discussion homework 400-500 within 12 hours

TRAFFICKING IN WOMEN

Lois Chiang

Trafficking in women. The flesh trade. The child sex trade. Sex tourism. Sexual slavery. Forced prostitution. Terms designed to capture the reader's attention and imagination as well as frame a particular issue. These terms are seen with increasing frequency in the media as well as in human rights documents. What precisely is meant by each of these terms is likely foggy to the casual reader and may even be somewhat unclear for the human rights activist. And for good reason. These terms are linked, they overlap, and at times may even be synonymous. The decision to use one term over another is strategic, often governed by the precedents laid down in international human rights law and the moral authority one hopes to harness by adopting a particular characterization. This strategy is not uncommon when tackling the human rights of women, as the post-World War II international human rights instruments were drafted without a full appreciation of the range of abuses perpe- trated against women. Consequently, the human rights of women have not been adequately recognized or protected under international instruments and mecha- nisms.! Activists attempt to " fit" abuses against women within the definitions of human rights designed to address the concerns of men.2 With respect to trafficking in women, activists have had to latch onto recognized human rights violations such

1. See generally Charlotte Bunch, Women's Rights as Human Rights: Towards a Re-Vision of Human Rights, 12 HUM. RTS. Q. 486 (1 990); Hilary Charlesworth, Human Rights as Men's Rights, in WOMEN'S RIGHTS, HUMAN RIGHTS; i.mERNATIONAL FEMINIST PERSPECTIVES 103 (Julie Peters & Andrea Wolper cds., 1995); H ilary Charlesworth & Christine Chinkin, The Gender of Jus Cogens, 15 HUM. RTS. Q. 63, 69- 76 (1993); Celina Romany, State Responsibility Goes Private; A Feminist Crit iqlle of the Publici Private Distinction in inlematiofUll Human Righl$ LAw, in HUMA N RIGHTS OF WOMEN: NATIONAL AND IN"rERNATIONAL PERSPECTIVES 85 (Rebecca 1. Cook ed., 1994) [hereinafter HUMAN RIGHTS OF WOMEN]; FROM BASIC NEEDS TO BASIC RIGHTS (Margaret A. Schuler ed., \995); OURS BY RIGHT, WOMEN'S RIGIITS AS HUMAN RIGHTS (1oanna Kerr cd., 1993); WOMEN'S RIOlO'S, HUMAN RIGHTS (Julie Peters & Andrea Wolper ed5., 1995).

2. One example of the lack of recognitio n of human rights abuses against women is domestic violence. Domestic violenee was not specifically captured by any of the pre.199O international human rights instruments and o nly became an international issue after 1990. While it has been one of the most pressing, prevalent, and persistent forms of physical abuse against women worldwide, it remains unstated in aU but one of the exis ting human rights conventions (E.g., the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women (Convention Against Violence). Aside from incidences that are covered by the Convention Against Violence, attempts to have domestic violence recognized as a serious human rights abuse must typically be accomplished by fi tt ing it into an existing category. For example, see Rhonda Copelon, Intimate Tortu re: Understanding Domestic Violence as Tor/ure, in HUMAN RIGHTS OF WOMEN, supra note I, at 11 6.

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s slavery and child prostitution in order to find some, albeit limited, recognition, :gitimacy, and redress for the abuses that arise from trafficking in women.

Without a doubt, all options within the existing international human rights ystem must be explored and exhausted. There , must also be precision and rigor in Ie use and application of the term "trafficking in women." By fai ling to precisely eline what is meant by "trafficking in women," many instances of trafficking in 'omen will remain unseen, unexposed, and unaddressed. Further, without a clear efinition of what trafficking in women entails, implementation of legislation and :rategies aimed at preventing and addressing trafficking in women will remain aphazard and of limited utility.

This chapter aims to clarify the issue of trafficking in women. While related oncerns such as slavery, the girl-child, prostitution, migrant workers, mail-order rides, and trafficking in women during armed conflict will be referred to, a detailed evelopment of the factual and legal arguments and issues surrounding such topics re left to other chapters in this work.3 The first section of this chapter considers lC issue of a definition of "trafficking in women." The second section discusses Ie factual background of trafficking in women as it is known today. The third ~ction sets out the framework for addressing the human rights violations arising 'om trafficking in women through international human rights law and mechanisms. 'he fourth section returns to the issues around defining "trafficking in women," nd highlights the importance of establishing a clear, authoritative definition of ·trafficking in women" as a precursor to any concerted international action to ght, prevent, and eradicate this pra(;tice.

RAFFICKING IN WOMEN: A DEFINITION

A number of related problems have plagued the issue of trafficking in women, laking it difficult to address this phenomenon in an effective manner. First, as 'ith many gender-specific human rights violations, it has taken a long time to :cognize the fact that trafficking in women is even a human rights issue.4 Second, Ie very nature of trafficking has contributed to the invisibility of this practice. 'rafficking in women is accomplished through a variety of methods that lead to a lide range of human rights abuses. In turn, trafficking in women has been dealt

In this chapter, refercnces to women who are trafficked will often includ~ girls. However, a detailed scussion of the human rights issues around trafficking solely in children is beyond the scope of is chapter.

See generally KATHLEEN BARRY, m\Al.£ SEXUAL SLAVERY (1979) [hereinafter FEMALE SEXUAL :..AVf.RV]; Bunch, supra note 1; Romany, supro note 1. Indeed, the literature suggests that trafficking women was a phenomenon that only arose in the nineteenth century, as that was when the issue was

entified and the term first used. However, in closely examining Ihe experiences of women throughout me, trafficking in women has in fact been an integral part of our world history. For historical examples, 'e SnrrsKE ALTlNK, STOLEN LIVES: TRADING WOMEN INTO SEX AND SLAVERY 8-40 (1995); MAUDE E. liNER, SLAVERY OF PROSTlTUl'ION: A PLEA FOR EMANCIPATiON (1916); B ENSON TONG, UNSUBMISSIVE 'OMEN: CIUNESE PROSTIT'lTmS [1'1 NINETEENTtI,CENruRY SAN FRANCISCO ( 1994).

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with by focusing on these human rights abuses and concerns.s As a result, there has been no consistent approach to addressing trafficking in women. Rather, fOCUSing on the multitude of human rights abuses arising from trafficking in women has resulted in a piecemeal approach to this practice. Thus, in spite of the existence of an international treaty on the suppression of trafficking in women, there has yet to be an authoritative definition of trafficking in women in international human rights law. Consequently, it is necessary to construct a definition that captures the targeted activity. A dictionary definition of trafficking describes it as "an illegal trade in a commodity;" in this case, that commodity is women. Next, a definition is needed that articulates and sets out the activities that result in the trade of women. The definition that appears to be gaining authority is the following:

All acts involved in the recruitment andlor transportation of a woman w ithin and across national borders for work or services by means of violence o r threat of violence, abuse of authority or dominant position, debt-bondage, deception or other forms of co-

ercion.6

There are three key elements involved in this definition. First, trafficking re- quires the recruitment andlor transportation of a woman. Applying the plain mean- ing of these words, "recruitment" refers to the acts of hiring or otherwise obtaining women for the performance of services, and "transportation" involves moving or causing a woman to move from her habitual place of residence. Recruitment andlor transportation may take place within or across national borders; that is, trafficking in women does not require crossing a national border. Second, the purpose of the recruitment andlor transportation of women is to engage them in some form of work or services. Defined broadly, "work" or "services" include both paid and unpaid work, sexual services, as well as domestic services and general labor.

5. Information regarding trafficking in women may be found under various headings, including but not limited to: child prostitution, child sex trade, forced marriage, forced prostitution, mail order brides, migrant workers, prosti tution, sexual slavery, sex tourism, sex trade, and slavery. However, simply reviewing the literature under those topics will not yield a full view of the topic. For example, trafficking, as defined here, does not include voluntary prostitution: while some writers treat voluntary prostitution as synonymous with involuntary prostitution. Other writers are less clear. In addition, some of the literature focuses only on the actual working and living conditions of the sexually exploited, that is. the manifestations of trafficking mtIler than the process of trafficking. For example, some writers on child prostitution do not analyze the process through which a child is forced into prostitution, but rather focus on overcoming the obstacles that prevent a child from escaping prostitution. Finally, many instances of trafficking in women are not yet recognized. either by society or the literature.

6. This definition was a proposed working definition articulated by the Foundation Against Trafficking in Women (STY) in Holland for use in a report on trafficking in women for the Special Rapporteur on Violence Against Women, Its Causes and Consequences. The United Nations General Assembly has defined trafficking as the' 'illicit and clandestine movement of persons across national and international borders, largely from developing countries and some countries with economies in transition, with the end goal o f forcing women and girl-children into sellually or economically oppressive and exploita tive situations for the profit of recruiters, traffickers and crime syndicates, as well as other illegal activities related to traffiCking, such as forced domestic labour, false marriages, clandestine employment and false adoption." See Report of the Special Rapporteur on violence against women, its causes and conse- quences, Ms. Radhika Coomaraswamy, U.N. Document ElCN.4/ l997/47, at 14 [hereinafter COMMUNITY VIOLENCE REPoRT].

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However, it would appear that these two elements are necessary but not suffi- cient. A woman can be recruited andlor transported for work or services and the process will not necessarily raise human rights concerns. What attracts attention then is the third element: coercion. Coercion lies at the heart of trafficldng. The limits of what constitutes (or should constitute) coercion in trafficking in women remain undefined. How coercion is defined will determine the scope of the activity captured by any international definition of trafficking in women.

There are two forms of coercion that must be examined. First, coercion may take the form of actual or direct actions. Such coercion is typically more visible and includes the use of physical force or threats of physical force to compel someone to act against their will. This form of coercion is easily recognized. More problem- atic is the second form of coercion, which is less visible and is typically made up of implied or indirect acts. While indirect, such acts in effect limit one's alternative courses of action to such a degree that one party is subjugated to the will of another party. Such coercion is often referred to as economic, psychological, cultural , or social coercion. Whether any or all of these sources of pressure constitute or should constitute coercion is unsettled and hotly debated. For example, some argue that women have no real choice but to turn to prostitution for economic survival . There- fore, any prostitution is coercive. Others argue that women can voluntarily choose to enter the sex trade. Similarly, in places where there are strong family and commu- nity pressures on women to submit to arranged marriages, an argumenl can be made that these women are somewhat coerced to enter into these arranged marriages, even though actual force or threats are not used. Others contest this characterization and argue that women are still able to resist pressures and choose to enter into such arrangements.

A major dilemma is whether to include all forms of coercion within the defini- tion of trafficking. The aforementioned definition does not clarify whether all forms of coercion are included or intended. Moreover, coercion may take various fonns, including actual violence, the threat of violence, abuse of authority, debt bondage,7 and deception. The inclusion of deception as a fonn of coercion is not without problems, as it would potentially broaden the scope of trafficking in women to include a situation in which an employer recruited a woman for work or services and deceived the woman in terms of issues such as her working hours, salary, or bonus. In those cases, deception alone would not raise human rights concerns related to trafficking, although other issues such as employment rights may arise.

The point of raising this definition and the issues around the meaning of coercion is to highlight the fact that no definition is yet satisfactory. (The issue of a definition of trafficking in women will be discussed more fuUy later in this chapter.) For the moment, it is helpful to use the definition set out above as a reference point, as it

7. Debt bondage is another form of coercion tha t is specific to cases where women are truffickcd in to forced prostitution or labor (as discussed injra). It involves the impositio n of a debt upon a woman that she must repay by engaging in forced prostitutio n or forced labor. The debt may flow from money paid to her family in the form of a loan or it may simply consist of the brothel owner's expenses in acquiring, housing, or feeding her.

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does generally set out the activities that must be covered in order to address traffick- ing in women. However, closer examination of the factual background to trafficking in women is required to establish more precisely the range of activities to be captured. Any mention of trafficking in women will conjure up a few stereotypical situations in the minds of many readers, the most common perhaps being the image of a straightforward economic transaction involving the sale of a woman or girl to a brothel in return for a money payment. Thereafter, the woman or girl is con- demned to a lifetime of forced prostitution. While that situation is certainly com- mon, it is only one facet of trafficking in women. The following section outlines the facrual background to trafficking in women in order to demonstrate the complex- ity of the problems faced in eradicating this practice and to clarify the essential elements required for an international legal definition of trafficldng in women.

TRAFFICKING IN WOMEN: THE FACTS

In spite of the fact that trafficking in women is often discussed as a " regional" issue. it is in fact a global phenomenon.' It does, however, have fairly clear regional characteristics and routes. Regional characteristics aside. certain components are common to all trafficking. First, trafficking requires supply and demand. The supply consists of vulnerable women and the demand is made up of men who purchase women for various purposes including sexual gratification, reproduction andlor for labor. Once supply and demand exists, targeted women will be recruited andlor transported to meet the demand. The following discussion outlines the process of trafficking, beginning with how women and girls are targeted, how they are traf- ficked, and what type of living and working conditions they are forced to endure. Generally, women are trafficked in two ways: either they are lured by a ploy or they are forcib ly abducted. Such women are forced into one of three situations: forced prostitution, forced marriage, or forced labor.9 At the outset, it should be noted that the following facts are of a general nature. There will be differences in the nature aDd degree of human rights abuses experienced by women who are trafficked. Because many trafficking situations have not yet been uncovered or even recognized, there may be experiences and circumstances not addressed in this

8. ALTINK. sllpra note 4 , at 15-40; CoALlTION AOAINST1'RAFflCKlNG IN WOMIlN-AsIA PACIFIC, T RAF. F1ClUNO IN WOMEN AND PROSTITUTION tNTIIB ASIA PAClFIC 24-21 ( 1995) [hereinafter CATW); lJ..rJuPOL REPoRT, Traffic in Women: Recent Trends, in FEMALE SexUAL SLAVERY. supra note 4, at 238-48.

9. Forced prostilUtion has traditionally been seen as the only consequence of trafficking in women. Now, trafficking in women is recogni7.ed as leading to other consequences. The Beijing Declaralian and Pial/ann /or Action includes forced marriages and forced labor in its concept of trafficking. U.N. Doc. AlCONF.111120, at para. 130(b). This is also the position adopted by the Secretary-General of the United Nations in his report, Report of the Secretary-General o n Traffic in Women and Girls, U.N. Doc. Al5 1/309, at para. 5 (hereinafter Tmffic in Women]. While it is recognized that trafficking in women leads to forced labor, in this chapter. forced lilbor has been incorporated into forced prostitlllion and forced maniage. Data documenting trafficking in women leading to rorced labor remains sparse and typically is an important collateral reason women are trafficked into forced prostitution and forced marriages. See CATW, supra note 8, at 31 ; Four Execured in China/or Abduction. Sale a/Women and Children. AOENel! FRANCE PREsse, Feb. 25, 1995, available in LEXIS, Ncxis Library, World File, Topnws.

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chapter. The purpose of the factual discussion below is to impart to the reader a set of facts that will flag the issues that generally arise when women are trafficked.

The Women

In most recognized cases of trafficking, the targeted women 10 are from the poorer regions of their country, typically rural areas where the level of education nnd sophistication is quite low. As Human Rights Watch has reported:

On the supply side, adverse socioeconomic conditions in many regions increase the likelihood that women and girls will be lured into forced prostitution or involuntary marriage. In most parts of the world, most notably in rural areas, women and girls have fewer educational and economic opportunities than males. The attraction of a big city, beller-paying jobs, and a better life cause women and girls who have few options at home to accept alleged job or marriage offers far away. Moreover, even if the woman or girl herself is not tempted, the preference for sons in many socie- ties, . ,and the promise of immediate payments often lead fami lies to sell their daughters,l1

However, victims are not always niral womcn or girls. University students have been trafficked in Cruna,ll and women have been abducted in urban centers such as ParisI] and Montrea!. l. In cases leading to forced marriages, some victims have been adolescent girls raised in urban areas of the United States,15 Scotland, 16 and

10. Young boys arc also victims of trafficking, either for purJXl5eS of prostitution or as sons for couples in China who cannot have a son. However, the issue of trafficking in boys is beyond the scope of this chapter. See Rahul \ledi, Call for New Low as Paedophiles Turn to Sub-Continent. THB DAILY TI!J...E. CRAPH. Mar. 25, 1996: China Convicts 35 Fanners for Kidnapping Babies, REUTERS, Mar. 3, 1995, available in LBXlS, Nexis Library, News File, Curnws.

