What is wrong with human trafficking

She wrote her PhD thesis on the criminalisation of labour exploitation human trafficking in the light of international human rights, anti-trafficking law and principles of criminal law..

The overarching objective of this volume is to discuss and critique the legal regulation

of human trafficking in national and transnational context Specifically, discussion is needed not only with regard to the historical and philosophical points of departure for any criminalisation of trafficking, but also, regarding the societal and social framework, the empirical dimension such as existing statistics in the area, and the need for more data The book combines descriptive and normative analyses of the crime of trafficking

in human beings from a cross-legal perspective Notwithstanding the enhanced interest for human trafficking in politics, the public and the media, a critical perspective such as the one pursued herewith has so far been largely absent Against this background, this approach allows for theoretical findings to be addressed by pointing out and elaborating different, interdisciplinary conflicts and inconsistencies in the regulation of human traf-ficking The book discusses the phenomenon of human trafficking critically from various angles, giving it ‘shape’ and showing how it comes to life in the legal regulation

What is Wrong with Human

Trafficking?

Critical Perspectives on the Law

Edited by

Rita Haverkamp, Ester Herlin-Karnell

and

Claes Lernestedt

Bloomsbury Publishing Plc Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, UK HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are

trademarks of Bloomsbury Publishing Plc First published in Great Britain 2019 Copyright © The editors and contributors severally 2019 The editors and contributors have asserted their right under the Copyright, Designs and Patents

Act 1988 to be identified as Authors of this work.

All rights reserved No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system,

without prior permission in writing from the publishers.

While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be

accepted by the authors, editors or publishers.

All UK Government legislation and other public sector information used in the work is Crown Copyright © All House of Lords and House of Commons information used in the work is Parliamentary Copyright © This information is reused under the terms of the Open Government Licence v3.0 (http://www nationalarchives.gov.uk/doc/open-government-licence/version/3) except where otherwise stated.

All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2019.

A catalogue record for this book is available from the British Library.

Library of Congress Cataloging-in-Publication data Names: Haverkamp, Rita, 1966- editor | Herlin-Karnell, Ester, editor | Lernestedt, Claes, editor Title: What is wrong with human trafficking? : critical perspectives on the law / edited by Rita Haverkamp,

Ester Herlin-Karnell and Claes Lernestedt.

Description: Oxford, UK : Hart Publishing, 2019 | Includes index.

Identifiers: LCCN 2018042551 (print) | LCCN 2018047844 (ebook) |

ISBN 9781509921522 (Epub) | ISBN 9781509921515 (hardback : alk paper)

Subjects: LCSH: Human trafficking | Human trafficking—Law and legislation.

Classification: LCC HQ281 (ebook) | LCC HQ281 W437 2019 (print) | DDC 345/.02551—dc23

LC record available at https://lccn.loc.gov/2018042551 ISBN: HB: 978-1-50992-151-5

ePDF: 978-1-50992-153-9 ePub: 978-1-50992-152-2 Typeset by Compuscript Ltd, Shannon

To find out more about our authors and books visit www.hartpublishing.co.uk

Here you will find extracts, author information, details of forthcoming events

and the option to sign up for our newsletters.

Rita Haverkamp would like to thank Ines Hohendorf, Julia Reichenbacher and Lena Vogeler for taking care of practical matters before, during and after the Tübingen workshop.

Ester Herlin-Karnell would like to thank ACCESS Europe Amsterdam and the University Research Chair fund at the VU University of Amsterdam for generously spon-soring the workshop held at Amsterdam on 10–11 June 2016

Claes Lernestedt would like to thank Justitierådet Edvard Cassels stiftelse for ously funding the Stockholm workshop, and Natalie Tell for taking care of – and taking command of – practical matters great and small

Acknowledgements ����������������������������������������������������������������������������������������������������� v List of Contributors ���������������������������������������������������������������������������������������������������ix

1 Introduction ��������������������������������������������������������������������������������������������������������� 1

Rita Haverkamp, Ester Herlin-Karnell and Claes Lernestedt

2 Trafficking, the Anti-Slavery Project and the Making of the Modern

6 Understanding Trafficking in Human Beings as Mixed Migration:

The European Area of Freedom, Security and Justice and its Global Width ���������� 99

Ester Herlin-Karnell

7 Human Trafficking: Human Rights Activism and its Consequences

for Criminal Law �����������������������������������������������������������������������������������������������117

12 Limiting the Criminalisation of Human Trafficking: Protection Against

Exploitative Labour versus Individual Liberty and Economic Development ��������217

Piet Hein van Kempen and Sjarai Lestrade

13 Rethinking the Model Offence: From ‘Trafficking’ to ‘Modern Slavery’? �������������239

Francesco Viganò

Index �����������������������������������������������������������������������������������������������������������������������263

List of Contributors

Hans-Jörg Albrecht is a director at the Max Planck Institute for Foreign and

Interna-tional Criminal Law in Freiburg, as well as a professor faculty member at the Faculty of Law at the University of Freiburg and an honorary professor His research interests range from topics such as sentencing theory, juvenile crime and justice, illegal drug policy, and environmental and organised crime to evaluative research on the role of criminal justice

in transitional legal systems He has authored, co-authored and edited numerous works, including volumes on sentencing, day-fines, recidivism, child abuse and neglect, drug policies and victimisation

Vera Bergelson is Professor of Law and Robert E Knowlton Scholar at the Rutgers School

of Law She specialises in criminal law theory and has written widely about consent, provocation, self-defence, necessity, duress, strict liability and victimless crime Her book

Victims’ Rights and Victims’ Wrongs: A Theory of Comparative Criminal Liability (2009)

raises questions about comparative liability in criminal law She has served as a chair of the Association of American Law Schools’ Section on Jurisprudence She is also on the edito-

rial boards of BdeF and Edisofer (Buenos Aires and Madrid) and Law and Philosophy Rita Haverkamp has held the endowed Professorship of Crime Prevention and Risk

Management at the Eberhard Karls University of Tübingen since 2013 She is a member

of the Scientific Advisory Committee of the expert dialogue on the Dialogue on Societal Aspects of Security Research funded by the Federal Ministry of Education and Research,

as well as the Research Advisory Board of the Federal Criminal Police Office Before her professorship, she mainly focused on terrorism and security research while working as a senior researcher at the Max Planck Institute for Foreign and International Criminal Law

Ester Herlin-Karnell is Professor of EU Constitutional Law and Justice and a

Univer-sity Research Chair at VU UniverUniver-sity Amsterdam She holds degrees from Oxford University (DPhil), King’s College London (LLM) and Stockholm University (LLM) Her recent publications include a monograph on the constitutional dimension of European criminal law (Hart Publishing, 2012) She is also the author of, inter alia, “The Consti-tutional Structure of Europe’s Area of Freedom, Security and Justice and the Right to Justification” (Hart Publishing 2019) and of the forthcoming co-edited (with M Klatt) volume “Constitutionalism Justified” (Oxford University Press 2019)

Tatjana Hörnle is Professor of Criminal Law, Criminal Procedure Law, Philosophy of

Law and Comparative Jurisprudence at the Humboldt University of Berlin Previously, she held a chair at the Ruhr University Bochum In English, she has published in, for

example, the Israel Law Review, Criminal Law and Philosophy, Buffalo Criminal Law Review and New Criminal Law Review Amongst other engagements, she is member of the scientific advisory board for the New Criminal Law Review and international advisor for Criminal Law and Philosophy.

