Slavery in the Name of Tolerance: Whether an International Legal Obligation Exists to Criminalize Prostitution

• Publication year: 2021
• Citation: Vol. 95

95 Nebraska L. Rev. 574. Slavery in the Name of Tolerance: Whether an International Legal Obligation Exists to Criminalize Prostitution

Slavery in the Name of Tolerance: Whether an International Legal Obligation Exists to Criminalize Prostitution(fn*)

Braden W. Storer

TABLE OF CONTENTS

I. Introduction .......................................... 575

II. Background of Applicable International Law on Slavery and Sex Trafficking ................................... 577
A. International Law Prohibiting Slavery and the Slave Trade ....................................... 578
B. International Law Prohibiting Sex Trafficking ..... 580
C. Sex Trafficking as Slavery: Overlap of the Practices .......................................... 584
D. An Alternative Way to Think About the Issue: Commercial Sexual Exploitation as Slavery ........ 590

III. International Legal Obligations to Criminalize and Prevent Slavery and Sex Trafficking ................... 592
A. Obligation to Criminalize and Prevent Sex Trafficking ........................................ 592
B. Obligation to Criminalize and Prevent Slavery ..... 595

IV. Conflict Between Obligation to Criminalize and Other Human Rights ........................................ 597

V. Conclusion ............................................ 600

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I. INTRODUCTION

There is little disagreement among people as to whether sex trafficking(fn1) is a good or a bad practice. Few legal and political issues enjoy more of a consensus of opinion than the abolition of sex trafficking, and it has been generally recognized among people from all cultures and backgrounds as an inherent violation of basic human rights and dignity. But even an issue with as much universal unanimity as the abolition of sex trafficking cannot escape its own form of controversy. There is great debate among policy makers as to the role of law regarding prostitution in the global fight against sex trafficking, and particularly whether criminalizing or decriminalizing prostitution is the best state approach to combatting sex trafficking.

While few argue that criminalizing or decriminalizing prostitution is the sole step required to effectively counter sex trafficking, many argue that either approach would certainly play an important role in a state's ability to investigate and prosecute perpetrators as well as protect victims. On one end of the spectrum, advocates for decriminalization argue that this would offer greater protections to victims through tighter regulation of sex work.(fn2) Decriminalization would also expand the rights of consenting men and women who engage in prostitution as a form of legitimate work, allowing them to enjoy the right to control their own bodies as well as occupational benefits such as health care, retirement plans, and unionization.(fn3) These expanded rights would ensure that sex workers are not subject to exploitative work environments and would also allow them to exercise their right to work.

On the other end of the spectrum, advocates for criminalization argue "prostitution can never be a choice and the 'profession' is inherently based on a system of male sexual dominance, appropriating the female body for pleasure and reinforcing the subordination and sexual objectification of women."(fn4) Advocates for criminalization further argue decriminalizing prostitution would make it easier for sex traffickers to exploit women by giving them a legitimate front to an

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illegitimate business, which would also make it more difficult for the state to investigate violations.(fn5) They further argue that no amount of regulation can protect women from being exploited by their pimps and that as a practical matter, decriminalizing prostitution creates a greater demand for sex for which there is not enough legitimate supply to meet.(fn6) This greater demand gives pimps an incentive to traffic women in order to meet this demand.(fn7) For these reasons, pro-criminalization advocates hold that decriminalizing prostitution will always lead to a rise in sex trafficking regardless of how many precautionary steps and regulations a state may create.

This Comment does not intend to establish that decriminalization is inextricably linked, empirically, to a rise in the prevalence of sex trafficking as this is an issue best left to social scientists and quantitative researchers. For the purposes of this Comment, however, it will be assumed that this is the case and that the decriminalization of prostitution creates an increased demand for sex, leading to a greater prevalence of sex trafficking through forced prostitution. This assumption is not merely grounded in theory, but is supported by significant scholarly research.(fn8) Based on this underlying assumption, this Comment will attempt to answer two key questions: first, is sex trafficking a form of or inextricably linked to slavery, as understood in the international community? Second, if so, does this connection create an obligation to criminalize prostitution in order to take legally adequate steps to address sex trafficking?