II. HUMAN RtaHTS WAl'Ot, THB HUMAN RtollTS WATCH GLOBAL REPORT ON WOMEN'S HUMAN RIOHTS 196 (1995) lhcrcinafler GI.ORAL REPORT].

12. People Pedlars: Trade in Women is Widespread in Rural Areas, FAR EAsn!.RN EcoNOMIC REVIEW, Feb. 23, 1989, at 41; Three Executed in China for Abducting Women. REvtERs, Aug. 26, 1993, available in LEXlS, Nexis Library, World File, Topnws.

13. FEMAI..E SEXUAL SLAVERY, supra note 4, at 47.

14. Montreal Torture Case Ukely to Snowball, lim GLonn AND MAIL, Oct. 29, 1996.

15. Gerard Aziakou, Islam, US Low Clash Over Alleged Forced Marriages of Iraqi Girls, AOBrfCE Flv.NCE PREss!>, Dec. 28, 1996; Dave Mcintyre, Old-world Wedding Lands Iraqis in New World Court, DEIJTSCIIE PREssE-AoEmtJR, Dec. 3, 1996; Don Terry, Cultural Tradition and LAw Collide in Middle America. N. Y. Times, Dec. 2. 1996, available in LEXlS, Nexis Library, World File, A1lnws.

16. Audrey Gillian, Kidnap Girls Fly Home, ScOTl...AND ON SUNDAY, Mar. 31, 1996; Audrey Gillian, A Marriage Made in Hell, ThE GUARDtAN, Apr. 4, 1996; Chris Slarrs, 'Abdl/ction' Falhu to Sue Lobour Hopeful; Man Disputes Claims that He Farced His Daughters into Illegal Marriages, THE HERAI.D (Gt...o.soow), Dec. 9. 1996; Chris Starrs, SalWar Flies Out Today Kidnap Four Rel/nited in Safe Refuge, THE HERALD (GLASGOw), Mar. 26, 1996; Ken Symon, 'Kidnap' Inquiry Father 10 Return. SUNDAyTlMES, Dec. I, 1996; Sarah Urquhart. Fallier Raises Damages Claim on SaIWar, THE HERALD (GLASOOw). Dec. 23, 1996; Craig Watson, Glasgow COllncilor Tells of Efforts to Let Woman and Daughters Leave Pakistan, TilE HERALD (GLASGOW), Apr. I, 1996; Coullcilor Suffers Backlash Afler High·Prafile Mission 10 Rescue Abducted Sislers; Pakistani Group Attacks Sarwar, ThE HERALD (GLASGOw), Apr. 16, 1996, available in LEXIS, Nexis Library, World File, Allnws.

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EnglandY What all victims share is vulnerability that stems from their status as women18 as well as from other factors such as youth, a low level of education, a lack of sophistication, mental retardation," family coercion, poverty,1.O sheer desper- ation, or a combination of these factors. Some may have merely been in the wrong place at the wrong time.

Contrary to the media's emphasis on trafficking in women from Southern coun- tries, Northern countries are not inunune to this practice.11 Aspects of trafficking in women occur in nearly every country, whethcr it is a receiving country, sending country. transit country, or simply a co~ntry within which trafficking takes place. The more notorious and well-known trafficking routes include: the Caribbean, Thai- land, Philippines, Ghana, Columbia, and Eastern Europe to Western Europe;u Thai- land and the Philippines to Japan;23 Burma to Thailand ;2A Nepal to India;15 and Bangladesh to Pakistan,16 Lesser-known routes include trafficking from Southeast

17. See generally MIRIAM ALI WITH JANA WAIN, WITHOUT MERCY: A WOMAN'S STRUOOLE AOAINST MODERN SLAVERY (1995) [hereinafter WITHOUT MERCY); EIU!BN MAcDoN.-+J..I), BRIDES FOR SALE? Hu· MAN TRAnS IN NORTH YEMEN (1988) Ihereinarter BRIDES FOR SALE].

18. One stark example is thaI of brothers who sell their unmarried sislers aner the death of thei r parents simply because they fi nd their sisters to be a burden. See K.K. MUKIIElUEE, FLESH TRADI!: A REPORT 7 1 ( 1989).

19. Lan Cao, Illegal Traffic in Women: A Civil RICO Proposal. 96 YALE LJ . 1297, 1299 (1987); YojalUl Sharma, China: Keeping Social Problems Wi/hin the Family, II'(1'ER PREss SERVICE, May 31 , 1991, available in LBXIS, Nexis Library, World File, Topnws; NICHOLAS D. KRISTOF"" SHERYL WUDUNN, CHINA WAKES: TilE STRUGOUiFOR nm SOUL OF A RlstNG PoWER 212 (1994) [hereinafter CHINA WAKES].

20. As an example, Shanta Bai, a prosti tute in Bombay was sold at age 11 . She was orphaned quite young and raised by an elderly village woman who eventually could not afford to feed her. So the woman sold Bai to a trafficker. See Molly Moore, Even If I Rlln Away. Where Would 1 Go? WASH. PosT, Feb. 16,1993. available in LEXIS, Nexis Library, World File, Allnws.

21. For example, see Margot Hornblower, The Skin Trade: Poverty, chaos and porous borders have turned prostitution into a global growlh industry, debasing the women and children of the world, TIMIl, Jun. 21, 1993, available in LEXIS, Nexis Library, News File, Cumws; KATHI.EIiN BARRY. THE PROSTmTnONOF SIiXUAUT'Y 190-195 ( 1995) [hereinafter PROS'IlTUTION OF SIiXUAI.rt'Y!.

22. Hornblower, id; Fanny P. Molina, Sex Trafficking from Colombia to Europe: Marta's SIOry, in WrrnoUT REsERVATION: TIlE BEUINO TRmUNAL ON ACCOUNTABILITY FOR WOMEN'S HUMAN RIGHTS 69 (Niamh Reilty ed., 1996) [hereinafter WITHOUT REstlRVATlON]; Report on the mission of the Special Rapporteur to Poland on the issue of trafficking and forced prostitution of women (24 May to 1 June 1996), U,N. Document FJCN.4/1997/47/Add.l. at para. 44 [hereinafter POLAND REPORT)'

23. CA TW, supra note 8, at 20; William Chapman, Flesh Supennarirets of the Third World: For Some, Life on the 'Sex Tou r ' is the Olily Escape From HI/llger in the Village, WASH. PoST, Mar. 3, 1985, available ill LEXIS, Nexis Library, News File, Cumws; JAPAN FEDERATION Of' BAR ASSOCIATIONS, REPORT ON TIlE NATIONAL REPORT FOR THE FOUIlTH WORLD CONFERENCE ON WOMEN (1995) [hereinafter JAPAN FEDIl.RATIONj.

24. HUMAN Rtmrrs WATCH, A MODERN FORM OF SLAVERY: TRAPFICKINO OF BURMESE WOMEN AND GIRLS INTO BROTItELS IN TlWLAND (1993) lhereinafler MODERN FORM OF SLAVERY).

25. HUMAN RRIOirTS WATCHlAslA, RAPt! FOR PROFIT: TRAFF1CKtNO OF NEPAU GtRLS AND WOMEN TO 1t-'DIA's BROTHELS (1995) (hereinafter RAPt; FOR PROFIT].

26. GLOBAl. REPORT, supra note I I , at 257-273.

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Asia to Australia; Vietnam to China;27 Southeast Asia and France to the Middle East;28 United States to Japan;29 England to Yemen;)(1 and Russia to Israel, Macau, and Western Europe.3! Finally, the least recognized trafficking occurs within na- tional borders. To name a few documented examples, internal trafficking occurs in places such as Algeria,32 Brazil,13 Canada,J.4 China.l~ Taiwan,J6 and the United States.31 These examples represent only a portion of the trafficking that occurs worldwide.38

The political and economic backgrounds of the countries implicated often exac- erbate the vulnerability of women. For example. one well-known trafficking route runs from Nepal to India. In addition to the conditions of extreme poverty and

27. CA TW, supro note 8; Thru Arrested for Trafficking Across Vietnam Border, BBC SUMMARY 01' WORLD BROADCASTS, Nov. I, 1994, available in LEX1S, Nexis Library, Asia PC File, Allnws.

28. CATW, supro note 8, at 19; FEMAL.6 SRXUALSLAVI!RY, supra note 4, at 47.

29. Coo, supra note 19; Hornblowcr, supra note 2 1.

30. Au, supra note 17; MACDoNALD, supro note 17.

31. Hornblower, supra note 21.

32. Zazi Sadou, The Martyrdom o/Girls Raped try Islamic Anned Groups, in WmlOUT REsERVATION, supra note 22, at 28; Two Sisters, Allegedly Kidllap/Hd jor Forced Marriage, Found Dead, BBC SUllUllary of World Broadcasts. Nov. 9, 1994; Mother 0/ 'TWo Sisters Beheaded by " Terrorists" Also Killed, BBC SUMMARY Of WORLD BROADCASTS, Nov. 28. 1994, available ill LEXlS, Nexis Library, World Filc, Allnws.

33. ANTI-SLAVERY iNr:ERNATIONAL, SLAVBRY IN BRAZlL-A LINK IN "..gCHAINOP MODERNIZATiON 94-\03 (1993): Christina Lbel, Teenagers Sold as Sex Slaves in Midst 0/ AmaZOI! Jungle, SUNDAY TIMES, Apr. 26, 1992; Julia Preston, Brazil Frees Minors in Brothels; Police Raid Amazon SaloollS Said to Enslave 22 Gir/s, WASH. PoST, Feb. 27, 1992; Braz.ilian Girls Forced into Prostitution in the Amazon, Rm.rrnRs, Mar. 27, 1992, all available in LEXIS. Nexis Library, News File, Allnws.

34. Hin/s a/Crackdown Cool Under.Age Sex Trade, GLOBE AND MAIL, Feb. 5, 1997, at A I; and Man/real Torture, supra note 14.

35. See generally HE LlANOCHEN, GUANYU YANJtN MAL YIN PAIOCHANO oeJUIIDINO. GUANYU Y ANOIIlNO GUMMA! B ANOJIA FUNU ERTONG DB FANZUI FENDZl 08 JUEDING: JIEYI (1992); Xm ZllIHONG & JIA LUSHENG, GUAIMAI FUNu SHILU (1989); Chintl Convicts, supra note 10: CHINA WAKES, supra note 19, at 211-21; EMILY HONIOAGAILHERSHAlTBR, PERSONAL VOICES: CHINI!SE WOMEN' IN1llE 19805 286-91(1988) [here- inafter PERsoNAL VOICES]; Huang Wei, Crackdown on Abduction oj Women and Children, BWING REVIEW, luI. 29- Aug. 4, 1991, at 25; HUMAN RIGHTS IN CHINA, CAOOHT BEIWEEN TRADITION AND 1lffi STAlE VIOLATIONS OFTIiE HUMAN RI<lHTSOPCIIINI!SE WOMEN, A REPORTwmI R.EcoMMENOATIONS MARK. INO THE foUR".. WORLD CONFERENCE ON WOMEN 8-17 ( 1995) [hereinafter HUMAN RIGHTS IN CHINA).

36. CAnv. supra note 8, al 28-29.

17. Cao, JUpra note 19; Neal Kumar Katyal, Mell Who OWl! Women: A Thirteenth Amendment Critique '/ Forced Prostiflllioll, 103 YAl..E L.1. 791 (1993).

18. There are less well-known traffiCking cases from Southern counl ry to Southern country, such as ::olombia, China, Burma, Yugoslavia, and Latin America to Thailand. See Aphaluck Bhatiasevi. China: rhailand Fills Cenrral Role on Sex Markets, Sept. 2, 1995; Thai Police Save Colombian Women/rom f;orced Prostitution, REUTERS. Fcb. 8, 1990. available in LEXIS, Nexis Library. World File, Allnws. lee gentrolly ALTlNK, supra note 4, at 8-40; LICIA BRUSSA. SURVEY ON PROSTITUTION, MIGRATION AND rRAI'I'IC IN WOMEN: HISTORV AND CURRENT SITUATION (1 991); Hornblower, supra note 21; PRosllTUTlON )PSnxUALITY. supra note 21, al 165- 97.

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subsistence agriculture that most rural Nepalis live under, Nepal is economically dependent on India, A 1950 treaty providing for an open border policy berween the two countries eliminates the need for immigration checks for Nepalis crossing the border, therefore traffickers need not obtain visas or other documentation for the women they are transporting. Because of its economic independence on India, Nepal cannot afford to end the treaty and India does not wa nt to lose the privileges attached to such a policy, 39

The combination of the deteriorating economic and political situation in Burma spurs an outflow of trafficked women into Thailand, TillS fl0:-V, is facilitated by ~hai officials eager for cheap labor or personal profit. >IO The tranSitIOn from commumsm to capitalism in Eastern Europe has altered the trafficking of women into Western Europe. In the past, women were trafficked into Western Europe from Southern countries such as Colombia. the Dominican Republic, Ghana, Thailand, Zaire, and the Philippines.41 Now, the trade has turned to Eastern Europe as the primary source of women.41 This shift basically stems from increased opportunities for traffickers in the form of lower transportation costs', less onerous or no visa requirements, and the fact that these women are much more difficult to detect.· l

Economic and political factors can encourage trafficking in women within coun- tries as welL While women are trafficked into and out of the Philippines, trafficking of Filipino women occurs internally. As one commentator noted, the inuninent collapse of the Philippines sugar industry would provide more rural girls for the Manila prostitution market.44 In China, the flourishing urban areas have become a beacon for the surplus rural labor force, a surplus due to increased rural efficiency, Substantially increased mobility has made it easy for the surplus rural labor to flock to urban centers where women are recruited andlor abducted and transported to remote areas of China.45 The political decentralization of China has resulted in

39. RAPE FOR PROfIT, supro note 25. at 9, 11-12.

40. MODERN foRMS OF SU,VERY, ,supra nOie 24, at 10-20.

41. Galina Vromen. Dutch Seek to Curb Forced Prostirution oj Foreign Women, R EUl'ERS, Feb. 16. 1988. available in LEXIS, Nexis Library, News File, Cumws.

42. PoLAND REPoRT, supra note 22; The Trade in Women Must be Stopped, speech given by Commis· sioner Anita Gradin at the Annual Meeting of the Social Democratic Women's Association, held on Aug. 26, 1995 in Goteborg, Commission of the European Communities, Press Release; Marlise Simons, Rtd-Light Express: East European Job Sulcer! Shanghaied by West's Sex Mills, CH!NA. TRlB., Aug. 15, 1993, available in LEXlS. Nexis Library, News File, Curnws.

43, Such women can also be easily rolated through various European countries when their visas have expired. Simons, id. Also, as the Special Rapporteur has reported, as the physical appearance of women from Eastern Europe tend to be more European, these women are less likely 10 arouse the suspicion of border guards. See POLAND REPoRT, id. See generally Gillian Sharpe, 011 the Trail 0/ Slave Traders, SC()'JU.NOON SUNDAY, Jan. 7, 1996; David Crossland, Brothel Murder Spotlights Eastern Europe Prosti· lUIiOlI, REUTERS, Aug. 16, 1994. available in LEXlS. Nexis Library. News File, Curnws.

44. Chapman, $upra note 23.

45. He notes that following the economic development in China in the late 19805, abductors and traffickers have moved to urban areas, following the movements of fe male peasants who form part of the labor surplus in rural areas. Hc. supra note 35, at 92, See also CIIINA WAKES. supra notc 19, at 219; PBRsONAL VOICES. lUpra note 35, at 290; Wei, supra note 35.