Claes Lernestedt is Professor of Criminal Law at Stockholm University He has published

four monographs (in Swedish) in the areas of criminal law, philosophy of criminal law

and legal philosophy He has co-edited a number of volumes; the latest is Criminal Law and Cultural Diversity (2014, with Will Kymlicka and Matt Matravers) In English, he has published in, for example, Mind, Criminal Law & Philosophy and New Criminal Law Review He is currently working on a monograph on self-defence and is co-editing (with

Matt Matravers) an international volume on the criminal law’s person, which is due to be published by Hart Publishing

Sjarai Lestrade has been Assistant Professor of Criminal Law at the Erasmus School of

Law in Rotterdam, since November 2017 Previously, she taught criminal law and nal procedure law at Radboud University, Nijmegen She wrote her PhD thesis on the criminalisation of labour exploitation (human trafficking) in the light of international human rights, anti-trafficking law and principles of criminal law

crimi-Matt Matravers is Professor of Law and Director of the Morrell Centre for Toleration at the University of York He is the author of Justice and Punishment (2000) and Responsi- bility and Justice (2007) In addition, he has edited seven books, most recently Criminal Law and Cultural Diversity (2014, with Will Kymlicka and Claes Lernestedt) and The Criminal Law’s Person (forthcoming, with Claes Lernestedt).

Elina Pirjatanniemi holds a Chair in Constitutional and International Law at Åbo

Akademi University (AAU) She is also the Director of the Institute for Human Rights at the same university She is an expert on human rights, as well as asylum and migration law, and on the relationship between human rights and criminal justice

Malcolm Thorburn is Associate Professor at the Faculty of Law, University of Toronto

His writing focuses on theoretical issues in and around criminal justice and

constitu-tional theory He is the co-editor of The Philosophical Foundations of Constituconstitu-tional Law (2016) and The Dignity of Law (2015) His work has appeared in such publications

as the Yale Law Journal, Boston University Law Review, University of Toronto Law Journal and many book collections He is the book review editor of the University of Toronto Law Journal, an associate editor of New Criminal Law Review and a member

of the editorial boards of Law and Philosophy and Criminal Law and Philosophy Piet Hein van Kempen is Dean of the Faculty of Law and full Professor of Criminal

Law and Criminal Procedure Law at Radboud University, Nijmegen He is also Secretary General of the International Penal and Penitentiary Foundation and part-time Justice in the Criminal Chamber of the Appeal Court of ’s-Hertogenbosch He specialises in the influence of international and European law, including human rights law and transna-tional criminal law, on the national criminal justice system He publishes widely both in Dutch and English on a wide variety of topics

Francesco Viganò is a judge at the Italian Constitutional Court He is also Full Professor

of Criminal Law at Bocconi University, Secretary General of the Société Internationale

de Défense Sociale and member of the Board of Directors of the International Institute

of Higher Studies in Criminal Sciencies (ISISC) He is member of several international

research projects and editor-in-chief of the online law journals Diritto penale raneo and Diritto penale contemporaneo-Rivista trimestrale His research areas include

contempo-human rights and criminal law, the impact of EU and international law on criminal law, and crimes against the person

1 Canada, Finland, Germany, Italy, the Netherlands, Sweden, the UK and the US.

2 The focus is on Canada, the US, several countries of the EU, and the EU as such.

3 The papers were presented and discussed at three workshops, at Stockholm University (January 2016), the Free University of Amsterdam (June 2016) and Eberhard Karls University of Tübingen (January 2017) Thanks

to Matt Matravers for his comments and proofreading of our introduction.

1

Introduction

RITA HAVERKAMP, ESTER HERLIN-KARNELL AND CLAES LERNESTEDT

What is wrong with human trafficking? The volume addresses this delicate

question, bringing together scholars from America and Europe1 to discuss

diverse problems regarding and related to the legal regulation of human

traf-ficking from a cross-legal and interdisciplinary perspective The overarching objective is

to discuss and criticise the human trafficking regulation in an (inter)national context2

embedded in a historical, criminological and philosophical framework The volume meets a need for a discussion not only of the historical and philosophical points of departure of the criminalisation of human trafficking, but also with a critical view of the societal and social background combined with an empirical dimension such as existing estimates and statistics in the area

The volume combines descriptive and normative analysis of the offence of ‘human

trafficking’ Thus, we are concerned not only with how things are dealt with, but also – and to a greater degree – with how different aspects of the so-constructed offence ought

to be dealt with The book encourages normative discussion related to the alleged reality

and legal situation of human trafficking, also inviting a discussion of how to shape future regulation in this area The Introduction outlines some significant issues as identified and discussed in the project.3

In the past decades, the phenomenon of human trafficking has been the object of increasing attention from legislators and presented as a problem that needs to be tackled at the (trans)national level This attention has led to a comparatively large amount

of (inter)national legislation, produced in a continuous and regular flow This flow of

regulation has been accompanied by flows of resources being distributed to various kinds

of actors that in one way or another are engaged in ‘combating human trafficking’ One important aim of the volume is to discuss the points of departure and assumptions about the world on which the regulation rests These considerations lead to an attempt to give

shape to ‘human trafficking’ as something distinct in the legal regulation However, for

the reasons discussed below, this last task is fraught with difficulties

4 S Aiken, D Lyon and M Thorburn, ‘Introduction: Crimmigration, Surveillance and Security Threats:

A Multidisciplinary Dialogue’ (2014) 40 Queen’s Law Journal i, i.

5 Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA, OJ L 101/1.

THE TRIANGLE OF HUMAN TRAFFICKING

At the core of the problem area is a triangle with a complex interplay between its uent points: first an alleged reality, second a concept (‘human trafficking’), and third several legal regulations that vary between jurisdictions with regard to how the crime, through its elements, is defined The alleged reality refers to an emerging phenomenon that gradually came to be structured and labelled as a problem and was increasingly presented as ubiquitous and urgent One striking example is the sexual exploitation of European girls and women at the beginning of the twentieth century (see the chapters

constit-by Lindsay Farmer and Rita Haverkamp) Even if the number of actual victims was low but high in estimates, the phenomenon was captured by the so-called concept of ‘white slavery’ that triggered what in criminology is called a ‘moral panic’ The huge public attention and political interest led, then, to different legal initiatives at a national and international level, thus completing the triangle From an initial and very strong focus

on trafficking only for sexual purposes and on white young women, the concept has over

time been broadened to encompass other purposes (eg, forced labour, trade in organs and begging) The notion of ‘human trafficking’ as it is given shape in the legislation was far from distinct from the beginning and it has arguably become even more difficult to grasp

