Looking back, looking forward

Abstract

approximation to it’. Others are less sanguine in their assessment of the Trafficking Protocol’s impact and legacy. Marjan Wijers, an expert who participated in the negotiations leading up to the Protocol, is critical of its focus and argues that it prioritises attention to the coercion involved in the recruitment and transportation aspects of trafficking instead of unconditionally addressing the central human rights violation caused by human trafficking, namely the abusive working conditions of trafficked persons—be they labouror sex-sector related (a distinction Wijers is critical of)—irrespective of the initial induction circumstances. Torture, brutalisation, rape, coercion in the daily life of sex workers or undocumented migrants who chose to cross borders to improve their life prospects, she argues, are thus ignored or marginalised. This approach, she notes, diverts the primary preoccupation of anti-trafficking intervention from the protection of vulnerable workers to the policing of State borders. From a single country perspective, Grupo Davida, a conglomerate of academic researchers associated with the Davida prostitutes’ rights association in Rio de Janeiro, articulate a similar opinion based on their experience of the Trafficking Protocol’s impact on Brazil’s antitrafficking policies. Like Wijers, they note its impact on strengthening migration control policy and its concomitant neglect of some of the most vulnerable and exploited groups, including sex workers, coerced migrant labourers and lesbian, gay, bisexual and transgender individuals. Kathryn Baer at The Trafficking Research Project too from her vantage point in Singapore—a non-signatory country influenced by global anti-trafficking discourse—criticises the impact that growing government emphasis on sanctioning trafficking has had on victim protection. She argues that policies justified as anti-trafficking measures in fact generate and justify raids on irregular migrants and sex worker groups, increasing criminal convictions of vulnerable workers but ignoring issues of victim protection or trafficking prevention. She also notes that a key rights issue confronting vulnerable migrant workers—deceptive recruitment practices that trick them into accepting exploitative labour contracts on false premises—is ignored. Yet another group of contributors strike a middle ground between these two contrasting perspectives, setting out both gains and detriments that the Protocol seems to have produced. Anne T Gallagher, a leading international expert on antitrafficking law and policy, carefully sets out the conclusions of her balance sheet. Like Ezeilo, she commends the agenda-setting achievements of the Protocol, the fact that it has generated a road map for dealing with trafficking where none existed. She also ANTI-TRAFFICKING REVIEW 4 (2015) notes the beneficial impact of the Protocol’s unitary (albeit unwieldy) definition of trafficking as a consensus-building breakthrough that provides a basis for global action. The Protocol’s generative impact on domestic and regional anti-trafficking developments is also, in her view, a notable plus point, one that several of the country expert contributors in our volume comment on. On the other side of Gallagher’s balance sheet are several serious weaknesses. The absence of an effective implementation and enforcement mechanism is perhaps, from a human rights perspective, the most serious. States are afforded great leeway and discretion in the way their implement their protection obligations, with the predictable result that trafficked persons have so far seen little concrete benefit. A related weakness in the Protocol is the extremely low conviction rate for traffickers that has followed its adoption. For a widely ratified instrument promoted as an important law enforcement tool, this is surprising. Expanding on this point, Kristiina Kangaspunta, a prominent expert on trafficking within the UN Office on Drugs and Crime, draws a telling contrast between the number of countries that do not have legislation against trafficking (only 9 out of 173 surveyed by her office), and the 41% of countries with such legislation who recorded less than ten convictions (and in many cases none at all) in the two-year period between 2010 and 2012. The gap between lawmaking and law enforcement could not be clearer. A third negative consequence of the Protocol, and one remarked upon by most contributors to this volume, is the collateral damage it has generated. In the process of enforcing anti-trafficking measures, whether through anti-sex worker raids or border checks for irregular migrants, many States have inflicted serious and deleterious human rights impacts on some of their most vulnerable populations. Grupo Davida note the pervasive criminalisation of prostitution migration among Brazilian migrants, a development, they argue, closely related to hasty implementation of the Protocol. Baer criticises the impact that aggressive anti-trafficking policies in Singapore has had on vulnerable migrant workers; in a similar vein Prabha Kotiswaran, Senior Lecturer at the King’s College London, highlights the extent to which the prohibitionist emphasis of the Trafficking Protocol has spurred what she calls ‘sexual humanitarianism’, aggressively removing sex workers from their working environment whether they want this or not, while at the same time ignoring other coercive forms of labour exploitation. She notes critically that in countries such as India the Protocol has failed to challenge, let alone reverse, the underlying vulnerabilities of a broad constituency of marginal workers. It has not insulated these workers from the coercive and abusive pressures of traffickers. On the contrary, by equating sex work and trafficking, she argues, such countries have used the Protocol as an instrument of social control targeting some constituencies of very vulnerable workers. Finally, Synnøve Økland Jahnsen (PhD candidate, Norwegian Police University College) and May-Len Skilbrei (Professor, University of Oslo) examine the impact of anti-trafficking policies in Norway in the wake of implementation of the Trafficking Protocol and also offer a mixed balance sheet. They acknowledge that the diffusion of the ‘trafficking label’ has increased the protection opportunities for some vulnerable groups, including those whose vulnerability is related to engagement in sex work or to gender-based oppression. But, they argue, the opposite has been true for other exploited groups, for whom increased surveillance and anti-migration enforcement have exacerbated vulnerability. In this, they concur with other contributors who point critically to the Protocol’s prioritisation of criminal justice responses to trafficking over a more