I. Introduction

The sexual exploitation of individuals takes many different forms and affects men, women and children throughout the world. In many cases the victims are held in a situation of virtual slavery and it is difficult if not impossible to draw any real distinction. Slavery is defined in the international legal code as being "the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised."⁽¹⁾ It is clear that the crucial element in identifying the existence of slavery is the degree of control one person exerts over another. This central concept must be remembered when deciding whether a particular practice falls within the definition of slavery. In order to understand why or how sexual exploitation can become a form of slavery for the victims, the phenomenon must be analysed fully starting at the beginning with the recruitment or trafficking of the person to the end state of virtual enslavement, sexual or otherwise.

II. Trafficking

There is some confusion between what the terms 'traffic' and 'trafficking' actually constitute in practice and what they mean when used in the relevant international instruments. It has not been possible to agree a precise and globally recognised definition of 'trafficking in persons' setting out clearly what it means today. There is disagreement on whether the term implies cross border movement and whether there must be an element of coercion involved. This ambiguity has already been brought to the attention of the General Assembly but this issue has not been clarified.⁽²⁾

This dichotomy developed over time and can be traced back to the first formal efforts made to eradicate the slave trade in the last century and earlier this century. The slave trade at that time usually involved the movement of slaves from one country to another. In its traditional form, therefore, trafficking implied a crossing of international borders. This position has changed and it has now been accepted that individuals can be trafficked within the borders of their own state. Part of the slave trade included the trafficking of women and there has traditionally been a link between trafficking and prostitution. These different approaches resulted in a diverse range of national legislation being adopted in different jurisdictions making it harder to reach any international consensus on the matter. The problem has now become one of global concern due to the size and extent of the trafficking industry and the apparent unaccountability for the perpetrators. This modern form of trading in humans requires revised and systematic measures to combat its existence.

A. International Instruments

The trafficking of persons today can be viewed as the modern day equivalent of the slave trade of the last century. The Covenant of the League of Nations adopted on 28 April 1919 not only called on member states to ensure fair and humane conditions of employment for all but also to work towards the suppression of traffic in women and children in particular for the purpose of sexual exploitation. Prior to the existence of the League of Nations certain efforts had been made by the international community to prohibit the slave trade.

In the latter part of the nineteenth century, the Brussels Act of 1890 contained effective measures to control and prevent the slave trade. It provided for a Slavery Bureau to oversee this process and the known sea routes preferred by slave traders were subjected to naval patrolling. Article XVIII of the Brussels Act provided that a "strict supervision shall be organised by the local authorities at the ports and in the countries adjacent to the coast, with the view of preventing the sale and shipment of slaves…." Today, it is increasingly difficult to monitor and control the traffic in persons given the dramatic increase in global migration patterns. It is a low-risk high return prospect for the trafficker and it is often difficult for the authorities to identify given the various disguises used by the perpetrators. It is made even more difficult given the covert nature of the activities as in some instances organised crime is involved in the international sex slave business.⁽³⁾

The 'slave trade' was defined in the Slavery Convention 1926 as "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 or transport in slaves."⁽⁴⁾ The fact that individuals are still being acquired and disposed of for what ever purpose today has lead commentators to conclude that "this underground trade in human beings exacts such an enormous toll in human misery that it has been called a modern version of the slave trade."⁽⁵⁾ The definition of slave trade was endorsed by the Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery 1956 (Supplementary Convention) with the addition of "by whatever means of conveyance" thus including transportation by air.⁽⁶⁾

The international instruments dealing with trafficking implemented in the first part of the twentieth century focused on cases in which women and girls were moved across international frontiers without their consent for the purposes of prostitution.⁽⁷⁾ The trafficking of persons has therefore been associated and linked with sexual exploitation in the international treaties from the beginning. The Suppression of the White Slave Trade Convention in 1910 imposes an obligation on the parties to punish anyone who recruits a woman, below the age of majority, into prostitution even with her consent. In 1933, Article 1 of the Suppression of the Traffic of Women of Full Age Convention contained an explicit recognition of the penal nature of the act by establishing a duty to prohibit, prevent and punish the trafficking of women even with consent. This 1933 Convention specifically relates to the international traffic in consenting women of full age, but only in situations where there is traffic from one country to another. A state could therefore conceivably tolerate on a national level what it condemns and seeks to prevent at an international level. This Convention removed the condition of constraint yet limited its application to international trafficking.