as its scope and reach have expanded

Furthermore, the triangulation points and their interconnections are occupied by different and diverse actors For example, several stakeholders might have an inter-

est in the concept of human trafficking not being given a distinct shape, either for the

concept to be able to encompass all possible forms of what might be defined as ‘human trafficking’ or to highlight the moral wrong of its many facets (see the chapter by Tatjana Hörnle) Transnational human trafficking affects the territorial sovereignty

of states and authorities as well as of supranational bodies like the EU, and among their interests is the protection of their borders from unwanted immigration Transna-tional human trafficking thus relates to illegal immigration which is connected both to criminal law and immigration law (‘crimmigration’).4 In such cases, the foreign traf-

ficked person has a double role as a crime victim (qua ‘trafficked’) and as a perpetrator (qua illegal immigrant), so-called victim offender overlap However, the moral wrong

of human trafficking demands that the vulnerability, and need for protection, of its victims is acknowledged Although the EU Directive (2011/36/EU) on human trafficking5 (Articles 11–16) addresses this problem and grants protection to victims of human traf-ficking who might also be offenders (Article 8), national legislation differs remarkably and the question arises how to identify trafficking victims among different kinds of migrants Furthermore, the stereotype of an ideal victim (‘innocent, helpless person’) helps states and authorities to restrict the numbers of potential victims of human trafficking, especially within the era of mixed migration (see the chapters by Rita Haverkamp and Elina Pirjatanniemi)

6 JA Chuang, ‘Rescuing Trafficking from Ideological Capture: Prostitution Reform and Anti-trafficking Law

and Policy’ (2010) 158 University of Pennsylvania Law Review 1655, 1665 ff; G Tyldum and A Brunovskis,

‘Describing the Unobserved: Methodological Challenges in Empirical Studies on Human Trafficking’ (2005) 43

International Migration 17, 18.

7 G Tyldum, ‘Limitations in Research on Human Trafficking’ (2010) 48 International Migration 1, 2.

8 UNODC, Global Report on Trafficking in Persons (New York, United Nations Publications, 2016).

9 ILO and Walk Free Foundation, Global Estimate of Modern Slavery: Forced Labour and Forced Marriage

(Geneva, International Labour Office, 2017).

10 C Morehouse, Combating Human Trafficking� Policy Gaps and Hidden Potential Agendas in the USA and

Germany (Wiesbaden, VS Research Springer, 2009) 79.

11 In countries that criminalised human trafficking before December 2003, the average number of trafficking

convictions was 29 in 2014; see UNODC, Global Report on Trafficking in Persons (New York, United Nations

Publications, 2016) 12.

The (ideological) interest of politics and the (ideological) engagement of non- governmental organisations (NGOs) in the various fields of human trafficking (eg, forced begging and the forced committing of offences) hamper empirical research on the phenomenon.6 The tendentious orientation of the interested parties also has a nega-tive influence on the quality of research in the area, because empirical studies often do not comply with the necessary empirical standards The result is that estimates of those affected are not reliable (see the chapter by Hans-Jörg Albrecht).7

This shortcoming is illustrated by the numbers contained in the UN Global Report

on Trafficking in Persons (UNODC 2016).8 According to the statistics in the UNODC

2016 Report, 63,251 victims of human trafficking were detected in 106 countries during the period from 2012 to 2014 The dark figure of human trafficking is claimed to be much higher, but the extent is still vague Estimates by the International Labour Organization (ILO) come up with 40 million modern slaves in 2016, of whom 25 million relate to forced labour and 15 million to forced marriage.9 However, the concept of modern slavery is not the same as the concept of human trafficking, because the latter includes other forms

of exploitation such as organ harvesting.10 The estimates reveal further weaknesses due

to different definitions and often hidden methods of data collection Moreover, the gap between registered victims and the dark figure that is meant to capture the ‘reality’ of human trafficking is inherently uncertain given the difficulty of obtaining precise data about clandestine phenomena

The worldwide contrast between the observed low conviction rates11 of perpetrators,

on the one hand, and the high estimates of victims of human trafficking, on the other, fuels the opinion that ‘human trafficking’ criminalisations have not been able to provide the promised, or desired, results The proposed – often tried, but seldom successful – cure has been further changes in the legislation, in the shape of, for example, harsher punish-ment, efforts to make the regulation more comprehensive and the alteration or removal

of elements of the crime that are thought to be obstacles to conviction The contrast between the alleged reality and the legal regulation are connected to the illusive concept

of human trafficking From the start, the concept has been emotively laden with strongly

negative connotations, nowadays emphasised by successively more frequent connections

made to the concept of ‘slavery’ (see the chapters by Lindsay Farmer, Matt Matravers and Francesco Viganò) That is why ‘human trafficking’ is widely loathed and manifold efforts aim to combat the phenomenon But beside its emotional content, the concept also needs to be given operational substance Such substance should be provided by the

alleged, but widely hidden, reality.

12 In everyday life, the term covers different situations, inter alia, prostitution, temporary employment, smuggling of human beings or even transfers of football players See https://menschenhandelheute.net/was-ist- menschenhandel.

13 Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, adopted and opened for signature, ratification and accession by General Assembly Resolution 55/25 of 15 November 2000.

14 Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA, OJ L 101/1.

15 Group of Experts on Actions against Trafficking in Human Beings.

16 cf Siliadin v France, App No 73316/01, sentenced date 26 October 2005; Rantsev v Cyprus and Russia, App No 25965/04, sentenced date 10 May 2010; LE v Greece, App No 71545/12, sentenced date 21 January 2016.

The idea of human trafficking exists in at least two forms that interact in often ing ways On the one hand, there are the narrow, technical, legal definitions that differ

intrigu-remarkably between jurisdictions On the other, there are free-standing, more

expan-sive notions existing within the popular imagination and often reinforced by popular journalism.12 The latter operates with an – often quite implicit – idea of human traf-ficking as something free-standing from what the police and prosecutors find and can prove, from what the courts conclude in particular cases and from what the legislator has criminalised or elsewhere legally defined as human trafficking This free-standing notion seems, in the discourse, to be tied more to the concept as such or to a pre-determined image of the trafficked person (and, indeed, of the trafficker) It differs not only from the various legal definitions, but also from the broadly unknown victim population The

less one’s definition rests on solid empirical evidence, something which would

presup-pose, for example, agreement on what is to be measured (see the chapter by Hans-Jörg

Albrecht), and the more one’s definition rests on the emotive concept as such, the closer

‘human trafficking’ comes to the free-standing notion, escaping precision, remaining unarticulated

