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Migration
Sexual commerce, in general, involves some element of movement from one’s place of origin. This is one ostensible and immediate relationship between neoliberalism and sexual commerce, as well. In the Global South, this kind of migration must be understood within the context of the increased need to migrate in search of any viable work. The links between migration and economic sustainability for people living in poverty are occurring, in India, for example, against the backdrop of depleted water tables, more arable land becoming drought-prone, and areas that have received few economic benefits of industrialisation and economic development. All of these macro-level processes have clear links with ‘neoliberalism’ and, specifically, with making many more areas of the world subject to transnational market fluctuations. The vastly changing fortunes of people reliant on sugar production in India is a good example of how increased cash-cropping of a water-intensive plant has led to both environmental degradation and higher rates of migratory labour, both to and from these regions.
Regions which are said to be actively ‘under-developed’ supply the lion’s share of economic migrants to the world’s economies, while also serving as a driver for economic growth in sectors where more labour is required, as in the expansion of ‘extractive’ economies like mining and logging. Agricultural labour has generally been the main mode of survival for landless peasants in so-called ‘under-developed’ areas, but this is also less and less sustainable, as food security decreases with the increased ownership consolidation of land used for food production, seed patenting, decreased farm subsidies, and increased debt burden among independent and small scale farmers throughout the Global South.
The double standard at work in easing barriers to the migration of capital, through decreased tariffs on foreign investment via international trade agreements, while increasing the barriers to cross-border migration, especially affects landless workers who must migrate to survive. This double standard has affected sexual commerce by limiting access to travel for cross border migrants who ‘seem’ to be migrating for the purpose of selling sexual services, while simultaneously contributing to the conditions necessary for exploiting migrants, who must now pay exorbitantly in order to cross borders illegally, for example. At the same time, the heightened migration of capital across international borders, as well as heightened forms of capitalisation within borders, have direct consequences for people selling sexual services domestically, as in, for example, the displacement of sex workers from urban brothels located in city centres, which, in cities like Mumbai, are being replaced by shopping malls and upmarket residences.
The debate on prostitution is full of terms which imply either choice or coercion, particularly in relation to the debate on what the conditions for migration in relation to sexual commerce may be. On their own, making a distinction between ‘choice’ and ‘coercion’ is somewhat misleading, because all economic migration carries elements of both choice and coercion, e.g., when women are subjected to patrilocal marriage practices and are obligated to become economically productive for their husband’s family, or, conversely, when migrants seek assistance in circumventing cross-border labour restrictions. While people have always migrated in search of better opportunities for survival, the current historical period may well represent a particular moment in the history of how and where people have migrated for their survival; a moment that may be said to be characterised by high levels of movement of people for work and better economic opportunities, under extremely surveilled and regulated border regimes. If we take a political economic frame into account, and if we use such a frame to understand contemporary sexuality politics, then the liberal individualist paradigms that produce violent ‘traffickers’ versus coerced ‘innocent victims’ as tropes for understanding sexual commerce are no longer sufficient to explain what sexual commerce is, how it operates, and why it is inextricably linked with the geopolitics of capital.
Unfixing the brothel
One example of where we may make a direct link between a macro-economic process and a local one is in the ways in which red light districts in cities throughout the Global South are changing, being displaced in favour of properties that can produce more surplus value than a brothel. The project from which the book Street Corner Secrets12 is derived focused on a subsection of women who were migrants working in Mumbai’s informal sectors. In their villages, either they or their parents had been subsistence farmers and agricultural day-wage labourers. In the city, they survived as construction workers who solicited paid manual labour in Mumbai’s day-wage labour markets, or by selling sexual services, or both. In tracing the livelihood trajectories of women working as construction and sex workers, the project problematised the idea that sex worker-ness is stable and fixed: to rescue an individual ‘out’ of sex work is to assume that it is a category with clear boundaries ‘into’ which one is forced. In problematising the fixity of sex worker identity, the project also problematised the fixity of spaces in which sexual commerce was solicited. For example, nakas –public day-wage labour markets where migrant workers waited for contractors for construction jobs – were also spaces where women solicited clients for sexual services; brothels were also homes and outreach centres for NGOs. In problematising the fixity of categories for the places and people who animate the analytic narrative for sexual commerce, the book produced a view of the exchange of sexual services for money, and/or other paid work, within a complex discursive matrix that includes life and livelihood histories, the production of urban space, mutually constituted discourses of caste and gender, and the ways in which poor migrants navigate the idiosyncrasies of State institutions, from the police, to education, to healthcare.
The idea that urban spaces for sexual commerce are fluid differs from the prevailing carceral logic of prostitution-abolitionism, which identifies brothels as fixed sites for prostitution, and therefore as sites of trafficking and violence. According to this logic, erasing brothels erases violence as well, offering a quick solution to an intractable problem. This logic has been produced within the auspices of the intensification of the class-based geography of Mumbai over the course of the past two decades; during which time the municipality removed street hawkers and demolished slums throughout the city (in keeping with similar moves in the cities of Pune, New Delhi, Bangalore, and Ahmedabad).
