Go On! Human trafficking conference

(Go On! is an occasional item on symposia and other events of interest)

"Which Way Home" -- a reference to the issue of human trafficking -- is the title of the 20th Annual Northern Illinois Law Review symposium to be held will be held April 14 and 15 in DeKalb.
The program will begin with a showing at 7:30 p.m. on April 14 of the Oscar-nominated film of the same name, about which IntLawGrrls posted a while back. The showing will be followed by a question-and-answer session with Sara McDowell, Senior Immigration Attorney for the National Center for Refugee and Immigrant Children, who represented the children in the film.
During the daylong symposium that will follow on April 15, speakers -- including IntLawGrrl Karen E. Bravo and keynote lecturer M. Cherif Bassiouni -- will identify key areas of human trafficking, use of the U.S. court system to combat trafficking, and future policy regarding trafficking. Symposium Editor Emily M. Martin writes:

Although human trafficking is often thought as a distant, international issue, in reality, it is right outside our backdoor. Chicago and Rockford are both human trafficking hubs and Illinois recently passed the strongest anti-trafficking laws in the country.

Details here.

Nanny Exploitation: Too Close to Home

In recent months, I’ve learned of instance after instance of nanny exploitation, by and of people I know and care about – how (formerly) close (and wealthy) friends of mine paid their au pair for roughly half of the 90 hours per week she worked, at minimum wage; how the wonderful woman who cares for my own children was subjected to forced labor when she first came to work in the U.S. as an au pair in the 1980s; how a few years later, her older sister ended up being trafficked to the U.S. by diplomats who had her deported after she tried to run away; and how a nanny who sometimes comes to the park next to my house was trafficked here by diplomats a year ago.
For each story I share with friends and colleagues, I hear another few in exchange, often involving employers – labor lawyers and human rights advocates, even – who really ought to know and do better by the people who take care of their children. Yet almost as disturbing as the cases themselves are the conversations we have tried to have with the employers. The standard (angry) reactions deflect attention away from the rights violations to focus instead on what’s wrong with even having the conversations in the first place – invasion of their privacy, or a presumed implicit criticism regarding their childcare choices (always a touchy area, as evidenced by the furor raised by Amy Chua’s latest book).
The treatment of domestic workers occupies a space that often seems impenetrable – both in personal discourse and in formal law. As the international community moves closer to adoption of the ILO Convention on Domestic Work, one has to wonder, what potential does law really have to address domestic worker exploitation? The U.S. government apparently has emerged the champion of domestic workers’ rights in this forum. But, while U.S. law offers domestic workers more than most other countries, ultimately it isn’t all that much. As a practical matter, domestic workers are excluded from many key protections afforded to other worker populations under the FLSA, OSHA, NLRA, and Title VII. Even where worker protections are applicable to domestic workers, meaningful enforcement remains a tremendous challenge.
Take for example, au pairs in the United States – the only domestic workers subject to specific workplace regulations. U.S. State Department regulations place strict limits on the au pairs’ working conditions – e.g., 45-hour work week limit, minimum wage under the FLSA, one weekend off per month, and mandated vacation time. Au pair agencies – U.S. government contractors – are responsible for enforcing the regulations, but few have established protocols for addressing complaints of abuse; and the few protocols that exist are complaint-driven mechanisms that do not account for the obstacles to reporting violations – e.g., fear of betraying the emotional bonds au pairs forge with the children and even their employers. The deep resistance to intervention in the private family sphere leaves us wanting for viable alternatives for exercising greater scrutiny of workplace conditions in the home.
We’re short on answers at the moment. But the excellent, recent works of legal scholars Chantal Thomas and Hila Shamir shed light on the “legal exceptionalism” of domestic work, offering nuanced understandings of the distributive effects of employment, labor, and immigration laws on markets of care. By demonstrating how the challenges to addressing domestic worker exploitation are, according to Shamir, “neither inherent nor unmanageable,” this work gives us reason to hope that solutions might just be forthcoming.

Read On! International Law/Human Trafficking

(Delighted to welcome back alumna Anne Gallagher, who contributes this Read On! guest post)

My thanks to IntLawGrrls for the opportunity to write about my book The International Law of Human Trafficking, published this month by Cambridge University Press.

This book has evolved out of more than a decade of writing and practice. It reflects experiences and insights from my working life as a UN official, as a teacher and scholar of international law, and as a practitioner in the field. It builds on my research of the past few years, which has included:

► A first-hand identification of the essential elements of an effective criminal justice response to trafficking, set forth in a 2008 article co-authored with Paul Holmes;

► A detailed legal commentary to the Principles and Guidelines on Human Rights and Human Trafficking that will be released by the United Nations shortly;

► A 2009 feature article, published in the Virginia Journal of International Law, which refutes James Hathaway’s critique of the international legal response to trafficking;

► A study, with IntLawGrrls' guest/alumna Elaine Pearson, of the legal and policy implications of shelter detention for victims of trafficking, published this year in Human Rights Quarterly and also the subject of a previous IntLawGrrls post; and

► A critical analysis of the first decade of the annual U.S. State Department Trafficking in Persons Reports, to be published in Human Rights Review in early 2011.

As I write in the introduction to my new book, The International Law of Human Trafficking is not a specialist treatise in the usual sense. More accurately, it represents an attempt to apply the science and tools of international law to a specific, contemporary issue. From this perspective it is as much about sources of international legal obligation, the formation of international law, the doctrines of responsibility, and theories of compliance, as it is about trafficking.