Legal regulations offer at least operational definitions of what is ‘human trafficking’,

though their relations to the concept of human trafficking and to one another are not necessarily consistent The most influential legal definition can be found in Article 3 of

the Palermo Protocol.13 The definition served not only as a role model for national lation in many of the signatory states, but also for the Council of Europe Convention

legis-on Actilegis-on against Trafficking in Human Beings and the EU Directive (2011/36/EU) legis-on human trafficking,14 though both supranational instruments expand the scope of the Protocol The Council of Europe Convention and the EU Directive highlight the human rights perspective even more than the Palermo Protocol GRETA15 is responsible for the monitoring how the Council of Europe Convention is implemented in the signatory states The European Court of Human Rights has recognised human trafficking as a violation of human rights and democratic principles according to the European Conven-tion on Human Rights.16 Furthermore, the EU Charter of Fundamental Rights prohibits trafficking in human beings in Article 5(3) Human trafficking is also one of the EU core crimes mentioned in Article 83 of the Treaty of the Functioning of the European Union The idea is central that ‘human trafficking’ is against the concept of human dignity and concerns about equality and freedom (see the chapter by Ester Herlin-Karnell)

Despite the shared base in international and supranational legislation, the vagueness

of the definition complicates its application in judicial systems because the lack of clarity

17 Beyond criminal law, the word ‘exploitation’ might have a descriptive or even positive meaning: eg, ‘I exploit the resources of my university library’.

has been exported to the national legislation When comparing the individual pieces of the definition in different jurisdictions, huge variations in the operationalisation of the idea of human trafficking can be observed If one takes a closer look at the three compo-nents of the definition from the Palermo Protocol – (1) the act, (2) the means and (3) the ulterior purpose – one discovers that in one jurisdiction the act is left out, in another the means is left out and in a third the purpose is left out Yet without, for example, the ulterior purpose, the core of the international understanding is gone and the national definition does not always reflect human trafficking, but something else, such as forced prostitution or forced labour

In addition to these fundamental differences, significant variations exist in terms of

how the elements of the crime, and thus the offences, are technically construed Such national differences need not in themselves be very problematic if there had been some-

thing tangible, something possible to grasp and clearly define, that one could agree on

as the desired target of the regulation Then it would be possible and normal that ous jurisdictions differ in opinion regarding the most appropriate way to ‘technically’ come to terms with that behaviour However, as already pointed out, a clearly defined phenomenon does not seem to be in the background Whereas the legislation in rela-tion to some other kinds of crimes identifies and labels the wrong clearly, in the case

vari-of trafficking, the criminalisation is more vari-of a constitutive act constructing – through

the choice of elements – a wrong The wrong consists of a complex activity before the intended exploitation happens The construction then consists of the choice of elements,

which varies, plus the emotive concept (see the chapters by Tatjana Hörnle and Claes

Lernestedt)

In addition, essential elements of the crime of human trafficking obscure the standing of the phenomenon, though they might have been thought of as attempts to give more shape both to the concept and to the legal regulation One prominent example

under-is ‘exploitation’ (see also the chapter by Malcolm Thorburn), which seems to have more

or less two separate meanings One meaning is activated where the trafficked person is intended to take part in non-sexual activities; there, one finds elaborate discussions of the

free will of the person concerned and the use of economic terms (see the chapter by Piet Hein van Kempen and Sjarai Lestrade) The other meaning is activated in relation to traf-

ficking for sexual purposes The sexual component clouds the issue, particularly for those

who advocate an abolitionist approach towards prostitution, because the buying and/or selling of sex is taken to be in itself proof of exploitation or intrinsically exploitative The difference in comparison with the labour cases is that in the latter case, there is usually noth-

ing wrong with working in itself and also (often) nothing wrong with the particular work itself The discussion around ‘exploitation’ in labour cases refers to the conditions under

which the work is performed: the level and conditions of payment, the working hours,

the general working conditions etc But when it comes to sexual exploitation combined with the prominent idea that any relevant activity with sexual purposes is exploitation

per se, a nuanced way of using the concept of ‘exploitation’ is impossible However, the image of an ideal victim makes it possible to restrict the ambit of exploitation.17

18 Reforms on expanding crimes against terrorism have been the most well-known example of the past few years.

19 M Bäcker, Kriminalpräventionsstrafrecht – Eine rechtssetzungsorientierte Studie zum Polizeirecht, zum

Strafrecht und zum Strafverfahrensrecht (Tübingen, Mohr-Siebeck, 2015) 320.

Similar kinds of problems occur in relation to the concept of ‘vulnerability’ or a able position’, frequently used for explaining and defining what should fall under the concept of ‘exploitation’ (see the chapter by Vera Bergelson) Even if this is not always the case, ‘vulnerable’ and ‘vulnerability’ are used to a rather (and too) large extent to

‘vulner-signal reprehensibleness and not as something that should be first defined and then tested Furthermore, conceptually one cannot be generally ‘vulnerable’: one must be vulnerable

to something particular.

As mentioned earlier, the offence of ‘trafficking in human beings’ reflects a process beginning with the recruitment of the victim and ending before this exploitation starts The key elements, according to the Palermo Protocol (but see above regarding varia-tions between jurisdictions) are the transfer of the victim with the use of various means and with the intention of exploiting the victim for harmful purposes The police, other authorities and organisations are confronted with the difficulty of having to identify victims at an early stage, in particular when the victim himself or herself is not aware of being a trafficking victim The crime’s construction as a preparatory offence shifts the focus from the neutral act to the purpose of the offender; the latter is difficult to prove

In this, trafficking in human beings is part of larger trends in various fields of criminal law,18 emphasising preventive and endangerment elements.19

HUMAN TRAFFICKING AND ITS WRONGS FROM DIFFERENT PERSPECTIVES

The depicted triad of human trafficking, with its interplay between the triangulation points, represents a number of complex difficulties, which are addressed in this volume from various cross-legal and interdisciplinary angles The chapters in the volume address different aspects in order to identify, criticise and problematise the points of departure and framework of the regulation of human trafficking Although the wrongs in human trafficking are the core question of the volume, reasons for criminalisation also play a role in particular for the ambition to give a distinct shape to the phenomenon as defined

in the regulation In order to do this, the volume begins with a more general approach tracing the historical roots of the concept, the empirical evidence, the embedding within the EU with regard to actual developments of migration, and the impact of NGOs on criminalisation Then a specific approach focuses on different facets of wrongs relating

to human trafficking by thematising the perpetrator, state sovereignty, the offence as such, the attribute ‘abuse of a position of vulnerability’, the term ‘exploitation’ concerning labour and a discussion of the reform of the offence of modern slavery

In Chapter 2, Lindsay Farmer highlights the historical background and argues that

although the origins of modern trafficking law can be (and usually are) traced back

to the early 1900s, there is no direct line of development between these developments and the present day The law has covered many different types of conduct for different purposes and it is important to be aware of such differences Farmer traces changes in

the conceptualisation of trafficking and in the enforcement of the law He also looks at other conduct which can be seen as related to trafficking, notably slavery, and the way

in which this has been criminalised at different times By studying these differences,

it is possible to reflect on what is (or is not) distinctive about the criminalisation of trafficking in the modern criminal law Farmer argues that there is no single ‘wrong’

of trafficking, which can be captured in a concept such as exploitation, but that the possible content of the substantive wrong is filled by more culturally and historically specific ideas (slavery, abuse etc) at different points in time It is necessary to understand these and the work that they do This is to argue that trafficking is not intrinsically wrong, but depends on the definition of other things This suggests a complex history

in which the development of moral justifications for the criminalisation of certain forms of conduct is linked to the development of the institution of criminal law and to broader understandings of ‘crime’ as the object of the criminal law Farmer’s aim is to explore some of these earlier developments first as a means of throwing light on what

is distinctive about the contemporary criminalisation of trafficking and, second, as a means of exploring what this history can reveal about the character of contemporary criminal law

