(A condensed version of this article was published as "Working on the Inside: Migration, Sex Work and Trafficking in Persons," in Legal Link (Australia), Vol. 11, No. 2, 2000.)

Migration, Sex Work, and Trafficking in Persons

The prevention of "trafficking in women and children" has become a priority for service agencies and policy makers throughout the world. New wording on trafficking has been included in documents about women's rights such as the progress report on the Beijing Platform for Action ("Beijing Plus Five") and a new protocol on trafficking in persons is currently being drafted by the UN Crimes Commission in Vienna. However, even though millions of dollars of funding are being pumped into initiatives to research, define and prevent the phenomenon known as trafficking, this framework remains tied to fears about sexuality, sexual slavery and the "White Slave Trade" which have existed since the nineteenth century. Thus, even though some progressive advocates of women's rights have come to see that "trafficking in women and children" is not synonymous with prostitution and vice versa, this new international concern is one that must be thoroughly understood by supporters of sex workers rights.

Sex worker rights activists have, with due cause, opposed initiatives to stamp out 'trafficking in women and children.' Activists are, of course, opposed to abuse of women migrants but substantial evidence exists to indicate that anti-trafficking initiatives are more concerned with eliminating prostitution and stemming migration than in protecting human rights. The Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others ("1949 Convention") equates sex work with trafficking and urges State Parties to punish any person who "procures, entices or leads away, for the purposes of prostitution, another person even with the consent of that person." Fortunately the 1949 Convention had a limited impact because it was ratified by only a small number of UN members States yet to this day it emerges to dog sex worker rights activists when conservatives call for its acceptance as ideal law to combat trafficking. More recently media attention regarding trafficking in women has given the authorities an excuse to harass the sex industry which ultimately undermines the labour conditions of sex workers. For example in 1998, the San Francisco police used the screen of 'trafficking prevention' to arrest increased numbers of migrant sex workers, including many Asian massage workers, who were clearly not working in situations of forced labour.

The fact that sex worker advocates are dubious about anti-trafficking rhetoric is healthy and allows us to think outside of this flawed framework. Yet by doing this advocates walk a fine line with many potentially supportive NGOs who accept the framework without question and who are confused about the goals of the sex worker rights movement. Consequently, abolitionist groups have been able to accuse sex worker rights organizations as ignoring the plight of trafficked women in order to promote a 'pro-prostitution' agenda as a means of discrediting our work. This is clearly counterproductive to efforts to win allies in an international arena that is so often hostile to the notion of sex worker rights. More recently, driven by an impulse to form productive alliances with human rights organizations, many sex worker advocates have tempered their approach to the issue by engaging in lobbying and service provision work with anti-trafficking groups.

My involvement in the trafficking debate can be seen as an example of this kind of engagement. I had initially worked on international issues from a health promotion perspective but I saw the need to work in human rights in 1998 when several US based human rights organizations began lobbying Congress for greater action on "trafficking in women." These organizations did not have a great deal of expertise in the impact of anti-trafficking laws on sex workers and when an informal NGO group on trafficking formed, members of the Network of Sex Work Projects (NSWP) agreed to work in this diverse coalition. At the outset we made it clear that the NSWP did not support aggressive lobbying to create new legislation to prevent trafficking because new laws were almost always used to arrest sex workers, their families, deport migrant workers and undermine efforts to promote occupational health and safety for sex workers. On the other hand we recognized that if we did not actively engage human rights NGOs in this process then they would proceed with no input from our groups and perhaps make mistakes that would harm our constituents further.

In May of 1998 the first draft resolution on "international trafficking in women and children" appeared establishing the basis for the current UN protocol discussions. The work of the human rights lobbyists had achieved their goal because the US delegation was one of the instigators of the draft trafficking protocol. Sex worker advocates recognized that the development of a new legally-binding international agreement on trafficking would direct the process of law reform in signatory States for decades to come, perhaps in ways that would be counter to our interests. Our concerns were fueled by the knowledge that the protocol was not initially conceived of as a human rights protective document but as a way of fighting criminal activity. It is one of four optional protocols on 'migrant smuggling,' drug trafficking and arm control relating to an umbrella convention on the prevention of transnational organized crime.

The development of new protocols and conventions in the UN system is a lengthy affair sometimes requiring several years to reach completion. The process is so time consuming because drafting usually occurs via discussion and consensus involving scores of UN Member States rather than by voting. Discussion may be slowed further when unrelated international conflicts, such as the embargo between the US and Cuba, are played out in the assembly of government delegations. The purpose or intent of a protocol matures during these many years of drafting and the non-government sector can influence this process by: lobbying at UN meetings; influencing government delegations intersessionally; providing information to multilateral agencies, such as the International Labour Organization; and by participating in research carried out by the UN Special Rapporteurs on Human Rights and the High Commissioner of Human Rights.

