Re-inventing the wheel: returning sex trafficking discourse to its basic human rights origins.

1. INTRODUCTION

   In 2009, a Tampep International Foundation study found that approximately 70% of the Netherlands' legal female prostitutes hail from foreign countries, often from Romania, Hungary, Bulgaria, and South America. (1) Other sources suggest that 80% of Amsterdam prostitutes are foreign, 70% do not have immigration papers, suggesting trafficking. (2) The phenomenon of "lover boys," or young teenage boys around ages 14-16, often explains the remaining 25% of native Dutch prostitutes in the Netherlands. (3) While sex trafficking advocacy work often contemplates that women forced into prostitution should be protected, other instances of more nuanced coercive forms of trafficking, such as that facilitated by the lover boys of the Netherlands, remain lesser known or appreciated. (4) Yet, these forms of trafficking exist side-by-side with internationally trafficked persons, even in the legalized prostitution industries of certain states like the Netherlands. (5) The evil of transnational sex trafficking becomes confounded once the international community seeks to classify the human rights violations inherent either in domestic trafficking, facilitated by lover boys; or transnational trafficking, facilitated by a number of international characters. (6) The international problem of sex trafficking requires a global solution. (7)

   This note seeks to: (1) identify and analyze the various camps inherent in discourse surrounding sex trafficking, (2) distill the fundamental human rights and their consequences implicated by the current international anti-sex trafficking regime, and (3) suggest a new, basic rights-based model for international discourse regarding sex trafficking. (8) Ultimately, this method of rights-based discourse, utilizing the Universal Declaration of Human Rights as a beacon, will result in a greater, more cohesive international understanding of the country-specific problems and rights violations inherent in sex trafficking. (9) This will enable greater uniformity and efficiency among countries in their implementation of anti-trafficking efforts. (10) Part II outlines the rights inherent in the three camps--health-based, safe sex work advocates; the neo-abolitionists; and the world development supporters--within sex trafficking discourse. (11) Part III sets forth the policy and implementation consequences of important human rights and sex trafficking treaties currently in place that govern the coordination of anti-sex trafficking efforts internationally. (12) Part IV suggests a rights-based framework model based on the camps' positions to guide future international discourse on sex trafficking, and suggests how the disagreements among camps might be best resolved. (13)

2. HISTORY

   The right to be free from sex trafficking does not comprise a single basic jus cogens norm in itself because many basic jus cogens norms inform our understanding of sex trafficking. (14) The three camps comprising modern anti-human trafficking discourse exemplify how differently people may prioritize the fundamental underlying human rights violations in human trafficking. (15) This problem of interpreting and enforcing human rights norms remains confusing because as Jacques Maritain noted, "[w]e agree about the rights so long as no one asks us why." (16) The Third Restatement of the Foreign Relations Law of the United States, mimicking other international treaties and conventions, highlights this confusing foundation of underlying rights within the human trafficking context by characterizing sex trafficking in other terms, such as "slavery" and "forced and bonded labor." (17) Similarly, within current trafficking discourse, because many experts cannot even seem to comprehend the empirical reality of sex trafficking, let alone distinguish the jus cogens norms that signal the evils inherent in human trafficking, international law cannot yet recognize the right to be free from sex trafficking as a singular jus cogens right. (18)

   1. The Evils of Discrimination Against Sex Workers, and Unsafe Working Conditions

      Under the feminist empowerment view, sexual rights are fundamentally human rights, and include the right to be free from discrimination against people in sex work. (19) Some radical feminists specifically cite gender discrimination as the primary evil associated with sex trafficking and prostitution, supporting instead an empowered sex worker ideal. (20) The radical feminist view concurrently looks to sex work as an occupation much like any other, and affirms the rights to "education, work, equal pay, decent working conditions, information and equal treatment." (21) This viewpoint is a rather recent development in human rights discourse, originating out of greater freedom regarding sexual conduct and partner choice, as well as personal bodily autonomy. (22) However, no international human rights treaty has established sex as a fundamental right by its original text. (23)