The book’s focus is essentially a problem-solving one: the international community has identified trafficking as a problem, and has decided that law will be used to structure and enable at least part of the solution to that problem. By providing a clear and organized explanation of the law as it is, the capacity of those who are in a position to use international law to hold states and others to account is hopefully strengthened.

Documented is what former UN High Commissioner for Human Rights Mary Robinson (left), in her review of my book, has called

the extraordinary developments of the past decade

that is, changes in laws, policies and practices that would have been unthinkable just a few short years ago.

The book concludes that these advances, while remarkable when viewed in historical perspective, are nevertheless fundamentally constrained in terms of both vision and effect. States are able to record relatively high and improving levels of conformity with international legal rules related to trafficking in large part because those rules, in the end, do not demand a great deal. The rules request, but do not compel, states to take positive action to address the root causes of trafficking, not least what the “thoroughly modern anarchist” Emma Goldman more than a century ago called

the merciless Moloch of capitalism that fattens on underpaid labour.

The rules acknowledge the link between trafficking and the massive labor migration that greases the wheels of the global economy, without requiring States to provide individuals with safe and legal avenues through which to move. They affirm the principle of nondiscrimination, without insisting that the rules, attitudes and practices that render women, children and migrants most vulnerable to trafficking-related exploitation be immediately and comprehensively dismantled.

It is currently possible for a state to find itself within the letter, if not the spirit of its international legal obligations merely by criminalizing trafficking, diligently investigating cases that come to its attention, cooperating with other States when requested, and taking at least some measures to support and protect identified victims. While my book has hopefully succeeded in fleshing out these basic obligations, it acknowledges that the obligations do not, even in expanded form, amount to terribly much. Like a commitment to halt anthropogenic climate change by imposing emission reductions that have, in truth, no hope of meeting that goal, there is a fatal gap between what is legally required of states and what is actually needed to reach the stated objective.

A genuine commitment to ending trafficking and related private exploitation requires us to both acknowledge and challenge the limitations of the contemporary international legal imagination.

Intersubjective Frames & Rational Choice: Transnational Crime & Human Trafficking

(Our thanks to IntLawGrrls for the opportunity to contribute this guest post)

One of the defining aspects of the end of the twentieth century was the turn to market liberalization and political democracy as twin organizing principles for human societies in many parts of the world. These processes present an opportunity to better understand global norm formation and policy diffusion as actors grapple with the new circumstances of transnational openness.

One of the central aspects of responding to the dilemmas of globalization is how actors come to understand the nature of the phenomena they confront.

In our paper Intersubjective Frames and Rational Choice: Transnational Crime and the Case of Human Trafficking (recently renamed), we posit a theory that rational policy choices are conditioned on the prior and socially defined processes of issue framing. We argue for a two-step process that examines:

► 1st, how the argument is framed—a subjective, purposive, and persuasive process—and

► 2d, how once a frame has been selected, states rationally imitate the policies of states to whose policies they are especially sensitive.

Our findings affirm that norms and policies diffuse according to mechanisms that are highly sensitive to how they are framed.

We view the debate itself over frames as a strategic struggle to view the world—or at least the issue at hand—in ne particular way rather than in some other. Actors want to advance frames they think will further their interests, as well as those that they think will increase the chances that their favored policy will be accepted. Pressure and persuasion are explicit parts of this process. There is every reason to expect material and peer pressure to be brought to bear to convince skeptical states to accept the frame and to adopt the dominant powers’ interpretation of the rational policy response.

Accordingly, we stress that subjectively selected frames are demonstrably powerful prisms for rational action. Just as states rationally compete for capital by liberalizing capital controls when they accept the “Washington consensus,” we argue that they rationally anticipate externalities when they look at human trafficking through a transnational crime rather than a human rights lens.
We have used these insights to explore the emergence of norms and the diffusion of policy in the area of human trafficking – an issue that is without doubt susceptible to interpretation through multiple frames. We have stressed three of these frames in our paper:

► A victim protection frame,

► A human rights frame, and

► A transnational crime perspective.

Empirically, we observed struggles in international forums that reflect the critical issues of how human trafficking should be understand and tackled. The major Western powers were animated primarily by the transnational crime frame (despite the fact that most are also strongly committed to human rights generally). Non-governmental actors worked hard to offer an alternative that would emphasize the rights of victims. We have documented the consequences of this clash of ideational commitments:

► The earlier resolutions muted their human rights language over time,

► Discussions became lodged in Vienna (headquarters of the U.N. Office on Drugs and Crime) rather than exclusively in New York (and the U.N. General Assembly), and

► Ratification of the eventual Trafficking Protocol was made conditional on prior or simultaneous ratification of the Transnational Crime Convention itself.

This occurred because several major powers thought this frame favored their own interests in countering transnational crime and illicit migration.

For the most part, state actors were relatively easy to convince: after all, transnational crime potentially threatens state actors’ developmental plans, corrupts the local rule of law, and can interfere with other programmatic goals of the state. For this reason, the transnational crime frame was far more attractive to a greater number of states than the victim protection or human rights frames would have been. It bolstered rather than challenged traditional concepts of sovereignty, and legitimated states’ quests to protect their borders. The text of the adopted protocol clearly reflects this calculation. So does the extremely rapid pace at which it was negotiated.
The empirical bulk of the paper finds significant support for mechanisms of policy diffusion that follow, given the adoption of the transnational crime frame.

