Sex Trafficking: Trends, Challenges and the Limitations of
International Law
Heather M. Smith, Ph.D.1
Assistant Professor of International Affairs
Lewis & Clark College
Biography: Heather M. Smith is an assistant professor of International Affairs at Lewis
& Clark College. She received her Ph.D. from the University of California San Diego.
Her work examines the effects of the UN and non-governmental organizations on human
rights and human trafficking. Her current research focuses on the causes and
consequences of state ratification of human rights treaties.
1
The author would like to thank her research assistants, Margaret Williams and Jake Owens as well as two
anonymous reviewers for their helpful comments and suggestions.
1
Abstract
The passage of the UN Protocol to Prevent, Suppress, and Punish Trafficking in Persons,
Especially Women and Children in 2000 marked the first global effort to address human
trafficking. Since the passage of the UN Protocol international organizations, nongovernmental organizations and individual states have devoted significant resources to
eliminating human trafficking. This article critically examines the impact of these efforts
with reference to the trends, political and empirical challenges in data collection, and the
limitations of international law. I argue that current international law disproportionately
addresses the criminal prosecution of traffickers at the expense of trafficking victims’
human rights, and has therefore not yet reached its full potential in the fight against
human sex trafficking.
2
Introduction
In the last decade, human trafficking has received monumental global attention. This
attention is due in large part to new anti-trafficking initiatives undertaken by international
organizations (IOs) and the United States government. To understand the impact of these
global efforts, this article begins in section I by examining sex trafficking trends that have
emerged since the passage of the UN Protocol to Prevent, Suppress, and Punish
Trafficking in Persons, Especially Women and Children (commonly referred to as the
“Palermo Protocol”). Are sex trafficking victims considered slaves? Where are the global
sex trafficking “hotspots?” Have governments become more inclined to pass domestic
anti-trafficking laws in the wake of the Palermo Protocol? Section II explores the
political and empirical challenges associated with the study of global sex trafficking.
What factors motivate governments to underreport the extent of trafficking within and
across their borders while overstating their efforts to combat trafficking? Finally, section
III argues that current international law disproportionately addresses the criminal
prosecution of traffickers at the expense of trafficking victims’ human rights and has
therefore not yet reached its full potential in the fight against trafficking.
I. Trends
Reconciling Trafficking Victims and Modern Slavery
Like arms and drugs, individuals are also illicitly trafficked across state borders.
In some instances individuals go willingly in search of better economic opportunities. In
the US, stories of migrants paying ‘coyotes’ – the pejorative term for these guides-- and
surreptitiously crossing into the US in search of work are legion. Under these conditions,
3
human trafficking is often situated among discussions of extra-legal migration or
smuggling. However, in some instances human trafficking involves abduction,
transportation to a different country, and forced servitude in a variety of different
industries—prostitution, domestic service, manufacturing, and agriculture. Kara (2009)
describes the plight of Cambodian boys who are kidnapped, trafficked to Eastern
Thailand, fed amphetamines, forced to work 20 hour days on fishing fleets, and killed
when the fishing season is over (169). Abduction or severe coercion followed by forced
labor are typically treated as modern slavery and discussed within the human trafficking
literature.
The overlap between issues of migration, smuggling, trafficking, and slavery has
created challenges for both academics and activists. For example, is a woman that
knowingly accepts a job in a foreign country as a prostitute an economic migrant? In
many instances the conditions surrounding her employment diverge dramatically from
the terms of employment guaranteed to her at the outset. Does this deception make her a
victim of human trafficking? Does it make her a modern slave? Migration decisions are
complex—and the attendant potential of migrants seeking economic opportunities to
become slaves in foreign countries highlights the difficulties inherent in applying these
labels. The US State Department defines trafficking as “the recruitment, harboring,
transportation, provision, or obtaining of a person for labor or services, through the use of
force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage,
debt bondage, or slavery” (US State Department 2009). This definition of trafficking
focuses on deception and fraud and excludes those migrants that willingly accept the
risks inherent in extra-legal migration in exchange for better employment opportunities.
