Michelle Madden Dempsey, Carolyn Hoyle & Mary Bosworth, Defining Sex Trafficking in International and Domestic Law: Mind the Gaps

• Citation: Vol. 26 No. 1
• Publication year: 2010
• topic: Criminal Law

DEFINING SEX TRAFFICKING IN INTERNATIONAL AND DOMESTIC LAW: MIND THE GAPS†

Michelle Madden Dempsey* Carolyn Hoyle**

Mary Bosworth***

INTRODUCTION

Whether as a result of conceptual disagreement regarding what counts as sex trafficking, political disagreement regarding what should be done about it, or simply a lack of political will, there was no internationally recognized definition of sex trafficking until 2000.1 This is not to say, however, that the

international community took no interest in sex trafficking before this time. Indeed, even before 2000, numerous instruments of international law called for

† This material is based upon work supported financially by the National Research Foundation (SA). Any opinion, findings and conclusions, or recommendations expressed in this material are those of the Authors, and therefore the National Research Foundation does not accept any liability in regards thereto. This research was also partly funded by the Hulme Fund, Brasenose College, Oxford. The Authors would like to thank Amy Spare, Edward Enoch, Takuyo D. Fukami, John Rafferty, William Welkowitz, and Gabrielle Gomez for their assistance.

* Professor of Law, Villanova University School of Law; D.Phil. (Ph.D.), Law, University of Oxford

(2007); LL.M., London School of Economics (2003); J.D., University of Michigan School of Law (1996); B.A., University of Illinois.

** Professor of Criminology, University of Oxford; D.Phil. (Ph.D.) Sociology, University of Oxford

(1996); M.Sc., Sociology, University of Oxford (1992); B.A., honors, English and Sociology, University of Kent (1989).

*** Reader in Criminology, University of Oxford; Ph.D., Criminology, University of Cambridge (1998);

1. hil., Criminology, University of Cambridge (1994); B.A., honors (first), History, University of Western Australia (1992).

   1. As Radhika Coomaraswamy, the then-current Special Rapporteur on Violence Against Women, noted

      in her February 2000 report to the United Nations (“UN”) Human Rights Council:

      
      

      At present, there is no internationally agreed definition of trafficking. The term “trafficking” is used by different actors to describe activities that range from voluntary, facilitated migration, to the exploitation of prostitution, to the movement of persons through the threat or use of force, coercion, violence, etc. for certain exploitative purposes.

      Special Rapporteur on Violence Against Women, Its Causes and Consequences, Integration of the Human Rights of Women and the Gender Perspective: Violence Against Women: Report of the Special Rapporteur on Violence Against Women, Its Causes and Consequences, ¶ 10, Comm’n on Human Rights, U.N. Doc. E/CN.4/2000/68 (Feb. 29, 2000) (by Radhika Coomaraswamy). Hence Coomaraswamy emphasized “[t]he need for a clear definition of trafficking, thus far lacking in international law.” Id. at 4.

      
      

      the abolition of sex trafficking.2 The problem was, none of them offered a definition of what was to be abolished.3 Thus, notwithstanding widespread agreement that something should be done about sex trafficking, there seemed to be little agreement on what, precisely, sex trafficking was.

      
      

      Debates regarding the definition of sex trafficking were supposedly settled in 2000, with the adoption of the United Nations (“UN”) Convention Against Transnational Organized Crime, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (“Palermo Protocol”)4 and its subsequent ratification by more than 146 state parties.5 Article 3 of the Palermo Protocol sets out a clear definition of trafficking, and, pursuant to Article 5, state parties are obligated to criminalize trafficking as it is defined in Article 3.6 Given these obligations, one would expect to find widespread uniformity in the definitions of trafficking found in the domestic criminal laws of state parties to the Palermo Protocol. Yet, as this Article demonstrates,

      significant discrepancies persist between trafficking definitions in international law and definitions adopted in the domestic criminal codes of many state

      
      

   2. See Convention on the Elimination of All Forms of Discrimination Against Women, opened for signature Mar. 1, 1980, 1249 U.N.T.S. 13; Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others (with Final Protocol), opened for signature Mar. 21, 1950, 96

      U.N.T.S. 271 [hereinafter 1949 Convention]; Protocol To Amend the Convention for the Suppression of the Traffic in Women and Children and the Convention for the Suppression of the Traffic in Women of Full Age, done Nov. 12, 1947, 53 U.N.T.S. 13; International Convention for the Suppression of the Traffic in Women and Children, opened for signature Sept. 30, 1921, 9 L.N.T.S. 415; Convention for the Suppression of the White Slave Traffic, done May 4, 1910, 211 CONSOL. T.S. 45; International Agreement for the Suppression of the “White Slave Traffic,” done May 18, 1904, 1 L.N.T.S. 83; Fourth World Conference on Women, Beijing, China, Sept. 4–15, 1995, Report of the Fourth World Conference on Women, Annexes I, II, U.N. Doc. A/CONF.177/20 (Oct. 17, 1995); World Conference on Human Rights, June 14–25, 1993, Vienna Declaration and Programme of Action, U.N. Doc. A/CONF.157/23 (July 12, 1993).