!30 · Women and Intematlonal Human Rights Low

ituations where village leaders are powerful enough to actively prevent trafficked vomen from escaping or to obstruct outside authorities from rescuing abducted vomcn.46

'raffickers and the Process

As illustrated by the transit routes set out above, trafficking in women typically ()Valves the transportation of women over substantial distances. As a practical natter, the transportation of a person is not easily accomplished. Traffickers in vomen are successful for a number of reasons. First, many traffickers have some onnection to the trafficked women. Many gangs of traffickers are compatriots If the trafficked women.47 As members of gangs, they may either be small-time 'pportunists or participants in large procuring networks that traffick in women to upply organized crime's prostitution activities.48 Some are locals who know local ;iris, women, and their famil ies.49 In addition, traffickers may be returned prostitutes vho now are either brothel keepers, managers, or owners themselves, or who were eleased on the condition that they find substitute prostitutes.5O The connection ,etween traffickers and their victims may be much more intimate, involving imme- nate family members who knowingly force or sell their female relatives (typically laughters) to recruiters, brothel owners, or " husbands," or who are willfully blind :> the fate of these women and girls.sl In one case in China, one man was convicted ,f selling eighteen women, including his wife, three-year-old daughter, and nother.52 In cases of forced marriages between a young woman and a distant relative 'r family friend, those responsible for the transportation of women and girls are .fteo the father andlor other male relative.s3 However, a connection to a woman ·r girl is nOl essential . Some traffickers use advertisements for jobs and brides as lure. Reports show that, in some cases, the abduction of girls has been conducted

'y soldiers under governmental orders.54

6. CHINA WAKF-S, supra note 19, at 219; HUMAN RIGHTS IN CmNA, supra notc 35, at 8-17.

7. Crossland, supra note 43.

8. Cao, supra note 19, at 1299; Hornblower, supra note 2 1; Simons, supra note 42

9. RAffiFOR PROFlT. supra note 25, at 22.

O. Bhatiasevi, supra note 38; MODERN FORM Of' SLAVERY, supra note 24, at 48; RAPil FOR PROFIT. /pra note 25, at 22-23.

I. Maria l aschok & Suzanne Miers, Traditionalism, Cominuiry and Change, ill WOMEN AND CHINESE ATRJARCHY; SUBMISSION, SERVITUDE AND EsCAPE 264, 265 (Maria Jaschok & Suzanne Miers cds., 994); Katyal, supra note 37, at 795; MODERN FORM OF SLAVERY, supra nOle 24, at 47-48; RAPE FOR ROFIT, supra note 25, at 21. In one well· known practice in India, women and gi rls are offered to a ,mple through a religious ceremony, after which they are forced to become prostitutes out of economic ~cessi ty or after being sold by priests to brothels (devadasis). See COMMUNITY VIOLENCE REPORT, supra ::lte 6, at 15. The Community Violence Report also notes the existence o f a similar practice in Nepal llled the Deukis system. See COMMUNITY VIOLENCE REPORT. id.

Z. Robert Benjamin. Women and Children are Sold by Relatives in Age-Old 'Flesh Trade', MONTREAL AZETIE, Jun. \4, 1991 available in LEXIS, Nexis Library, World File, A1lnws.

3. See generally BRIDES FOR SALE?, supra note 17; WlTHOUTMERCY, supra nOle 17.

4. Barry reports that "[i]n Sep. 1970 a truckload of soldiers under governmental orders went to the

Trofffcking In Women· 33 I

Second, traffickers use two main techniques for trafficking women, namely deception andlor outright force. Where deception is used, the motivating factor for many women and girls is often the chance to escape poverty, combined with the opportunity to relieve the economic pressure on their families. ~s Fictitious offers of employment or marriage are two common lures. Employment offers range from jobs as a factory worker, a domestic worker, receptionist, or nanny, to a job as a hostess, waitress, singer, or model.S6 Fraudulent marriage offers may be either wholly fictitious or traffickers may actually go through with the marriage processY In Pakistan, pimps actually marry a woman then abandon her in a crowd. At that point, an accomplice offers to help her find her "lost" husband or outright forces her into prostitution.58

However, lures are not limited to job offers or marriage proposals. Basically, any story that will work is used. Where young girls are forced by their fathers to marry strangers, the girls are often told that they are going on a family trip. When they arrive at the groom's hometown, the girls are then informed that they are going to be married. Lures may even be as inventive as proposing to go to the countryside to buy antique silver coins, which could be sold for a profit.~ That lure led one woman in China to be trafficked into a forced marriage with a farmer. In Russia, a Russian student of German literature was lured by an invitation to com- plete her education in Germany. Upon arrival in Germany, she was forced into pros- titution.60

homes of four Persian girls in Zanzibar and held thei r families at gunpoint as the girls were dragged off screaming. They were taken before the Revolutionary Council, where they were forced into Muslim marriages with high-ranking government officials, most of whom had other wives. The abduction, forced

marriage and enslavement of these girls were carried out under the direction of Vice-President Karume, then dictator of the island, in accordance with the post-revolutionary policy of compulsory racial intcgra-

tion Ihrough intermarriage." FEMALE SEXUAL SLAVERY, supra note 4, at 47. See also Robin McDowell, Cambodia's sex-Jor-sale will stay despite new law, say women, DEUTSCHE! PRIlSSE-AoENTUR, Jan. 25, 1996 available in LEXIS, Nexis Library, News File, Curnws.

55. GLOBAL REPORT, supra note 11, al 257; Jaschok & Miers, supra note 51, al 265; Lbel, supra note 33; MODERN FoRM OF SLAVERY, supra note 24, a146; RApE FOR PRom, supra note 25, at 15, 21; Sharpe, supra note 43.

56. Cao, supra note 19, at 1299-1301; Commission, supra note 42; GLOBAL REPoRT, supra note II, at 262; Eileen Guererro, Philippines Keeps Maids Home after Harassment Reports, REl.J'ffiRs, Jan. 20, 1988 available in LEXlS, Nex.is Library, News File, Curnws; HUMAN RIGHTS IN CHINA, supra note 35, at 14; JAPAN FEDERATION, supra note 23; Katyal, supra note 37, at 808 ; Samia Nakhoul, Asians Plead Jar end to Trafficking in Workers, REUTERS, Scpo 8, 1994, available in LEXIS, Nexis Library, News File, Curnws; POLAND R.l?PoRT, supra note 22, at para. 60; RAPE !'OR PRO~lT, supra note 25, at 28; Sharpe, supra note 43; Thai Police, supra note 38.

57. T rirat Petchsingh, Thai Girls Tricked into Prostitulioll, RlwrERs NORTH EUROPEAN SERVICE, May 22, 1985, available in LEXIS, Nexis Library, News File, Curnws.

58. Hornblower, supra note 21; Petchsingh, supra note 57; RAPE FOR PROFIT, supra note 25, at 29; Simons, supra nole 42.

59. People Pedlars, supra note 12, at 41.

60. Hornblower, supra note 21.

-

332 · Women and Intematfonal Human Rights Law

In cases where lures are not used or do not succeed, traffickers resort to outright abduction.'1 Such abduction often involves the use of drugs to sedate the women and giris,62 or the use of violence to controlthem.6J As with lures, traffickers will use whatever means are most likely to succeed in abducting a woman and will exploit whatever opportunities arise. For example, two Burmese sisters hired a motorcycle driver to take them to the market only to be abducted and sold to a brothel. Similarly, a lO-year-old girl looking after the family's water buffalo was abducted and sold to a brothel.64

Once the lure is set or the woman is forcibly abducted, the transportation begins. Transporting a person is not necessarily a quick or easy process. It requires establishing routes as well as contacts and housing along the way. A trafficker may take a woman directly to the place of sale-the brothel, market, or residence of the wife-purchaser. Or a trafficker may take a woman only as far as the national border, at which point another trafficker (or series of traffickers) will take her to the first point of sale and sell her to a brothel or wife-purchaser. However, in some cases, traffickers do not need to be actively involved in the transportation. A woman who is responding to a false offer of employment may travel to the traffickers, unaware of her fate. Similarly, where a family member has made arrangements to force a girl or woman into an unwanted marriage, the girl or woman often travels willingly to the residence of the "groom" under the erroneous belief that she is merely taking a vacation.

Trafficking is often carried out at particular points in the year when women and girls are most vulnerable. Thus, in Nepal, recruiters return to participate in local festivals in June, late August, or early September. These months, known as the "hungry months," precede the harvest so poverty is most acute.6.'i In China, traf- fickers look for women who have spent all their money and are stranded in an unfamiliar urban center far from home.66 In the Philippines, fierce typhoons may ruin farmers who then send a wage-earner to the big city, most commonly, a daughterY Traffickers are well aware of the vulnerable situations girls and women face. As one Hungarian pimp in Romania revealed, he " took the kind of girl no one would miss if she disappeared. Girls who were having trouble with their parents

61. GLOBAL REPoRT. supra note I I, at 258; MODERN FoRM OF S!.\vEJtY, supra note 24. at 52; RAP£ FOR PROFIT, supra nole 25, at 30-31 .

62. GLOBAL REPoRT, supra note II . at 258; Jaschok & Miers, supra note 51, at 265.

63. Jaschok & Miers, supra note 5 1, at 265.

64. MODERN FoRM OF S!.\VERY. supra note 24, at 52.

65. ABC/NEPAL, A NEPAU WOMEN'S NGD WORKl NG AOAINST G!RL T RAFI·1CKlNG AND AIDS, RED LIGHT TRAFFIC: THE TRAns IN NEPAU G!RLS 36 ( 1992); RAPE FOR PROFIT, supra note 25, at 2 1. This occurs in Thailand and Burma as well. Trafficking of girls is at a prime durin.g the' 'green rice season" when farmers are short of money while the rice grows. CATW, supra note 8, at 12.

66. CHINA WAKFS, supra note 19, 8t221.

67. Chapman, supra note 23.

Trafficking in Women · 333

or who lived alone. So when they were resold, no one would look for them." 68 In cases of trafficking leading to forced marriage, women or girls are not informed that they are being sent away to marry a stranger. Rather, they are typically sent on holidays to an unfamiliar land where an unfamiliar language is spoken. Once miles away from any support and anything familiar, she is forced into a marriage that had been pre-arranged by a relative.

Trafficked women serve two main purposes. They are either sold to brothels, massage parlors, bars, and other entertainment centers and forced into prostitution, or they may be sold or given to men as wives or mistresses. Their initial destination is rarely final. 69 They are often sold from one brothel to another,70 or sold to a number of different husbands. one after the other.71

The next two subsections will outline what happens to women when they are either sold into prostitution, or sold or forced into marriages.71 While the human rights abuses experienced by these women are similar, the two situations are distinct because the issues, considerations, and obstacles facing these women require differ- ent strategies.

Forced ProsHtuHon

Women who are trafficked into forced prostitution may either be sold outright to a brothel owner or sold at an auction.7J After being sold, many women undergo what is known as a "brealdng- in" period. Breaking-in may be done either through physical means alone or in tandem with psychological means. 7~ In all of these cases. women or girls are detained against their will. Where physical means are used, the breaking-in period is typically marked by repeated rapes, gang rapes, cigarette bums, electric shocks, and beatings by brothel guards.7s (In certain cases, rape is

68. Hornblower, supra note 21.

69. MODERN FORM OF S!.\VERY, supra note 24, at 51.

70. JAPAN FEDERATION, supra note 23, al 65; RAP8POR PROfIT, supra note 25, at 15-16; Simons, supra nOle 42.

71. Xie, supra DOte 35, at 290.

72. There is more ftuidity between the different consequences of trafficking in women than suggested here. Women can be trafficked into forced marriage and then sold into forced prostitution or, when a woman is not successful as a prostitute, sbe may be turned over to a family as a domestic slave. STY has on fi le three reports of domestic workers who were tmined to be prostitutes at the same time. Set ALTlNK, supra note 4, at 144. Because of the paucity of information on this aspect, it is not discussed here.

73. GL08AL REPoRT. supra note II, al 258; TIle Poland Report by the Special Rapporteur focuses on trafficking leading to forced prostitution in Poland. See Po ........ NO RE.PoRT, supra note 22.

74. Cao, supra note 19, at 1302.

75. Ray Moseley, Conference hears of horrors asainst women, CHI. 1'luS., Jun. 17, 1993 available it! LEXlS, Nexis Library, News File, Cumws; RAPE FOR PROFIT supra note 25, at 28, 35; Simons, supra note 41 ; 71zai Police, supra note 38; Paul Watson, Thousands Sold into Brothels, TORONTO STAR, Aug. 3, 1996. at A 16.

334· Women and Intematlonal Human Rights Law

not used to :'b~eak-i~". girls so that they may be purchased as virgins.)16 One COllUnon tachc In India .1Il.volves both physical and psychological means. Certain brothel stat,f treat the VlCum abusively, telling her repeatedly that she is dirty or defiled, while another staff member (often the brothel manager) consoles her and tells her she is among family.n

Once a woman or girl has been "broken in," she is forced to work in the brotllel. She cannot negotiate any terms of the sexual transaction. She typically has no contrOl. over who she services, how many men she must service, n· or how she ~ust servIce them .. She

751 is often forced to work seven days a week, in spite of

l~lness. or men:.truatlOn. Even when recuperating from an abortion, she receives little tune off. Refusal to service a customer tends to result in beatings or other abuse,.". Som~ w~men have even reported a daily quota of men they must service or s~lictt which, If not r~ached, results in further beatings.n Moreover, she often has hltle or no access to bIrth control. Even when she does have access to condoms she has no power to ensure that a customer wears one.83 This has lead to a prevalenc~ o~ se~ually transmitted diseases in trafficked women, particularly the fatal HIV VltuS. As a result, for many women, being trafficked is essentially a death warrant.

In man~ cases, her confinement is near total and she is kept under strict surveil- lance. She tS not allowed to leave the brothel or its immediate surroundings without escorts. And even then, threats are used to ensure that she does not auempt to escape. Because of the controlled environment that she lives under, she has to rely on her captor~ for access to food and clothing. As she often does not see much of the money paId by her customers, the cost of her survival must be supplemented by any tips she receives directly from customers. She may live under situations where food and other ?ecessities are brought into the brothels by vendors who may overCharge these capnve women.1U Her confinement is usually relaxed only once her captors feel that she will not attempt to escape.16

76. RAp£ FOR PROFIT, supra nole 25, at 35.

77. !d.

78. Numbers vary, ~~ commonly according to age. Very young gi rls may be required to service 2-3 men a day at the beginning of their captivity while o lder women may be forced to service anywhere

from IO-I?O n:en a day, depending on the brothel-owner. Se~ Nicholas KriSlof, Child Prostitution Unabated In ASIa, GLOBS AND M AIL. Apr. 15, 1995, at A12.

79. Hornblower, supra note 21; Agnieszka Swiecka, Prostitution Pr~ve"tion Program: Giving Lost Women.a Road Back Home, THE WARSAW VOICE., Dec . 17, 1995 availabl~ in lEXIS Nexis Libm"" News File, Cumws. ' '-J'

SO. Swiecka, id.

81. RAI'E I'OR PROFIT, supra note 25, a143.

82. Moseley, supra DOte 75; Petchsingh, supra nole 57; Preston, supra note 33; Sharpe, supra note 43. 83. Swiecka, supra note 79.