Several human rights NGOs from the US, Europe, Latin America and Asia joined together to form the Human Rights Caucus in order to lobby at UN meetings to promote human rights standards in the trafficking protocol.[1] Sex worker advocates decided to participate in influencing the drafting of the protocol on trafficking in persons while maintaining a critical stance of the trafficking framework more generally. Consequently, the NSWP reiterated the failings of the trafficking framework at the first UN Crimes Commission sessions in Vienna in January 1999 while key activists joined in the lobbying efforts.[2] Our ambivalence about the drafting of the trafficking protocol may have been confusing to both human rights NGOs and to other sex worker rights activists not directly engaged in the process. However, it was important to establish our philosophical stance on trafficking and thus promote new thinking of migration and sex workers' rights while minimizing the harm caused by the new international legislation.

The Human Rights Caucus has had significant success in contributing to the development of the new trafficking protocol. Lobbyists have worked with government delegations to transform the protocol into a human rights protective document recognizing the special needs of 'trafficked persons.' The publication of the Human Rights Standards for trafficked persons by the Global Alliance for Trafficking in Women (GAATW) and the International Human Rights Law Group (IHRLG) has been integral to this success and, significantly, the authors sought input from sex worker organizations to ensure the appropriateness of the standards.[3] The Human Rights Caucus has worked to refine the language of the protocol to reflect more accurately current conditions of migrants and contemporary gender analyses. An uncritical focus on 'trafficking in women and children' infantalizes women by defining them as a part of a vulnerable group with children ultimately undermines the notion of women's rights as human rights. Furthermore, as the recent tragic death of 58 Chinese immigrants attempting to enter the UK indicates, significant numbers of men are harmed by unscrupulous agents or 'migrant smugglers.'[4] In large part due to the efforts of the Human Rights Caucus the draft protocol has now been renamed as the Draft Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children to reflect these concerns.

Another fundamental concern for sex worker rights advocates has been that the emergence of the draft trafficking protocol will galvanize abolitionists to renew their anti-prostitution work in the international arena. As I have already noted historically anti-trafficking initiatives have been a Trojan Horse to undermine sex worker rights. During 1999 abolitionists had a relatively limited impact on the directions taken in the draft protocol and the Human Rights Caucus sensibly lobbied government delegations to avoid a long and protracted debate about the decriminalization (or criminalization) of prostitution. Furthermore, the Human Rights Caucus worked hard to define 'trafficking in persons' via three internationally recognized and legally translatable elements (forced labour, slavery and servitide) rather than through the kinds of work migrants do. This allowed delegations to circumvent discussions about the legitimacy of any particular industry whether agricultural, domestic, garment production, or sex work, and focus on the protection of basic labour rights and the prevention of human rights abuses.

Unfortunately despite all of these successes the perils associated with the trafficking framework remain. During the most recent UN meetings in June 2000 abolitionist lobbyists revealed how easy it is to overturn months of careful lobbying in the matter of a few days when dealing with issues of sexuality or prostitution. Abolitionist lobbyists renewed debate about prostitution by pushing for language to prohibit 'exploitation, including the use of prostitution and other forms of sexual exploitation' and questioning consent in relation to sex work. Sadly, the ghost of the 1949 Convention continues to walk to halls of the United Nations.

This turn of events may mean that the draft protocol will never be completed if the delegate discussion spirals into an endless argument about the legality of prostitution. If the protocol is never finished this would be a mixed blessing. Sex worker rights advocates would not have to live with more bad laws in the international arena but we could rightly expect that we would have to fight the same battle perhaps in another part of the UN. If I have to weigh the best outcome I would conclude that it is better that we continue to work with human rights organizations to ensure a timely completion of the protocol in a way that will also protect, or at least not reverse, sex worker rights. Participation in the protocol discussion has opened many doors for me and for other sex worker rights activists. We have learned about the UN system and how to work within it and we can train others. We have fostered friendships and working relationships with numerous activists in the human rights field who are now prepared to hear our concerns and who value our perspectives on issues ranging far beyond sex work. Most importantly we have learned that we must reach out and create alliances with migrant rights groups, garment workers, anti-sweatshop groups and domestic workers if we are to forge ahead as part of new understanding of human rights, migration, globalization and labour rights to create a valid alternative to the trafficking framework. Sex worker rights groups have often tried to work alone when talking about migration but we know now this is not a sustainable nor savvy political strategy.

Penelope Saunders is a research fellow at the Columbia University School of Public Health, New York and is the incoming Executive Director of Helping Individual Prostitutes Survive (HIPS) in Washington. DC. Before moving to the US in 1997 she was a program manager of the Sex Industry Network at AIDS Council of South Australia.

References:

1. The Human Rights Caucus is an informal grouping including the Global Alliance Against Trafficking in Women, International Human Rights Law Group, Fundación Esperanza, KOK - NGO Network against Trafficking in Women, Foundation Against Trafficking in Women and several other human rights NGOs. [back]

2. The full text of the NSWP statement can be found at:
   www.walnet.org/csis/groups/nswp/
    [back]

3. Copies of the Human Rights Standards are available in French, Spanish, English and Thai at the GAATW website:
   www.inet.co.th/org/gaatw
    [back]

4. The New People Trade, Newsweek, July 3, 2000: p 32. The debate about the difference between migrant smuggling and trafficking in persons is complex and cannot be treated here.. [back]