4
In this analysis, I treat individuals that are either coercively or voluntarily transported
across state borders for the purpose of exploiting their labor as trafficking victims.2
Though there is overlap between research on human trafficking and research on modern
slavery, efforts to develop a coherent approach incorporating human trafficking and
modern slavery are only now emerging.3
A vast array of recent research highlights the widespread problems of modern
slavery (Bales 2004; 2007; Cameron and Newman 2008; Scarpa 2008; Parrot and
Cummings 2008). Bales (2004) identifies an important distinction between antiquated
versions of slavery and the modern variant. Earlier forms of slavery engendered legal
ownership of another recognized by the government (Bales 2004, 5). Modern slaves are
not legally owned. Governments no longer permit one individual to claim ownership over
another. However, slaveholders use violence to control slaves and Bales contends that the
lack of government oversight benefits slaveholders because they are not legally
responsible for their “property.”
Modern slaves—be they Albanian women sold into prostitution in Italy, children
working in the agricultural industry as bonded laborers in India, or Burmese women
working in Thai brothels—all are subject to brutality and violence, forced to work, and
paid little to nothing for their servitude. An array of scholars, have sought to expand the
definition of slavery to include forced domination and exploitation (Hathaway 2008;
Bales 2004; Quirk 2007). There is, however, considerable debate about whether
trafficking victims should be considered slaves. Grounding her analysis in a review of
2
See Article 3 of the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially
Women and Children.
3
See Quirk (2007) 181-182.
Brysk’s contribution to this volume makes significant progress towards
incorporating trafficking and slavery into a coherent human rights framework.
5
international law, Gallagher (2009) argues that the 1926 definition of slavery adopted by
the League of Nations Slavery Convention emphasized legal ownership. In their
subsequent efforts to develop anti-slavery treaties, she argues states consciously resisted
expanding the definition of slavery beyond legal ownership (Gallagher 2009, 799-809).
The implication for the modern debate is that while trafficking victims are controlled and
exploited, they are not legally owned and therefore are not slaves.
This paper takes the view that although extant international law does not
recognize trafficking victims as slaves, consideration of the human rights violations
associated with trafficking will eventually guide international law to recognize trafficking
victims as slaves. International law is a dynamic enterprise. It emerges inter-alia, from
repeated state practice and custom. As such, the norms and institutions of international
law are constantly evolving and changing in response to authoritative interpretations from
legal scholars and activists. The liberal interpretation assigning trafficking victims with
the label slave, though not currently reflected in international law, is informed by the
work of activists who witness the violence, domination, and lack of control experienced
by trafficking victims first hand. Their efforts have led to important new understandings
about the nature and trends of modern slavery, as exemplified by Romanian criminal
organizations in Italy leasing sex slaves to brothel owners, allowing brothel owners to
eventually own slaves without up front costs (Kara 2009, 93).
In a world in which humans can be leased-to-be-owned, it seems incorrect to
claim victory over slavery. We know that states are notoriously slow and conservative in
adapting their practices and generally reluctant to create treaties that assuage their
sovereignty, yet the slavery label for trafficking victims is appropriate for modern
6
practices possessing all the hallmarks of slavery (short of legal ownership). A process
that begins with subtle or violent coercion, and ends with passports and travel documents
being withheld from victims that are forced to work to repay traffickers for grossly
inflated travel fees, cannot be considered voluntary labor migration. Coercive
employment through violence, absent remuneration cannot be placed among other,
legitimate forms of labor. Even where victims understand the nature of the work that lies
ahead, many choose their fate because they lack any other economic opportunities and
are forced into undesirable work by a weak labor market.4 Although extant international
law does not equate trafficking victims with slaves—the mechanisms of control and
exploitation come so close to conditions of chattel slavery that the two conditions should
share the same moniker.
The Geography and Scope of Global Sex Trafficking
I focus here on transnational sex slaves, which I consider individuals that are
trafficked across national borders and enslaved as prostitutes upon arrival in destination
countries. This definition of trafficking diverges from that adopted by the US State
Department and passed by the US Congress in the Trafficking Victims Protection Act
(TVPA), which focuses exclusively on deception, fraud, and coercion used to induce an
individual to engage in a commercial sex act. Transportation across borders is not
necessary for the State Department to consider one a trafficking victim (US Congress
2000; US State Department 2009). I have opted to focus on transnational sex trafficking
victims for two reasons. First, among all the numbers that we possess on the scope and
nature of the modern slave trade, even conservative estimates suggest that while still
4
I use the term “victim” in a broad sense—not because these individuals are necessarily violently coerced
into sex work. In many instances these victims make a rational economic decision to work in the sex
industry but I contend that this too is a form of economic victimization.