84. For a thorough discussion on this issue, see MODERN FORM OPSLAVERY, supra note 24, at 125-147.

85. RAPEf'OR PROFIT, supra note 25, al40-4l; POLAND REPORT, supra note 22, at para. 66. 86. Paul Watson, supra note 75.

Trafficking In Women · 335

Brothel owners and pimps utilize a number of control mechanisms in combina- tion to ensure that these women and girls remain compliant, obedient, and do not attempt to escape. Most of all, they know that these women are vulnerable and they ensure that these women are constantly reminded of their extreme vulnerability and of the brothel owner's or pimps' power. The vulnerability stems from a number of factors including isolation in the brothel and the community, constant surveil- lance, and near total confinement. They face unrestricted beatings, rapes, or other forms of violence at the hands of their captors. Threats of violence are also used. In addition, the captors may threaten to sell a woman to another brothel,81 to reveal that she is a prostitute to her family, 88 or to harm her family. B9

Often, women are trafficked iOlO places that are geographically unfamiliar, linguistically different, and quite remote.90 Thus, they do not know where to seek assistance or refuge and cannot communicate with the people around them. Even in cases of internal trafficking in places like China, language barriers and even cultural barriers place trafficked women in pOSitions of extreme vulnerability. In addition, a woman's identification papers and money are always taken away.91 Without money, she cannot venture far from where she is being kept. And without proper identification papers, she is susceptible to arrest andlor immediate deporta- tion.92 As discussed above, these women were originally targeted for existing vulner- abilities, which are only compounded by their unfamiliarity with the area, the language barrier, and the lack of money and identification papers.

Aside from violence and threats of violence, one of the main means of control is through the invocation of debt bondage. Essentially, brothel owners will tell a trafficked woman that she has been purchased from a recruiter or her family, and that she will have to work until she pays off the purchase price (the "debt.") Once she pays off that amount, she is purportedly "free to go." The debt includes all of the brothel owner's e,,;penses. Thus, not only is her actual purchase price included,

87. JAPAN FEDERATION, supra nole 23. al 65; RAps FOR PRom, supra note 25, at 34.

88. One Polish woman trafficked to Germany was photographed while being raped and later threatened with exposure of those photos to her family. See Moseley, supra note 75.

89. Sharpe, supra note 43.

90. For Brazilian girls trafficked into the Amazon jungles, towns are so remote that trying to escape into the jungle means certain death. Lbel. supra note 33.

91. JAPAN FEDERATION, supra note 23, at 63; Simons, supra note at 42; Swiecka, supra note 79; Thai Pollet , yupra note 38.

92. Nao Nakanishi , Trod!! in Women Flourishing in G!!mwny, REUTl!II.S. Oct. 26, 1992. LEXIS, Nexis Library, World File, Allnws; Simons, supra note 42. While it may appear that deporlation would at least mean an end to a woman's traffiCking ordcal, that is not necessari ly the case. Forexamplc, Bunnese women who have been traffic ked imo Thailand and deported back to Burma face either the possibility of CUTest, fmes, and/or detention for leaving the country illegally. or the possibility of charges and incarceration if they are suspected of being a prostitute as prostitution is illegal in Burma. Set! MODERN FORM OF SLAVERY, supra note 24, at 111- 12. Bven if a woman does not face arresl or deportation upon return to hcr country of origin, she often experiences continuing abuse. violence, and denial of basic legal rights during the arrest and deportation process in thc recciving country. In addi tion, there is rarely an attempt to provide redress for the crimes committed against her person.

6 · Women and InternatIonal Human Rights Law

{ protection money paid to the police, shelter, clothing, food, medical care (includ- ~ abortions), travel expenses, cost of travel papers and passports, bail, and even [es are included. In addition to the calculation of expenses, interest is added.9l

many cases, women do not know any of the terms of repayment, the amount !y earned, or the state of their account. 94 A high proportion of these trafficked )men see only a portion, if any, of the money paid by customers. Some are given proximately one-third of what customers paid for their services while others get bstantially less, or no money at all , except for tips from customers.95

For some women, debt bondage is a concept that they are familiar with, as it a common or known practice in their home country. For women who have never ard of this concept, debt bondage works as a means of control because it offers ! illusion of escape. It is the traffickers' incentive structure, their means of making ~e women comply with the trafficker's demands, In reality, it is the means 'ougb which many of these women are kept in a vicious cycle of debt.96 For some lmen, the existence of this debt further increases their health risks because they II try to service as many men as possible, perform whatever services are re- ested, and avoid any extra expenses-such as health care costs-in order to pay f their debt as soon as possible.9'7

In addition to these control mechanisms, brothel owners often have state author- ~s on their side, which furlher ensures continued compliance and obedience. Imerous investigations reveallhat local authorities turn a blind eye to trafficking women.9i In many places, local authorities and police are customers and are :arly complicit with the brolhel owners in keeping these women under control.99 Ie survivor in Cambodia was raped by a student in her embroidery class before m clad in military uniforms took her to a brothel in Battambang. During her eight

Coo, supra note 19, al 1306: CATW, ;supra nOle 8, at 13; JAPAN FEDERATION, supra note 23, at Lbel, supra note 33; MODERN foRM OF SLAVERY, supra nOle 24, 0.154; Preston, supra note 33; RAPE

: PROFIT, supra note 25, III 36; Simons, supra nole 42.

According to an in-depth investigation by Human Rights Watch, two women trafficked into Thai- d were lold tha t their families had borrowed more money, which was added to the girl's account. ~ girls had no way of verifying that their families had actually borrowed the money. In addition, man Rights Watch found that some girls had arranged for money to be scnt to their families but had idea whether that money constituted a new debt or was part of what tile girls had already earned . . MODERN FORM OF SLAVERY, supra note 24, at 56.

CATW, supra note 8, 0.1 13; JAPAN FEDERATION, supra note 23, at 64; MODERN FoRM orSLAVERY, 'ra note 24, 0.1 53-59: RAPE FOR PROFIT, ;supra note 25, at 36-40; Simons, supra note 42; Swiecka, 'ra nOie 79.

As some reports indicate, brothel networks ha ... e a system of rotation whereby a woman is sold another brothel just before her debt with her current brothel-owner is paid. Once sold to another thel, she is forced to begin allover again. paying off the purchase price paid by Ihe next brothel !"ICc. CATW, supra note 8, at 13; JAPAN FEDERATION, supra note 23, at 65.

MODERN foRM OF SLAVERY, supra note 24, at 57.

Lbel, supra nOle 33; Preston, supra note 33.

MODERN foRM OF SLAVERY, supra note 24, at 76-78; Molina, supra note 22.

Trafficking in Women· 337

months in the brolhel, she was routine1y forced to have sex with policemen and soldiers. loo In other cases, police have actually returned women to their abusers. 10 I

Even where police are not overtly complicit with particular brothel owners, women are often the subject of crackdowns on prostitution, while the brothel owners, pimps, and male customers are ignored. While in police custody, women are subject not only to physical and sexual abuse, but their rights to due process are typically ignored. Furlhermore, in cases where the illegal status of these women is discov- ered, many are deported without any investigation into how they were forced into trafficking and without any attempt to obtain their testimony for any possible police investigations. Such treaunent at the hands of authorities lead women to believe that police are at best an ineffective force against brothel owners, and at worst, allies of brothel owners.

Brothel owners can also use legislation to threaten trafficked women and girls. In Thailand, brothel owners can threaten women and girls with the lnunigration Act of Thailand. Under this act, illegal entry into Thailand is criminalized and punishable by detention of up to two years or the payment of substantial fines. Moreover, this legislation grants the authorities powers of sununary arrest and deportation. lIll Burmese women trafficked into Thailand not only face abuse throughout the deportation process, they then face the possibility of charges on return to Burma for leaving the country illegally and engaging in prostitution, which is illegal in Burma.10l In Pakistan, brothel owners use tlueats of exposing women as illegal inunigrants. In addition, pimps are now resorting to marrying the women they traffick or marrying them off to other pimps. 104 Consequently. pimps can control lhese women by threatening to denounce them under the Hudood laws, which penalize sex outside of marriage through long prison terms and severe corporal pun- ishment. 105

Finally. where families are complicit in the sale of their daughters or wives, the control by brothel owners over these women and girls is reinforced by coopera- tion between the brothel owner or pimp and lhe trafficked girl's family. In India, if there are several women in Bombay brothels, a prominent member of the village may be appointed to travel to India, collect the money earned by these trafficked women, and bring it back to their parents. For such women and girls, this means that not only are they under pressure to payoff their debt to the brothel owner, but they are expected to help support their families out of whatever earnings they do

100. McDowell, supra note 54.

101. Hornblower, supra note 21.

102. MODERN FORM OF SLAVRRY, supra note 24, 0.1 17- 18.

103. MODERN FoRM Of' SLAVERY, supra note 24, at 19, 111-12.

104. GLOBAL REPoRT, supra note I I, at 260.

105. PRosnnmoN Of' SEXUALITY, ;supra note 21, at 170-71; GLODAL REPoRT, supra note 11, at 259. The Hudood Ordinance (1979) imposed the punishments of death by 5101lillg. 10 years imprisonment, whipping up to 30 stripes, and fines. LAwVERS FOR HUMAN RIGHTS AND L£oAt. AID, THE FLeSH TRADE: THR TRAPF'\CKlNCi Of' WOMBN AND CHllDREN IN PAKISTAN 16 (1993).

338 , Women and International Human RIghts Low

receive in the form of tipsl06 and cannot expect any assistance or support from their families for escape or rescue.

Forced Marriage

At first glance, it appears that there is not as much uniformity in trafficking that leads to forced marriages as there is in trafficking that leads to forced prostitution. Generally, there appear to be three different circumstances in which tra{ficking in women leads to forced marriage. First. women are trafficked into forced marriages for economic gain. Second, women are trafficked and forced into marriage under the banner of religion. Third, girls are trafficked into forced marriages under the guise that it is in "the best interest of the girls." Closer ex.amination reveals that, while the motivation behind each of these three circumstances ostensibly differs, the objective conditions of the women and girls caught in such circumstances do not differ significantly from those of women who are trafficked into prostitution. The significance of this similarity is that, regardless of the motivation behind those responsible. trafficking women into forced marriages should be recognized simply as trafficking in women. Motivation must be recognized when examining rool causes and designing strategies to address trafficking in women, but should in no way excuse the fact that such forced marriages are a form of trafficking in women. It will be clear from the factual background that such women and girls are subject to grave human rights abuses. For women and girls trafficked into forced marriages purely for profit and under the banner of religion, the abuses during the trafficking process are virtually identical to the abuses experienced by women forced into prostilUtion. Violence, threats of violence. and coercion are used to control the woman. For women trafficked into forced marriages by close family members. deception remains the primary means through which a woman is transported. As the girl or woman is unaware of ber fate. there is no coercion or violence until she has arrived at the destination and must be forced to participate in the wedding and thereafter in the marriage. Because trafficking leading to forced marriage is less familiar than trafficking leading to forced prostitution, each of these three circum~ stances will be briefly described before examining the working and living conditions that these women endure.

Women can be trafficked into forced marriages almost exclusively for reasons of profit. I01 TIlls situation is analogous to women who are trafficked into forcect prostitution. The experiences of women trafficked into forced marriage during the recruitment and transportation phase mirror those of tbe women forced into prostitu~ tion. Such trafficking in women is rampant in ChinalO8 and is also found in places

106. RAPil FOR PROFIT. Jupra note 25, a140.

107. Note that th is form of forced marriage is often quite different from circumstances of " mail- order'· brides. See Nora Dem1eitncr, Internatumal Obligation 10 Protect Mail-Order Brides, in WOMEN AND lmERNATIONAL HUMAN RJGHTS l...Aw (Kelly Askin & Dorean Koenig cds., vol. II , forthcoming 1999).

108. According to a Chinese newspaper fepon, 50,000 traffickers were arrested in the two years between 1993-1995. Dolu liangnian loi gongdai renlwufafllijin wuwan, SHUIE R.i8AO, Mar. 31,1995, at A t9. Translation is tha t of the author.

Trafflcklng in Women· JJ9

such as Pakistan and Bangladesh.l09 The purchasers of many of these women are typically farmers from poorer regions who require women to cook. clean, and bear children (preferably sons). Because trafficked women cost only a portion of what a dowry and wedding costs, the demand for such women remains high. IIO In China, this demand is compounded by the decreasing number of women in the country. III The poor and uneducated or unsophisticated are not the only purchasers of women and girls. There are wealthy men from the Gulf region who purchase wives from countries in South Asia in this manner.1I2 Girls are often sold to be temporary wives while these men work in South Asia; in some cases, they may be taken back to the Middle East with the purchaser. Typically, a young girl is sold to a much older man; the age difference in one case was 72 years.

Trafficking under the banner of religion refers to situations where radical reli~ gious sect leaders recruit and/or abduct women into their sects and "marry" them in the name of religion. The Algerian experience with such practice was raised at the Beijing Tribunal on Accountability for Women's Human Rights at the 1995 United Nations Fourth World Conference on Women. Men who belong to funda~ mentalist organizations abduct and rape young girls. The rationale for these abduc- tions (often committed during or after armed conflict) was described by one woman as follows:

[D]ozens of young girls and women continue to be abducted and raped on a daily basis by groups of fundamentalist terrorists who consider females to be the spoils of war to which they are entitled. These self-proclaimed emirs would assert that Islam authorizes them to take any woman they desire as a " temporary wife". This practice from the dark ages has now become "legal" and was generalized by a "fatwa."II ) In this way, barbaric acts such as rape, mutilation, and decapitation are trivialized

109. CATW, supra note 8, at 19, 31: Vii Schmetzer. Slavery a Way of Life on Indian Subcontinent, CHI. TRlB., Nov. 19, 1991, available in LEXlS, Nexis Ubrary, World Pile, Allnws. One repon indicates that young women in high school are being abducted in Ethiopia for the purpose of forced marriage. See Ethiopian Female Students Victims of Abduction, REllfERS NORTH AMElUCAN WiRE. Ocl. 31, 1995, available in LEXIS, Nexis U brary, World File, Al lnws.

110. CATW, supra note 8, at 19; PERSONAL VOICes, supra note 35, al 29 1.

III. CHINA WAKES, supra note 19, at 232; PERsoNo\!. VOICES, supra note 35. al 291.

112. In return, families receive money and gold. In many cases, these young girls are abandoned after a few days of sex. However, families do not always sell their daughters purely for personal economic gain. As one father ellplained, when authoriLies intervened in the marriage of his 12.year-old daug htcr to a 60-year-old Saudi man, he claimed tha t they spoiled his daughter's chances for a good life. If taken at face value, th is man's commcnt reflects the complexity of the reasons for traffic king in women. See CATW, supra note 8, at 22; M . RrrA ROZARIO, T RAFFJeKlNG IN WOMEN ANOCHILDREN IN lNoIA: SEXUAL EXPLOITATION AND SALe 7 1 (1986); Ernest Kamau, Kenya: Forced Marriages on the Increase, INT!i.R Pru;.ss SERVICE, Mar. 17, 1993; Judith Matloff. In Africa, Maney Isn't the Only Reason Young Girls are Sexually Exploited, THB OIRJS1lAN Sc1ENC6 MONITOR. Sep. 12, 1996; Molly Moore, India 's Ba~r for Cheap Muslim Brides, iNTERNATIONAL HERALD TRIBUNE, Jun. 22, 1994, available in LEXIS, Nexis Library, World File, Allnws.

11 3. For a thorough discussion of falwas, or religious decrees, Stt Faustina Pereira, Farwa in Bangla- desh: Patriarchy's Latest Sport, forthcoming in a Ialer volume of this work.

340· Women and International Human Rights Law

and justified as retaliation and appropriate punishment for women who refuse to submit to the; dictates of a theocratic and fasci st ideology.114

A similar practice also occurs in Turkey. where radical segmenlS of an organized group have abducted and coerced young women into religious "marriages."m

Trafficking women and girls into forced marriage in the "best interest of the girls" occurs when family members (typically male members) force or outright sell their daughters or female relatives into arranged marriages. The instances referred to here clearly involve physical coercion, such as the case of two teenage -girls from Britain whose father sent them to Yemen (his country of origin) on the pretext of a family vacation. Upon their arrival, they were taken to a backward village,in the remote bandit territory in North Yemen and forced into marriages arranged and sanctioned by their father. 1I6

That these arranged marriages are a form of trafficking in women remains, for the most part, unacknowledged in our society. Such marriages are often justified by the motivations of those responsible, that is, that they are in the best interest of girls. That motivation is often combined with the "cultural defense," the defense that some variations in cultural practices cannot be legitimately criticized by outsid- ers to that culture. This has been a large critique of international human rights law because il has been historically developed, for the most part, without the direct contribution of many developing countries. The cultural defense is raised when a " non-Western" cullural practice is captured by international human rights law as a human rights violation . . The problem with such arguments is not that they are made insincerely or are deliberate subterfuges to mask the oppression of women and girls; the problem stems from the fact that such arguments wholly ignore the conditions and experiences of girls and women and treat them as human beings unworthy of consideration.

