The ICMPD Guidelines outline the principles and approaches of a TRM, including:
A human rights-based approach;
Government ownership;
Civil society participation;
A multi-disciplinary and cross-sectoral approach;
Respect for the best interests of the child; and
Accountability and transparency.93
ICMPD makes recommendations for the geographic expansion and future development of TRMs in The Way Forward.94 The recommendations stress the necessity for continued political commitment, full implementation of the legal framework, the revision and updating of SOPs, and the creation of tools for better knowledge management, such as a TRM website.
As the CoE and ICMPD consider launching a new joint initiative aimed at strengthening the identification of, and assistance to, trafficked persons through the application of TRMs,95 it is hoped that protection measures, including data protection, will take equal importance with investigation and prosecution efforts. Notably, in commenting on the EU Strategy, the European Data Protection Supervisor stressed that data protection is part of a victim’s rights, and that every trafficked person should receive information on how to protect their rights, including information about the work of national data protection authorities.96 Better respect for data protection rules will likely also lead to a stronger relationship of trust between the trafficked person, service providers, and the authorities.
Conclusion
Over the past decade, NRMs have evolved from a concept into complex structures and processes designed to respect the human rights of trafficked persons, while pursuing the complementary aims of protection and prosecution. Many different models exist at the sub-national and national levels. Furthermore, co-operation efforts have also started to show results at the transnational level. Legislative changes in the EU and CoE have embedded a human rights-based approach that is now being transposed and implemented at the national level. This is an opportunity to bring more understanding, resources, and capacity to NRMs.
However, it remains a challenge in policy and practice to shift trafficking out of the irregular migration or traditional law enforcement framework and to address it with a human rights-based approach. While there are many indicators for identification, and models for co-operation, we are still falling short on implementing a human rights-based approach and truly empowering trafficked persons. Empowerment would mean a more participatory approach to policy development and programme design. It would mean complaints and appeals mechanisms within NRMs, as well as participatory tools for monitoring and evaluation that feed into reforming NRMs. It would mean judging success or failure by the well-being and future perspectives of trafficked persons themselves.
Notes
1 UN Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (2000).
2 Anti-Slavery International, Human Traffic, Human Rights: Redefining Victim Protection (Horsham, UK: The Printed Word, 2002), http://www.antislavery.org/wp-content/uploads/2017/01/hum_traff_hum_rights_redef_vic_protec_final_full.pdf.
3 Scottish Human Rights Commission, Human Rights Based Approach (2015), http://www.newcarestandards.scot/wp-content/uploads/2015/10/Human-Rights-Based-Approach.pdf and more at: http://www.scottishhumanrights.com/humanrights/humanrightsbasedapproach
4 OSCE ODIHR, National Referral Mechanisms: Joining Efforts to Protect the Rights of Trafficked Persons, A Practical Handbook (Warsaw: OSCE ODIHR, 2004).
5 Ibid., p. 15.
6 Ibid.
7 Ibid.
8 The OSCE Action Plan to Combat Trafficking in Human Beings 2003 –OSCE Ministerial Council Decision No. 2/03, “Combating Trafficking in Human Beings” (2003).
9 Article 5, Charter of Fundamental Rights of the European Union.
10 Article 79, Consolidated version of the Treaty on the Functioning of the European Union, OJ C 326, 26.10.2012 (pp. 47–390).
11 Ibid., Article 67.
12 Article 11, Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA, OJ L 101, 15.4.2011 (pp. 1–11).
13 UNHCR, OHCHR, UNICEF, UNDOC, UN Women, and ILO, Joint UN Commentary on the EU Directive – A Human Rights-based Approach: Prevent. Combat. Protect: Human Trafficking (2011), http://www.unodc.org/documents/human-trafficking/2011/UN_Commentary_EU_Trafficking_Directive_2011.pdf.
14 Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA, OJ L 315, 14.11.2012 (pp. 57–73).
15 Ibid., Article 8.
16 PICUM, Info Sheet EU Victims’ Directive, http://picum.org/picum.org/uploads/file_/Victims%20Directive%20Info%20Sheet-%20FINAL.pdf.