      The feminist camp further rejects the voluntary versus involuntary sex work framework for conceptualizing sex trafficking, and advocates instead for alternate frameworks. (24) Feminists highlight how many women freely choose to engage in sex work, and indeed reject the label of victim in sex trafficking work. (25) Many feminists in this camp further believe that women seek liberation through sexually autonomous decisions in order to escape gendered or economically repressive societies. (26) Yet, feminists have trouble addressing other societal and economic factors affecting the true liberation of trafficked sex workers because coerced choices are not technically free choices. (27)

      The feminist empowerment camp generates a multi-faceted set of policy implications. (28) Generally, feminists universally reject criminalization of prostitution as an adequate policy solution to voluntary sex work by trafficking victims because ideally women would voluntarily and profitably choose prostitution work. (29) This assumption presents several problems, because most trafficked persons experience some level of personal or societal coercion. (30) Many non-abolitionist feminists favor punishing forced or coerced trafficked sex work, but would ask governments to acknowledge and respect the personal agency, or decision-making capacity, of adult sex workers. (31) Feminists also differ in whether or not they advance the policy approach of decriminalization or legalization of voluntary prostitution, each of which carries different implications. (32) Decriminalization simply removes sex work out from under the microscope of government scrutiny and regulation, and does not encourage government regulation of the sex work industry. (33) Legalization of prostitution could cause the state to over regulate the sex work industry, further isolating, marginalizing, and stigmatizing sex workers. (34) Therefore, the feminist camp diverges in many respects on advocating for certain policies over others. (35)

   2. The Evil of Slavery

      Many modern activists assert that modern-day sex trafficking is a violation of the human right to be free from slavery. (36) A great number of scholars view sex trafficking as an inherently evil form of slavery, or a slavery-like practice, and advocate for anti-trafficking measures using this framework. (37) A faction of feminists fall under the abolitionist category, advocating the elimination of sexual slavery as a method of male domination over female sex workers, even where the sex worker has consented to allow that man to use her body for money. (38) The right to be free from slavery falls into the category of well-established jus cogens norms. (39) Although, given the feminist view of safely executed and freely chosen sex work as a legitimate profession, conceptualizing sex trafficking as slavery inevitably raises the question: can sexually trafficked persons consent to sexual slavery? (40)

      Abolitionists argue that despite making slavery illegal, the modern-day slave-master paradigm has modernized slavery, which is currently on the rise globally. (41) Owners of slaves have fundamental ownership over their slaves, with total control over the slave's autonomy resulting in economic and sexual exploitation, which they ensure through coercion. (42) This modernized slavery remains a particularly virulent strain of slavery, though, because slave owners feel no incentive to maintain the health of their slaves, as they are easily replaced. (43) Modern slave owners also seek coerced contracts as justification of the enslavement, work through layers of middlemen to prevent contact with and identification by their own slaves, and systematically exploit a particular gender, social group, or minority, knowing that those groups are the most economically vulnerable in society. (44) Similarly, the phenomena of globalization and the "feminization of poverty" have added to the opportunist's long list of reasons to exploit economically vulnerable women in accordance with the abolitionist view of sex trafficking, as this has made it easier for potential slave owners to access and coerce women in particular into trafficking resulting in sex work. (45)

      The abolitionist camp tends to favor policies that include protection of potential victims, investigation of possible sex trafficking, and the criminalization and punishment of offenders. (46) Abolitionists view sex workers as helpless, innocent victims, and desire to punish their traffickers as evil offenders against human dignity. (47) Moreover, as a policy matter, determining consent is not particularly probative or helpful for abolitionists, because a person cannot ever legally consent to slavery, and cannot sell him or herself into bondage. (48) Practically speaking, abolitionists have had much difficulty in homogenizing criminalization statutes of sex trafficking, because some countries promise much costlier punishments than others for sex trafficking offenses. (49) Prevention of sex trafficking enslavement...