In Chapter 3, a criminological perspective is picked up by Hans-Jörg Albrecht, who

emphasises that research on human trafficking is an ‘ethical minefield’ due to a tion of the sensitivity of the topic, the involvement of actors with their own agendas, and value conflicts and opposing policies The phenomenon ‘human trafficking’ is character-ised by a lack of reliable and comparable data, and yet nonetheless the field is populated

combina-by quite different estimates produced, circulated and recirculated combina-by several institutions Albrecht observes that the reliability is questionable and the validity of data neglected For him, the question of data validity is even more important than problems with reli-ability because the former refers first to the decision about what should be measured and second to the need for a clear definition of the variable to be measured He spots two key problems: first, the unsolved value and moral question about (in)voluntary prostitution and, second, the complex offences of trafficking for labour and sexual purposes which are difficult to apply as well as to operationalise for research

Albrecht considers various approaches to measuring human trafficking The trum ranges from (police) statistics, open sources and searching for proxies to identifying hidden populations, to ‘measure the non-measurable’ by the moving target approach, and household surveys in the countries of origin He discloses and discusses the weak-nesses of all these approaches Although the efforts to measure human trafficking are not promising in his conclusion, they will continue, due to the need for a global figure Yet, for him, research on different markets of the phenomenon is still widely absent He states that the focus on measuring also has substantial consequences for the assessment of anti-trafficking policies by referring to contradictory assertions regarding the impact of the criminalisation of the demand of prostitution in Sweden

spec-In Chapter 4, Rita Haverkamp directs the attention to victimology referring to

Christie’s well-known stereotype of the ‘ideal victim’, who is weak, reputable, less, controlled by an evil offender, not acquainted with or related to the offender and self-identified as victim Consequently, the ‘ideal victim’ induces a simplified perspec-tive on the victim Haverkamp illustrates a ‘hierarchy of victimhood’ where an innocent victim is on top of the hierarchy At the very bottom of the hierarchy, the ‘undeserved’ or

blame-‘rejected victim’ is located, denied his or her legitimate victim status or even attributed offender status With respect to human trafficking, a helpless and young woman forced into prostitution meets the aforementioned stereotype the best However, this image is often unrelated to reality In these ways, Haverkamp emphasises the disparities between the ideal victim and actual persons affected by trafficking She shows that the construc-tion of the ideal victim is reflected in international legal instruments and estimates The generic picture of an ideal victim might influence not only criminal law but also crime prevention in practice Haverkamp argues that strategies of crime prevention should be broadened to encompass the various nuances of becoming a trafficking victim, notwith-standing the social aspect of human trafficking and its structural and socioeconomic causes She provides suggestions for developing specific crime prevention programmes for victims of human trafficking.

In Chapter 5, Elina Pirjatanniemi addresses the victim of trafficking as a topic in the

present discourse around migration In a situation involving a mass flux of potential refugees, she understands that states try to find ways to prioritise among those seek-ing protection In this respect, constructing certain groups of persons as worthy of particular care and protection is a plausible move Her argument is that the concept

of a vulnerable group is currently used as a mechanism by which such priorities are made in the EU Some persons who belong to these groups are perceived as particularly vulnerable and consequently are given more comprehensive protection One of these subcategories is victims of trafficking, who are attributed the status of ideal victims within the heterogeneous group of migrants Pirjatanniemi discusses the questionable nature of the difference between the concepts of smuggling and trafficking of human beings in the refugee setting, and analyses EU legislation concerning asylum seekers and victims of trafficking in order to show how the particular vulnerability is perceived and construed in the EU Although victims of trafficking seem to be in a privileged situation in comparison to other irregular migrants or asylum seekers, according to Pirjatanniemi, they are confronted with an instrumental approach She points out that

a temporary stay in the host country is dependent on the willingness of the victim of trafficking to support the authorities to convict the perpetrators In her conclusion, vulnerability is largely identified as a managerial tool of prioritisation, over-inclusive

by also entailing the EU border, but also over-exclusive with regard to third-country nationals She is concerned that the law might cause more problems by ignoring the reality behind distorted legal categories

In Chapter 6, Ester Herlin-Karnell explores the crime of trafficking with a particular

focus on human trafficking in the context of mixed migration in the EU constitutional context, as well as the importance of guaranteeing human rights and dignity oriented legislation For Herlin-Karnell, human trafficking in the context of mixed migration poses new challenges for the European ‘Area of Freedom, Security and Justice’ project The concept raises numerous questions as to what legal framework is applicable for addressing this open-textured phenomenon, as well as broader theoretical questions concerning rights and territoriality She argues that the EU is obliged to combat human trafficking through criminalisation as the EU Charter of Fundamental Rights proclaims that trafficking in human beings is prohibited, as it goes against the basic idea that all human beings are entitled to equality and freedom She adds an additional complica-tion to the moral and legal questions as to why trafficking in human beings is wrong by

focusing on the EU and the global implications of the current EU measures to tackle the migration crisis and the phenomenon of mixed migration.

In Chapter 7, Tatjana Hörnle discusses human trafficking legislation from the

perspec-tive of criminal law theory, especially criminalisation theory, meaning that the kind of human rights activism she sees in the area of human trafficking does not pay sufficient attention to criminal law’s particularly intrusive nature According to her, criminal law should not be considered a flexible tool to serve various political interests and moral convictions, but should instead be seen as a means to protect individual rights and impor-tant collective interests of certain kinds She thus criticises, for example, the idea that criminal law may be used for protecting something like abstract European values when there is no violation of individual rights or threat to important collective interests After

an analysis of the concept of autonomy and the vague notion of exploitation (discussing

a ‘right not to be exploited’), she further concludes that not all variations of what today falls under human trafficking criminalisation should be classified as crimes against the person and that one should not let moral judgements of the alleged trafficker decide legal judgments: the latter should apply more restrictive standards Finally, she argues that a reshaped offence description should focus on the actual exploitation, not – as today – on preparatory acts

In Chapter 8, Claes Lernestedt discusses against what or whom the crime of human

trafficking should be seen as directed In many jurisdictions, the classification of crimes,

in terms of (1) the interest or interests (said to be) protected by the criminalisation in question and (2) the larger ‘division’ of crimes which the particular crime is said to belong

to (against person, against the state, against public order etc), plays an important tive as well as critical role Such classifications might matter in issues related to criminal law (eg, regarding the possible role of consent), tort law (who is, and should be, able

descrip-to claim damages?) and procedural law As mentioned above, the crime of trafficking is

generally – in international conventions, and EU and national legislation – constructed as

a crime against person, that is, as a crime committed by the trafficker against the concrete

trafficked flesh-and-blood person Lernestedt discusses the correctness of this view He argues, among other things, that some instances of what today falls under the definitions

of ‘human trafficking’ should not be characterised as crimes against person at all, but instead as ‘moralistic’ crimes; the regulation of which has to be argued and evaluated on its own, quite different, terms