17 European Commission, DG Justice Guidance Document Related to the Transposition and Implementation of Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 Establishing Minimum Standards on the Rights, Support and Protection of Victims of Crime, and Replacing Council Framework Decision 2001/220/JHA, Ref. Ares(2013) 3763804–19/12/2013.
18 Ibid., para 14 [emphasis in original].
19 Council Directive 2004/81/EC of 29 April 2004 on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who co-operate with the competent authorities, OJ L 261, 6.8.2004 (pp. 19–23).
20 Articles 13 & 14, Council of Europe Convention on Action against Trafficking (2005).
21 Council Directive 2004/81/EC of 29 April 2004 on the residence permit issued to third-country nationals.
22 European Commission, Communication to the Council and the Parliament on the Application of Directive 2004/81 on the Residence Permit Issued to Third-country Nationals Who Are Victims of Trafficking in Human Beings or Who Have Been the Subject of an Action to Facilitate Illegal Immigration, Who Cooperate With the Competent Authorities, {SWD(2014) 318 final}, 8, lists: Austria, Spain, Finland, Croatia, Italy, and Portugal.
23 Ibid., p. 8, lists: Belgium, Greece, France, Luxembourg, Hungary, Netherlands, and Sweden.
24 Ibid., p. 10, lists: Belgium, Greece, Poland, and France.
25 European Commission, DG Justice Guidance Document.
26 Recital 62, EU Victims’ Directive.
27 Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence (2011), www.coe.int/en/web/istanbul-convention/text-of-the-convention.
28 Explanatory Report to the Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence (2011), para 119.
29 European Commission, DG Justice Guidance Document.
30 Save the Children, Child Abuse and Adult Justice: A Comparative Study of Different European Criminal Justice Systems Handling of Cases Concerning Child Sexual Abuse (Stockholm: Save the Children Sweden, 2002).
31 PROMISE project web site: www.childcentre.info/promise/.
32 PICUM, EU Victims’ Directive Transposition Checklist (2014).
33 Victim Support Europe, Handbook for Implementation of Legislation and Best Practice for Victims of Crime in Europe (2013).
34 Group of Experts on Trafficking in Human Beings of the European Commission, Report of the Experts Group on Trafficking in Human Beings (2004).
35 Ibid., p. 153.
36 Ibid., p. 21, para 30.
37 Ibid., p. 22, para 31.
38 Ibid., p. 22, para 32.
39 Group of Experts on Trafficking in Human Beings of the European Commission, Opinion No 7/2010 of the Group of Experts on Trafficking in Human Beings of the European Commission: Proposal for a European Strategy and Priority Actions on Combating and P
reventing Trafficking in Human Beings (THB) and Protecting the Rights of Trafficked and Exploited Persons (2010).
40 Ibid., p. 20.
41 EU Strategy towards the Eradication of Trafficking in Human Beings 2012–2016.
42 Ibid., p. 6.
43 The Hague Ministerial Declaration on European Guidelines for Effective Measures to Prevent and Combat Trafficking in Women for the Purpose of Sexual Exploitation (1997).
44 Recital 27 & Article 19, EU Trafficking Directive.
45 Council of the European Union, Council Conclusions on Establishing an Informal EU Network of National Rapporteurs or Equivalent Mechanisms on Trafficking in Human Beings of 4 June 2009.
46 Council of the European Union, Council Conclusions on the New EU Strategy Towards the Eradication of Trafficking in Human Beings 2012–2016 (2012).
47 Ibid., p. 4.
48 European Commission, Mid-term Report on the Implementation of the EU Strategy Towards the Eradication of Trafficking in Human Beings {COM(2014) 635 final} (2014).
49 Article 12(3), EU Trafficking Directive; and EU Strategy.
50 EU Strategy.
51 Grundell, L.R., EU Anti-Trafficking Policies: From Migration and Crime Control to Prevention and Protection (2015).
52 Group of Experts on Trafficking in Human Beings of the European Commission, Opinion No 7/2010.
53 Group of Experts on Action against Trafficking in Human Beings (GRETA), 4th General Report on GRETA’s Activities (2015).