In order to respect the dignity and worth of women and girls as human beings, at a minimum, the "woman question" must be asked. The woman question de- mands that the objective conditions, experiences, needs, and risks that women face be examined and addressed. In examining what happens to women and girls forced

114. Sadou, !upra note 32. at 29.

115. Oral report of the Government of Turkey 10 the Committee on the Elimination of All Forms oj.: Discrimination Against Women, given on Jan. 17, 1997, at the Uni ted Nations. Because the PICK is ;onsidered an opponent of the government. there are potential political issues involved. The Turkish government's corrunent on this practice was confirmed by a woman representing a Turkish nongovern- ment organiz,ation. NOles on fi le with the author. Information on this specific incidence of trafficking III women remains sparse.

116. This case is reported on in two books, BRlDBS FOR SALE?, supra note 17 and Wrmovr MERCY, IUpra note 17. Tn a similar case, a man in Scotland organized the abduction and forced marriages of :wo of his daughters, aged 22 and IS, upon their arrival in Pakistan on a 8upposed holiday in June I99S, supra note 16. Finally, in another case, a IS-year-old girl was reported missing by her fa ther and lUsband a few days after her marriage ceremony. She had run away with her boyfriend and on being 'ound, she and her sister told authorities that they had been forced to marry and have SCltuaJ intercourse 19ainst their will, supra note 1 S.

Trafficking In Women· 341

into marriages in this manner, the elements of trafficking are present, most compel- lingly in the human rights abuses that arise in their daily lives (for example, viola- tions of the right to life, liberty, and security of the person; right to health; right to marry and found a family; right to be free from slavery, forced labor, and torture; and the right to be free from violence). The only difference is that the institution of marriage legitimizes such transactions, transactions which for the most part involve an exchange of money , property, or other benefit between the families. Arguments may be made to counter the significance of the excbange of money (or dowry) in such transactions. However, even if no excbange of money or other benefit is evident, these women and girls are still being recruited and transported by means of coercion, in the same fashion as women trafficked by strangers, and the human rights abuses against them remain almost identical to those suffered by women trafficked by strangers. Families that engage in these types of arranged marriages are no different from families who sell their daughters into prostitution to meet familial economic obligations. In these types of forced marriages, however, women and girls are used to meet not only economic obligations but social, commu- nity, domestic service, and procreative obligations as well.

There is considerably less information on the details of the living and working conditions of these women. In particular, we are only now beginning to hear of the forced marriages that take place under the banner of religion. This lack of informa- tion in general stems, in part, from the fact that many instances of forced marriage are unrecognized as involving human rights abuses. However, there is sufficient information to paint a picture of what generally happens to these women. From the time she knows of the plan 10 force her into marriage, she will be detained and confined by her captors. Often physical force andlor the use of drugs are used to detain and confine her. tt7 Where a woman is being sold purely for profit or abducted in the name of religion, she will likely be raped andlor subject to other forms of physical and sexual violence. III Sexual violence, though not restricted to situations where a woman is sold purely for profit, is less common during the period prior to the marriage forced upon a girl " in her best interest." After marriage, the husband may legally force or require any services whatsoever from the woman or girl; her wishes are irrelevant.

Even if she is not confined indoors continuously, in many cases, she is trafficked to a village so remote that she virtually has no chance of escaping. II' In addition, the village is typically in a region geographically unfamiliar and linguistically differ- ent from her homeland. Any identification papers she has wi11 be taken away.I'lO The complicity of the villagers, the village officials, and her own family (where her family is responsible for forcing her into marriage), virtually seals her fate , barring outside assistance.

It7. Gillian, supra note 16.

118. Sadou, $ llpm note 32, at 28.

119. Lbel, supra note 33.

120. Gillian, supra note 16.

'4:t · women and IntemoHono/ Human Rights Low

After the wedding ceremony andlor sale transaction, she will be raped by her 'husband." As procreation is usually one of the reasons for which she is purchased, ;he will be repeatedly raped until she is pregnant.11I Such rapes will continue hroughout the duration of her ordeal . She may be subjected to extreme violence f she has daughters instead of sons. In addition, she will be forced to take on the )hysical labor required of married women in that region. In Mokbana, a remote )andit region in Yemen to which many young girls are sold into marriages, such )hysicallabor involves rising at four o'clock in the morning to work in the fields md gather water, which may be miles away.1lZ .

Those trafficked into forced marriage are controlled through any combination )f the following means: beatings, rapes, other forms of violence, threats of violence. ;onfinement, and complicity of the community, officials, and family members. As liscussed above, these methods are also used to control women trafficked into 'arced prostitution. One means of control uniquely available to captors of women rafficked into forced marriage involves the children born as a result of the repeated ·apes . Once pregnant, it becomes physically more difficult for some women to !scape. For others, escape becomes psychologically more difficult; many women 'efuse to leave their children behind. III

,scape or Rescue of Women Trafficked Into Forced Prostitution and :orced Marriage

Few trafficked women ever manage to escape or be rescued. Some are killed n the process of escaping, while others simply have no way to escape. l204 For those Nho do attempt to escape and are unsuccessful, the consequences are harsh and ~ven fatal. The violence to which she has already been subjected, in the form of >eatings, rapes, and other forms of violence, is intensified, and sometimes leads to leath.1lS Any confinement andlor surveillance is increased. Upon return, often the )wner will horribly beat and mutilate her in front of other women and girls as an !xample of what will happen to them if they too try to escape. Moreover, women

121. Gillian, id. Procreation does not appear to be one of the motivating factors in marriages between Io'ealthy men from the Gulf Region and the girls that they purchase from South Asia because' 'wives" Ife often abandoned after a few days of sex or deserted, with any children, mucb later in time.

122. BIUDIlS FOR SALE?, supra nOle 17, at 16.

123. As one husband Slated, he wanted Ihe children as compensation if his wife was allowed to leave femen. See WrrnOUT MERCY, supra note 17, at 189.

124. Lbel, supra note 33: PERsONAl. VOICIlS, supra note 35, at 290; Two Sisters, Allegedly Kidnapped v r Forced Marriage, Found Dead, nnc SUMMARY OF WOIU.D BROADCASTS, Nov. 9, 1994; MOlher of rwo Sistus Beheaded by " Turorists" Also Killed, nBC SUMMARY OF WORLD nROADCASTS, Nov. 28, 1994, available in LEXlS, Nexis Library, World Ftle, Allnws .

12S. Here are just a few examples: One victim of trafficking has reported that women wbo tried to ~scape fro m the remote Amazon town bave been tied 10 tree trunks and lynched. Preston, supra note 13. Another viclim in Algeria reported that a girl was ~hot in the head and killed on her fi rst attempt !) escape from the Algerian fundamentalists who had abducted her. Sadou, supra note 32, at 32. Another lirl in Cambodia witnessed the murder of a fenow prostitute who was trying to escape the brothel. Paul Natson, Stolen Innocence, TORONTO STAR, Aug. 4 , 1996, at E6.

TrofffckJng In Women· 343

trafficked into forced prostitution or forced marriage face the possibility of being resold to another purchaser as a result of attempted escapes.126 Repeated attempts at escape are dealt with severely. l21 One investigative reporter in China related a meeting he had with a forced marriage survivor who had attempted to escape:

I saw her in the hospital in Shandong .... [She was} a woman who had been sold as a wife to an uneducated Shaanxi peasant. The first time she tried to fl ee, the peasant tied her to the bedpost. The second time she tried, he beat her. TIle third time, he gouged out her eyes. When I saw her in the hospital, she had while gauze covering the top of her head. The only thing you could see left of her eyes were two deep holes. III

For those fortunate enough to escape or be rescued, the ordeal does not end. Generally speaking, upon rescue a woman is confronted with two scenarios. She is either immediately deported without consideration for how or why she ended up in her situation, or she is detained for an indeterminate period of time because no one wants to take responsibility for her or assist her. In the first situation, it is her illegal status in the country that officials consider, so she is deported without a statement being taken from her and without any attempt to investigate her case and find her traffickers. In the second situation, there is often no established procedure to assist such women, so women tend to be ignored while they are in detention. As a stark example, in Japan, when a trafficked woman becomes ill, brokers take her to tbe embassy of her country (most commonly Thailand) and leave her there. As embassies do not have custodial facilities and the Japanese Immigration Bureau refuses to take charge of the women even if they are considered to be in the country illegally, Thai embassy officials contact an NGO, which eventually arranges for a shelter to care for the victim. It is through the NGO that survivors make arrange· ments to return home. l29 The delays and egregious treatment these women endure in the hands of authorities are often so unbearable that many women return to the brothels of their own accord. l30 Moreover, detention in the receiving country may be fo llowed by detention and even arrest in the country of origin, as happens (0 Burmese women who have been trafficked to other countries. III

Aside from these issues, survivors of trafficking must then attempt to face their families, fr iends, and society as a whole. It is a rare occasion when a woman is

126. Preston, supra nOle 33; XIE & JIA, supra nOle 35, al 290-91 (woman who escaped her first "husband" only to be caught by her abductors and sold to another "husband"). Translation i~ thai of the author.

127. After repeated attempts at escape, another woman had her Jegs broken with a bat by her " father- in-law." Inner Mongolia: Campaign Against Organited Abduction and Trafficking in People, BBC SUMM ARY OF WOIU.O BROADCASTS, Apr. 28, 1994, available in LEXIS, Nexis Library, World File, AIlnws.

128. CHINA WAKUS, supra note 19, at 217.

129. JAPAN FEDERATION, supra note 23, at 6.5. A similar si tuation arises for pregnant Bangladeshi women trafficked to Karachi. CATW, supra note 8, at 40.

130. Trafficked women who turn to prosti tution after being rescued is not limited to women who were forced into prostitutio n. For instance, one report states thaI many prostitutes in Ethiopia were victims of forced marriages who had escaped Iheir abductors. See Ethiopian Female Students, supra note 109.

13 \. MODERN FoRM OF SI..AVERY, supra nOle 24, at 111 - 12.

344· Women and International Human RIghts Low

welcomed back into her family and communiry with open arms. Oftentimes, women are rudely confronted with the fact that they are now ostracized, stigmatized, and considered "spoiled" or " damaged" goods. \32 Not only are women shunned, any children they have as a result of being raped are similarly stigmatized. Some women realize this cruel reality fairly carlyon. For example, upon being rescued, one woman decided to stay with her new " husband" because she was scared that her real husband would kill her for having "been" with another man. Ll3 When asked about leaving a brothel, another girl replied, " Where would I go? If I tried to go home, my family would cut my throat." L~ Other women find out they have been rejected when their families do not come to take them home, or when they are publicly scorned and ridiculed upon their return to their villages. The stigmatiza- tion, coupled with the lack of opportunities for these women, results in many of those trafficked (particularly those trafficked into prostitution) returning to the brothels. L)$

INTERNATIONAL HUMAN RIGHTS LAW

From the factual record, the issues that need to be addressed in order to combat and eradicate this practice can be determined. The focus here will be on interna- tional human rights law. However, it should be emphasized that international human rights law provides only one possible weapon in the war against trafficking. Many other tools, both legal and nonlegal, can and should be used to end trafficking in women. Before embarking on any discussion of using international human rights law to address these issues, a brief synopsis of state responsibiliry is provided below, because state responsibility gives rise to legal liability for a breach of an international legal obligation, which is currently one of the main means of recourse under internationaJ law. !~

State Respansibility

Simply put, a state is legally liable for any breaches of its international law obligations. International law obligations may stem from treaty law or customary

132. HUMAN RIOHTS IN CHIN ..... supra note 35, at 19-20: PouND REPoRT, supra note 22. at para. 69; Paul Watson, supra note 75; John Stackhouse, Aids Fears Prompt Brothel Raids , GLOBG AND MAIL, Aug. 29, 1996, at A12.

133. XIS & ] IA, supra note 35, at 284.

134. Moore, supra nole 20.

135. As one rescue organiz.ation in Bombay discovered, of the 1,000 young women they rescued, approximate ly 98 percent are back at work as prostitutes because their families would not accept them or because they could not adapt to other ways of life, even after being taught skills. Seeing oLher wo men escape and return one year later to Ihe life of prostitution because they cannot do anything else impacts on women who are still in the brothels. Id.

136. See generally IAN BROWNLIE, SvS"l"EM OF THB LAw OF NATIONS, STATE Rli..'iPONSIBIUTY (PART I, 1983). For sta te responsibility wi th respect 10 women's human rights , see generally Rebecca 1. Cook, Siale ResponSibility for Violations of Women's Human Rights, 7 HARV. HUM. RTS. J. 125 (1 995) for how developments in the in temationallaw of state responsibi lity can be applied to ensure more effective protection of women's rights [hereinafter Cook (1995)]; Rebecca J. Cook, Sialt Accountability Under

Trafficking In Women · 345

international law. For international obligations flowing from treaty law, one must look to the written document signed and ratified by that state. Only states that sign I and ratify such documents are committed to upholding the obligations within those treaties and/or conventions, unless those obligations are part of customary interna- tional law. Customary international law is internationa11aw that has been formed I through the general practice of states and opi;lio juris; there is no written document to turn to as evidence of customary international law unless a treaty has codified the practice. The lack of written instruments makes it difficult to determine whether I obligations fall under the rubric of customary international law. GeneraJly speaking, two elements are required to establish customary international law. First, evidence of consistent state practice (what states say and do) is required. Second, evidence I that states act in a particular way because they feel that international law demands they do so (sense of legal obligation or opinio juris) is required. As a general rule, once there is evidence of customary international law, then all states are committed I to upholding these obligations. m

In order to find a state to be legally liable, one must find an international I obligation owed by that state. Among the rights potentially violated by trafficking in women that are guaranteed by states through either treaty or customary interna- tional law are: the right to life, liberty, and security of the person; the right to equality; the right to be free from discrimination; L38 the right to be free from slavery I or servitude; the right to be free from torture or cruel, inhuman, or degrading treatment; the right to be free from forced labor; the right not to be subject to arbitrary arrest and detention; the right to marry and found a family; and the right to health. There is also a newly recognized right to be free from certain forms of I violence, including sexual violence. In addition, states parties to the Trafficking Convention and the Women's Convention (discussed below), are obligated to pun- ish those who traffic women and exploit prostitutes, and to suppress all forms of traffic in women and exploitation of the prostitution of women. r.w

After determining that a state owes an international legal obligation, a breach of that obligation, through either an act or omission, must be established in order to find a state legally liable. Such liability has traditionally been incurred through the acts or omissions of a state actor or an agent of the state. However, states are under increasing and evolving obligations to prevent violations by private actors.

the Convention on the Eliminalion of All Forms of Discrimination Againsl Women, in H UMAN RJOILTS OF WOMEN, supra note 1, at 228 [hereinafter Cook (1994)1.

137. A detailed discussion o f customary international law has been omitted. For a detailed analysis of customary international law, see MLCHAEL AKEHURST, A MODERN INTRODucrION TO INTBRNATLONAL LAw 25- 34 (6th ed . 1987); IAN BROWNLIE, PRiNCIFU!S OF PuBLIC lNmRNATIONAL LAw 4-11 (3rd ed. 1979).

138. While there is an argument to be made in some SLates that the lack of state action in prosecuting and punishing those trafficking in women constitules discrimination on the grounds that crimes commiL- ted against men arc investigated and pursued more vigorously, this argument will not be developed here.

139. The reader should be alert to the fact that all international h uman rights obligations, whether stemming from treaty law or customary international law, have specifiC meanings that limit their applica- bility. However, it is beyond the scope of this chapter 10 discuss the meanings of all internatio nal buman rights obligations that are possibly relevant 10 issues arising from trafficking in women.