In Chapter 9, Malcolm Thorburn discusses what the specific wrong of the crime of

human trafficking itself is He answers that this specific or core wrong with human ficking is the bringing of a prohibited thing to market In this sense, human trafficking has similarities with, for example, gun or drug trafficking, one similarity being that these crimes do not constitute a wrong against a specific person; instead, trafficking is only wrongful in the context of a certain form of market regulation The trafficker in human beings brings to market human beings for exploitation and does this whether or not these human beings in the end are ever actually exploited or not With the crime’s early consummation point, it is the trafficker’s ulterior purpose – that the trafficked person will be exploited – which serves as a sifting tool regarding who is brought to be exploited and who is not After a discussion and critique of different human trafficking regula-tions (including the Palermo Protocol and the Canadian legislation), Thorburn concludes that the core worry which human trafficking prohibitions raise has to do with their

combination of, on the one hand, a highly inchoate formal structure of the offence and,

on the other, a highly indeterminate, eclectic and partly troublingly moralised standing of the concept of exploitation

under-In Chapter 10, Matt Matravers’ main focus is on labour exploitation He argues that in this particular field, the focus on trafficking in many instances threatens to distract atten-

tion from more serious issues One such issue is what gets done to the trafficked persons

after the point where the crime of trafficking is already consummated (as noted above, the

crime is consummated at a very early stage) Another and more general issue, discussed with the help of a couple of examples, regards working conditions not only for the alleg-edly trafficked person but also for many others Matravers argues that many of the harms suffered by trafficked persons are harms endemic to the labour markets in which they work, and that such markets are not the products of traffickers or international organised crime, but instead of political (labour market) choices made by governments In many senses, then, the focus on human trafficking is misguided Regarding the human traf-ficking regulation itself, Matravers argues that its criminalisation in the English Modern Slavery Act – a criminalisation that, interestingly, does not demand the use of any means – might be best understood not as targeting a distinct wrong, but instead as being there to empower the police and other agencies to investigate and disrupt supply chains that may reach across borders and into the realms of organised crime

In Chapter 11, Vera Bergelson explores the meaning of one of the ‘means’ of

traffick-ing, namely the abuse of a position of vulnerability (APOV), and discusses whether there are sufficient moral grounds to include the APOV provision in the definition of the crime She examines the meanings of such elements as ‘abuse’, ‘position of vulnerability’ and

‘exploitation’, as well as the relationship between these She proceeds by looking at the theories that may provide reasons for criminalisation and focuses on violation of auton-omy and violation of dignity Establishing violation of autonomy is problematic because trafficking procured by APOV is usually consensual and consent precludes violation of autonomy (provided that it is valid) The Palermo Protocol, however, does not distinguish between valid and invalid consent, and declares any consent of the trafficked in the case

of APOV to be irrelevant Bergelson criticises this approach as being needlessly istic, disrespectful to individual choices and damaging to democracy She argues that the protection of dignity provides a stronger rationale for the criminalisation of trafficking based on APOV, but that the term ‘dignity’ has not been sufficiently defined Rather, its meaning has been treated expansively to cover many situations not rising to the level

paternal-of degradation and dehumanisation traditionally associated with violation paternal-of dignity She concludes that APOV may or may not involve violation of autonomy or dignity This approach differs from the one adopted by the Palermo Protocol and the associated national legislation, in that it does not assume either autonomy or dignity violation by APOV, but instead requires individual analysis of the circumstances Any manipulation and taking advantage of another’s misfortune is wrong; however, only a certain gravity of wrongdoing reaches the level needed for justified criminalisation

Chapter 12 continues the discussion of ‘exploitation’ Piet Hein van Kempen and

Sjarai Lestrade examine human trafficking for the purpose of labour exploitation Their assumption is that the growth of this phenomenon is related to the flourishing gap between rich and poor countries and increasing globalisation They contend that human trafficking is a grave offence which constitutes a breach of the human dignity

of persons Its expanding existence can thus be seen as an urgent and serious problem, for which states bear responsibility The desirability of countering human trafficking notwithstanding, securing a healthy economy and sufficient availability of jobs is also

an important task of states Van Kempen and Lestrade emphasise that states have to make sure that acceptable working situations are not over-criminalised and thus hinder economic development or (international) cooperation or economic trade Moreover, it must remain possible for migrants to seek a better working life elsewhere in the world without undesirably being treated as a victim of human trafficking The authors elabo-rate on this dilemma: criminalisation of human trafficking versus economic development They seek to describe, analyse and problematise where international human rights law and international transnational criminal law puts the balance between, on the one hand, interest in countering the phenomenon of human trafficking and, on the other, the inter-est in economic development They argue that consensual and mutually advantageous exploitative labour does not contradict the labourer’s negative liberty and therefore does not cause harm and should not be defined as human trafficking Their preference is for labour law to regulate labour conditions and standards and to specify offences for viola-tions of labour law

In the closing Chapter 13, Francesco Viganò suggests a reconstruction of the offence

of human trafficking He emphasises that the offence is currently focused on the port of the victims from their origin country to the final destination, carried out with the purpose of exploitation His criticism is, in part, that this makes it hard for law enforcement agencies to distinguish, from the very outset of the investigation down to the trial, between this crime and that of smuggling of migrants Indeed, both offences are usually carried out by transnational organised groups, often not caring about the ultimate fate of the persons in the destination countries and therefore lacking the mens rea necessary for the crime of trafficking In addition, the means of transportation, as well as the means used to ensure the illegal entry of the persons into the destination state, are substantially the same Viganò argues that the offence of trafficking should instead be reshaped and focused on the actual exploitation of the victim within the desti-nation country, in a context where his or her freedom is significantly reduced This shift would possibly produce a radical change in the investigative approach of law enforcement agencies, whose attention could be finally drawn to the criminal acts carried out within the national borders in respect to victims, regardless of whether they are nationals or legal/illegal migrants After a comparison of the offences in the UK, Germany and Italy, Viganò proposes a new model offence, ‘slavery and modern slavery’, in order to crimi-nalise the exploitation as the actual harmful act For him, human trafficking should be a subordinate, inchoate offence He concludes that such a regulation would avoid the exist-ing deficiencies of the regulation that it is too vague and over-inclusive

trans-Together, the chapters in this volume hope to advance the debate around what has come to be termed ‘human trafficking’: its history, its measurement, its various ideo-logical underpinnings, its roles in the law of the EU and elsewhere, and – not least – the problems with its regulation In doing so, the hope is to stimulate discussion not just about the regulation of human trafficking, but also about the institutions that regulate the social and economic context in which the phenomenon occurs, and the philosophical concepts – such as consent and exploitation – on which it rests

Aiken, S, Lyon, D and Thorburn, M, ‘Introduction: Crimmigration, Surveillance and

Security Threats: A Multidisciplinary Dialogue’ (2014) 40 Queen’s Law Journal i Bäcker, M, Kriminalpräventionsstrafrecht – Eine rechtssetzungsorientierte Studie zum Polizeirecht, zum Strafrecht und zum Strafverfahrensrecht (Tübingen, Mohr-Siebeck,

2015)

Chuang, JA, ‘Rescuing Trafficking from Ideological Capture: Prostitution Reform and

Anti-trafficking Law and Policy’ (2010) 158 University of Pennsylvania Law Review

1655

International Labour Organization (ILO) and Walk Free Foundation, Global Estimate of Modern Slavery: Forced Labour and Forced Marriage (Geneva, International Labour

Office, 2017)

Morehouse, C Combating Human Trafficking� Policy Gaps and Hidden Potential Agendas

in the USA and Germany (Wiesbaden, VS Research Springer, 2009).