This trend towards criminalizing the activity of trafficking of women with or without her consent continued after World War II with the implementation of the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others 1949 (Suppression of Traffic Convention). This treaty consolidated the earlier instruments relating to the 'White Slave Trade' and traffic in women and children and forms the legal basis of the international protection against the traffic in persons today.

The Suppression of Traffic Convention makes it an offence for a person who "Procures, entices or leads away, for the purposes of prostitution, another person, even with the consent of that person."⁽⁸⁾Here again we see the notion of trafficking inextricably linked to prostitution as in the earlier conventions. This has resulted in a narrow interpretation of trafficking as it does not include the procurement of individuals for any other purpose than sexual exploitation. The reality today is that people are trafficked not only for use in the sex industry but for many other reasons. This fact has been acknowledged in relation to children in Article 35 of the UN Convention on the Rights of the Child which prohibits the abduction, sale or traffic in children for any reason, for example begging.⁽⁹⁾

It is clear from the terms of the Suppression of Traffic Convention that the recruitment does not need to be across national or international borders but could in fact be within the same country. This represents a move away from the approach adopted in earlier international instruments where some element of cross-border travel was involved. Although the definition of trafficking does not require international frontiers to be crossed the Suppression of Traffic Convention does require the parties, in connection with immigration and emigration, to "check the traffic in persons of either sex for the purpose of prostitution."⁽¹⁰⁾

The provisions of the Suppression of Traffic Convention relating to trafficking make the consent of the person to the activity irrelevant. The states parties are, therefore, obliged to punish both voluntary and involuntary procurement into prostitution. This approach reflects the general intention of the convention as stated in its Preamble, to establish prostitution as a practice which is incompatible with the dignity and worth of the human person. The convention also places an obligation on States Parties to take specific measures to protect immigrants and emigrants, the potential victims of trafficking, by providing them with relevant information to ensure that they do not fall victim to traffickers and ultimately becoming part of the slave trade.

B. Methods of Procurement

There are various methods of procuring or enticing a person into slavery or servile status through trafficking for the purposes of prostitution or other forms of exploitation. The main methods of procurement include (i)abduction, (ii)purchase or (iii)with fraudulent inducements for jobs and a better life:-

(i) One method of procuring an individual is to abduct them either from one country to another or from one part of a country to another. In such instances it is hard to access the scale of the problem as the victim will have difficulty escaping from their captors to report the matter to the police.⁽¹¹⁾The element of coercion or power over the victim by the traffickers in this case is clearly one that falls within the definition of slavery or slavery like practices, as well as within the definition of arbitrary detention.

(ii) The sale of women and children by their families or guardians is also a commonly used means of procurement. Poor families sell their children, in particular daughters, for cash payments and are relieved of the burden of providing her with a dowry. In other instances children are sold so other family members can eat.⁽¹²⁾This practice was condemned by the General Assembly President on the International Day for the Abolition of Slavery in 1996 when he identified the most tragic cases of procurement as "those when the victims are sold and trafficked with the complicity of parents, relatives and people known to them. Young children are the major victims of such desperation. Girls are most vulnerable because their low status and so-called sexual desirability usually merge with traditional practices such as child marriage."⁽¹³⁾ Although this form of selling children specifically contravenes the provisions of Article 1(d) of the Supplementary Convention the practice persists and is used by traffickers as a means of procuring minors into prostitution. The element of absolute control exerted by one individual over another which is central to the concept of slavery is clearly visible in this method of procurement. The adult or child is completely at the mercy of the trafficker, often in a strange environment, who in many cases retain their passports and papers as a further means of control.

(iii) In addition to kidnapping or buying individuals the traffickers use the promise of a job as an inducement. Many of the target groups are young, poor and vulnerable people seeking some financial security. They are mostly not aware that they will ultimately end up being exploited in the sex industry.⁽¹⁴⁾

III. Trafficking in Women

As already pointed out the issue of trafficking first arose in respect of the 'white slave trade'. International protections were introduced to ensure that women were not subjected to procurement for the purposes of sexual exploitation. The Suppression of Traffic Convention prohibits trafficking of persons for the purposes of prostitution. This applies to women and men of all ages whereas the earlier international instruments specifically protected women from exploitation. The Suppression of Traffic Convention is therefore more extensive in scope that earlier treaties which only applied to women and girls. It does not set out what trafficking means, only that it should not be allowed if it results in prostitution

In an effort to clarify what is understood by the term 'trafficking of women' various definitions have been proposed at both international and regional levels. The Parliamentary Assembly of the Council of Europe recommended that traffic in women be defined as "any legal or illegal transporting of women and/or trade in them, with or without their initial consent, for economic gain, with the purpose of subsequent forced prostitution, forced marriage or other form of forced sexual exploitation."⁽¹⁵⁾