7
small compared to other groups, the population of sex trafficking victims is growing.5
Second, because sex and prostitution transcend cultural barriers, sex slaves can be found
in nearly all corners of the globe. In 2008, the International Labour Organization (ILO) estimated that 12.3 million
people were forced laborers, bonded laborers, or sex trafficking victims. Of those forced
laborers, 1.39 million are commercial sex slaves (ILO 2009, 3). ILO estimates also
suggest that women and girls make up a disproportionate share of those trafficked for
commercial sex, approximately 98%, or 1.36 million. While authoritative, the ILO
numbers are by no means readily settled as the most accurate. Kara (2009) argues that the
annual number of human trafficking victims is between 1.5 and 1.8 million people, with
approximately five hundred to six hundred thousand exploited in the commercial sex
industry (17). Since 2006, The US State Department has maintained the same figure,
identifying 800,000 people across a variety of industries, not just commercial sex, that
become trafficking victims annually (US State Department 2006).6 Of these 800,000
trafficking victims, the State Department explains that “the majority” are trafficked into
the commercial sex trade (US State Department 2006).
Despite the discrepancies in official statistics there appears to be growth in the
number of people becoming sex trafficking victims in recent years. Kara argues that
between 2006 and 2007 there was a 3.6% increase in the number of sex trafficking
victims—meaning that at the end of 2007 there were approximately 140,000 new sex
slaves (Kara 2009, 18). In 2009 the UN Office on Drugs and Crime (UNODC) published
5
I present the statistics that follow acutely aware that numerical estimates of trafficking victims are
notoriously politicized and unreliable. I discuss these methodological weaknesses in later sections of the
paper but offer these numbers as a general overview of the scope of human sex trafficking in the world.
6
The International Organization for Migration (IOM) also uses this number on website in 2010:
http://www.iom.int/jahia/Jahia/activities/by-theme/regulating-migration/counter-trafficking.
8
findings from a 155-country global assessment of human trafficking trends, with the most
prominent form of trafficking (accounting for 79% in their sample) being commercial
sexual exploitation (UNODC 2009). Figure 1 below graphs the growth in the annual
number of victims identified by the seventy-one countries that collect data. Annual
trafficking rates between 2003 and 2006, as reported to the UNODC suggest a steady
global growth in the annual number of trafficking victims.
An examination of the evidence and statistics helps to illuminate some of the
reasons behind this growth. Bales (2007) suggests “the enslaved fieldworker who cost the
equivalent of $40,000 in 1850 costs less than $100 today (12).” This “glut” as Bales calls
it, in the global supply of slaves, means that there is an abundance of potential slaves in
the world. Coupled with the fact that trafficked sex slaves are the single most profitable
type of slave, costing on average $1,895 each but generating $29,210 annually leads to
stark predictions about the likely growth in commercial sex slavery in the future (Kara
9
2009, 19). When we include reduced transportation costs arising from globalization it
becomes easy to understand why transnational sex slavery is flourishing. The
overwhelming numbers of desperate people and the profitability of sex slaves likely
means that even if we cannot yet accurately pinpoint the growth in the global population
of sex slaves, it is likely to get worse before it gets better.
Unlike other forms of slavery, which are culturally and economically dependent,
sex slaves can be found across cultures and countries. The omnipresent ‘massage
parlors’ with neon signs in the US give the impression that the US is a major destination
country for trafficking victims, however the US pales in comparison to other countries as
a destination for victims of commercial sex trafficking. Sex slaves in the US in 2006
made up just 0.9% of the total number of global sex trafficking victims (Kara 2009, 183).
Italy has become a major transit and destination country in Western Europe, largely
because prostitution is legal there and the fallout from economic transformation in
Central and Eastern Europe has created a geographically proximate supply of willing
economic migrants (UNICEF 2005, 68). Women from Moldova, Albania, and Romania
make up a large proportion of the trafficked sex slaves in Italy. Sex slaves from Moldova,
Romania, and the Ukraine arrived in record numbers in Bosnia in 1999 alongside the
arrival of UN and NATO forces (IOM Counter-Trafficking Unit: Kosovo 2000-2005).
Prominent NGOs are also drawing attention to Greece as a destination country in
Western Europe (Amnesty International 2007).7
Typically victims of commercial sex trafficking come from poor countries and are
trafficked into relatively wealthier countries. The majority of human sex trafficking
7
See also Miller and Wasileski this volume.