346 · Women and International Human Rlghfs Low

Thus, in recent years, the doctrine of state responsibility has been broadened, requiring governments to take preventive steps to protect the exercise and enjoy- ment of human rights, to investigate alleged violations, to punish proven violations, and to provide effective remedies. l40 Therefore, even if a state (through its organs or agents) does not traffick in women, if there are pervasive, persistent patterns of trafficking in women within its borders and no state action is taken to investigate and punish traffickers or to prevent trafficking in women, then a state can potentially be found legally responsible for its lack of due diligence in protecting tlJese women and girls.

Examples of state breaches of intcrnationallegal obligations related to traffick- ing in women are abundant whether considered through the traditional or the ex- panded concept of state responsibility, l.l Reports have clearly shown that state agents, functioning primarily in the roles of border guards, immigration officials, police officers, soldiers, and village officials, actively participate in trafficking in women by transporting trafficked women,I.2 selling women to brothels, and forcing trafficked women who have escaped to return to brothels. I.) In addition, the stag- gering numbers of women trafficked in certain jurisdictions and the lack of prosecut- ion of those responsible for either recruitment, transportation, purchase, andlor exploitation of these women is evidence of the lack of due diligence on tbe part of some states, which triggers the expanded, modern version of state responsibility. In these cases, states are complicit in trafficking in women through their acts or omissions, such as ignoring trafficking at borders, preventing women from escaping from or leaving the " husbands" who purchased [hem, preventing outside authorities from rescuing such women, and deporting trafficked women immediately without investigating any of their cases, \44

140. Cook (1994), supra note 136, at 151.

i4 1. For the purposes of this section, the definition of trafficking as set out in text accompanying note 6 will be used to define what aClS will constitute trafficking.

142. Here, lhe taking of bribes by border officials in exchange fOf allowing traffickers to take women across national borders is included as all act that constitutes trafficking in women. While the state has likely not authorized such action, il is responsible for the acts of its officials who are on duty.

143. Hornblower, supra note 21.

144. While there is no report that compiles global figures for Ihe number of women trafficked, there are reports, even quasi-official, lhat point to the widespread nalure of lhe problem. The starkesl example is perbaps the 1991 finding of Ihe Human Rights Commission of Pakistan where not a single lrafficker was known 10 have becn apprehended, while 1,400 Bengali women languished in different jails of Pakistan, all brought in from their country by deceptio ll. See Moore, supra nOle 20. The People's Daily, a Chinese newspaper reported that 10,000 women and children who had been abduct~ were rescued by authorities in 1989- 90. See Dalu Uangnian, supra note 108. The former ambassador of the Federal Republic of Germany to Thailand, Mr. Edgar Schmidl-Daul. hilS been quoted as stating that, "a terrify. ingly high number of marriages of German men in Thailand who appear there as tour ists aim only at bringing young Thai women to lhe Federal Republic in order to force them into prostitution there." See Uu..o. OHS!!, FORCED PRoSTln .rrtON AND TRAFFIc IN WOMEN IN WEST GERMANY 12 (1994). The Special Rapporteur has described the role of police in Poland in combating and contributing to trafficking in women. See PolAND REPORT, supra note 22, at paras. 90-96.

TrafflckJng In Women · 347

InternaHonallnstrument.

There are a variety of sources of state obligations in international human rights law that potentially address the numerous human rights violations that accompany trafficking in women, This section will discuss the four conventions that directly include trafficking in women and girls, followed by a brief discus~ion of other sources of international human rights obligations and the mechanisms of the Work- ing Group on Slavery and the Special Rapporteur on Violence Against Women, Its Causes and Consequences.

The main convention relating to trafficking in women is the Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others I" (Trafficking Convention). The Trafficking Convention is significan t as it represents the first time that an international instrument declared that prostitution and the traffic in persons is "incompatible with the dignity and worth of the human person and endanger[s] the welfare of the individual, the family and the conununity."I46 The primary purpose of the Trafficking Convention is to punish the trafficking and the procurement of women for the purposes of prostitution and to punish the exploitation of prostitutes, regardless of the victim's age or consent. 1.7 In addition to punishing traffickers, procurers, and exploiters of prostitutes, states parties are required to abolish any form of registration or supervision of prosti- tutes,148 take measures [0 prevent prostitution and rehabilitate victims of prostitu- tion, l~ take measures in connection with immigration and emigration procedures to deal with trafficking in persons.l30 repatriate victims of international traffic, l'l and supervise employment agencies to prevent those seeking employment from being exposed to Ihe dangers of prostitution. 1S2

145. Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others, 96 V.N.T.S. 27 1, G.A. Res. 317 (IV) of 2 Dec. 1949, entered intojorce Jul. 25, 1951. As of 1996, only 71 stales were signalories to the convention. Traffic in Women, supra note 9, lit para. 24. For background of this convention, see generally Nora V. Demleilner, Forced Prostiturio/I: Naming an Internatiorwi Offense, 18 FoRDI-t-'M INT' L L.J. 163 (1994); Nina Lassen, Slavery and S/Qvery-Uke Prac- tices: United Nations Standards and Implementation, 57 NORD. l. !NT' l. L. 197 (1988); Laura Reanda, Prostitution as a Human Rights Question; Problems and Prospects of United Nations Act, 13 HUM. RTS. Q. 207-1 1 (l99 I)j Susan Jeanne Toepfer & Bryan Stuart Wells, The Worldwide Market for St.(: A Rel/iew af International and Regi()fl(ll Legal Prohibitiom Regarding Trafficking in Wamen, 2 MICH. l. GENDER & L. 83, 96-100 (1994).

146. Trafficking Convention, ! upra note 145, Preamble; see visa Reanda, supra note 145, at 209.

147. Trafficking Convention, supra note 145, arl. I alld 2. See generally Brussa, supra nOle 38; Reanda, supra note 145; Toepfer & Wells, supra nOle 145.

148. Ill. at art. 6.

149. /d. at art. 16.

150. Id. at art. 17.

151. Id. at art. 19.

152. /d. at art. 20. -

348 · Women and International Human RIghts Law

Under the Trafficking Convention, states parties are required only to annually communicate to the Secretary-General any laws, regulations, and measures relating to the traffic of persons. This information is to be published periodically by the Secretary-General to all members and non-members of the United Nations. ISl In spite of the fac t that the Trafficking Convention came into force in 1951, the mechanism for receiving such information was not established until the mid- 1970s. IS<! One of the reasons for the inefficiency in setting up a mechanism to review these reports is the fact that there is no established body to monitor s.tates parties' compliance with this convention. Without such a body, there will be few resources available and scant political will to ensure adherence to the Trafficking Convention.

Another international convention that directly addresses trafficking in women is the Convention on the Elimination of All Forms of Discrimination Against Women (Women's Convention).Lj5 Article 6 of the Women's Convention requires that states parties shall take all appropriate measures, including legislation, to sup- press all fonns of traffic in women and the exploitation of prostitution of women. U6

This obligation goes beyond that in the Trafficking Convention by requiring states parties to address the root causes of trafficking and the exploitation of prostitution, not simply to punish trafficking in women after the fact. 1.'17

Unlike the Trafficking Convention, the Women's Convention sets up a Commit- tee (CEDA W) for compliance monitoring purposes. m As part of its monitoring

153. Jd. at art. 21.

154. Reanda, .supra note 145, at 210. According to a Tepor! by the Secretary-General, 48 states had already signed and ratified the Trafficking Convention by 1980. See Traffic in Women, supra note 9, at para. 24.

155. Convention on the Elimination of All Forms of Discrimination Against Women, 1249 U.N.T.S. 14, entered into force Sept. 3, 1981. See generally Andrew Byrnes, The 'Other' Human Rights Treaty Body: The Work of the Commillee all the EliminatiOl1 0/ Discrimination Againsf Women, 14 YALE 1. INT'L. L I ( 1989); Cook (1994), supra note 136; INTERNATIONAL WOMEN'S RIGHTS AcnoN WATCH (IWRA W) USA AND COMMONWEAL TIL SECRET ARLA T, WOMEN'S AND YOtml AFFAIRS DIVISION (prepared by JANE CONNORS, ANDREw ByRNES, & CHAl.OKA BEYANI), AsSBSSINGTHE STAnJS OF WOMEN: A GUIDI! TO REPoRTING UNDER THE CONVENTlON ON nm ELIMINA"ON OF Au. FORMS OF DISCRlltUNATION AOAINST WOMEN (200 ed. 1996) [here inafter IWRA W I; Catherine Tinker, Human Rights/or Women: The Conven- tiOllon the ElimilUllion 0/ All Forms 0/ Discrimination Against Women, 3 HUM. Rn. Q. 31 (1981 ) ; Shelley Wright, Hunum Righls and Women's Rights: An AlUlly.siJ of the United Nations Convellljon on the Elimination of All Forms 0/ Discrimination Against Women. in HUMAN RIGHTS INTHE TwENTY-FIRST CamJRY: A GLOBAL ClIAu.ENOG 75 (Kathleen Mahoney & Paul Mahoney eds. , 1993).

156. There are other relevam provisions in the Women's Convention that will not be discussed here. One example is article 16, which requires states parties to take all appropriate measures to eliminate '" discrimination in all matters relat ing to marriage. In particular, states parties are required to ensure equality in the righl to freely choose a spouse and 10 cntcr into marriage only with free and full conscnt, and the right to decide the number and spacing of children. Moreover, article 16(2) of the Women'8 Convention specifically requi rcs a state party to institute a minimum age for marriage and to nullify betrothals and marriages of children.

157. IWRAW, supra note 155, at 19.

158. CEDAW was established by article 17 of the Women' , Convention to consider "progress made in the implementation" of the Women's Convention.

Trofffcklng In Women· 349

task, CEDA W has elaborated slightly on the meaning of this article in its General Recommendation No. 19 on Violence Against Women.l~ In that General Recom- mendation, CEDA W has noted that poverty, unemployment, wars, armed conflicts, and the occupation of territories have led to increased opportunities for trafficking in women. In addition, CEDAW has recognized that there are new forms of traf- ficking, such as the "recruitment of domestic labour from developing countries to work in developed countries, and organised marriages between women from developing countries and foreign nationals." Finally, CEDA W reaffirmed that these practices are incompatible with the equal enjoyment of rights by women and with the respect for their rights and dignity,

As of the sixteenth session of CEDAW, th~re were 154 signatories to the Women' s Convention. l60 Under article 18, states parties must submit country reports to CEDAW on the legislative, judicial, administrative, or other measures adopted to give effect to this convention. Reports are due within a year after entry into force for the state concerned and at least every four years thereafter or whenever CEDAW so requests. 161 During these sessions, CEDAW members question re- porting states on the contents of their country reports and formulate "Concluding Comments" at the end of each session on each country report presented. Such comments include recommendations and suggestions, which are to be acted upon and then reported on in that country's next country report

CEDAW's enforcement powers are limited, Up until January 1997, CEDAW could only meet annually for two weeks. Now, CEDAW is allotted two three-week sessions per year. CEDA W cannot demand reports, or impose sanctions on coun- tries that do not submit reports or submit reports so late as to be of limited utility for CEDA W to properly formulate questions and assess the situation for women in that particular country. The Committee's concluding comments are submitted to the General Assembly; however, CEDAW cannot demand specific action by states. l62

One promising development related to the Women's Convention is the proposed Optional Protocol. The discussion of such a mechanism is currently before members of the United Nations. If adopted, the Optional Protocol would potentially allow individuals to bring complaints about human rights violations before CEDAW. Moreover, if an inquiry procedure is established under such Optional Protocol, CEDAW would be granted the power to make investigations into complaints of women's human rights violations. The outcome of any successful complaint or

159. General Recommendation No. 19, U.N. Document Al47/38.ln addition. in its General Recommen- dation No. 12, the Committee recommends that states parties include information specific to violations against women, including legislation, other measures, support services, and sta tistical data. U.N. Doc. A144!38.

160. United Nations Department of Public Informution. Women's Anti-Discriminution Committee to hold its sixteenth Session in New York from Jan. 13-31, 1997 (Dec. 1996).

16 1. Women's Convenlion, art. 18(l)(b).

162. Reanda, supra note 145, at 219.

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inquiry could potentially be as meaningful as an individual remed~ or a systemic recommendation, both of which would be binding upon states partles.

One of the potential sources of international law are the regional human rights instruments. At present, the relevant ones are the European Convention on Human Rights,163 the American Convention on Human ~ghts,l64 the ~rican Charter on Human and Peoples' Rights, l65 and the Inter-Amencan ConventIOn on ~he Prev.en- tion Punishment and Eraclication of Violence Against Women (Convention AgaInst Vioience).I 66 The focus here will be on the Convention Against Violence.167 .The purpose of the Convention Against Violence is t~ prevent, p.unish, and era~.cate all forms of violence against women. It defines VIOlence agamst women as any act or conduct, based on gender, which causes ~eath or ph!sical, s~xual or PSyc,~?~ logical harm or suffering to women, whether In the .publi~ or private s~her.e. Such violence is understood to fall into three categones: VIOlence occumng In t~e family or domestic unit, violence occurring in the community. and violence that IS perpetrated or condoned by the state or its agents. l69 Traf~clting in women ~nd forced prostitution are explicitly recognized as vi?l~nce agaJ.ns~ women occurrmg in the community. ]70 However, as with the other eXlstmg conventIOns relevant to the protection of women's rights, the Convention Against Violence d?es not adequately define trafficking or outline specific state actions that would trigger the Conven- tions protections.

There are three aspects to the enforcement mechanis.m of . the Co~vention Against Violence. First, there is an obligation ~n states Pa:tt~s to mclude Infor~~­ tion in their national reports to the Inter-Arnencan COmmISSIOn of Women on. (1) measures adopted to prevent and prohibit violence against women; (ii) measures adopted to assist women affected by violence; (iii) any difticu.lties state.s have observed in applying those measures; and (iv) factors that con~lbute .to VIolence against womenY' Second, states parties to the Convention ~gamst YI.olence and the Inter-American Commission of Women may request adVISOry OpInlOnS on the

163. European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 V.N.T.S. 221, signed in Rome on 4 November 1950, elllered intojoree on 3 September 1953.

164. American Convention on Human Rights, 9 I.L.M. 673 (1970), signed on 22 November \969.

165. African Charter on Human and Peoples' Rights, advp/ed by the 18th Assembly of the Heads of Slate and Government of the Organization or African Unity. Nairobi, Kenya, June 27,1981.

166. Inter-American Convention on the Prevention. Punishment and Eradication or Violence Against Women, adopted by acclamation by the twenty-jour/h regular session oj the General Assembly oj the Organization oj American Stales, 9 June J994.

167. More detailed examinations of the general protection of women's human rights c~n be fou~d in other parts of this work. The discussion here on the Convention Against Violence WIll accordmgly be brief.

168. Convention Against Violence, supra note 166, art. 1.

169. Id. art 2.

170. Jd.

171. Id art. 10.

Trafficking in Women· 351

interpretation of the convention from the Inter-American Court of Human Rights. m Third, there is a complaints procedure that provides "any person or group of persons, or any non-governmental entity legally recognized in one of more member states of the Organization" with recourse to lodge a petition with the Inter-Ameri- can Commission on Human Rights. Any such petitions must be based upon a violation of article 7 of the Convention Against Violence. m Article 7 outlines the duties that states parties are obligated to undertake, which include refraining from I engaging in any act or practice of violence against women, ensuring that their authorities and agents act in conformity with this obligation, being duly diligent in preventing, investigating, and impoSing penalties for violence against women, and I establishing fair and effective legal procedures for women who have been subjected to violence. 114 While the enforcement provisions of this convention grant the widest range of remedies, it is still too early to assess its overall effectiveness in addressing the issue of trafficking in women. I

Finally, there is the Convention on the Rights of the Child l7S (Children's Con- vention), which deals directly with trafficking in girl-children. Generally, this con- vention will apply to any inclividual under the age of 18, unless majority is attained I at an earlier age under domestic laws. 176 There are a number of provisions relevant to the issue of trafficking in girls. In particular, states parties have an obligation to I take measures to combat the illicit transfer and non-return of children abroad;ln to take all appropriate measures to protect children from all forms of physical or I mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s).legal guardian(s), or any other person who has care of the child;178 to protect children from economic I exploitation;179 to protect children from all forms of sexual exploitation and sexual abuse; 180 to take all appropriate measures to prevent the abduction of, the sale of, or traffic in children for any purpose or in any form;181 and to take all appropriate measures to promote the physical and psychological recovery and social reintegra- tion of a child victim of any form of exploitation, abuse, torture, or any other form of cruel, inhuman, or degrading treatment or punishment. 182 In addition, the

172. [d. art. 11.