The International Organisation of Migration (IOM) defines trafficking in women as "any illicit transporting of migrant women and/or trade in them for economic personal gain. This may include:

facilitating the illegal movement of migrant women to other countries, with or without their consent;

deceiving migrant women about the purpose of the migration, legal or illegal;

physically or sexually abusing migrant women for the purpose of trafficking them;

selling women into, or trading in women for the purpose of employment, marriage, prostitution or other forms of profit-making abuse."⁽¹⁶⁾

The IOM have in their proposed definition given particular emphasis to migrant women. Migrant workers are particularly vulnerable to being exploited given their circumstances and their complete reliance on the trafficker.⁽¹⁷⁾ However the restrictive focus of this definition solely on migrant women makes its scope limited. In its favour, this definition does not just cover trafficking for the purposes of sexual exploitation but also includes all forms of profit-making abuses which is much more extensive that the scope of the existing international law.

The European Commission also defines trafficking exclusively in terms of women as being "the transport of women from third countries into the European Union (including perhaps subsequent movements between member states) for the purpose of sexual exploitation……Trafficking for the purpose of sexual exploitation covers women who have suffered intimidation and/or violence through the trafficking. Initial consent may not be relevant, as some enter the trafficking chain knowing they will work as prostitutes, but who are then deprived of their basic human rights, in conditions which are akin to slavery."⁽¹⁸⁾

This definition requires a transnational border crossing and does not apply to internal trafficking. The reference to trafficking is again specifically linked to sexual exploitation. It does acknowledge that trafficking itself may include intimidation and/or violence of women and makes their initial consent irrelevant. This is similar to the Suppression of Traffic Convention and would incorporate the third form of procurement set out in the previous section as a form of modern slavery.

Although no definition has been agreed at the international level the link between trafficking and the violation of women's right has been established. In the Vienna Declaration and Programme of Action it is agreed that "Gender-based violence and all forms of sexual harassment and exploitation, including those resulting from cultural prejudices and international trafficking, are incompatible with the dignity and worth of the human person, and must be eliminated."⁽¹⁹⁾ The General Assembly adopted the Declaration on the Elimination of Violence Against Women on 20 December 1993 in resolution 48/104. The definition of violence against women in Article 2 of this Declaration includes "trafficking in women"⁽²⁰⁾ which must be condemned by states and appropriate national legislation must be introduced to prevent and punish the perpetrators of those acts. The Declaration on the Elimination of Violence against Women, although not legally binding, does set out a comprehensive framework with regard to the elimination of violence. The UN Special Rapporteur in her report on violence against women recommended that the international community begin a dialogue to work towards new international standards with regard to trafficking and prostitution. These standards could be developed along with international mechanisms to ensure reporting and monitoring of State activities. She also suggested that "procedures should ensure that traffickers cannot act with impunity because of the immediate deportation of trafficked victims."⁽²¹⁾

The UN Commission on Human Rights also considers trafficking to be a form of violence against women which is a violation of their human rights and must accordingly be eliminated.⁽²²⁾ The General Assembly, at its fifty-second session called upon states to "criminalise trafficking in women and girls in all its forms, to condemn and penalise all those offenders involved, including intermediaries, whether their offence was committed in their own or in a foreign country, while ensuring that the victims of those practices are not penalised."⁽²³⁾ This emphasis on the protection of the victims of trafficking and the punishment of the perpetrators was reaffirmed by the Economic and Social Council in resolution 1998/20. This resolution declared that the "attention and resources of law enforcement authorities,……must be directed towards preventing and punishing the activities of all those involved in organizing and facilitating such international trafficking, including criminal groups, individual traffickers, employers and consumers."⁽²⁴⁾ The violation of women's rights at the most fundamental level must be redressed through international and regional co-operation and the UN encourages governments to work together to eliminate international trafficking. The punitive actions should be directed towards the perpetrators not the victims, as the Secretary General of the UN pointed out "human rights mean little if they do not protect freedom from bondage and coercion in respect of all aspects of an individuals life."⁽²⁵⁾

The Committee on the Elimination of Discrimination Against Women (CEDAW), the treaty monitoring body set up under the Convention on the Elimination of All Forms of Discrimination against Women⁽²⁶⁾(Convention on the Elimination of Discrimination Against Women) has carried out an analysis on the issue of trafficking. Under Article 6 of this Convention States Parties are obliged to suppress trafficking. As a result of this review CEDAW adopted general recommendation 19 in 1992 dealing with violence against women.⁽²⁷⁾ This recommendation condemned the exploitation and sexual assault of women and called on governments to implement legislation to overcome trafficking.