10
occurs intra-regionally, with the highest number of sex trafficking victims moving
between countries in Asia.8 India and Thailand are both major source and destination
countries. Women and children from Nepal, Bangladesh and Burma, as well as Indians,
work in the commercial sex trade in India, which thrives in Mumbai along the Falkland
Road (Ali 2005; Amnesty International 2005). In Thailand, rapid economic growth in the
late 1990s made it possible for a whole new generation of men to afford visiting
prostitutes. Cultural factors that denigrate women and promote extramarital sex for men
combined to create a high demand for commercial sex workers in Thailand. Lee (2005)
identifies two dominant trafficking routes in Asia. One includes the flow of women from
North Korea and the Yunnan province in Southern China to Russia and South Korea. In a
second major route women are trafficked from Thailand and the Philippines to Japan and
South Korea (Lee 2005, 174). In 2006, Asia accounted for approximately 54.2% of the
global sex trafficking victims.9
Growth in human sex trafficking and the US Trafficking in Persons Reports (TIP)
have also sparked sharp increases in the number of countries adopting domestic
legislation to punish traffickers. Between 2003 and 2008, the percent of countries in the
world that adopted legislation to specifically punish traffickers grew by 45%. In a fiveyear period, 69 countries adopted legislation to punish traffickers (UNODC 2009, 24).
Figure 2 below graphs the 2010 US State Department’s TIP tier placements. Tier 1
countries are those that make sustained efforts to pass anti-trafficking laws and assist
8
On the intra-regional movement of sex slaves in Europe, see Kelly (2002). On intraregional movement in
Asia, see Lee (2005) and Ali (2005). Kara (2009) estimates that of a total population of 1.2 million sex
slaves in the world in 2006, approximately 335,000 are in South Asia and another 315,000 are in East Asia
and the Pacific (18). 9
This percentage comes from a simple calculation using Kara’s data (Kara 2009, 18). These numbers are
also consistent with ILO estimates. See ILO (2008), 3.
11
victims. Tier 2 countries do not fully comply with the US TVPA, meaning that they may
be major origin, transit, or destination countries for trafficking or that the government is
passing inadequate laws to curb trafficking. The Tier 2 Watch List signifies that a country
is in danger of dropping to Tier 3 due to a dramatic increase in the number of trafficking
victims, failure to provide evidence of government efforts to prevent trafficking, or the
country has promised to take steps to improve in the following year. A government listed
on Tier 3 is not complying and is not attempting to comply with the US TVPA. Higher
tier placements mean that governments are passing laws to suppress trafficking while
lower tier positions signify less effort to address human trafficking.
Figure 2 implies that in their most recent assessment of government compliance
with the US TVPA, most countries are not fully complying, and thus fall into the Tier 2
category. Throughout Africa most countries are in Tier 2—making efforts but failing to
fully comply with the US TVPA. Central America and the Caribbean bare a striking
similarity to Asia with most of the countries in the region on the Tier 2 watch list. North
America, like Western and Central Europe are primarily composed of countries that are
fully in compliance with the US TVPA.
12
Passage of anti-trafficking laws signals, at the very least, lip service, if not initial
government commitment, to the importance of preventing human trafficking. Yet, the
more significant indicator of progress to prevent trafficking is the extent to which these
laws are used to convict traffickers. Using the 2009 UNODC data, Figure 3 plots the
regional human trafficking prosecution rates. Though the UNODC did not measure how
many convictions a government obtained, only if the number was greater than one, this
information is still useful in the sense that it illustrates whether or not the relatively new
anti-trafficking laws have been employed at all.
13
Examining Figure 3 and Figure 2 together illuminates some interesting trends.
First, though many African countries have been categorized as Tier 2 countries by the US
State Department in the 2010 TIP Report, these countries also have the highest
percentage of governments that have yet to prosecute even one person for trafficking.
Second, despite the high number of countries on the Tier 2 Watch List in Asia, a very
high percentage of governments have convicted at least one person for human trafficking.
Of all the countries in Central America and the Caribbean, 60% are on the Tier 2 Watch
List, yet 85% of the countries in the region have convicted at least one person for
trafficking. North America and Europe are primarily situated on the Tier 1 list and the
overwhelming majority of these countries have convicted at least one person for
trafficking.