In contrast to most human rights issues, transnational crime involves serious externalities of at least two kinds:

► Direct externalities from the criminal activities themselves (violence, weapons and drug trafficking, money laundering, public health threats, documentation fraud and border violations), as well as

► Policy externalities (the anticipation that if a nearby state raises the costs associated with using its territory to commit these exploitative crimes, criminal networks will have incentives to move their operations elsewhere).

We have proposed and tested very precise ways to measure and test this argument.

Human beings are most often trafficked using surface transportation, and the lowest-cost option in most cases is to move them along roadways. Using satellite imaging, we have found road connections to be strongly positively correlated with adoption of a neighbor’s policies, both the criminalization and ratification. We argue this reflects vulnerability to policy externalities which can divert criminal networks from a high enforcement jurisdiction to one with lax enforcement. This is not especially consistent with theories of institutional isomorphism, which emphasize the relatively uncritical acceptance of Western scripts as models of appropriate state form and practice. The frame is largely Western, but the precise mechanism of policy diffusion we document is very local – right where the rubber hits the (transborder) road.
The Western countries and particular the United States reinforced the transnational crime frame with explicit forms of material and social pressure. The passage in the 2000 of the Trafficking Victims Protection Act in the United States – with its emphasis on rating countries’ efforts to stop human trafficking and threatening explicitly to sanction with the withdrawal of aid – both reflects and reinforces the transnational crime frame. The evidence suggests that the reputational and material consequences of U.S. tiers rankings were taken seriously; these were strongly and consistently correlated with the propensity for a country to criminalize human trafficking (thought not to ratify the protocol) following a poor rating. (map credit)

There is also the suggestion of an intriguing link between media attention to the trafficking issue and the willingness of countries to criminalize.
The crudeness of our measure does not at this point permit us to do much more than to suggest a plausible link, but it could be that attention in the media to trafficking problems reinforces the dominant transnational crime frame, potentially accounting for diffusion through learning processes as well.
Emphatically, we have not been able to show that criminalization and treaty ratification will lead to effective law enforcement on the ground. Such a project will inevitably be frustrated by a lack of reasonably good data on transnational crime in general and human trafficking in particular. Speculation about effectiveness aside, this research suggests some clear drivers in the spread of anti-trafficking norms worldwide.

Human Trafficking at a Tipping Point

The issue of human trafficking has reached a tipping point. On the same day that I pass by The Body Shop, and see their request that customers sign a petition to stop “sex trafficking of children and young people,” apparently co-sponsored by UNGIFT and UNICEF, a student admits that until I began introducing him to the existence of the issue, he was utterly unaware that people were being bought, sold and exploited around the world.
While many people remain unaware that men, women and children are subjected to indentured servitude, debt peonage and other forms of human trafficking, celebrities and corporations and even conservative American politicians have embraced the issue, at least aspects of it. Angelina Jolie and Microsoft Corporation, through their co-funded and founded organization KIND (Kids in Need of Defense), fund pro bono legal training for unaccompanied children, including children who are trafficked. In her capacity as YouthAIDS Global Ambassador, Ashley Judd has become an advocate against human trafficking. Gloria Steinem and Catharine MacKinnon lend their cultural and legal feminist star power to aspects of the issue. Conservative and moderate politicians such as Olympia Snowe support bills directed towards international violence against women, including human trafficking.
If corporations situated in the Northern Hemisphere; and conservative, moderate and liberal politicians; and celebrities; and law enforcement and all branches of government are lined up in support of aspects of the issue, then why have we failed so miserably to find and then secure assistance to victims of human trafficking and why have we failed to prosecute traffickers? The answer of course is multi-fold, but part of the problem lies in the bifurcation of the issue. The Body Shop wants us to sign a petition to prevent sex trafficking of children. What about the trafficking of Sri Lankan and Nepalese men into Iraq and Afghanistan to provide support services to US troops and their allies? Angelina Jolie and Microsoft will help unaccompanied children. What about agricultural laborers threatened with blacklisting if they complain about non-payment or exploitation? Gloria Steinem and Catharine MacKinnon are concerned with the lack of consent inherent in sex work. What about women who agree to sex work but then have their earnings withheld until they “pay back” their traffickers?
The issue is complex (as IntLawGrrls Janie Chuang and Dina Francesca Haynes have regularly articulated here and here), and the interest of celebrities, politicians and the corporate world is not only laudable, it is often rich and deep. The people who elect to become involved in the issue often become very knowledgeable about it, and yet each selects one aspect in which to become involved, further bifurcating the issue, polarizing the debates and alienating victims who do not fit within their funding or client profile. It is likely the interest in human trafficking will remain for some time. Let us work on making that interest as rich, as meaningful and as holistic as possible.

'Nuff said

(Taking context-optional note of thought-provoking quotes)

'Zero prosecutions suggests zero effort to enforce the law.'

-- Martina E. Vandenberg (right), a litigation partner at Jenner & Block in Washington and onetime Human Rights Watch investigator of violence against women, commenting in a Washington Post story that yesterday described as a "paper tiger" an 8-year-old U.S. law making it a crime for government contractors and employees to engage in sex trafficking in war zones. The derisive label stems from allegations of just such behavior in places like Iraq and Afghanistan. In turn, this news casts a shadow on stepped-up criminalization of trafficking by state legislators, the subject of a report in today's Post.