In the Rome Statute of the International Criminal Court 'enslavement' is included in the definition of crimes against humanity which fall within the competent jurisdiction of the Court. The definition of enslavement in the Rome Statute is the same as that contained in the Slavery Convention 1926(set out earlier) with an additional reference to exercising power over an individual "in the course of trafficking in persons, in particular women and children."⁽²⁸⁾ It has, therefore, been internationally recognised that trafficking of persons is a form of enslavement which, in accordance with the provisions of the Rome Statute, can be prosecuted as a crime against humanity when it enters into force.⁽²⁹⁾

IV. Traffic in children

The trafficking of children is a major violation of international law and is specifically prohibited under Article 35 of the Convention on the Rights of the Child. States are required to take measures "to prevent the abduction of, the sale of or traffic in children for any purpose or in any form."⁽³⁰⁾ On the issue of traffic in children, therefore, international standards are not limited to dealing with recruitment to prostitution, but address a range of situations in which children are taken away from their families for some form of exploitation, whether this occurs with or without the agreement of their parent(s) or guardian. These situations include: international trafficking of children for purposes of adoption,⁽³¹⁾ recruitment (either national or international) for any form of sexual exploitation, including prostitution and pornography⁽³²⁾, recruitment to work in cases in which children are sent away from their families (whether to another country, or in the same country)⁽³³⁾ and trafficking of children's organs for transplant or any other purpose. In every case, the children concerned are all those under the age of 18, unless, under the law applicable to the child, majority is attained earlier.⁽³⁴⁾

When children are trafficked across international frontiers, States have certain responsibilities to ensure that the children concerned are treated appropriately, notably as victims of abuse and not as criminals. In particular, "States and national and international organisations" should "ensure that the true age of the children is ascertained by independent and objective assessment, preferably with the co-operation of the non-governmental sector. If they are to be returned to the country of origin, their safety must be guaranteed by independent monitoring and follow-up. Pending their return to the country of origin, they should not be treated as illegal migrants by the receiving countries, but should be dealt with humanely as special cases of humanitarian concern. Upon the children's return, the country of origin should treat them with respect and in accordance with international human rights principles, backed up by adequate family-based and community-based rehabilitation measures."⁽³⁵⁾

The issue of trafficking in children, similar to trafficking in women referred to above, has been the focus of recent international concern and has been the subject of many multi-national conferences. In its Programme for Action, the International Conference on Population and Development held at Cairo stated that "all states…should give the highest possible priority to children. The child has the right to standards of living adequate for its well-being …..and to be protected…..from all forms of physical or mental violence…..maltreatment of exploitation, including sale, trafficking, sexual abuse and trafficking in its organs."⁽³⁶⁾ The World Congress against Commercial Sexual Exploitation of Children⁽³⁷⁾ considered the scope of the problem and measures that could be adopted by national authorities to combat its existence. The focus is not on punishing the victims but on the importance of programmes to rehabilitate victims and to prevent children becoming victims of trafficking.

The extent of the problem of trafficking and sexual exploitation of children led the UN member states to start negotiating the terms of the a draft Optional Protocol to the Convention on the Rights of the Child dealing specifically with the sale of children, child prostitution and child pornography. The Optional Protocol to the Convention on the Rights of the Child on the sale of Children, Child Prostitution and Child Pornography is an international effort to strengthen existing mechanisms to help address the exploitation of children.

The working group are having difficulty reaching agreement on the meaning of such terms as the 'sale of children,' 'child prostitution' and 'child pornography' and the debate on the wording and scope of the First Optional Protocol to the Convention of the Rights of the Child is ongoing. The definition, for example of the sale of children is proving to be particularly problematic with some delegations favouring a narrow application restricting it exclusively to sexual exploitation and others preferring to take a broader view to cover the sale of minors for all exploitative employment.