54 Ibid., p. 24.
55 Ibid., p. 41.
56 Ibid., p. 33.
57 Ibid., p. 33.
58 Ibid., p. 45.
59 EU Strategy, 7.
60 European Commission, Study on High-risk Groups for Trafficking in Human Beings (2015), https://ec.europa.eu/anti-trafficking/sites/antitrafficking/files/study_on_children_as_high_risk_groups_of_trafficking_in_human_beings_0.pdf.
61 Anti-Trafficking Monitoring Group, Proposal for a Revised NRM for Children (2014).
62 Article 3(1), Committee on the Rights of the Child, General Comment No. 14 on the Right of the Child to Have His or Her Best Interests Taken as a Primary Consideration (2013).
63 Anti-Trafficking Monitoring Group, Proposal for a Revised NRM for Children.
64 Ibid.
65 Durable Solutions for Separated Children in Europe Project web site: www.irishrefugeecouncil.ie/children-and-young-people/durable-solutions-for-separated-children-in-europe.
66 Articles 14(1) & 16(2), EU Trafficking Directive.
67 Article 12, EU Trafficking Directive.
68 UNHCR, The Identification and Referral of Trafficked Persons to Procedures for Determining International Protection Needs, PPLAS/2009/03 (2009), www.refworld.org/docid/4ad317bc2.html.
69 UNHCR, OHCHR, UNICEF, UNDOC, UN Women, and ILO, Joint UN Commentary on the EU Directive.
70 Group of Experts on Action against Trafficking in Human Beings (GRETA), 5th General Report on GRETA’s Activities (2016).
71 Ibid., p. 41.
72 Ibid.
73 UNHCR, Guidelines on International Protection No. 7: The Application of Article 1A(2) of the 1951 Convention and/or 1967 Protocol Relating to the Status of Refugees to Victims of Trafficking and Persons At Risk of Being Trafficked, HCR/GIP/06/07 (2006).
74 EU Trafficking Directive, Article 11(4).
75 UNHCR, OHCHR, UNICEF, UNDOC, UN Women, and ILO, Joint UN Commentary on the EU Directive, at 11.
76 European Migration Network, Identification of Victims of Trafficking in Human Beings in International Protection and Forced Return Procedures (2014).
77 UNHCR, Guidelines on International Protection No. 7.
78 European Migration Network, Identification of Victims of Trafficking, 11–12.
79 Ibid.
80 Ibid., p. 14.
81 EU Regulation No. 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast) (2013).
82 Ibid., Article 5.
83 EASO Work Plan 2015, http://www.easo.europa.eu/sites/default/files/public/Work-Programme-20151.pdf, at 7.
84 European Commission, Mid-term Report on the Implementation of the EU Strategy Towards the Eradication of Trafficking in Human Beings.
85 EU Strategy, 6.
86 Council of the European Union, Council Conclusions on the New EU Strategy Towards the Eradication of Trafficking in Human Beings 2012–2016 (2012).
87 European Commission, Guidance Document on the Transposition of the Victim Directive.
88 ICPMD, Cooperation Beyond Borders: Development of Transnational Referral Mechanisms for Trafficked Persons (2009).
89 ICMPD, Guidelines for the Development of a TRM for Trafficked Persons – TRM-EU (2010).
90 ICMPD, Listening to Victims: Experiences of Identification, Return and Assistance in South-Eastern Europe (2007).
91 ICMPD, Guidelines for the Development of a TRM for Trafficked Persons.
92 ICMPD, The Way Forward in Establishing Effective Transnational Referral Mechanisms in Trafficking Cases: A Report Based on Experiences in South-Eastern Europe (2012).