On April 13

On this day in ...
... 1828, a 7th child, Josephine, was born into the Grey family (relatives of the Prime Minister who leant his name to Earl Grey tea) in Northumberland, England. In 1852 she married George Butler. Josephine Butler (right) had been a feminist since her 20s, and she and her husband were radicals for their times, opposing slavery and supporting the Union during America's Civil War. After the couple's only daughter died, Josephine began to do charity work. She's best known for her campaigns to improve the health and lives of prostituted children and women, by taking part in international campaigns against human trafficking and by eliminating laws that discriminated against prostitutes. Butler, who chronicled her work in a memoir entitled Personal Reminiscences of a Great Crusade (1896), died in 1906.

(Prior April 13 posts are here, here, and here)

Go On! Trafficking conference today

(Go On! is an occasional item on symposia and other events of interest) Blogreaders in the Twin Cities take note:
Today the University of Minnesota Law School is hosting the 2010 International Congress on Human Trafficking. Experts in areas like human trafficking, international criminal law, international children’s issues, and victimized populations will examine:
► Trafficking for labor, drugs, sex, and military purposes;
► The vulnerability of children to traffickers in the wake of international disasters; and
► Methods to combat this problem.
Organizing this conference is Michele Bratcher Goodwin, Everett Fraser Professor of Law at Minnesota. A 2d conference, on organ trafficking, is to be held next month in Brazil.
Among the many who will take part today are 2 of IntLawGrrls' guests/alumnae, Luz Estella Nagle (Stetson) and L. Song Richardson (DePaul).
Conference details here.

Gendercide, sex trafficking in China

(Our thanks to IntLawGrrls for this opportunity to guest post on the article that we recently published in the Fordham University International Law Journal)

There is a demographic crisis in China that arguably rises to the level of "gendercide."
Women in China are bought and sold, murdered and made to disappear, in order to comply with a governmental policy that coincides with the cultural phenomenon of male-child preference. Demographers estimate that there are between 50 and 100 million missing women in China. In answer to the resulting scarcity of women, gangs, "specialist households," and "specialist villages" have been working in an organized chain to kidnap and sell women in China.
Several factors work interdependently to cause a serious shortage of women in China. Women are disappearing because of:
► social pressures of male-child preference;
► zealous enforcement of China’s "One-Child Policy" by local government authorities; and
► murderous responses to this policy undertaken by millions of ordinary people in China, who are desperate to have a son.
(credit for Reuters photo of above-right mural extolling One-Child Policy)
The 2000 Chinese census reported that 117 boys were born for every 100 girls, compared to the global average of 105 or 106 boys to every 100 girls. This disparity may be linked to the practice of aborting female fetuses and killing female babies.
This gender imbalance has caused an increase in prostitution and human trafficking in China.
Sex trafficking in China takes many forms:
► purchase of women for brides;
► purchase of a male son; or
► sale of unwanted female children.
Many men, primarily in rural China, desperately seek brides in a country where women are in short supply. These men will resort to purchasing a trafficked woman for marriage. Couples seeking a male child will sell or even murder their girl child in order to make room for the purchase of a trafficked baby boy. Young women and infants are bought and sold like cargo.
Human trafficking in China is a lucrative international business that is expanding due to several factors:
► the aggressive implementation of the One-Child Policy;
► a faulty legal system, and
► the blind adherence to longstanding cultural traditions that devalue women.
In China, Communist Party directives overshadow the legislative and judicial process. The primacy of government policy results in the ineffectiveness of laws that theoretically protect women and female children in China.
In order to reverse the deleterious effects of the One-Child Policy and its commodification of women, the Chinese government must make a commitment to implement laws and policies that can reverse longstanding cultural trends and combat discriminatory traditions against women.

(credit for China map, courtesy of International Labour Organization Mekong Sub-regional Project to Combat Trafficking in Children and Women)

Since 1979, China has instituted economic reform policies that miraculously work in harmony with a Communist political system. Now China needs to perform another miracle: the adoption of cultural reforms that produce gender parity and that stop the marginalization of women in Chinese society. Only then will the lucrative business of trafficking in women be reduced, if not eliminated entirely.

Human Trafficking under the ECHR

This week the European Court of Human Rights handed down a landmark judgment on human trafficking in the case of Rantsev v Cyprus & Russia. The case concerned Oxana Rantseva, a Russian who went to Cyprus where she worked as a ‘cabaret artiste’—a title that is widely used to describe prostitutes in Cyprus. When she attempted to leave her ‘employment’, Rantseva was brought to the police by her employer who wanted her extradited back to Russia so that he could employ someone else in her stead. The police—aware of the work she was doing—noted that she was not illegally in Cyprus (as she had a work permit) and instructed her to return with her employer. That night, while Rantseva attempted to escape, she fell from a balcony and died. Following her death, and notwithstanding the suspicious circumstances of it and the Article 2 obligation to carry out an effective investigation in cases of death, the possibility that Rantseva was a victim of human trafficking was never investigated by the Cyprian authorities.