Tyldum, G, ‘Limitations in Research on Human Trafficking’ (2010) 48 International Migration 1.

Tyldum, G and Brunovskis, A, ‘Describing the Unobserved: Methodological Challenges

in Empirical Studies on Human Trafficking’ (2005) 43 International Migration 17 United Nations Office on Drugs and Crime (UNODC), Global Report on Trafficking in Persons (New York, United Nations Publications, 2016).

* Earlier versions of this chapter have been presented at the workshops on trafficking organised by Rita Haverkamp, Ester Herlin-Karnell and Claes Lernestedt in Tübingen, Amsterdam and Stockholm, respectively

I have also presented versions of the chapter at the University of Sydney, the University of New South Wales and Columbia University, New York I am grateful to all the participants at these events for their comments and advice I am also grateful to Sarah Armstrong and to Charlie Peevers for their comments.

1 For a summary, see J Goodey, ‘Human Trafficking: Sketchy Data and Policy Responses’ (2008) 8

Criminology and Criminal Justice 421; A Gallagher, The International Law of Human Trafficking (Cambridge,

Cambridge University Press, 2010) ch 1 However, many commentators also note that it is unclear whether or not there has been a growth in the phenomenon of trafficking itself: numbers of prosecutions remain stubbornly

low in spite of the routine assertion of a vast ‘dark figure’ of trafficking activity See, eg, J Doezema, Sex Slaves

and Discourse Masters: The Construction of Trafficking (London, Zed Books, 2010) Introduction See also the

chapter by Albrecht in this volume.

There has been a huge growth in the number of laws against trafficking at the

international, transnational and national levels over the last 30 years.1 Central

to this increase was the UN Convention on Transnational Organized Crime

in 2000, which was supplemented by Protocols on Trafficking and the Smuggling of Migrants (the Palermo Protocol) and which has provided a definition of trafficking that has acted as a template for much national legislation At the level of the EU, there were parliamentary resolutions in 1989 and 1993, and in 1997 a resolution of the Council to

‘Combat Trafficking in Human Beings and the Sexual Exploitation of Children’, which linked trafficking to the control of migration and judicial cooperation in the EU.2 In

2002, there was a framework decision on combating trafficking in human beings ing the definitions in the UN Convention) and then in 2011 a directive on Trafficking in Human Beings which maintained this focus This has been complemented by legislation

(follow-at the n(follow-ational level as countries seek to make domestic law consistent with their tional obligations In England and Wales, there was legislation criminalising trafficking for the purposes of prostitution in 2002, 2003 and 2009, and for the purposes of labour

interna-3 See, eg, M Schrover, ‘History of Slavery, Human Smuggling and Trafficking 1860–2010’ in G Bruinsma

(ed), Histories of Transnational Crime (New York, Springer, 2015) 42: ‘The current problematization shows

continuity over time … Trafficking around 1900 was constructed as a problem in the same manner as it is today.’

See also Gallagher, Human Trafficking (2010) ch 2.

4 J Quirk, The Anti-Slavery Project: From the Slave Trade to Human Trafficking (Philadelphia, University of

Pennsylvania Press, 2011).

exploitation in 2004 Much of this was then brought together in the Modern Slavery Act  2015 In Scotland, the Human Trafficking and Exploitation (Scotland) Act was passed in 2015 containing separate offences of trafficking and slavery This burst of leg-islative activity has brought about a broadening in the scope of the crime of trafficking and the way in which the crime has been conceptualised This has shifted from an initial concern with prostitution, which had been the focus of anti-trafficking laws for much

of the past century, to include other forms of people trafficking, child trafficking, forced labour and even trafficking for the purposes of surrogacy or organ harvesting Crucially, this shift in focus has increasingly linked trafficking to the idea of modern slavery, under-stood broadly as forced exploitation and restrictions on freedom of the individual.These shifts raise the important questions about how we should conceive of, and define, trafficking as a crime, which are the principal focus of this book However, in this chapter I want to place the contemporary discussion of trafficking within a longer historical framework Although the origins of modern trafficking law are typically traced

to the early 1900s, I will argue here that the law is better understood in terms of the longer trajectory of the modern anti-slavery movement I shall further show that there is not, as

is often suggested, a direct line of development between the ‘white slavery’ campaigners and the present day anti-trafficking movement – that is to say, that the problem(s) that earlier reformers believed themselves to be addressing through anti-trafficking legislation and the means by which they sought to address them were distinctively different in differ-ent historical periods.3 The aim of this chapter is thus to examine how ‘anti-trafficking’ law has developed in the modern period, asking about the content and scope of the crime, the interests that trafficking was thought to protect, and the aims that the law has been pursuing at different points in time I shall accordingly look at the use of the criminal law

in different historical periods from the abolition of slavery, to the rise of laws against the white slave trade, to the recent internationalisation and ‘re-domestication’ of criminal laws against trafficking I will show how both the scope and the aims of the law have changed over time, and that an awareness of these differences can help us to reflect on what is (and is not) distinctive about the criminalisation of trafficking in the contempo-rary criminal law The aim is therefore not to look in the first instance at the question

of whether or not the criminalisation of trafficking is, or is not, justified; rather, it is to examine how the development of the crime of trafficking is linked to the development

of the modern criminal law and what this tells us about the nature of contemporary criminal law

II TRAFFICKING AND THE ‘ANTI-SLAVERY PROJECT’

I want to begin by placing the development of anti-trafficking laws in the longer perspective of what Quirk describes as ‘the anti-slavery project’.4 This broader

5 ibid ch 1 Quirk points to the fact that other forms of exploitation, suffering and maltreatment were largely ignored by the anti-slavery campaigns.

6 cf O Patterson, Freedom in the Making of Western Culture (London, IB Tauris, 1991): ‘for most of human

history, and for nearly all of the non-Western world prior to Western contact, freedom was, and for many still remains, anything but an obvious and desirable goal’ (at x) On the origins of anti-slavery beliefs, see CL Brown,

Moral Capital: Foundations of British Abolitionism (Chapel Hill, NC, University of North Carolina Press,

2006).