173. Jd. art. 12.

174. [d. art. 7.

175. Convention on the Rights of the Child, U.N. Doc. AlRES/44125, entered into jorce Sept. 2, 1990.

176. Children's Convention, supra note 175, art. 1.

177. ld. art. II.

178. Jd. art. 19.

179. Id. art. 32.

180. Id. art. 34.

181. Id. art. 35.

182. /d. art. 39.

352. Women and International Human Rights Law

Children's Convention provides for the right to health; 183 the obligation of a state party to ensure that a child is not separated from his or her parents against their will except in cases where it is determined that such separation is necessary for the best interests of the child;l84 the right, where a child resides in a different state from his or her parent, to leave and enter any country; t~ and the obligation of a state party to protect children from the illicit use of narcotic drugs and psy- chotropic substances. 186

Enforcement of the obligations set out in the Children's Convention is mainly conducted through a reporting mechanism, similar to that for the Women's Conven- tion. In the case of the Children's Convention, states parties report to the Committee on the Rights of the Child (CRC). A state party must present a report within two years of entry into force of the convention for that state party and every five years thereafter. The Children's Convention broadens the possible scope of international cooperation on this convention. The specialized agencies, particularly the United Nations Children's Fund and other United Nations organs, may be represented at the consideration of the implementation of provisions of the Children's Convention that fall within these organizations' mandates, or they may submit reports on such implementation. In addition, the eRC may invite these organizations or any other competent body to provide expert advice on the implementation of the Children's Convention. l81 Furthermore, the eRC may make a recommendation to the General Assembly to request the Secretary-General to undertake studies on specific issues relating to the rights of the child. ISS

International legal obligations related to issues arising from trafficking in women and girls are not limited to these treaties. For example, the Slavery Conven- tion189 and the Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slaveryl90 (collectively. the Slavery Conv~ntion), have provisions that are relevant to slavery, debt bondage, and forced marriage. Under the Slavery Convention, states parties undertake to prevent .and suppress the slave trade and to bring about, progressively and as soon as p~sslble, the complete abolition of slavery in all its forms.m In addition, states partIes are obliged to " take all practicable and necessary legislative and other measures to

183. Id. art. 24.

184. /d. art. 9.

185. /d. art. 10(2).

186. /d. art. 33.

187. ld. art. 45.

188. Id. art. 45(c).

189. Slavery Convention, 212 U.N.T.S. 17, entered into force Mar. 9, 1927, amended convention

entered into force on Jut. 7, 1955.

190. Supplementary Convention on the Abolition of Slavery, the Slavery Trade, and Institutions and Practices Similar to Slavery, 266 U.N.T.S. 40, entered into force Apr. 30, 1957.

191. Art. 2 of the Slavery Convention.

Trafficking In Women· 353

bring about progressively and as soon as possible the complete abolition or the abandonment of the following institutions and practices," including:

(a) Debt bondage ...

(c) Any institution or practice whereby;

(i) A woman, without the right to refuse, is promised or given in marriage on payment of a consideration in money or in kind to her parents, guard- ian, family or any other person or group; or

(ii) The husband of a woman, his family, or his clan. has the right to transfer her to another person for value received or otherwise; or .

(d) Any institution or practice whereby a child or young person under the age of 18 years, is delivered by his [or her] natural parents or by his [or her] guardian to another person, whether for reward or not, with a view to the exploitation of the child or young person of his [or her] labour.l92

Other treaties, such as the International Covenant on Civil and Political Rights, the International Covenant on Econorrllc, Social and Cultural Rights, regional hu- man rights instruments, and the Forced Labor Conventions (Nos. 29 and 105) adopted by the International Labor Organization,19l are also relevant. As noted above, international law obligations may also stem from customary international law. Strong arguments can be made that the prohibition against slavery is recognized as jus cogens, as well as a human rights norm under customary international law. Similar arguments can be formulated with respect to the rights of children.

Other International Mechanisms

There are also international mechanisms that can address the issue of trafficking in women. Only two will be discussed here. First, there is the Working Group on Contemporary Forms of Slavery (Working Group). 194 It has provided a more effec- tive way of addressing the issue of trafficking in women than have some of the treaty-bodies discussed above. It was set up by the United Nations Economic and Social Council as a working group that sits under the Sub-Commission on Preven- tion of Discrimination and Protection of Minorities (Sub-Commission), which, in turn, sits under the Commission on Human Rights (Commission). It is composed of five expert members of the Sub-Commission and sits annually for five days.19S The Working Group was established with the threefold mandate to review develop- ments in the areas covered by the Slavery and Trafficking Conventions, to consider

192. Art. I of the Supplementary Convention.

193. Convention (No. 29) Concerning Forced Labour, adopted on Jun. 28, 1930, by the General Confer- ence of the International Labour Organization, entered into force May I, 1932, and Convention (No. 105) concerning the Abolition of Forc«i Labour, adopted on Jun. 25, 1957, by the General Conference of the International Labour Organization, entered into force, Jan. 17, 1959.

194. For a general discussion on the Working Group, see Lassen, supra nOle 145; Reanda, supra note 145, at 213-16.

195. Reanda, supra note 145, at 213.

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and examine information received from credible sources, and to make recommenda- tions to the Economic and Social Council (through the Sub-Commission and the COmmission) for action. l96 However, it is well recognized that this Working Group is not a mechanism to monitor compliance with these two conventions.

In spite of its limited mandate, the Working Group has in many ways acted as a quasi treaty-monitoring body. Moreover, the work accomplished by this Working Group has been highly regarded. As ODe commentator has noted:

(TJhe Working Group has approached its mandate rather boldly and imaginatively .... Its success is due in part to its relationship with NGOs and providing them with a ~orum ~o.r . the submission and review of information on specific situations. Through It.S flexibi lity, the ~rou~ has been able not only to act as a kind of fact-finding mecha- msm, but also to Idenlify and address practices not covered by the Conventions and which would not otherwise be dealt with by the imemational system. It is now estab- lished. practice for government representatives to participate in meetings of the group a t which NGO country-specific reports are considered and 10 respond to the informa- tion given. I!»

The Working Group' s ability to operate flexibly addresses the limits of the Trafficking Convention and provides an international forum for the discussion and investigation of contemporary forms of traffiCking in women. The NOO relationship that has developed is critical to making progress on eradicating trafficking in women, as the Working Group and llther U.N. bodies are generally limited in the resources and information available to them. Written and oral submissions from NOOs provide the Working Group with much needed information and data. More- over, the practice now established by the Working Group engages governments, which are otherwise not required by existing international law to cooperate with the Working Group. in the issues around trafficking in persons and brings them together in a cooperative relationship with NOOs.

Second, the mechanism of the Special Rapporteur on Violence Against Women, Its Causes and Consequences (Special Rapporteur) warrants mention. The Special Rapporteur on Violence Against Women was created in 1993 as a result of the lobbying of women's groups at the Vienna Conference on Human Rights, The Special Rapporteur, Ms. Radhika Coomaraswamy, was given a three-year mandate (subsequently extended three more years), which includes (i) setting out elements of the problems, the international legal standards and a general survey of incidents and issues as they relate to many problem areas, and Oi) identifying and investigat- ing factual situations, as well as allegations that may be forwarded to the Special Rapporteur by concerned parties.19B

The Special Rapporteur fulfills her mandate in four main ways:l99

196. ECOSOC decision 16 (LVI) of May 17. 1974.

197. Reanda, supra note 145, at 214.

198. Preliminary Reporl Submitted by the Special Rapporteur on Violence Against Women, Its Causes and Consequences, Nov. 22. 1994, U.N. Document ElCN.41l995/42.

199. See the United Nations High Commission for Human Rights website from which most of this information was taken, at http://www.unhchr.chlhtmIlmenu2l71b/ womenl8...-.main.htm.

Trafficking in Women · 355

l. Communications: The Special Rapporteur has prepared a standard form for reporting alleged cases of gender-based violence against women. She has established procedures to seek clarification and information from govern- ments on specific cases of alleged violence (based on these communications) in order to identify and investigate specific situations and allegations of violence against women. The Special Rapporteur may also request that gov- ernments take further steps, such as investigation, prosecution, imposition of sanctions, or provision of redress for issues of a general nature with the view to preventing the recurrence of certain violations of women' s human rights.

2. Urgent Action Commullications: Conununications involving situations of imminent threat or fear of threat to the right to life of the person may be sent to the Special Rapporteur. Based on such communications, the Special Rapporteur may urge the relevant national authorities to (i) pro.vide f~U information on the case alleged; (ii) conduct an independent and ImpartIal investigation; and (iii) take immediate action to ensure no further violations of the human rights of women are committed.

3. Field Missions: The Special Rapporteur conducts fact-finding missions to specific countries at the invitation of governments. The objective of such missions is to obtain first-hand information on the situation of violence against women in a particular country, through meetings with both govern- ment and nongovernment representatives. During any visit. the Special Rap- porteur will focus on a specific theme or aspcct of violence against women.

4. Reports to the Commission 011 Human Rights: On an annual basis, the Speci~l Rapporteur reports to the Commission. This annual report covers commul1l- cations sent to the governmcnts by the Special Rapporteur, the replies re- ceived by her, and the state of violence against women globally.

The Special Rapporteur has already touched upon the issue of trafficking in women in her Preliminary Report. noting that trafficked women and prostitutes are subject to economic exploitation, enormous legal and moral isolation, custodial rape and abuse, health hazards, and violence.200 In addition, the Special Rapporteur conducted a fact-finding mission to Poland in mid-1996. and has provided an over- view of the issue of trafficking in women internationally in her report on violence against women in the community, which was distributed in February 1997.201 Both of the Special Rapporteur' s aforementioned reports provide factual background on trafficking in women, identify relevant national and international laws, discuss strategies and initiatives currently in place to combat and prevent trafficking in women, and finally, provide recommendations for action at both the international

200. Prelininary Report, supra note 198, at parns. 205-19.

201. TIlere is an internalionat report project to assist the Special Rapporteur, undertaken by Global Alliance Against Trafficking in Women (GAA TW) and coordinated by the Foundation Against Traffick- ing in Women (STV).

356 · Women and International Human Rfghts Law

and na tional levels. As discussed above. the reports of the Special Rapporteur are submitted to the Commission and. ultimately. to the Economic and Social CounciL

ISSUES AND RECOMMENDATIONS

As the discussion above illustrates, there are serious and complicated issues that arise from trafficking in women. The focus in this section will return to the issue of the definition of trafficking in women, as the definition will determine the scope and success or failure of any concerted international action on preventing, combating, and eradicating trafficking in women and in punishing the traffickers and other persons or states who, through their acts or omissions, are responsible for trafficking in women and girls.

It is perhaps at this point in time, when the issue of trafficking in women is gaining international attention, that the articulation of a precise definition of what constitutes trafficking in women is most critical. There needs to be a general consen- sus on an international definition that can be applied clearly and consistently. The necessity for a consistent and rigorous approach is not motivated by academic reasons; rather, it is required for very practical considerations. First, recognition as a survivor of trafficking is critical for many women because it is their only source of legal protection. As described above, many women are trafficked into forced prostitution. As prostitutes, they are vulnerable to arrest and mistreatment if prostitution is illegal in the receiving country or in their home country (when and if they return there). Moreover, many of these women are trafficked across national borders and have illegal status in the receiving country. As such, they are susceptible to arrest and deportation. Women trafficked into forced marriages are confronted with the same problem that survivors of domestic violence face-the lack of recog- nition for the abuses against them arising from the perception of authorities (and often the broader community) that issues related to marriage are • 'private matters" to be resolved without outside interference. Also, for women and girls trafficked " in their best interest" into forced marriages, being recognized as a victim of trafficking will provide a potential source of protection where such women are trafficked to couOlries where a " husband's" consent is required by domestic law in order to leave the country to which they were trafficked.

Second, a clear and unambiguous definition of trafficking in women is needed in order to begin to clarify state obligations under international human rights law. Until then, it is unrealistic to expect to hold states legally responsible for trafficking in women. We already see the results of the lack of a definition of trafficking in women from the experiences of this century. The potentially conflicting approaches to addressing the issues around trafficking in women and prostitution have had a significant impact on the ratification of the Trafficking Convention.202 There are

202. There are three basic models of prostitution policies: regulation, abolit ion, and prohibition. Simply put, in a regulation system, prostitutes can be officially registered but brothels cannot. Under such a model, registration and medical chccks are compulsory. Under lin abolit ion system, it is not prostitution that is abolished but control of prostitution by public authorities that is prohibited. Thus, it is the exploitlltion of prostitutes by third parties and public SOliciting that should be forbidden and punished.

Trafffcldng In Women· 357

only 71 signatories to the Trafficking Convention, a low figure for an international human rights treaty. Even jf the number of signatories increased, universal ratifica- tion will never be achieved based on the Trafficking Convention as currently worded. One obstacle to universal ratification is article 6, which prohibits any regulation or supervision of prostitution. For some states, such as Australia, this requirement conflicts with domestic laws that legalize and regulate prostitution.lOJ

In its reply to the Secretary-General, the government of Australia articulated its position on the Trafficking Convention:

On the suppression of the traffic in persons and of lhe exploitation of the prostitution of others, although this Convention does not require that acls of prostitution be crimi- nalized, several of its provisions have the indirect effect of making the practice of prostitution illegal. Such provisions run counter to the legislation in some States and territories. In its views, these provisions also blur the distinction between voluntary and coerced prostitution. To consider voluntary sex work and coercive prostitution as the same issue, and therefore demand the outlaw of prostitution per se, is to view prostitution as a moral issue and to consider sex workers as people unable to make informed decisions on their life. Such a view is paternalistic and raises serious human rights implications. Further, criminalization of the voluntary sex industry fosters con- ditions of violence against women sex workers. It facilitates the underground sex industry, leaving women with little or no legal redress for abuse experienced during work and militates against such workers seeking police intervention in abusive situa- tions. In terms of industrial matters, criminalization of voluntary prostitution also creates the conditions for women to be exploited in terms of pay and conditions by employers as industrial regulation is prohibited. This is particularly critical in relation to occupational health and safety laws, particularly given the danger of sexually trans- mitted diseases.lOoI

For other states, such as Germany, the confusion in the relationship between trafficking in women and prostitution has led to the position that no ratification of the Trafficking Convention is required because their existing legislation is sufficient to protect women from being forced into prostitution or from being exploited as prostitutes.~

Even when ratification is not an issue, the lack of a definition of trafficking in women has clearly impacted on what actions a state feels obliged to take to fulfill its international obligations. For example, while the Women's Convention does not, on its face, pose the same conflicts with domestic prostitution legislation and policies, the undefined terminology has lead to a vague understanding of the nature of state obligations under article 6.206 Thus, it remains unclear what constitutes

Finally, in a prohibition system, prostitution itself is crim.inali:z.cd along with all exploitation of prosti- tutes.

203. It is preci$Cly for this reason that the Netherlands has refused to ratify the TraffiCking Convention. Altink, supra nOle 4, at 157.

204. Traffic in Women, supra note 9, at para. 26.

205. OHSE, :wpm note 144, at 5.

206. This was recognized in the Secretary-General's report. Traffic in Women lind Girls, U.N. Doc. UN/9/501369, para. 23.