It was also suggested that a definition of 'child sex tourism' be included in the First Optional Protocol although the delegates have encountered difficulties reaching a consensus on this point. This would be the first international treaty to attempt to define this concept. It was proposed that child sex tourism means" tourism organised with the intention to facilitate or effect [directly or indirectly][the sale of children][child pornography] child prostitution or [any unlawful sexual practices]⁽³⁸⁾

V. Prostitution

States are required to punish "any person who, to gratify the passions of another... procures, entices or leads away, for purposes of prostitution, another person ..." or "otherwise exploits the prostitution of another person."⁽³⁹⁾ The prohibition on procuring and exploitation of prostitution refers both to cases in which the prostitute is subjected to some form of coercion, and to acts carried out "even with the consent of that person"⁽⁴⁰⁾ (the man or woman involved as a prostitute). International instruments on trafficking of women for prostitution adopted early in the twentieth century focused initially on women who were subjected to some form of coercion. It was in 1933 that an instrument was first adopted which included a ban on traffic in women "even with her own consent."⁽⁴¹⁾

International standards do not contain a definition of prostitution, causing some confusion and disparity about the breadth of activities covered (i.e. acts of sexual intercourse, or also other acts or services of a sexual nature). Although prostitution is not defined in any of the international treaties when given its ordinary meaning, in accordance with the rules of interpretation of international instruments set out in the Vienna Convention, means any sexual act offered for reward or profit. The language used in the Suppression of Traffic Convention makes it clear that the reference to prostitution includes men practising prostitution, as well as women and to children under the age of 18, as well as to adults.

Prostitution itself is not prohibited by international standards and States are not required to punish prostitutes. The Suppression of Traffic Convention states that prostitution and "the accompanying evil of the traffic in persons for the purpose of prostitution are incompatible with the dignity and worth of the human person and endanger the welfare of the individual, the family and the community ..."⁽⁴²⁾ implying, but not specifying that the act of prostitution should be discouraged. Reporting to the UN Commission on the Status of Women⁽⁴³⁾ in 1983, the Special Rapporteur on the Suppression of the Traffic of Women for the Exploitation of Prostitution, J. Fernard-Laurent, noted that he chose to report on prostitution from "the human rights perspective", from which point of view, he suggested, "we ... consider prostitution to be a form of slavery."⁽⁴⁴⁾

In line with the obligation to punish anyone who persuades a man or a woman to become a prostitute, States are also required to punish anyone who "keeps or manages, or knowingly finances or takes part in the financing of a brothel"⁽⁴⁵⁾ that is a place where one or more people are practising as prostitutes, or who "knowingly lets or rents a building or other place ... for the purpose of the prostitution of others."⁽⁴⁶⁾ The Suppression of Traffic Convention not only bans brothels and has the effect of preventing prostitutes from working together in rented or purchased premises. The implication is that individual men or women may continue to practise as prostitutes provided they do not regularly use the same place for receiving their customers.

Both international instruments concerning the traffic of women for prostitution adopted before 1933⁽⁴⁷⁾ and a number of other instruments address the various forms of coercion, threats and fraud which may be used to force women or men into prostitution or to continue practising as prostitutes. For example, the International Convention of 4 May 1910 for the Suppression of the White Slave Traffic requires the punishment of "any person who, to gratify the passions of others, has by fraud or by the use of violence, threats, abuse of authority, or any other means of constraint, hired, abducted or enticed a woman of full age for immoral purposes" (emphasis added).

International instruments do not focus attention on the customers of prostitutes in the same way, nor require States to take action, for example, in respect of individuals seeking the services of a prostitute. Although the States Parties to the Suppression of Traffic Convention are obliged to take measures for "the rehabilitation and social adjustment of the victims of prostitution.⁽⁴⁸⁾" In recent years, however, the international community has focused its attention to the punishment of the perpetrators. In the Platform for Action adopted by the Fourth World Conference in Beijing a programme was adopted which called on governments to take certain measures whose objectives included "providing better protection of the rights of women and girls and to punishing the perpetrators, through both criminal and civil measures."⁽⁴⁹⁾

CEDAW issued a general recommendation on the elimination of violence against women which recommends certain measure to be adopted by the states to protect prostitutes.⁽⁵⁰⁾ CEDAW reviews the periodic reports submitted by States Parties in accordance with the Convention on the Elimination of Discrimination Against Women to review their progress in complying with their obligations. Particular attention is given to the implementation of the provisions of Article 6 which deal with the suppression of prostitution of women.

VI. Forced Prostitution

The treaties introduced in the first half of the twentieth century do not refer explicitly to the term 'forced prostitution' but they did make it a crime for "any person who, to gratify the passions of others, has by fraud or by the use of violence, threats, abuse of authority, or any other means of constraint, hired, abducted or enticed a woman…..for immoral purpose."⁽⁵¹⁾ The use of some form of coercion was anticipated whereas later treaties, including the Suppression of Traffic Convention, are not confined to forced prostitution.