The case provided the European Court of Human Rights with one of its first opportunities to tackle the issue of human trafficking head-on. First, and perhaps most significantly, the Court found that the prohibition on slavery, servitude and forced labour in Article 4 of the Convention prohibited human trafficking notwithstanding the fact that trafficking is not expressly mentioned anywhere in the Convention. In paragraphs 281 and 282 the Court held:

The Court considers that trafficking in human beings, by its very nature and aim of exploitation, is based on the exercise of powers attaching to the right of ownership. It treats human beings as commodities to be bought and sold and put to forced labour, often for little or no payment, usually in the sex industry but also elsewhere (see paragraphs 101 and 161 above). It implies close surveillance of the activities of victims, whose movements are often circumscribed (see paragraphs 85 and 101 above). It involves the use of violence and threats against victims, who live and work under poor conditions (see paragraphs 85, 87 to 88 and 101 above). It is described by Interights and in the explanatory report accompanying the Anti-Trafficking Convention as the modern form of the old worldwide slave trade (see paragraphs 161 and 266 above). The Cypriot Ombudsman referred to sexual exploitation and trafficking taking place “under a regime of modern slavery” (see paragraph 84 above).

There can be no doubt that trafficking threatens the human dignity and fundamental freedoms of its victims and cannot be considered compatible with a democratic society and the values expounded in the Convention. In view of its obligation to interpret the Convention in light of present-day conditions, the Court considers it unnecessary to identify whether the treatment about which the applicant complains constitutes “slavery”, “servitude” or “forced and compulsory labour”. Instead, the Court concludes that trafficking itself, within the meaning of Article 3(a) of the Palermo Protocol and Article 4(a) of the Anti-Trafficking Convention, falls within the scope of Article 4 of the Convention

Very importantly, the Court did not only find that Article 4 covers human trafficking but also held that states have a positive duty to prevent human trafficking and to protect victims. This positive obligation gives rise to an obligation to effectively investigate situations where there is a suspicion of trafficking and to co-operate with the investigations of other states.

288. Like Articles 2 and 3, Article 4 also entails a procedural obligation to investigate situations of potential trafficking. The requirement to investigate does not depend on a complaint from the victim or next-of-kin: once the matter has come to the attention of the authorities they must act of their own motion (see, mutatis mutandis, Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 69, ECHR 2002-II). For an investigation to be effective, it must be independent from those implicated in the events. It must also be capable of leading to the identification and punishment of individuals responsible, an obligation not of result but of means. A requirement of promptness and reasonable expedition is implicit in all cases but where the possibility of removing the individual from the harmful situation is available, the investigation must be undertaken as a matter of urgency. The victim or the next-of-kin must be involved in the procedure to the extent necessary to safeguard their legitimate interests (see, mutatis mutandis, Paul and Audrey Edwards, cited above, §§ 70 to 73).

289. Finally, the Court reiterates that trafficking is a problem which is often not confined to the domestic arena. When a person is trafficked from one State to another, trafficking offences may occur in the State of origin, any State of transit and the State of destination. Relevant evidence and witnesses may be located in all States. Although the Palermo Protocol is silent on the question of jurisdiction, the Anti-Trafficking Convention explicitly requires each member State to establish jurisdiction over any trafficking offence committed in its territory (see paragraph 172 above). Such an approach is, in the Court’s view, only logical in light of the general obligation, outlined above, incumbent on all States under Article 4 of the Convention to investigate alleged trafficking offences. In addition to the obligation to conduct a domestic investigation into events occurring on their own territories, member States are also subject to a duty in cross-border trafficking cases to cooperate effectively with the relevant authorities of other States concerned in the investigation of events which occurred outside their territories. Such a duty is in keeping with the objectives of the member States, as expressed in the preamble to the Palermo Protocol, to adopt a comprehensive international approach to trafficking in the countries of origin, transit and destination (see paragraph 149 above). It is also consistent with international agreements on mutual legal assistance in which the respondent States participate in the present case (see paragraphs 175 to 185 above).

This is analogous to the positive obligations that have developed under Article 2 (right to life), for example, as a means of ensuring effective realisation of Convention rights. Importantly, it also attempts to create a bulwark against the all too often realised situations where cases of potential trafficking are effectively ignored by law enforcement authorities or treated as situations of prostitution in which the people who are actually in need of protection become the investigated and sometimes criminalised parties. The obligation for cross-border co-operation in investigations is clearly important in trafficking, particularly taking into account the fact that there is a significant amount of cross-border human trafficking within the member states of the Council of Europe itself.

Guest Blogger: Nina Tavakoli

It's IntlawGrrls' great pleasure today to welcome Nina Tavakoli (left) as a guest blogger.
As an Associate Legal Officer at the International Criminal Tribunal for Rwanda, Nina assists the Judges of the Trial Chambers with legal research on complex issues of substantive international criminal law, procedure and evidence; in the management of trials; and in the drafting of interlocutory decisions and final judgments.
Before joining the ICTR, she was a litigation lawyer at the international law firm Lovells in London. She's also undertaken short postings at Albania's Anti Human Trafficking Unit and the Defence Section of the War Crimes Chamber of the Court of Bosnia and Herzegovina. Nina holds an LLM in Public International Law from the London School of Economics and a BA (Hons) in Modern and Medieval History from the University of Birmingham.
In her guest post below, she discusses a recent publication, in which she argues for the classification of trafficking in women not as a transnational crime, but rather as an international offense akin to slavery.
Heartfelt welcome!