14
II. Challenges
Scholars, activists, and researchers have all lamented the challenges inherent in
studying human trafficking (Guinn 2008; Brennan 2005; Laczko and Gramegna 2005;
Tyldum and Brunovskis 2005). I approach the study of human sex trafficking from the
perspective of a social scientist, seeking to understand the macro global trends that might
ultimately contribute to better anti-trafficking policies. Research conducted in political
science and international relations benefits immensely from ethnographic research
conducted by anthropologists, sociologists, and anti-trafficking activists. My emphasis
here is distinctly different, as my efforts to date have focused on demonstrating the global
trends linking UN peacekeepers to human sex trafficking (Smith and Smith forthcoming;
Smith forthcoming). In conducting this type of trafficking research I have been struck by
both political and empirical challenges to uncovering information that I discuss below.
Political Challenges
Human sex trafficking involves such fundamental rights violations that prior to
the recent global movement (beginning with the passage of the Palermo Protocol in 2000)
governments were reluctant to collect data. Though the veil is slowly lifting on human
trafficking trends and governments are starting to keep track of prosecutions for
trafficking and the numbers of victims assisted, political obstacles still remain.10 Human
sex trafficking involves some of the most intimate and discomforting human behavior
and women may be unable or unwilling to report abuse to the police. Governments in
turn may feel cultural pressure to withhold the extent of the practice within and across
10
On the growing number of governments voluntarily offering data to the UNDOC see: UNODC 2009, 12.
15
their borders. Even where governments have sought to collect data they often run up
against limited capacity. Finally, since the passage of the US TVPA mandated that the
State Department assess foreign governments efforts to prevent trafficking, governments
that receive aid from the US have a particularly acute need to demonstrate that they are
tough on trafficking. In short, governments have incentives to underreport incidences of
sex trafficking, potentially limited resources to collect data, and strong motivations to
exaggerate their efforts to curb it.
Why might a government feel compelled to intentionally underreport the domestic
magnitude of human sex trafficking? The first and most obvious answer is that
governments might not have accurate statistics because victims are unable or unwilling to
come forward.11 Prevailing cultural attitudes can assign blame to victims implying that
victims should have known better or are responsible for their enslavement, undermining
the likelihood that incidences of trafficking will be reported (Buckley 2009). A powerful
motivation inhibiting government reporting may derive from a states’ share of GDP
acquired through sex tourism. Between 1993 and 1995, the ILO estimated that between 2
and 14% of the Indonesian, Philippine, Malaysian, and Thai GDPs were earned through
sex tourism (ILO 1998). With such a large share of national income earned through the
sex industry government officials will have greater incentives to overlook sex trafficking.
Finally, government officials may personally benefit from permitting sex trafficking. In
both India and Italy law enforcement authorities patronized trafficking victims and
collected bribes from pimps and madams in procedures so regular that they could be
factored into the monthly operating costs of brothels (Kara 2009).
11
There is growing evidence that local authorities often work in conjunction with traffickers to keep
victims enslaved.
16
Even where governments endeavor to collect accurate data they may be hampered
by a lack of capacity and resources (Laczko and Gramegna 2003). Governments lacking
the resources to provide public goods for their citizens are also likely to be countries of
origin for human trafficking victims. Put simply, poor countries, from which victims are
most likely to originate, are also least able to collect accurate data. There is perhaps no
better example of this phenomenon than the dearth of data on Africa. We know
comparatively little about trafficking routes within and from Africa yet, we know that
Nigerians make up a large proportion of sex slaves in Italy and that they have been found
in brothels as far away as Thailand (Carling 2005).12 Since the global movement to
eradiate trafficking commenced in 2000, international efforts, such as the United Nations
Global Initiative to Fight Human Trafficking (UN.GIFT), are providing capacity building
assistance to governments unable to collect accurate data.
Though the US TVPA has been an important new tool in the global fight against
human trafficking, it also generates perverse incentives for states. Tier placement in the
annual Trafficking in Persons Report is dependent upon eleven criteria including how
vigorously a state investigates and prosecutes traffickers, protects identified victims,
shares trafficking data, punishes public officials accused of trafficking, educates the
public about prevention, monitors itself, and improves upon these efforts from the
previous year. Tier placement can be a serious issue for states that rely on the US for
economic and military assistance. If a country is placed on the third or lowest Tier, the
US can withhold all aid and apply sanctions. For countries that show no improvement or
12
Very few recent books on trafficking have chapters on Africa. An exception is Adepoju (2005).