This reflects the change in attitude towards prostitution, a matter which has remained largely polarised in recent times between those who believe that there can never be such thing as consensual prostitution and that the exploitation of individuals through prostitution in all its forms should be eliminated and the perpetrators punished⁽⁵²⁾. The other view is that only coerced or non-consensual prostitution should be controlled and prevented by the criminal law.⁽⁵³⁾

Forced prostitution occurs when a woman is prostituted against her will, that is compelled under duress or intimidation to engage in sexual acts in return for money or payment in kind, whether this is passed to others or received by the victim. It was proposed by the Council of Europe that forced prostitution be defined as the "act, for financial gain, of inducing a person by any form of constraint to supply sexual services to another person."⁽⁵⁴⁾ Constraint would include the more obvious forms of violence, such as beatings, rape, torture and threats. However, it was suggested that 'any form of constraint' should be interpreted more widely to include the act of obtaining sexual services from a person "by taking advantage of his/her vulnerability resulting either from his/her precarious or illegal situation, or of his/her position of economic dependence."⁽⁵⁵⁾

Like slaves, prostitutes are controlled by various methods including beatings, rape and torture to ensure their acquiescence. It is this element of coercion and lack of free will that makes enforced prostitution a contemporary manifestation of slavery as defined in the international codes. Forced prostitution has been described as "the ownership of women and children by pimps, brothel owners and sometimes even customers for the purpose of financial gain, sexual gratification and/or power and domination."⁽⁵⁶⁾ There has been a lot of interest by legal writers and scholars in the concept of forced prostitution and in particular the element of control held by pimps over prostitutes. It has been claimed by one such commentator that "Pimps control prostitutes through (1)physical abuse (2)physical control of prostitutes children, with threats to keep the children as hostages if prostitutes leave (3)serious threats of physical harm, including murder (4)keeping prostitutes in a continuous state of poverty and indebtedness and (5)ensuring that they have no freedom to move outside unaccompanied."⁽⁵⁷⁾ An individual is deemed to be a pimp if he/she "draws another into prostitution and thereafter dictates the daily activities, supervises the manner of operation….expropriates and spends virtually all earnings and otherwise commands influence over that persons life."⁽⁵⁸⁾ In fact, in certain circumstances the control may be so complete "that he will have little difficulty actually selling his "possession" to another pimp."⁽⁵⁹⁾ Illegal immigrants are extremely vulnerable to this form of exploitation or forced labour. Traffickers, or their ultimate employer, often retain the workers passport in order to blackmail them and subject them to forced prostitution in many cases siphoning off the bulk of their wages.

It is clear that all of the key elements necessary for a practice to fall within the slavery definition are present in forced prostitution. In fact, it has even been claimed by one commentator that "if forced prostitutes today are not slaves then neither was half of the Southern black population in 1850."⁽⁶⁰⁾ In the United States, for example, it has been pointed out that "forced prostitution like slavery implicates all of the core concerns of the Thirteenth Amendment-physical abuse, lack of free will, forced labour and social stratification."⁽⁶¹⁾ Forced prostitution can therefore be deemed to be a form of slavery for the purposes of the prohibition against slavery in the American Constitution. It also falls under the definition of slavery, forced labour and involuntary servitude as set out under the international code. This was acknowledged by the observer for the Commission on the Status of Women as early as 1978 when he said that they considered forced prostitution to be a form of slavery.⁽⁶²⁾

VII. Conclusion

It is clear that all of the criteria necessary for a practice to fall within the definition of slavery are present in the trafficking of individuals and forced prostitution. In many instances the victims of these internationally recognised crimes are women, children and migrant workers who find themselves at the mercy of their trafficker. The trafficker will often retain their passports to control the victims movements or will use the threat of physical abuse to ensure compliance. In other cases, they are forced to work, often in the sex industry to repay the travel expenses, usually at exorbitant interest rates determined by their employers. This form of debt-bondage has become increasingly prevalent in our world today.

The question of whether prostitution per se falls within the definition of slavery is debatable. This point is not entirely clear and although the international treaties dealing with prostitution prohibit it in all its forms, voluntary or enforced, it would be difficult to argue that a woman who chooses to remain in the business, despite available alternatives, is a slave. It is stretching the definition too far. In conclusion it is recommended that this area of the international law be revised to incorporate the modern manifestations of slavery and exploitation. This is especially true in light of recent developments in technology, in particular the internet whereby you can order a 'mail-order-bride' to give but one example.

The international code needs to make it clear that trafficking can occur for any reason and is not always exclusively linked to sexual exploitation. It must been acknowledged that trafficking and forced prostitution are forms of slavery that must be redressed by governments at all levels, internationally, nationally and regionally. As slavery has been universally acknowledged as a well established rule of customary international law this would ensure that no state can derogate from its obligation to implement measures to prevent such practices.