Slavery & the trafficking of women

(Many thanks to IntLawGrrls for inviting me to contribute this guest post on trafficking of women, based on my recent article in the International Criminal Law Review)

The international legal framework for the prosecution of trafficking of women needs to be revisited if this crime is to be combated more effectively. The current treatment of trafficking -- below the threshold of a crime against humanity, as a transnational rather than an international wrong -- denies its essence as a crime that offends the conscience of humankind. This failure is symptomatic of an international legal order that prioritises and affords greater protection to abuses of the human rights of men than it does to the human rights of women.
In A Crime that Offends the Conscience of Humanity: A Proposal to Reclassify Trafficking in Women as an International Crime, I propose that in order to combat trafficking of women and to elevate its political profile it should be reclassified as an international crime. The most effective way to do this would be to resurrect the link between trafficking and slavery, the international crime to which it is often linked.
Under the 1926 Slavery Convention, slavery is not limited to the traditional treatment of a person as chattel, nor does it require the destruction of the juridical personality.
It is clear that modalities of trafficking that result in the denial of an individual’s autonomy will amount to slavery pursuant to the Convention. Such autonomy is the basis of freedom, and its denial is the essence of slavery. Underlying the current reluctance to reclassify trafficking as the international crime of slavery are racial and gender assumptions within the term "slavery" itself.
Such a reclassification would not only significantly raise the public profile of the offence, but would also have direct legal consequences:
► It would serve a symbolic purpose reflecting the fact that it is a crime which is an attack upon international order.
► It would also have a practical effect by imposing obligations on states to tackle it and extending the jurisdictional reach of the courts via the applicability of universal jurisdiction, which is critical to tackle the extensive official complicity in trafficking.
► Perhaps most importantly, it would raise the political temperature surrounding this crime. At present there is an insufficient level of outrage about trafficking due to the cultural acceptance of treating women as commodities. It is arguable that a society that endorses a culture where women’s bodies can be bought and sold, whether or not with women’s consent, explains the apathy towards trafficking of women. With slavery, there is no such apathy or tacit acceptance. It is seen as gross exploitation of an individual’s human rights for which there is no justification.
The term "trafficking" itself obscures the gravity of the crime. Whilst trafficking often involves, as its end product, the exploitation of women as slaves, the term does not communicate this. Rather, it suggests that women are being moved consensually, like vehicular traffic. By contrast, the term "slavery" focuses on the reality of the exploitation suffered by the individual, and thus accurately reflects the nature of the crime.
Additionally, there is the problem of the current association of trafficking with prostitution. This association moves the focus from the exploitative nature of the work and the abusive methods to the type of work, and further ignores trafficking for purposes other than prostitution. Decoupling of this linkage would be another positive result of the reclassification of trafficking as slavery.

Go On! Trafficking in Sex & Labor

(Go On! is an occasional item on symposia and other events of interest) IntLawGrrls will be well represented at the University of Pennsylvania Law Review symposium to be held November 13 and 14 at the Philadelphia-based law school.
"Trafficking in Sex and Labor: Domestic and International Responses" is the title of the conference, which features a keynote address by Catharine MacKinnon, Michigan Law Professor and Special Gender Advisor to the Prosecutor of the International Criminal Court, about whom we've posted. Here're the panels:
Labor Trafficking:

IntLawGrrl Dina Francesca Haynes, New England School of Law; James Gray Pope, Rutgers-Newark; Dr. Joel Quirk, University of Hull, England; Ms. founder Gloria Steinem; and Martina Vandenberg, Jenner & Block. Penn's Tobias Barrington Wolff will moderate.

Trafficking and Immigration Policy:

Jennifer Chacón, University of California, Irvine; Jennifer "J.J." Rosenbaum, Southern Poverty Law Center; and Jayashri Srikantiah, Stanford. Penn's Sarah Paoletti will moderate.

International Responses to Trafficking:

IntLawGrrls Diane Marie Amann (yours truly), University of California, Davis, and Janie Chuang, American University, as well as Norma Ramos, Coalition Against Trafficking of Women. Penn's William Burke-White will moderate.

Sex Trafficking:

Dr. Denise Brennan, Georgetown; Michelle Madden Dempsey, Villanova; Dr. Melissa Farley, of the San Francisco nonprofit Prostitution Research and Education; Illinois attorney Kaethe Morris Hoffer; Ann Jordan, American University; and author/activist Christine Stark. Pamela Shifman, UNICEF, will moderate.

Details and registration here. (photo credit)

Look On! Kids hopping trains to the U.S.

(Look On! takes occasional note of noteworthy films.) Everybody's talking about Which Way Home, the documentary about children from Central America who ride alone atop trains in their bid to make it to the United States. Directed and produced by Rebecca Cammisa, the film recently made its television début on HBO. (photo credit)
Many of us have written about unaccompanied minors; among them, IntLawGrrl Jaya Ramji-Nogales, in this post.
The United States has been particularly cognizant of the issue in recent years, inviting testimony before Congress on the perils of unaccompanied minors who were then being placed into adult detention -- that is, prison -- facilities. More recently, Congress addressed the issue within the 2008 Trafficking Victims Protection Reauthorization Act, which included several provisions directing federal funding and resources to children (most often unaccompanied) who are subjected to various forms of human trafficking.
I have not yet seen the film, but The New York Times article about the movie states that it follows several boys from Honduras, passing through Mexico on trains and hoping to enter the United States to work or meet family members there. Having written and thought a great deal about human trafficking, as have other 'Grrls, such as Janie Chuang, I cannot help but wonder what will befall these children. If they make it to the United States, will they be detained? Will they fall into the hands of traffickers? If they do not make it to the United States, Mexico will most likely deport them. If they are not wanted by their families, or are victims of domestic violence, will Honduras protect them?
Several years ago, my students and I won asylum for a child from Honduras. His case was granted with a rare written opinion, in which the judge accepted the argument that his stepfather's abuse and the Honduran government's unwillingness to protect him constituted persecution. The judge was right. We had argued that Honduras had ratified the Convention on the Rights of the Child, and in so doing had taken on affirmative obligations, but that Honduras nevertheless had failed to fulfill those obligations, ultimately leeaving our client unprotected. Typically, however, domestic violence claims have been denied in the country.
As IntLawGrrl Amy Senier posted a while back, U.S. Attorney General Eric H. Holder Jr. has decided finally to issue regulations on gender-based asylum claims. With this decision, an opportunity presents itself. Unaccompanied minors might avoid detention, find pro bono counsel and apply for special immigrant juvenile status, or even be granted asylum in the United States under the theory that their home country was unwilling or unable to protect them from domestic violence.
I look forward to seeing Which Way Home, but I look forward even more to seeing children like those depicted in this movie receiving some much-needed protection.

