(6) Trafficking and Sex Work

Question 1

What does the Trafficking (Palermo Protocol) (2000) constitute

Answer 1

an international agreement to intensify international efforts to fight transnational efforts to fight transnational organised crime
–> NOT A HUMAN RIGHTS TREATY!

Question 2

What are the 2 views on sex work?

Answer 2

1. abolitionists
2. de-criminalisers

Question 3

abolitionist view of sex work

Answer 3

• prositution = violation of women’s HR
• all prostitution = trafficking
• prostituion is per definition, forced –> force refers to process of recruitment only

Question 4

de-criminalisers view of sex work

Answer 4

• prostitution = work
• vs conditions of abuse which = trafficking
• only should outlaw prostitution in cases of abuse/coercion
• force refers to conditions of recruitment and work

Question 5

Problematic themes in the negotiation of the Palermo Protocol Negotiations

Answer 5

• focus on recruitment + mvmt and national borders vs working conditions + concerns
• conflation of trafficking and sex work
• preoccupation w women’s morality
• reduction of women to passive victims –> failure to recognise issue of agency and consent

Question 6

legal definition of trafficking per Palermo Protocol

3 elements!

Answer 6

1. Action
2. Means
3. Purpose

Question 7

(1) Action - aspect of trafficking definition

Answer 7

recruitment, transportation, transfer, harbouring or receipt

Question 8

(2) Means - aspect of trafficking definition

Answer 8

threat/use of force/other forms of coercion .. of the abuse of power/position of vulnerabiltiy /giving/receiving payments of benefits to achieve consent of the person having control over another person

COERCION CENTRAL TO IDEA!

Question 9

(3) Purpose - aspect of trafficking definition

Answer 9

intention of exploitation, including prostituion of others/other forms of sexual exploitation, forced labour/services, slavery, other practices similar

*sufficient that exploitation was intention of the conduct *

Question 10

Re the trafficking definition, when ‘means’ are used, consent is irrelevant –> person can obvs can consent to illegal mirgation, prostitution, domestic work etc but DOES NOT imply consent to exploitation

Answer 10

Are means and consent relevant in the case of a child to amount to trafficking?

No - irrelevant - the act of recruitment itself is sufficient to amount

Question 11

how is a characterisation of sex work exploitation as opposed to labour exploitation problematic?

Answer 11

1) conflates sex work and trafficking
2) reinforces distinction btw innocent and guilty victims
3) sex work not seen as work - suggesting forced labour can’t exist in sex industry
4) completely opposed strategies! More rights for sex workers vs criminalisation which results in less Rs for sex workers

Question 12

what is problematic abou the focus on how people arrive into forced labour/slavery like conditions?

Answer 12

1) focuses away from the forced labour itself - justifies broder control agenda that privileges just a small subgroup of ppl in forced labour

Question 13

Facts in SM v Croatia (2018) ECtHR

Answer 13

• applicant granted status of trafficking victim by croatia
• accused NOT convicted bc Croatian courts found applicant’s testimony incoherent + unreliable –> insuffcient evidence for conviction

Question 14

What was the complaint by SM in SM v Croaita (2018) ECtHR?

Answer 14

complained of failure to adopt appropriate legal framework and properly investigate situation of alleged forced prostitution and trafficking

Question 15

What did the ECtHR note in relation to its role in characterising the ECHR in SM v Croatia (2018)

Answer 15

that it’s the master of characterisation and interpreting the Convention

Question 16

What did ECtHR say in respect to its characterisation of art 4 (prohibition of slavery and forced labour) in SM V Croatia (2018)?

Answer 16

• there are no exceptions to art 4 for states and their obligations!
• SPs have +ve obligation to penalise adn prosecute AND est appropraite legislative and adminsitrative framework
• Art 4 also imposes +ve obligation to investigate when credible suspicion and crafeully scruitise

Question 17

In SM v Croatia (2018) ECtHR, the Croatian framework was adequate to ensure compliance with +ve obligations under art 4 ECHR BUT

Answer 17

in this instance failed to do enough = violation

Question 18

What was the issue in J and others v Austria (2017) ECtHR?

Answer 18

whether Austrian authorities complied with their positive obligation to identify and support the applicants as (potential) victims of human trafficking, and whether they fulfilled their positive obligation to investigate the alleged crimes under art 4

Question 19

Was there a violation of art 4 by Austria in J and others v Austria (2017) ECtHR?

Answer 19

No violation of procedural limb of Art 4 –> held no universal jurisdiction to investigate recruitment and exploitation abroad

• thus there was no failure to investigate the harbouring and receipt in Austria

Question 20

Facts in J and others v Austria (2017) ECtHR

Answer 20

• application made by 3 Phillipino women
• W1 and W3 recruited to work as au pairs in Dubai
• W2 not recruited by employment agency but travelled to Dubai after W1 suggested
• passports taken away, subjected to ill treatment and exploitation by employers
• they were taken on short holidya trip - stayed in hotel, still w/o access to passports,
• subjected to extreme verbal abuse and threats after child went missing –> then applicants left hotel
• later went to police and made complaint for human trafficking - Austria started investigation then discontinued it since offences committed abroad and not Austrian citizens

Question 21

What is a critique on CEDAW’s GR concept on trafficking in women and girls?

Answer 21

that the GR concept note creates a narrative!

Question 22

2 main issues with the CEDAW GR Concept Note on women and girls in trafficking

Answer 22

1) Fails to recognise that increased trafficking comes from increased $ activity of wealthy countries (vs just a vulnerable migrant narrative)
2) mergers woemn and girls together, privileging narrative of exploitatoin that is closely tied to sex work (not reflected of ILO report that says other sectors of private secotr like domestic work labour agriculture dominate!!)

Question 23

Consequence of CEDAW GR Concept Note on women and girls in trafficking issues

Answer 23

fails to give credence to other sectors women are trafficked for like domestic labour and marriage

Question 24

What else did the CEDAW Concept note imply?

Answer 24

that demand for forced labour is all by males and that women are passive (anti-sex worker stance), excludes views and perspectives of sex workers

Question 25

What does the Concept note fail to do in respect of talking about decriminalisation of sex work?

Answer 25

fails to discuss hor a decriminalisation or labour rights narrative actually results in less trafficking - ignores the facts and research on this –> essentially results in sector specific gender stereotypes that disembody sex work and exclude transwomen etc, must cover all forms of trafficking!