Finally, it is imperative that an international monitoring body be set-up to review the progress and developments being made by states in implementing the existing international standards and any future ones that may be adopted. Trafficking is a violation of the most fundamental human rights of an individual. It is unfortunate that at the end of the twentieth century these practices not only still exist but are increasing at an alarming rate. It should be an issue of concern not just for international lawyers, governments, non-governmental organisations but every individual as it will only be through a systematic and concerted effort that these violations can be curtailed and prevented.

---

1. Slavery Convention 1926 60 L.N.T.S. 253 Article 1(1)

2. Traffic in Women and Girls Report by the Secretary General to the General Assembly, A/50/369 of 24 August 1995, paragraph 17.

3. Lan Cao Illegal Traffic in Women: A Civil RICO Proposal 96 Yale L.J. 1297 (1987)

4. Slavery Convention 1926 60 L.N.T.S. 253 Article 1(2)

5. Kevin TessierThe New Slave Trade: The International Crisis of Immigrant Smuggling Vol. 13 Indiana J. of Global Legal Studies (1995-1996) p.261

6. U.O. Umozurike The African Slave Trade and the Attitude of International Law Towards it 16 Howard Law J. (1971) p.346

7. The International Agreement for the Suppression of the White Slave Trade 18 May 1904 7 Martens Nouveau Recueil (ser.3) 252

8. Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others 1949 96 U.N.T.S. 271 Article1(1)

9. A New Kind of Trafficking: Child Beggars in Asia World of Work No. 26 Sept/Oct 1998 ILO Geneva p.17

10. Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others 1949 96 U.N.T.S. 271 Article 17

11. Kathleen Barry Female Sexual Slavery New York University Press (1984) p.5

12. A Painful Trade for North Koreans 13/14 February 1999 International Herald Tribune p.1

13. Statement by the General Assembly President on International Day for the Abolition of Slaver on 6 December 1996 GA/9190

14. Uli Schmetzer Slave Trade Survives, Prospers Across Asia Chi Trib. 17 November (1991)at C1

15. Parliamentary Assembly Recommendation 1325 (1997) on Traffic in Women and Forced Prostitution in Council of Europe Member States Assembly Debate 23 April 1997 (13^th Sitting)

16. Trafficking of Women to the European Union: Characteristic, Trends and Policy issues International Organisation of Migration Geneva Submitted to the Conference on Trafficking in Women for Sexual Exploitation Vienna June 1996 p.3

17. The Commission on Human Rights in Resolutions 1998/17 and 1997/20 requested that all member states consider the possibility of taking appropriate action for the protection of particularly vulnerable groups, such as children and migrant workers against exploitation by prostitution

18. Communication from the Commission to the Council and the European Parliament on Trafficking in Women for the Purpose of Sexual Exploitation, Brussels 20/11/9, COM(96)567 p.4

19. Report of the World Conference on Human Rights Vienna 14-25 June 1993 A/CONF.157/24 (Part 1) Chapter III Section I para 18

20. The Declaration on the Elimination of Violence Against Women G.A. res. 48/104UN Doc. A/48/49 (1993) Article 2

21. Radhika Coomaraswamy Report of the Special Rapporteur on violence against women, its causes and consequences UN Doc E/CN.4/1997/47

22. Commission on Human Rights resolution 1994/45. See also Report of the Secretary General Traffic ion Women and Girls UN Doc. A/50/369 24 August 1995

23. Advancement of Women Traffic in Women and Girls Fifty Second Session UN Doc A/C.3/52/L.20/Rev.1 (1997) para 4

24. ECOSOC Resolution 1998/21 Action to Combat International Trafficking in Women and Children 28 July 1998 Preamble

25. Secretary General Press Release SG/SM6411 OBV/27 2 December 1998

26. Convention on the Elimination of Discrimination 18 December 1979 UN Doc.A/34/46 entered into force 3 September 1981

27. Official Records of the General Assembly Forty-seventh Session Supplement No.38 A/47/38 Chap.1

28. Rome Statute of the International Criminal Court 17 July 1998 UN Doc A/CONF.183.10 Articles 7 and 8

29. Currently the ICC Rome Statute has 78 Signatories and 1 Ratification(Senegal). Uganda became the most recent signatory of the Rome Statute on 17 March 1999. In accordance with Article 126 of the Rome Statute 60 Ratifications are required before the Statute enters into force

30. Convention on the Rights of the Child UN Doc. A/44/49 (1989) Article 35

31. The main instrument adopted to prevent such trafficking is the Hague Convention on the Protection of Children and Co-operation in respect of Intercountry Adoption 10 May1993, Article 32.1which states: "No one shall derive improper financial or other gain from activity related to Intercountry adoption"

32. Article 34 of the Convention on the Rights of the Child addresses the use of children in prostitution or other unlawful sexual practices and in pornographic performances and materials.