On June 19

On this day in ...
… 1961, Kuwait declared independence from the United Kingdom. Back in 1899, Britain had concluded a protectorate agreement with the ruler of Kuwait (flag at left). In it the ruler promised not to conclude treaties with other powers, to admit no foreign agents, and to cede no part of his territory without British consent. According to the independence agreement concluded on this day in 1961, relations between the 2 countries should continue to be governed by a spirit of close friendship, and, when appropriate, the 2 governments would consult on matters of concern to them both.

… 1939 (70 years ago today), Grace Abbott (below right), American social reformer, teacher, and writer, died in Chicago, Illinois. Concerned about the low pay and long hours required of children working in factories, Abbott became a leader in the fight for federal children's rights legislation. As associate of Jane Addams, Nobel Peace Prizewinner and IntLawGrrls transnational foremother, Abbott served as head of the Children's Bureau in the Department of Labor from 1921 to 1934. She was the official representative of the United States on the League of Nations' advisory committees on traffic in women and on child welfare from 1922 to 1934. Upon her resignation, President Franklin D. Roosevelt described her career as one of

inestimable value to the children, the mothers, and fathers of the country, as well as to the Federal and State governments.

From 1934 until her death, Abbott continued working for social welfare as a professor at the University of Chicago and as chair of international labor conferences and state committees dealing with child labor. (photo credit)

(Prior June 19 posts are here and here.)

Go On! "Gender, International Law & the New Administration"

(Go On! is an occasional item on symposia of interest) In this, our 1st joint post as Co-Chairs of WILIG, the Women in International Law Group of the American Society of International Law, we are delighted to announce WILIG's next event. Entitled "Gender Issues, International Law, and the New Administration," it will be held from 12 noon- 2 p.m. Thursday, July 2, at Tillar House, the ASIL headquarters located at 2223 Massachusetts Avenue, N.W., Washington, D.C.
This luncheon event will consider the positions of the Obama Administration on issues such as:

► Ratification of the Convention on the Elimination of All Forms of Discrimination Against Women;

► Combating trafficking in persons;

► "Gender architecture," the restructuring of the United Nations to allow better focus and attention to gender issues; and

► Need for followup action on Security Council Resolution 1820 (2008), "Women and peace and security," in order to combat sexual violence during armed conflict.

Two panelists from the U.S. State Department will lead the discussion. They are Ambassador Melanne Verveer (above right), Ambassador-at-Large for Global Women's Issues, and Ambassador Luis C. de Baca (left), Director of State's Office to Monitor and Combat Trafficking In Persons.

The event is free to ASIL members; $15 for all others. Registration and details here.

On May 18

On this day in ...
... 1904 (105 years ago today), in Paris, France, diplomats from that country as well as Britain, Germany, Belgium, Denmark, Spain, Italy, the Netherlands, Portugal, Russia, Sweden and Norway, and Switzerland, signed the International Agreement for the Suppression of the "White Slave Traffic", the quotes indicating the then-in-use term for the trafficking of women and girls across national borders for purposes of the sex trade. The agreement entered into force on July 18, 1905.
... 1991, upon the collapse of centralized government in Somalia, leaders in the country's northwesternmost territory (depicted in salmon at right, bordering Ethiopia, Djibouti, and the Gulf of Aden, comprising, much of the former protectorate of British Somaliland), proclaimed the independent Republic of Somaliland. The region has operated with considerable autonomy since that date, and maintains some "political contacts" with a handful of countries, but has never received international recognition as an independent state.

(Prior May 18 posts are here and here.)

Today's Guest Bloggers: Anne Gallagher and Elaine Pearson

It's IntLawGrrls' great pleasure to welcome as today's guest bloggers Dr. Anne Gallagher (left), Head of Operations for Equity International, a Geneva-based foundation that promotes ethical and lawful policing through technical and tactical training and other practical support to national police forces, and Elaine Pearson (below right), Deputy Director of the Asia Division of Human Rights Watch.
Anne is an international lawyer specialising in human rights and criminal justice. She served as a career U.N. official from 1992 to 2003; for the last 5 of those years she was Special Adviser on Human Trafficking to the High Commissioner for Human Rights. She continues to advise the United Nations on these matters and has, most recently, completed a legal commentary to the U.N. Principles and Guidelines on Human Rights and Human Trafficking.