17
whose numbers signal a significant trafficking problem domestically, the US TVPA
incentivizes them to pass anti-trafficking laws and underreport the severity of trafficking.
Passing anti-trafficking laws is an important first step, but meaningful change
means that those laws are also thoroughly enforced and that the numbers reported reflect
reality. With the US government watching, demanding that something be done about
trafficking and conditioning aid on consistent annual improvement, governments have
powerful incentives to overstate the extent to which they are investigating and punishing
traffickers and to understate the extent of the problem. In interviews with OSCE officers
in Albania and members of the US Embassy in Albania, Kara was told the following: “no
one in Albania really knows how many trafficking criminals have been convicted because
the numbers at the end all disappear,” and that the country suffered from “‘trumped’ up
statistics, and that few criminals were actually convicted due to corruption, dropped
charges, or victim disappearance” (Kara 2009, 150).
Beyond these obstacles to accurate reporting, a government may have a vested
interest in its own global reputation as a protector of human rights. Though the State
Department has been compiling reports on other countries since 2001, it took until 2010
for the State Department to evaluate the US government. Not surprisingly, the State
Department awarded the US a Tier 1 ranking, the best ranking possible. Part of this label
accurately reflects US efforts to comply with the TVPA but it is very difficult to separate
out self-promotion, further underscoring the politicized nature of current trafficking data.
Empirical Challenges
These political challenges are but one aspect of a broader data collection problem.
Under the best circumstances, where cooperative governments collect data sincerely,
18
fundamental empirical challenges can still undermine the accuracy of the data collected.
Examining black market economies, like arms and narcotics trafficking or corruption,
necessitates a reliance on secondary indicators. Because we cannot ever know the true
amount of corruption in any given government with certainty, studies of government
corruption employ the Transparency International Index, which measures public
perception of corruption. Similarly, studies on human trafficking typically rely on
prosecution and investigation rates to gauge the severity of human sex trafficking—again
secondary and therefore imperfect indicators. The particular danger in relying on
prosecution rates is that we know that these rates are notoriously low and do not come
close to approximating the scope of the problem in most countries. Moreover, the
individuals we examine in trafficking studies, traffickers, prostitutes, and trafficking
victims are what Tyldum and Brunovskis (2005) refer to as “hidden populations.” A
hidden population is a group of people for whom researchers do not know the size or
boundaries of the group.
In spite of these empirical limitations the global community, intergovernmental
organizations in particular have undertaken monumental data collection efforts in recent
years. In the remainder of this section I review the three most wide reaching efforts and
briefly discuss their strengths and weaknesses to depict the current state of human
trafficking data collection.13 First, since 2000 the International Organization for
Migration has collected data, which is housed in their Counter-Trafficking Module
Database. The IOM data are informed by first person interviews conducted by IOM
agents with 14,000 trafficking victims from 100 destination countries and 80 origin
13
Gallagher’s work in this volume assesses the US State Department’s annual Trafficking in Persons
Reports, so I refrain from discussing them here.
19
countries.14 The Counter-Trafficking Module includes variables measuring: the profile of
the trafficking victim (age, gender, etc.), the method through which the victim entered the
trafficking process (sold by family members, kidnapping, etc.), methods of exploitation
and the victims’ response. These data are beneficial to researchers because they offer a
direct measure of trafficking and rely on interviews with victims and therefore give us
deeper insight into their specific experiences. There are two limitations to these data:
because they rely on interviews the amount of data is limited by the number of agents
working for the IOM and these data are not readily available to the public but access may
be granted from the IOM.
Beginning in 2007, the United Nations Office on Drugs and Crime (UNODC), under
the auspices of the UN Global Initiative to Fight Trafficking, collected data from 155
countries on their efforts to fight human trafficking.15 UNDOC collects self-reported
country data on the status of domestic anti-trafficking legislation, prosecution rates, and
conviction rates. The UNODOC data also offers evidence of trafficking flows by
reporting the country of origin of trafficking victims in destination countries. The data are
novel in that they offer insight into gender dynamics—worldwide, women are most likely
to be the victims of trafficking and to be convicted of trafficking offenses (UNODC
2009, 45-49). The report also offers brief, individual country assessments. The limitation
to the UNODC data is that they rely on self-reporting, which, as noted above can be a
highly politicized process. Additionally, though the report discusses the way forward in
data collection it does not endeavor to collect data annually.