33. Supplementary Convention (1956) 226 U.N.TS. 3Article 1 (d)

34. Convention on the Rights of the Child UN Doc.A/44/49 (1989) Article 1

35. Provisional Report of the Special Rapporteur to the General Assembly on Sale of Children, Child Prostitution and Child Pornography, A/49/478, October 1994, para. 31.

36. Programme of Action of the International Conference on Population and development, Cairo 5-13 September 1994 UN Doc A/CONF.171/13 Chapter I Resolution 1 Annex principle 11

37. World Congress Against Commercial Exploitation of Children, Stockholm 27-31 August 1996 Final Report of the Congress (Stockholm, Government of Sweden 1997)

38. Commission on Human Rights E/CN.4/1998/103 24 March 1998 para 54

39. Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others 2 December 1949 96 UNTS.271 Article 1(1) and 1(2)

40. Ibid Article 1(2)

41. International Convention for the Suppression of the Traffic of Women of Full Age 11 October 1933 150 L.N.T.S. 431 Article 1

42. Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others 2 December 1949 96 U.N.T.S. 271 Preamble

43. The Commission on the Status of Women was established as a functional commission of the Economic and Social Council by Council resolution 11(II) of 21 June 1946 to prepare recommendations and reports to the Council on promoting women's rights in political, economic, civil, social and educational fields.

44. Jean Fernard-Laurent, Special Rapporteur on the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others UN Doc E/1983/7

45. Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others 2 December 1949 96 U.N.T.S. 271 Article 2 (1)

46. Ibid Article 2(2)

47. International Convention for the Suppression of the White Slave Traffic 1904 7 Martens Nouveau Recueil (Ser.3)252; International Convention for the Suppression of the White Slave Traffic1910 and International Convention for the Suppression of the Traffic in Women and Children 1921 9L.N.T.S. 415

48. Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others 2 December 1949 96 U.N.T.S. 271 Article 16

49. 13Report of the Fourth World Conference on Women Beijing 4-15 September 1995 A/CONF.177/20 Chapter 1 Resolution 1 Annex II para 130(b)

50. General Recommendation 19, Violence against women, (Eleventh session, 1992) UN Doc. HRI\GEN\1\Rev.1 at 84 (1994)

51. Paris Convention for the Suppression of the White Slave Trade 4 May 1910 Article 2

52. Kathleen Barry The prostitution of sexuality New York University Press (1995)

53. Creating an International Framework for Legislation to Protect Women and Children from Commercial Sexual Exploitation Centre on Speech, Equality and Harm University of Minnesota Law School Preliminary Report January 1998

54. Michele Hirsch 9 April 1996 Council of Europe EG(96) p.23

55. Ibid. p24

56. The Sex Sector: The Economic and Social Basis of Prostitution in South East Asia (Ed). Lin Lean Lim ILO Geneva 1998

57. Nancy Erbe Prostitutes, Victims of Men's Exploitation and Abuse 2 Law and Inequality J. 609 (1984) p.612-13

58. John F. Decker Prostitution: Regulation and Control Fred B. Rothman & Co. (1979) p.230

59. Ibid. p.253. See also The Lively Commerce: Prostitution in the United States Quadrangle Books (1971) p.117

60. Neal Kumar Katyal Men Who Own Women: A thirteenth Amendment Critique of Forced Prostitution Vol 103 Yale L.J. (1993) p.866. See also Sietske Altink Stolen Lives: trading women into Sex and Slavery Scarlet (1995)

61. Neal Kumar Hatyal Men who own Women: A Thirteenth Amendment Critique of Forced Prostitution Vol. 103 Yale L.J. 791 (1993) p.793

62. Report of the Sub-Commission on Prevention of Discrimination and Protection of Minorities E/CN.4/Sub.2/1982/20 p.8

---

Cite as: Gallagher, Norah Sexual Exploitation: A Form of Slavery? KO'AGA ROÑE'ETA se.viii (1999) - http://www.derechos.org/koaga/viii/gallagher.html

Human Rights: Issues & Theory
Ko'aga Roñe'eta, Series VIII