93 ICMPD, Guidelines for the Development of a TRM for Trafficked Persons.
94 ICMPD, The Way Forward.
95 GRETA, 5th General Report.
96 European Data Protection Supervisor, EDPS Comments on the Communication From the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions –“The EU Strategy Towards the Eradication of Trafficking in Human Beings 2012–2016” (2012).
Part 5
Critical discourses of the anti-trafficking framework
25
Sex and work
Understanding sexual commerce in an era of ‘globalisation’
Svati P. Shah
Introduction
This chapter discusses economic policies that are signified by terms like ‘neoliberalism’ and ‘globalisation’, and the relationship of these policies to sexual commerce. The relationship is generally theorised as being one of increasing proportions, i.e., that ‘neoliberalism’ leads to an increase in sexual commerce and, worse, to the heightened exploitation and ‘trafficking’ of women (as opposed to people of other genders) who sell sexual services. Instead, this chapter shows that the relationship between ‘neoliberalism’ and sexual commerce is varied and complex. The challenges in delineating a clear relationship between these two phenomena are compounded by the fact that both sets of terms are disputed, vague, or both. The chapter begins by defining the terms, and then discusses how they may be seen to relate to one another. The writer’s premise is that what is called ‘neoliberalism’ or ‘globalisation’ is not new but, rather, that the economic policies that have been bundled together under the moniker of ‘free trade’ since the late 1970s have reified national borders in a new way, with negative consequences for poor migrant workers. Whereas these policies have facilitated the cheaper and more voluminous movement of goods and services across national borders, they have also made the migration of people a more difficult and more highly surveilled affair. The difficulties attendant to cross-border migration affect all migrants working informally and illegally, including those negotiating their livelihoods through sexual commerce. Furthermore, the impacts that neoliberal economic policies have had on national economies, and especially on those surviving at or below the poverty line, have impacted sex workers as well as other informal sector workers who may or may not be migrants themselves.
There are a number of reasons why it is impossible to say whether, in the contemporary economic context, ‘more’ people are surviving economically through sexual commerce than in previous times. However, it is possible to claim that when borders are more difficult to cross legally, various means of illegal and semi-legal border crossings become available, and that these means come with greater ri
sks for those who must use them. That illegal and semi-legal migration pathways increase the vulnerabilities of some migrants to exploitation and abuse is clear, although the proportion and nature of these are difficult to track systematically. That this exploitation or abuse would conform to accepted definitions of trafficking is far from clear, for three reasons. Firstly, because the trafficking framework tends to conflate the concept of ‘trafficking’ with ‘prostitution,’ it is more likely to apprehend sexual commerce as exploitation and abuse rather than debt bondage or wage theft, for example, as fundamental violations in a given case. Second, because any given migrant worker’s journey from their place of origin to where they may ultimately sell their labour is complex, highly mediated, and qualitatively varied from start to finish, there are times when the application of anti-trafficking laws actually target the people who facilitate illegal migration at the request of migrants. Thirdly, because laws and policies targeting trafficking do not target all forms of exploitation, violence and abuse; rather, they highlight certain kinds of activities that are termed ‘trafficking’.
The problem with terms
The problem at the outset is that both sets of terms –‘neoliberalism’ or ‘globalisation’; and ‘sex work’, or ‘sexual commerce’ –are either vague, as in the case of the former set of terms, or they are contested, as in the latter. Before moving forward with an argument regarding how these terms may be theorised together, it is necessary to clarify what is meant by each set of concepts. Let us start with ‘neoliberalism’ and ‘globalisation’, two terms that signify a certain critique without, unfortunately, stating clearly what the object of that critique may be. The term ‘neoliberalism’, in particular, has gained a certain status within a mode of academic and other critical writing that aims to: a) criticise widening gaps between those with wealth and those without; b) position itself in relation to global processes; and c) decentre the West, and the concerns of individual nations within the West, in favour of a more ‘global’ perspective. The problem with ‘neoliberalism’ is not in any of the critical aims that it seeks to address, but that the term itself manages to escape critique, or even contextualisation, while being used to deploy critiques of everything from ‘imperialism’, to poverty, to multinational corporatisation.
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