee? The answer is difficult in theory and practice: because it is not clear cut at which point a person has no “acceptable alternative but to submit to the abuse involved”.10
The pyramid of sexual exploitation
Although the metaphor of the pyramid was developed to show labour exploitation, it may be applied to other forms of exploitation. The whole range of commercial sex can be integrated into the pyramid. The base level consists of voluntary sexual services – but with adverse conditions that are not necessarily punishable at criminal law. For example, as long as unsafe sex will be demanded, some sex workers will be prepared to engage in such practices to increase their income. The next level consists of cases in which a person accepts bad conditions in a situation of vulnerability. Many prostitutes come from dysfunctional families and have experienced sexual abuse. Other people with low self-respect, minimal education, or drug addiction may easily succumb to the attraction of supposed quick earnings. They may fall into the clutches of exploitative procurers who control them by subtle pressure. The worst form, at the top of the pyramid, is made up of the classic types of forced prostitution.11
The metaphor of the pyramid presupposes the acceptance of prostitution as legal. Only by accepting this can commercial sex be regulated in the necessary way. If prostitution on the whole is seen to be a human rights violation,12 then, for this fundamental reason, it is not possible to engage voluntarily in commercial sex.
Other forms of exploitation
With regard to begging,13 the metaphor of the pyramid exposes important differences to labour exploitation. The top of the pyramid is similar: people can be forced into begging through violence or threats. To this extent, the difference to forced labour lies only in the activity. But exploitation on the lower levels, without coercion, is structured differently. Begging is not subject to the legal standards of labour, although in some jurisdictions it is an offence. Exploitation can happen when a begging person has to deliver a significant part of their earnings to the trafficker.
The exploitation of criminal activities14 is different. The top level of the pyramid is where somebody is more or less forced to commit a crime. But a legal concept of exploitation below this level is not possible. One can imagine that a criminal takes a high risk of detection and gets only a minimal reward. But a claim for a fair share of illegally obtained profits, or for fair earnings, is not generally possible, because this would amount to profiting from an illegal act. The law cannot forbid and prosecute crimes on the one hand while, on the other, requiring that crimes be committed in a fair manner. The law does not provide perpetrators with a forum for their unlawful acts.
Summary
The pyramid of exploitation shows that the human rights of the exploited person are more violated the more their freedom to resist is restricted. The role of the traffickers is to deprive the victims of their self-determination and, by doing so,
to treat them de facto as things and not as persons. Slaves are owned like things;15 people are generally free to change their status at any time. Those who are living without that freedom are not treated as persons.16 The same is true for debt bondage that, by its nature, is unlimited.17 In this sense, the perpetrator exercises “any or all of the powers attaching to the right of ownership over a person”.18 So the nature of trafficking as a human rights violation, and as a crime, is that it aims at that kind of exploitation – exploitation forbidden by Article 4 of the ECHR and Article 8 of the ICCPR.
Critical objections
The misleading concept of human trafficking
Sometimes the trafficked persons do not see themselves as ‘victims’. From their perspective, the traffickers offer them a way out of extreme poverty, and working under bad conditions or in prostitution seems to be a better option than hunger. They do not want to be incapacitated; they do not want to be rescued.19 They just want their hard-earned money. In fact, the debate here is not about the liberation of victims of THB but about the consequences of illegal labour migration. The associated problems would be reduced if States would agree to a system of permitted labour migration. Therefore, it is critically important to offer the victims alternatives to living with exploitation. Entry restrictions do not really prevent human trafficking, but increase the vulnerability and the costs to the victims.20
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