In 2003 Anne was appointed to head an intergovernmental initiative, under the Australian Aid program, that aimed to develop more effective criminal justice responses to human trafficking within and between countries of South East Asia. The project works directly with ASEAN and its member states to promote criminal justice approaches that work to end impunity for traffickers and to secure justice for persons who have been trafficked.

Anne has taught as institutions iincluding the NATO Staff College, the European Institute for Human Rights, and universities in Australia, Finland, Switzerland and Thailand. Her publications focus on policing, human rights, women’s rights and human trafficking. Cambridge University Press will publish her book International Law of Human Trafficking later this year.

Like Anne, Elaine also has special expertise in issues related to human rights, human trafficking, and migration. She has published in periodicals including The Nation. As Deputy Director of Human Rights Watch's Asia Division, she supervises work across Asia, especially South East Asia, Nepal and North Korea. Elaine has lived and worked in Asia for 6 years, in cities including Bangkok, Hong Kong, and Kathmandu. Prior to joining Human Rights Watch in 2007, she worked as a consultant to various institutions, among them the International Labour Organization, the U.N. Development Fund for Women, and Oxfam. She led the first Trafficking Program at Anti-Slavery International in London, was advocacy officer for the Global Alliance Against Traffic in Women. She graduated in law from Murdoch University in Australia.

In their guest post below, Anne and Elaine discuss Detention of Trafficked Persons in Shelters: A Legal and Policy Analysis, their study, prepared under the auspices of ARTIP, the Asia Regional Trafficking in Persons Project, of the practice by which some countries hold victims of human trafficking in shelter custody.

Heartfelt welcome!

On the detention of trafficking victims

(Our thanks to IntLawGrrls for the opportunity to contribute this guest post.)

In countries around the world it is common practice for victims of trafficking who have been ‘rescued’ or who have escaped from situations of exploitation to be placed and detained in public or private shelters. The term ‘detention’, as used in this context, refers to a very specific situation in which the individual concerned is unable to leave the facility if and when she or he chooses to. In some cases, shelter detention is a short-term measure that may be prompted by concerns about victim well-being or safety. In the most egregious situations, victims can be effectively imprisoned in such shelters for months, even years.
Our Study, Detention of Trafficked Persons in Shelters: A Legal and Policy Analysis, considers the international legal aspects of victim detention in shelters and weighs up the common justifications for such detention from a legal, policy and practical perspective. It is based on both desk research of shelter practices in a number of countries and more direct exposure to shelters through field-based research undertaken principally in South East Asia.
This Study is divided into two parts.

First Part
This part analyzes the international legal framework, and concludes that routine detention of victims or suspected victims of trafficking in public or private shelters violates a number of fundamental principles of international law and is, therefore, to be considered prima facie unlawful.
Failure of the State to act to prevent unlawful victim detention by public or private agencies invokes the international legal responsibility of that State. Victims may be eligible for remedies, including compensation, for this unlawful detention. In certain situations, the State may be able to successfully defend victim detention in shelters on a case-by-case basis with reference to, for example, criminal justice imperatives, public order requirements or victim safety considerations. The internationally accepted principles of necessity, legality, and proportionality should be used to evaluate the validity of any such claim. Application of these principles would most likely only support a claim of lawful detention in relation to a situation where detention is administered as a last resort and in response to credible and specific threats to a victim’s safety.

Second Part
This part considers the practical and strategic implications of the various policy arguments that are advanced in favour of victim detention. It asks:
► Can victims consent to their own detention?
► Is it indeed true that detention provides the only – or even the best chance of delivering much needed support and protection to victims of trafficking?
► Is it reasonable to cite the overwhelming reliance on victim testimony in human trafficking cases as grounds for ensuring these witnesses be prevented from disappearing?
► Should the situation be different for victims who lack legal migration status?
These questions are framed and responded to with particular reference to documented shelter practices in two countries of South East Asia: Cambodia and Thailand.

Conclusion
With only minor caveats, the Study concludes that in addition to their weak legal value, the arguments advanced in favour of victim detention are largely devoid of practical or strategic value.

Write On! Human trafficking conference

(Write On! is an occasional item about notable calls for papers.) Papers and poster presentations are sought for the 1st annual Interdisciplinary Conference on Human Trafficking: What We Know and What We Need to Know, to be held October 29-31, 2009, at the University of Nebraska-Lincoln.
Organizers intend to develop a research agenda by bringing together researchers from many disciplines, as well as persons from government and from nongovernmental organizations who have responsibility for anti-trafficking efforts.
Papers from disciplines such as the social sciences, economics and business, law, journalism, womens’ and gender studies, public health, math and statistics, and education are welcome, on topics that may include:
► Causes, routes and patterns, and the extent of the problem domestically and globally
► Successes and failures in combating human trafficking
► Corporate social responsibility
► Prostitution demand and human trafficking
► Illegal immigration, human smuggling, and human trafficking
► Corruption
► Finding, identifying, and rehabilitating victims
► Economic analyses
► Public awareness
► Organ trafficking
► Trafficking in children and adoption fraud
► Training anti-trafficking workers
► Analyses of existing and needed laws and of international cooperation and institutions
Abstracts are due soon, March 30, 2009, and should be sent to Roméo Guerra at rguerra2@unl.edu. Details about the conference, for which Dr. Kevin Bales (prior posts) will be the keynote speaker, are here; about paper and poster presentation submissions, here; about registration, here.