358· Women and Intematlonal Human Rights Law

trafficking in women and what constitutes the exploitation of prostitutes. In addi- tion, it remains ambiguous whether any measures that punish the victims of traf- ficking through imprisonment, fines, and other means are inappropriate measures under this provision.:!O'l The lack of clarity has lead to vagueness in country reports submitted to CEDAW. As the Secretary-General has noted:

During the period 1991-1996,63 periodic reports were submitted by 58 States. Of the 63 reports, 80 per cent provided information on elements of article 6. However, slightly less than half of the reports mentioned trafficking at all and less than .a quarter provided information on measures taken to address trafficking. A larger number of reports mentioned prostitution without reference to trafficking.-

If, as evidenced by the record of reports submitted by states parties under the Women's Convention, very few states even recognize trafficking as an issue in their jurisdictions, then most probably very linle, if any, action is being taken to address this practice.

While the intimate connection between trafficking and prostitution is critical, it is often blurred by the debate on whether entering the prostitution trade can truly be voluntary. The emphasis on that debate has hindered the quest to find a clear definition of trafficldng and, in turn, an effective policy. As Brussa notes:

The problem of definition is still wiJh us, due not only to ideological differences and differences of opinion and culture, but also to different policies 0 11 prostitution. Until a standard international definition is agreed on, active intervention policies will inevi- tably be limited.109

As a practical issue, it is difficuh to separate trafficking from domestic prostitu- tion.2lO Those charged with enforcing anti-tr<lfficking laws are often unclear as to how to differentiate prostitutes who have been trafficked from those who have not. 21 I Authorities often do not question how a woman has ended up in prostitution. As a matter of course, authorities subject trafficked women to any prostitution laws and treat trafficked women poorly. One commentator has noted:

11J7. Toepfer and Wells argue: "because trafficking is a crime which violates women's equality rights, legislation designed to 'suppress' trafficking must end Ithe trafficking], and not simply reshape, sex trafficking. Atso any measures which puniSh the victims of trafficking ... are inappropriate remedies under Ihe Convention." Toepfer & Wells, supra nOle 145. al 102.

208. Traffic in Women, supra note 9. at para. 30.

209. BRUSSA, supra note 38, at 17.

210. This was noted as early as 1927 in a report conducted by the League of Nations. Report of the Special Body of Experts on Traffic in Women and Children. League of Nations Docs. C.S2.M.52. 1927.IV (1927) and C.S2(2)M.52(l )1927.IV (1927).

2 11. Indeed, one police officer assigned to finding victims of traffickers admits that he still grapples with a definition of what precisely "trafficking in women" means: "They have no grip on how many women are subjected to 'a high degree of coercion. financial dependence or deception'. as Ithe police officer] defines trafficking. 'I wasn't there when deals were made in Warsaw or Manila ... • Guido de Bruin, Netherlands: Trafficking in Women Shifts to &.stem Europe, INTER PRt:ss SERVICE, June 2, 1992, available in LEXlS. Nexis Ubrary, News File, Curnws.

Trafficking In Women · 359

mn those countries where prostitution is legal, abuses surrounding prostitution are difficult to document because legalization has created an atmosphere that sanctions prostitution and ignores any problems associated with prostitution.lll

These problems are furtber compounded by the fact that many who are charged with enforcing prostitution policies, "see the abuse but accept sexual exploitation and violence as normal for those engaging in prostitution. "213

Any international definition of trafficking in women must focus on the traffick- ing process and not solely on the manifestations of trafficking in women typically seen in the media, i.e., the stories of young girls being sold to brothels at a very tender age and forced to service 10-30 men per day. A focus on the process is critical for two main reasons. As a preventive measure, national and international legislation and action should be directed at the process of trafficking. Unless and until the acts involved in the process of trafficking in women are identified, it will continue unabated. The preventive approach is particularly compelling when one looks at the problems that arise if one waits until trafficking manifests itself in the form of forced prostitution or forced marriage. By this time, the woman has endured severe human rights abuses. Moreover, as the factual discussion illustrates, once trafficked for a long period of time, it becomes increasingly difficult for women to extricate themselves from the sex trade because it becomes their primary source of income for survival, or, in the case of those trafficked into forced marriages, it becomes increasingly difficult to leave as they usually bear children who are not allowed to leave with them.

While the definition provided in the first section is the best existing definition, it is by no means perfect. This chapter has adopted a rcading of the definition that requires three essential elements to establish trafficking in women: (i) recruitment and/or transportation of a woman; (ti) for work or services; (iii) through the use of coercion. However, certain issues require further consideration and clarification.

Closer examination of the word "recruitment" raises the question of whether or not there is an element of transportation in the phrase "obtaining women." If so, is transportation in fact a distinct and essential component of trafficking in women? Would it be more precise to limit the definition to "all acts of recruitment" and include acts of transportation in the definition of recruitment? If not, on what basis do we then distinguish between obtaining women through abduction and transporting women? Moreover, to ensure there is a precise definition encapsulating the activity intended to be captured, it is necessary to decide when the process of trafficking in women ends. So, for example, if trafficking in women is defined as "all acts in the recruitment andlor transportation ," does trafficking then end once she is no longer being recruited or transported? That will depend on how recruiUnent and transportation are defined. But based on the facts, it appears that trafficking does not clearly end once a woman is no longer being recruited or transported,

212. FE.\IlALE SEXUAL SLAVERY, supra note 4, at 65.

213. ld. at 7.

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because trafficked women are subject to the possibility of being transported (and resold) to another brothel or wife-purchaser at random points in time, at times even years from when she was initially sold. AIe they to be considered trafficked only at that time? What happens in between the initial recruitment andlor transportation and the next incident? One possible approach is to state that a woman retains the status of a trafficked woman until the coercion is lifted. COnlemplation of the merits or this approach should include consideration of cases where a woman trafficked into prostitution has resigned herself to her fate and there is no visible coercion, yet she is resold to another brothel at a later date.

Obviously, the definition of what constitutes coercion will determine what activ- ity is covered. However, as discussed briefly supra, the definition of coercion remains unarticulated. What is to be included in "other forms of coercion" ? How broadly should coercion be defined? Is deception, in fact, meant to be included as a form of coercion? While deception is certainly one of the methods through which traffickers lure women, recruitment of women for the purposes of work or services by means of deception also captures situations that do not involve sexual trafficking in women, but involve solely unfai r employment practices . On the other hand, deception for the purposes of trafficking in women should be captured by any definition established because waiting until "coercion" is used is too late for many women. One possibility is to analogize; to the drug trafficking situation and crimi- nalize recruitment (which would include deception as one of the acts) for the purposes of trafficking.

However, if coercion is limited to the visible forms of coercion, the resale of trafficked women must be considered. Intuitively, it would seem that the resale of a woman should be characterized as trafficking.1!4 Whatever an international defini- tion of trafficking in women may state with respect to the issue of coercion, a fair amount of discretion will likely be left to domestic laws with respect to how coercion (or the lack of consent) will be recognized andlor measured. Given how poorly many domestic courts deal with the issue of consent in rape cases,m care should be taken to structure an international definition of trafficking in women to avoid, to the extent possible, problems that arise when proving coercion or the lack of consent in trafficking in women.

Articulating a clear definition is not merely an exercise in finding the right words. As illustrated in the discussion on the problems that have resulted as a consequence of a lack of a definition of trafficking in women, some accommodations to the various existing policies on prostitution must be made. The definition set out

214. On a related issue, the criminal responsibili ty of the client of a trafficked woman should be clarified. An analogy to the drug trafficking si tuation suggests that a consumer of a trafficked product is not necessarily a trafficker. As a general rule, this seems to be appropriate except in situations where a client also undertakes activi ties involving the actual recruitment, tran.sporlation, sale, or other acts such as the "breaking in" of a girl. One clear situation is where men purchase wives from traffickers or purchase wives from fam.i1ies directly. Such activity would seem to clearly fall under any definition of trafficking.

215. Community Violence Report, supra nOle 6, al 7.

TraffickIng In Women · 36'

previously does not require Slates to adopt any particular policy on prostitution. However, as in the case of article 6 of the Women's Convention. even if there is no obvious conflict between trafficking and prostitution policies. states arc not necessarily clear themselves on what the relationship is between these two issues. This potentially leads to a situation where states will not be held legally responsible because there is no clear international legal standard against which their actions can be measured.

Similarly, the differences, if any. between trafficking in women and other related concerns must be contemplated. For example, many Filipino women are lured into marriages with men abroad through mail-order bride agencies. Some mail-order bride agencies are mere fronts for trafficking networks. Such agencies are used only as a lure to attract women who will be forced into prostitution, marriage, or labor. However, there are other situations where women sign up with agencies and their photos and background information are forwarded to prospective "grooms." A client pays a fee and can arrange to meet a woman, oftentimes by having her flown to his country. If the client does not like the woman, he can send her back to the agency. To be "sent back" does not necessarily mean that she is physically sent back to her home country. Rather, she is often abandoned in the country she traveled to, without any money for survival, the flight home, or a work permit. It is at this point that she is often forced or lured into prostitution or domestic slav- ery.ll6 Given this set of facts, mail-order bride services in and of themselves are not necessarily engaging in trafficking in women as these women may have voluntarily, without coercion, signed up to participate in such services and the clients are ostensibly prospective husbands. which these women are seeking. Thus, consider- able analysis must be undertaken in determining to which of these various circum- stances legal responsibility fo~ trafficking in women should be attributed.

Another issue requiring further thought is arranged marriages that do not involve any overt coercion. The examples raised previously clearly include overt coercion in the form of physical detention, violence, and threats of violence. An example of a less clear situation is an arranged marriage Howing from omiai (arranged meetings for the purposes of marriage) in Japan. Thirty percent of all Japanese marriages are formed in this manner.217 In these cases, families involve a matchmaker who finds a "suitable" match for the woman. While there may be some family and community pressure, there is no overt physical coercion or threat of physical coer- cion or even overt psychological pressure.211 As contrary to the notion of equality

216. David Jones, Filipino Women Said 10 be Forced inzo European ProslifUtion, REUTERS, May 22, 1987, LEXlS, Nexis Library News. This situation is not limited to Filipino women. Latin American women and East European women also commonly find themselves in this situation. See Nakanishi,

supra note 92.

217. SUSAN ORPETT LoNo. FAMILY CHANGO ANDTtiE LIFE COURSE IN JAPAN 43-44 (1987).

218. A similar case occurred in India where a woman had written to the Supreme Court Chief Justice complaining thai her father and brothers were forcing her to marry a police constable. The Delhi High Court took up the leiter as a petition and ordered her brother not to force his sister into marriage. See Indian Courl Rescues Woman from Forced Marriage, R£{ffERS, Feb. 14, 1996, available in LEXIS, Nexis Library, World File, Alinws.

362· Women and International Human RIghts Low

as any form of arranged marriage may be to some, a distinction could arguably be made between these marriages and trafficking in women.

Numerous causes of trafficking in women have been proposed, such as the presence of military bases, sex industry multinationals, and sex tourism. The defini- tion of trafficking must be revisited to ensure that the appropriate activity is cap- tured, keeping in mind that using the services of a trafficked woman does not necessarily constitute trafficking in women. Similarly, creating a market for the sex trade may not necessarily constitute trafficking in women. Consider the analogy to jurisdictions where prostitution is legalized. While such legalization may create a market for women who are trafficked, all forms of prostitution would not likely be captured within trafficking in women.

There are a few practical considerations to take into account when determining the definition of trafficking, the limits of coercion, or other definitional issues in international law. As decision-malting in international fora is achieved through consensus, the broader the definition, the less likely it is that consensus will be reached. Whether economic coercion alone could or should constitute trafficking is among the most contested issues. Even if consensus is reached on a broad definition of coercion, there will be less political will to ratify or enforce any treaty containing a broad definition. States, for the most part, will voice the sentiment that they will only ratify treaties that they can fulfill in good faith. Moreover, if cultural practices are defined as a source of coercion, states implicated in those cultural practices will present resistance to such a definition. However, as a practical matter, a very narrow definition should be avoided. Once an international legal definition is established and agreed upon, it will be extremely difficult to change it to adapt to changing circumstances.219

A clear definition of trafficking in women is also crucial for proper data collec- tion, documentation, and research. As stated above, information on trafficking in women is currently found under a variety of different subject headings. The variety of ways to categorize trafficking in women reflects the multitude of human rights abuses that occur as a result of trafficking and the numerous strategies that have been adopted to try to address the problems that arise. However, this ad hoc charac- terization of the issue may obscure situations that constitute trafficking in women. For example, conceptualizing trafficking in women as forced prostitution excludes discussion and recognition that trafficking in women also leads to forced marriages. As an evidentiary matter, there are currently no comprehensive statistics on the number of women and girls who are trafficked and from where and to where they are trafficked. One reason for the lack of statistics is that trafficking in women is not reported as a category in crime statistics collected by the U.N. or many coun- tries.no The difficulties of addreSSing the problem without adequate information has

219. For example, consider the 1951 Convention Relating 10 the Status of Refugees and its definition of "refugee." While many activists feel that the definition needs to be expanded, the fear is that any re-examination of the definition will provide states with an opportunity to narrow the definition.

220. Traffic in Women, supra note 9, at para. 15.

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been noted by governments.221 Certainly, the lack of a clear, authoritative definition is a preliminary obstacle to collecting such statistics.

By working from an authoritative definition, more in-depth research on traffick- ing in women and its causes and consequences can be conducted. As noted above, there is still scant information on the daily lives of women trafficked into forced marriage. Even where it appears that there is an abundance of information, as in some of the cases involving trafficking leading to forced prostitution, the vast major- ity of cases remain invisible. In order to consider what fonns of coercion are involved in trafficking in women and what types of evidence will be available to demonstrate such coercion in domestic or international courts, more detailed information is required. Moreover, a significant portion of information on traffick- ing in women is found in sources such as newspapers and magazines, sources which are limited by the nature of the medium in terms of the amount of information that can be provided. Reliable information must be collected to establish the factual record upon which to base any claim of h'~man rights violations arising from trafficking in women. Even with an intefllationally accepted definition of trafficking in women, the underreporting of violence faced by women who have been trafficked will have to be addressed. The Special Rapporteur has noted the following as some of the obstacles to reporting the violations faced by trafficked women: lack of legal literacy and of confidence in the legal system, fear of arrest or legal sanctions, the need to maintain financial support for their families. outstanding debts, fear of reprisals by the trafficlting network and of deportation, and language barriers.

Undeniably, the fundamental root cause of trafficking in women lies in the unequal status of women in society, which makes women vulnerable to such prac- tices. Women's fundamental inequality is rooted in an intricate, complex web of historical, economic, biological, social, and cultural reasons (to name a few). Conse- quently, there is no one strategy or even set of strategies that will eradicate traffick- ing in women in the near future. There are resources that have set out recommendations for international action on trafficking in women that should be accessed before designing any new internationally based strategies. Some of the best sources include the reports of the Special Rapporteur, the Working Group on Slavery, the Secretary-General Reports to the General Assembly on the Traffic of Women and Girls, and the Beijing Platform for Action. Particular attention should be paid to the developments in the Programme of Action for the Prevention of Traffic in Persons and the Exploitation of the Prostitution of Others, which has already been approved by the Commission on Human Rights.m Perhaps the Com- mittee on the Elimination of All Forms of Discrimination Against Women will begin to articulate the state obligations under article 6 of the Women's Convention, either through a General Recommendation on the issue, through established ques- tions to reporting states parties on the issues of trafficking, or both. Since trafficking in women filS inlo the broader issue of violence against women, which is intimately

221. ld. at para. 18.

222. U.N. Doc. EJCN.4/Sub.2J1995/28/Add.l.

364· Women and Intematlonal Human RIghts Law

tied to women's persisting inequality, sources under these categories should be accessed for possible recommendations and_ strategies.

In the end, the actions undertaken will be determined by the particular resources, skills, and expertise available in conjunction with the goals, objectives, and entry points for intervention that have been identified. However, future work on traffick- ing in women should be guided by precision and rigor, first by establishing a viable definition of trafficking in women, followed by a consistently uncompromising ap- plication. Section IV

Common Human Rights Issues Affecting Women