   3. See Special Rapporteur on Violence Against Women, supra note 1, ¶¶ 27–34. “Despite the plethora of

      international instruments, there is no clear or agreed upon definition of trafficking.” Id. ¶ 34.

   4. Convention Against Transnational Organized Crime, Protocol To Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, done Nov. 15, 2000, T.I.A.S. 13127 [hereinafter Palermo Protocol]. The Palermo Protocol, negotiated pursuant to the authority of the UN’s Vienna-based Commission on Crime Prevention and Criminal Justice, was drafted between January 1999 and October 2000 in a series of eleven meetings of the Ad Hoc Committee on the Elaboration of a Convention Against

      Transnational Organized Crime. Anne Gallagher, Human Rights and the New UN Protocols on Trafficking and Migrant Smuggling: A Preliminary Analysis, 23 HUM. RTS. Q. 975, 975–76 (2001); see also Contemporary Practice of the United States Relating to International Law, 95 AM. J. INT’L L. 387, 408 (2001).

   5. See Protocol To Prevent, Suppress and Punish Trafficking in Persons, Especially Women and

      Children, Supplementing the United Nations Convention Against Transnational Organized Crime, MULTILATERAL TREATIES DEPOSITED WITH THE SECRETARY-GENERAL ch. XVIII, § 12.a, p. 1 [hereinafter

      Palermo Signatories], available at http://treaties.un.org/doc/Publication/MTDSG/Volume%20II/Chapter% 20XVIII/XVIII-12-a.en.pdf.

   6. Palermo Protocol, supra note 4, arts. 3, 5.

      parties. These differences undermine any claim to international agreement regarding the nature of trafficking and destabilize efforts to create a coordinated response to this criminal offense.

      
      

      1. THE INTERNATIONAL LAW DEFINITION OF SEX TRAFFICKING

         
         

         1. Development of the UN Palermo Protocol Definition of Sex Trafficking

            
            

            After nearly two years of debate and twenty-four definitions taken under consideration,7 a uniform definition of trafficking was agreed upon pursuant to Article 3 of the Palermo Protocol.8 More than a decade after its adoption, the definition of sex trafficking set forth in the protocol appears to enjoy strong international support. Of the 192 member states of the UN,9 147 have ratified

            the protocol.10 Notably, none of the state parties has made any reservation in respect of the Article 3 definition of trafficking.11

            
            

            Further illustrating the apparent support for the Palermo Protocol’s Article 3 definition of trafficking is the fact that the definition has been utilized by the international law enforcement agency, INTERPOL,12 and numerous international organizations, including the Council of Europe (“COE”),13 the

            International Organization for Migration (“IOM”),14 the Organization for Security and Co-operation in Europe (“OSCE”),15 the International

            
            

   7. See UNITED NATIONS OFFICE ON DRUGS & CRIME, TRAVAUX PRÉPARATOIRES OF THE NEGOTIATIONS FOR THE ELABORATION OF THE UNITED NATIONS CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME

      AND THE PROTOCOLS THERETO, at 339–48, U.N. Sales No. E.06.V.5 (2006); Background Information: Ad Hoc Committee on the Elaboration of a Convention Against Transnational Organized Crime, UNITED NATIONS OFF. ON DRUGS & CRIME, http://www.unodc.org/unodc/en/treaties/CTOC/background/adhoc-committee.html (last visited Feb. 17, 2012).

   8. Palermo Protocol, supra note 4, art. 3.

   9. UN at a Glance, UNITED NATIONS, http://www.un.org/en/aboutun/index.shtml (last visited Mar. 17, 2012).

   10. Palermo Signatories, supra note 5, at 1.

   11. Id. at 3–6. Twenty-nine declarations or reservations have been made by signatories and state parties, most of which invoke Article 15(3) in denying the jurisdiction of the International Court of Justice to adjudicate disputes under the Palermo Protocol. See id.

   12. INTERPOL, TRAFFICKING IN HUMAN BEINGS: FACT SHEET 1 (2009), available at http://www.interpol. int/content/download/796/6455/version/10/file/THB02.pdf.

   13. Council of Europe Convention on Action Against Trafficking in Human Beings and Its Explanatory Report art. 4(a), Explanatory Report ¶ 72, May 16, 2005, C.E.T.S. No. 197.

   14. See Counter-trafficking, INT’L ORG. FOR MIGRATION, http://www.iom.int/jahia/page748.html (last visited Mar. 17, 2012).

   15. See SPECIAL REPRESENTATIVE & CO-ORDINATOR FOR COMBATING TRAFFICKING IN HUMAN BEINGS, ORG. FOR SEC. & CO-OPERATION IN EUR., COMBATING TRAFFICKING AS MODERN-DAY SLAVERY: A MATTER

       OF RIGHTS, FREEDOMS AND SECURITY 21 n.69 (2010), available at http://www.osce.org/cthb/74730.

       
       

       Development Law Organization (“IDLO”),16 the Arab League,17 and the North Atlantic Treaty Organization (“NATO”).18

       
       

       The apparent consensus surrounding the definition of sex trafficking articulated in Article 3 of the Palermo Protocol inspired the former Special Rapporteur on Trafficking in Human Beings in 2006 to declare with confidence, “The Protocol definition of trafficking stands today as...