14
More information can be obtained on the IOM’s counter trafficking page:
http://www.iom.int/jahia/Jahia/activities/by-theme/regulating-migration/counter-trafficking.
15
The report is available online on the UNODC’s webpage: http://www.unodc.org/unodc/en/humantrafficking/global-report-on-trafficking-in-persons.html.
20
Finally, as a part of their Trafficking and HIV/AIDs Project, the United Nations
Educational, Scientific, and Cultural Organization (UNESCO) has compiled a searchable
database with information from NGOs, the media, governments, and IGOs.16 The data are
searchable by type of statistic (broad estimate, research based, individual case,
government case, or miscellaneous), form of exploitation, country of origin, or
destination. The volume of information available in UNESCO’s searchable database is
impressive, but the format of the results is most useful for those seeking information on
individual countries.
III. The Limitations of International Law
Sex trafficking not only poses challenges for researchers, the intimate nature of
the behavior creates obstacles for governments and international organizations seeking to
eradicate it. How should the international community respond to the most intimate human
behavior? What role can international organizations and international law play in
preventing and suppressing human trafficking?
When the international community passed the Palermo Protocol their efforts
represented the first modern initiative to address human trafficking at the global level. In
the decade that followed the passage of the Palermo Protocol, 138 governments ratified
the treaty and 69 governments passed domestic anti-trafficking legislation. The swift pace
with which governments passed these laws is testament to the work of IOs and NGOs in
promoting awareness about the cause. Section I demonstrated that a readiness to pass
laws has not necessarily translated into a readiness to enforce them. Nonetheless, with
IOs like the UN and the IOM at the helm of the anti-trafficking movement we have seen
16
The database is available online on UNESCO Bangkok’s cite:
http://www3.unescobkk.org/culture/WebTraffickingV2/Search.aspx.
21
considerable progress—information-gathering techniques are improving, inter-state
dialog on trafficking is growing, and new shelters to assist victims have emerged in
record numbers.17
Unfortunately, while international organizations have spearheaded global
initiatives to combat and collect data on trafficking, they suffer from a number of
weaknesses. First, UN peacekeepers have become notorious in their patronage of
prostitutes and trafficking victims in crisis zones (Smith and Smith, forthcoming; Smith
and Miller- de la Cuesta, forthcoming). In 2007, more than one hundred Sri Lankan
Peacekeepers were expelled from Haiti for patronizing prostitutes. As governments and
UN technocrats push for global anti-trafficking initiatives like the Palermo Protocol,
peacekeepers in crisis zones are simultaneously undermining their efforts. The
mismatched preferences between high-level actors at the UN and peacekeepers highlight
the limitations of IOs and international law in combating trafficking. The passage of the
Palermo Protocol was an important first step, but the UN’s inability to control its agents
underscores the limited reach of the treaty.
A second weakness of current international law stems from the nature of
transnational sex trafficking. Section II identified the range of difficulties associated with
obtaining accurate statistics—politicized incentives to underreport and empirical
challenges owing to the intimate nature of the behavior studied. It is this second
challenge, the truly intimate nature of sex trafficking, that makes international law such a
blunt tool. The Palermo Protocol, for example, takes prosecution of traffickers as its
focus, which Scarpa (2008) attributes to the preferences of governments and conflicts
17
The new data collection efforts undertaken by IOs are detailed in section II. Anecdotal evidence of
increases in the number of shelters can be found in the 2010 US TIP Report.
22
between NGOs during treaty negotiations (62-69). Rather than create strong specific
obligations for states to assist victims or address the factors contributing to the prevalence
of transnational sex trafficking, the Protocol primarily obliges states to criminalize
trafficking.18 In this way the treaty focuses on the observable elements of the behavior—
namely criminal prosecutions of traffickers. While prosecutions remain a necessary
element in an international law approach to combating sex trafficking, protection and
assistance for victims as well as attention to factors contributing to their plight should
also be addressed.19
In addition to the internal conflicts within IOs and the predominant criminal
justice approach to trafficking, governments have simply been reluctant to develop hard
international law that limits their sovereignty. Creating treaties that mandate providing
assistance to victims, for example, would require spending state resources in very specific
ways to open shelters, provide financial assistance, or provide temporary residency visas
to victims. In lieu of hard international law, soft international law has emerged to
emphasize the primacy of trafficking victims’ human rights. In 2002, The UN High
Commissioner for Human Rights adopted the Recommended Principles and Guidelines
on Human Rights and Human Trafficking (UN High Commissioner for Human Rights
2002). The Principles and Guidelines encourage governments to assure that the policies
designed to prevent trafficking do not have an adverse impact on trafficking victims’
rights, ensuring that trafficking victims are not prosecuted for immigration violations, and
sensitizing police, border guards, social workers, and other government bureaucrats to the
needs of trafficking victims. Rather than incorporating these clear, authoritative
18
Articles 6-8 of the treaty are devoted to protecting victims but have been interpreted to be primarily
discretionary rather than mandatory (Scarpa 2008, 65).