In order to answer these questions, it is necessary to examine relevant norms of international law as they relate to sex trafficking and slavery, investigate the interrelationship between norms specifically related to human trafficking and potentially conflicting human rights norms, investigate the scope of the obligation to criminalize sex trafficking, and discuss whether achieving the goals underlying this obligation require criminalizing prostitution. In particular, it is important to establish whether sex trafficking is a form of slavery under international law, and therefore whether its prohibition is a peremptory jus cogens norm. This Comment argues that it is. This Comment will then analyze whether domestic laws that decriminalize or legalize prostitution are in conflict with this jus cogens norm.

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II. BACKGROUND OF APPLICABLE INTERNATIONAL LAW ON SLAVERY AND SEX TRAFFICKING

Sex trafficking, as well as other forms of human trafficking, have generally been referred to as "modern-day slavery" or as a "contemporary form of slavery" in academic and public discourse.(fn9) Many prominent anti-trafficking scholars hold to the position that sex trafficking inherently involves slavery.(fn10) This seems to be a logical connection, as the link between sex trafficking and chattel slavery(fn11) is immediately apparent. Dr. Anne Gallagher articulates this connection well:

Both practices involve the organized movement of individuals, generally across national borders, for exploitative purposes. Both are primarily conducted outside the public realm by private entities for private profit. Both seek to secure control over individuals by minimizing or even eliminating personal autonomy. Neither system can be sustained without massive and systematic violations of human rights. References to slavery in the new international legal framework around trafficking, and vice versa to trafficking in contemporary rules on slavery, have reinforced this connection.(fn12)

While this connection is well recognized by prominent scholars and in nearly every anti-trafficking community, there is a great amount of uncertainty as to whether a legitimate legal connection exists. In order to address the over-arching question as to whether an international legal obligation exists to criminalize prostitution, it is first necessary to examine the legal connection (or perhaps the lack thereof) between sex trafficking and slavery in international law. From this examination, this Comment will attempt to determine whether the definition of slavery has expanded to include sex trafficking. A finding in the affirmative is necessary to link together legalized prostitution and slavery.(fn13) The first step in this process is to understand international law as it relates to each practice.

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A. International Law Prohibiting Slavery and the Slave Trade

Slavery and the slave trade are two of the few practices whose prohibition is recognized as a jus cogens norm of customary international law, and as creating obligations erga omnes. These practices are also completely prohibited by the international community in times of peace and in times of war.(fn14) The Congress of Vienna in 1814 was the first international instrument to recognize the slave trade as an inherent violation of human dignity.(fn15) While this declaration did not criminalize the slave trade at an international level, it strongly condemned the trade as "repugnant to the principles of humanity and universal morality."(fn16) As traditional chattel slavery and the slave trade were abolished around the world throughout the rest of the nineteenth century, many began to question whether slavery and the slave trade should be declared a crime against humanity and criminalized at an international level.(fn17) These discussions led to several treaties alluding to an ill-defined international prohibition against slavery and the slave trade, but it was not until the Slavery Convention of 1926 that slavery and the slave trade were unambiguously addressed at the international level.(fn18)

Under the Slavery Convention, slavery was defined as "the status or condition of a person over whom any or all of the powers attaching to the rights of ownership are exercised."(fn19) Attempts were made to include lesser servitudes in this initial definition, but, for reasons beyond the scope of this Comment, were objected to by the Republic of South Africa.(fn20) The slave trade was defined as including:

all acts involved in the capture, acquisition or disposal of a person with intent to reduce him to slavery; all acts involved in the acquisition of a slave with a view to selling or exchanging him; all acts of disposal by sale or exchange of a slave acquired with a view to being sold or exchanged, and, in general, every act of trade

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