The deepening spatialisation of social divisions between people of different economic classes and castes has meant that, for the city’s middle and upper classes, poverty recedes even further into the ordinariness of daily life. By all accounts, this means that the face of Mumbai is changing, perhaps more rapidly and visibly than ever before in its history.
A brief conclusion
Using this discussion as a proposition, or perhaps as a set of discursive orientations, we may ask what story we can tell of sexuality politics, particularly outside the West. Would it be a story of progress facilitated by ‘globalisation’? Or would it be something altogether more complex? If we have developed a ‘theory’ of sex work, or if we have theorised around and with sex work as a conceptual frame, then we have done so with the idea of sexual commerce as something imminently knowable, because it is conceived as something physically sequestered, in the brothel or the market, and quantifiable with respect to the ‘behaviours’ of solicitation, intercourse, encounters, and so on. Concomitant with the idea that prostitution is timeless, and its being seen as clearly demarcated and always knowable, this means that it has been rendered as actionable. We are in a similar situation with respect to queer and transgender subjectivity, where the knowability of queer and transgender lives is constantly upended by the rapidly shifting terms of the debate. The neoliberal frame can serve to reveal the limitations of biologised notions of sexuality, while allowing for an emphasis on the analytics of scale, and the constant changeability of all of these paradigms.
Notes
1 Springer, S., Birch, K., and MacLeavy, J. (eds.), Handbook of Neoliberalism (New York and London: Routled
ge, 2016); Harvey, D. A Brief History of Neoliberalism (Oxford: Oxford University Press, 2005).
2 (for example) People’s Union for Democratic Rights (Delhi), “Driving Force: Labour Struggles and Violation of Rights in Maruti Suzuki India Limited” (New Delhi: PUDR, 2013). Accessed at www.pudr.org/?q=content/driving-force-labour-struggles-and-violation-rights-maruti-suzuki-india-limited, June 17, 2017.
3 Kempadoo, K. (ed.), Trafficking and Prostitution Reconsidered: New Perspectives on Migration, Sex Work and Human Rights (New York: Routledge, 2016).
4 Shah, S., Street Corner Secrets: Sex, Work and Migration in the City of Mumbai (Durham, NC: Duke University Press, 2014).
5 Strathern, M., The Relation: Issues in Complexity and Scale (Cambridge: Prickly Pear Press, 1995).
6 Marston, S., “The Social Construction of Scale” (2000) 24(2) Progress in Human Geography 219–242.
7 Shah, S., “Distinguishing Poverty and Trafficking: Lessons From Field Research in Mumbai” (2007) 14 Georgetown Journal on Poverty Law & Policy 441.
8 Swedish Department for Global Development, “Poverty and Trafficking in Human Beings: A Strategy for Combating Trafficking in Human Beings through Swedish International Development Cooperation” (Stockholm: Swedish Ministry of Foreign Affairs, 2003), p. 15, Accessed at http://www.sweden.gov.se/sb/d/574/a/20262, June 17, 2017.
9 Gonzales, S.M., “Poverty and Sex Trafficking: How Will Warren Buffett’s $ 30.7 Billion Donation to the Bill & Melinda Gates Foundation, Earmarked to Fight Poverty, Affect Global Sex Trafficking, the Cause of Which Is Rooted in Poverty?” (2006) Captive Daughters Media 4. Accessed at https://www.scribd.com/document/194870949/Poverty-Sex-Trafficking, June 17, 2017.
10 Shah, S., “Distinguishing Poverty and Trafficking: Lessons From Field Research in Mumbai” (2007) 14 Georgetown Journal on Poverty Law & Policy 441.
11 Hall, S., Massey, D., and Rustin, M., “After Neoliberalism? The Kilburn Manifesto” (2015) Soundings: A Journal of Politics and Culture.
12 Shah, S., Street Corner Secrets: Sex, Work and Migration in the City of Mumbai (Durham, NC: Duke University Press, 2014).
26
Orwellian rights and the UN Trafficking Protocol
Alice M. Miller and Tara Zivkovic
Introduction
In this essay, we explore some of the perverse effects on rights of the adoption of the Palermo Protocol. We focus on the development of State obligations to identify trafficked persons, a set of State surveillance practices that we argue accidentally produces a ‘rights-like’ formation out of this State duty. However, we see that what is produced is a strange specie of right, which we call the ‘right to be found’. We are particularly concerned that this claim is alleged to be in service of fulfilling the promises of the Palermo Protocol, but almost no other State duties to human well-being have materialised as enforceable claims within the anti-trafficking regime. We call it a ‘right’, while keeping the term in quotation marks as a perverse and yet poignant reminder to those of us working within the rights regime of how few actual rights are materialising out of our anti-trafficking work.
Calling this claim an ‘Orwellian right’ signals that it mimics the way in which proclamations of goods and freedoms in George Orwell’s dystopian novel 1984 actually indicated State repression and tyranny.1 Our focus here is how the histories behind the drafting of the Protocol, coupled with the current emphasis on ‘finding’ and properly identifying trafficked persons, has generated this claim. As we explore more fully below, this ‘right to be found’ is produced through the drum beat of elaboration of States’ duties to investigate illegal sectors, to find and identify trafficked persons in order to connect them to services, as enumerated in texts, articles, advocacy reports, and IGO and NGO training manuals explaining the substance of the Palermo Protocol (see Part 2, below). We note that persons can be found by the State but not want to be found; they can be found and improperly identified; they can be found, identified, and receive services they do not want, or services they want but not under the conditions offered.