19
On this point, see also Dinan (2008), 74.
23
obligations for states into hard law, they have remained relegated to soft law.
Governments’ reluctance to abdicate sovereignty contributed to the vague commitment to
victims’ rights contained in the Palermo Protocol. Scarpa (2008) suggests that during the
Palermo negotiations state delegates explicitly rejected a proposal to use money
confiscated from traffickers to assist trafficking victims (64).
Ten years on from the passage of the Palermo Protocol there is a danger that the
momentum that has developed around the issue of trafficking will recede. States that
jealously guard their sovereignty can now say that they have ratified the appropriate
treaties and passed the necessary laws. International organizations have an important role
to play in continuing the discussion and pushing governments to focus on the human
rights of trafficking victims by incorporating the UNHCHR’s Principles and Guidelines
on Human Rights and Human Trafficking into their domestic practices. Moreover,
Section II outlined the wide-reaching data gathering efforts undertaken by IOs. The UN
should leverage its assets at information gathering to transform itself into a clearinghouse
for trafficking data and continue global awareness campaigns like UN.GIFT.
Conclusion
In spite of recent global efforts to measure and eliminate human sex trafficking
the problem has continued to grow since the passage of the Palermo Protocol. What
lessons can we take away from an examination of these efforts? First, it is apparent from
the surge in human sex trafficking following the passage of the Protocol that punishing
traffickers alone is insufficient in eradicating trafficking. Among both scholars and
activists there is growing movement toward employing a human rights approach and
incorporating a consideration of victims rights into the global response to human
24
trafficking (Brysk, forthcoming; Bales 2004; Dinan 2008). Punishing traffickers, the
dominant criminal justice approach to human trafficking privileged by the Palermo
Protocol, has proven insufficient in eradicating trafficking.
Second, among those sixty-nine governments that have passed domestic antitrafficking legislation since 2000, 40% have yet to enforce those laws and convict a
single trafficker (UNODC 2009, 40). The heightened global attention surrounding
human sex trafficking has created an enforcement gap—encouraging governments to pass
laws but not to rigorously enforce them. Growing concern about trafficking has also
sparked ambitious data-collection initiatives, primarily among IOs. Though these data are
beset by political and empirical limitations, the diverse methodology employed—selfreporting, field reports from IO agents, and government-to-government oversight,
together help to mitigate the dangers of relying on any single type of data. While accurate
numbers on trafficking victims remain elusive, since the passage of the Palermo Protocol
the international community is getting closer to understanding the full scope and breadth
of the problem.
These findings suggest a series of additional avenues for future research. The
dominant global approach to human trafficking engenders a criminal justice approach to
trafficking, but we still do not fully understand why governments have been so reluctant
to embrace a human rights approach to human trafficking. The characteristics of those
countries that have successfully closed the enforcement gap, to both pass and enforce
anti-trafficking legislation should also be explored. Additional scrutiny of on-going data
collection efforts will illuminate the strengths and weaknesses of these data and
ultimately contribute to more effective anti-trafficking initiatives.
25
Much has been accomplished in the fight against human sex trafficking in the
decade since the international community passed the Palermo Protocol. Though the
number of trafficking victims appears to be growing, governments are making sustained
efforts to pass anti-trafficking laws. The intimate nature of human sex trafficking limits
our ability to accurately measure occurrence rates and governments have considerable
incentives to obfuscate the extent of their trafficking problems. Yet, following the
passage of the US TVPA, IOs have played an invaluable role in collecting and
disseminating trafficking data. The result has been a heightened awareness about human
trafficking worldwide. Despite this increased awareness, international law has yet to live
up to its potential to curb trafficking because it has focused narrowly on punishing
traffickers rather than protecting victims and addressing the underlying economic causes.
If efforts are to succeed, international law must address the causal factors and victims in
human trafficking.
26
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