All these and more circumstances, we think, can be helpfully considered under the sardonic rubric of the right to be found – which in turn suggests the need for the right (not) to be found. Moreover, we note that while the focus on identifying (‘finding’ trafficked persons) is a product of zealous advocacy, it also serves States, as it functions as a tool to fill the gap between the mythical ‘millions’ to be saved from ‘trafficking’, and the paltry thousands of trafficked persons actually found. Of course, as befits an Orwellian right, the operation of ‘finding’ people operates as well as a tool of immigration control.
In order to understand how such a paradoxically ‘unfree’ right has come to be articulated and increasingly read into the Protocol’s anti-trafficking framework, it is useful to reflect on the making of law as law, and more particularly, on the interactions of social and political actors as both lawmakers and law implementers. With this in mind, we can then see the interplay between ‘standard setting’ (adoption of the Protocol) and ‘standard utilisation’ (elaborating and calling attention to the Protocol’s duties to identify persons) –an interplay which is full of very generative interactions that follow after a law is adopted to fill-in, amend, and revise the text of a ‘landmark law’.
This chapter contains three sections: Part 1 assesses the strangely slip-shod way in which an international criminal law – the Palermo Protocol – was drafted, not with specificity, but with compromise vagaries at key points in the midst of great rights and feminist contestation; Part 2 considers how the ‘right to be found’ emerges from this process of material practice guides, which we treat as ‘amendation’ of the Protocol, fortified by the confluence of interests of States and anti-trafficking advocates; and Part 3 addresses the more philosophical questions of making new rights at the cusp of the beginning of the twenty-first century, ends with a call to harmonise what we know we know (that the Protocol as drafted is deeply flawed), and asks us to reflect on what is to be done.
We hope to tell a cautionary yet constructively future-oriented story: it is not enough to tell this merely as a story of do-gooders done wrong in their trust in law, although this is a piece, nor is it enough to say “this is how law always goes wrong”, as we do not think we can simply walk out of legal regimes into freedom. We invoke the space generated by following the logic of critiques of law: especially the way that critical theorists have long suspected the ‘carceral’ turn of feminism2 as it entered the hallways of power;3 and the concern by many on the left that human rights as a regime has tendencies toward control, rather than emancipation.4 We think calling attention to what is actually happening in the application through interpretation of the Protocol can merge with critiques of law while also taking our commitments to justice seriously. As Diane Otto noted in another international context, we need not “give up on feminism” and its engagement with rights in the international system, but we can use critical tools to rethink gender for feminism in an expansive way.5 Here, we would argue, it is imperative to stop pretending we can ‘fix’ (i.e., interpret) our way out of the paradoxes of the Protocol.
Part 1: international legal frameworks and the call to the criminal – how are rights invoked and then disappeared?
The Palermo Protocol is one of the two key global legal instruments created to govern national and transnational responses to this thing called ‘trafficking’.6 The broad outlines are clear: the Protocol was adopted in 2000 as part of a relatively speedily drafted regime of a multilateral criminal convention. The ‘mother’ treaty is the Convention against Transnational Organized Crime, a multinational crime control treaty created under the auspices of the Commission on Crime Prevention and Criminal Justice, and now supported by the United Nations Office on Drugs and Crime (UNODC). The specific impetus in the 1990s for a crime control convention in the context of controlling streams of people moving in informal sectors, and informally within formal sectors, across and within borders, is
historically clear.
What takes a bit more explaining is both the focus of the Palermo Protocol –‘trafficking’ –and the inability of the drafters to hold ‘trafficking’ in focus as a clearly definable crime. Exploring both questions gives some additional insight into the strangeness of a criminal law tool which was heralded as giving guidance toward identifying an international crime, and which has, in turn, created a cottage industry of guides clarifying what it means and how to seek out the right victims (Part 2).
There are other factors that stunt the ‘growing of rights’ in the shadow of a crime control convention. It is also both obvious and worth noting that the drafting of the Statute of the International Criminal Court (ICC) was occurring at roughly the same time as the drafting of the UN Transnational Crime Convention and its protocols. The Statute of the ICC criminalised ‘sexual slavery’ and ‘enforced prostitution’,7 which paralleled the development of certain aspects of the Palermo Protocol.8 Both of these international criminal treaties were buttressed by a human rights movement that had moved away from solely seeking to constrain the power of the State, as an infringer of rights, toward demanding State participation, through its prosecutorial power, as a rights vindicator.9 In this historical context, we see that it is not just that the Palermo Protocol substituted a crime control approach for a rights approach; in this era, some advocates had already begun treating crime control as rights work.10 Conventionally, however, basic rights principles require that a crime be clearly defined and linked to a fundamental harm.
Drafting international criminal law as an ambivalent act: race, gender, and the accordion-like frame of the Protocol