7 Quirk (n 4) 10 However, he notes (eg, at 249) that as the number of practices and institutions that have been equated with slavery has increased, it becomes more difficult ‘to identify a coherent rationale linking them together’.

8 ibid Conclusion.

perspective both enhances our historical understanding and provides the basis for a theoretical framework in which to think critically about the development of these laws Quirk argues that modern beliefs about slavery are distinctive in that it is only in moder-nity that the view has developed that slavery and other forms of bondage or forced labour are wrong; in all other societies at all other times, practices of enslavement have been both widespread and accepted If we recognise this point, the central question is not that of understanding why slavery occurs, but rather how (and on what basis) the distinc-tively modern set of beliefs about the unacceptability of forms of slavery and related conduct have been formed For Quirk, the ‘anti-slavery project’ is thus a way of describ-ing a certain modern attitude towards slavery and the associated movement to abolish slavery in all its forms, and it is this that forms the political and cultural backdrop against which initiatives against trafficking might be understood

Modern beliefs about the unacceptability of slavery began to gain political currency only in the mid-eighteenth century In Britain, the initial campaigns took the form of an attack on the legal institution of slavery, which was defined as the owning of a person as property (chattel slavery), and were directed particularly at the Atlantic slave trade and the slave plantations in the Caribbean Slavery was conceived of as a problem that was unique and exceptional, and that was capable of solution – by the abolition or prohibi-tion of the legal institution of slavery and practices, such as the slave trade, that were associated with it.5 The British anti-slavery movement of the late eighteenth century was motivated by a horror of the extreme cruelty and inhumanity of transatlantic slavery, and had its intellectual foundations in emerging beliefs about the liberty and equality of persons and the possibility of human progress.6 The success of the anti-slavery project initially led to the outlawing of slavery in European countries and then, as anti-slavery was harnessed to the process of imperial expansion, to the global outlawing of, first, the slave trade and then slavery itself However, Quirk notes that as practices of enslavement continued, notwithstanding its legal abolition, there was a shift to treating slavery as a metaphor or ‘evocative concept’ rather than as an analytical category.7 This allowed for the recognition and condemnation of abusive labour practices, such as actual or de facto bonded or indentured labour, that succeeded the abolition of chattel slavery, but it has also enabled other practices of exploitation (from servile marriage or forced prostitution

to female genital mutilation or honour killings) to be compared, or be seen as equivalent,

to slavery For Quirk, this points to the fact that slavery does not end with the fact of emancipation, but that it takes on different forms requiring different kinds of instru-ments in response.8 However, a recognition of this process, and the moral valence of the

9 J O’Connell Davidson, Modern Slavery (London, Palgrave Macmillan, 2016), who argues that this is both

because slavery was less monolithic as an institution than is often assumed and because practices of ‘modern slavery’ are harder to distinguish from other forms of ‘legitimate’ exploitation.

10 Quirk (n 4) ch 2.

11 Z Bauman, Legislators and Interpreters (Cambridge, Polity, 1987) 89–95 On the origins of the concept of civilisation, see L Febvre, ‘Civilization: Evolution of a Word and a Group of Ideas’ in P Burke (ed), A New Kind

of History: From the Writings of Febvre (London, Routledge, 1973).

12 L Farmer, Making the Modern Criminal Law (Oxford, Oxford University Press, 2016) ch 2.

13 JS Mill, On Liberty and other Essays (1859) (ed J Gray) (Oxford, Oxford World Classics, 1991) 14 See also

M Levin, JS Mill on Civilization and Barbarism (London, Routledge, 2004) ch 1.

14 K Mantena, Alibis of Empire: Henry Maine and the Ends of Liberal Imperialism (Princeton, Princeton

University Press, 2010).

comparison with slavery, is a reminder that caution is required when confronting claims about the moral wrongness of certain practices on the basis of their assumed kinship with slavery.9 In the particular context of criminal law, it also challenges us to be critical about the kinds of groupings or associations that are made – notably that between traf-ficking and modern slavery – and to reflect on the punitive consequences of these kinds

of conceptual association

I want to draw out three further important points The first is that Quirk notes that one of the distinctive features of the nineteenth-century European anti-slavery project was that it was organised around an idea of cultural difference: those socie-ties which had abolished slavery identified themselves as civilised and progressive in comparison to barbarous societies where slavery, or slavery-like practices, continued to exist.10 However, this went further, as throughout the nineteenth century and after, this same idea of civilisation was used to justify imperial expansion, invasion and the impo-sition of British (and later international) laws in the name of the civilised community from which they originated This is to say that the anti-slavery project was not simply about the spread of ideas such as liberty, but was inextricably linked to an aggressive programme of colonial expansion that has been, and continues to be, justified in terms

of its civilising aims This is important to our understanding of the development of laws against slavery and trafficking, but it also points to ways in which the anti- slavery project shared this ‘civilising’ imperative with the modern criminal law, which was itself used to enforce anti-slavery norms The concept of civilisation, which was itself only invented in the eighteenth century, contained within itself an imperative to act (to civilise), to transform society through governmental action.11 The modern criminal law

as a body of rules has its foundations in eighteenth-century ideas about the ability and potential for improvement of social conduct as a distinct kind of civilising project.12 We see this, for example, in Mill’s ‘harm’ principle, which is often taken as the paradigmatic statement of a liberal principle of criminal law: ‘the only purpose

govern-for which power can be rightfully exercised against any member of a civilised

commu-nity, against his will, is to prevent harm to others’ (emphasis added).13 Mill’s principle draws a fundamental distinction between civilised and uncivilised, between those who qualify for liberal government and those who do not, and is based on a hierarchical view of societies and social development The project of criminal law, in common with the project of imperial government, was to produce civilised liberal subjects.14 This opens up a critical perspective on the criminalisation of trafficking and slavery since

15 Quirk (n 4) 50–51.

16 See C Costello, ‘Migrants and Forced Labour: A Labour Law Response’ in A Bogg, et al (eds), The

Autonomy of Labour Law (Oxford, Hart Publishing, 2015); see the chapter by van Kempen and Lestrade in

this volume.

17 S Marks, ‘Exploitation as an International Legal Concept’ in S Marks (ed), International Law on the Left

(Cambridge, Cambridge University Press, 2008) 281–308.

18 A Smith, The Wealth of Nations (London, Penguin, 1999) 184.

19 See S Drescher, The Mighty Experiment: Free Labor versus Slavery in British Emancipation (Oxford, Oxford University Press, 2002) ch 2; GR Searle, Morality and the Market in Victorian Britain (Oxford,

Clarendon Press, 1998) ch 4.

we can see that this is not always, or not necessarily, a matter of advancing liberty, or the recognition of abstract harms, as ideas of slavery, trafficking and exploitation have been used to invoke a certain kind of community that has jurisdiction and authority

to act – and to use the criminal law to enforce certain standards of ‘civilised’ conduct against those who are deemed to be uncivilised or barbarous Moreover, the use of the concepts of slavery and trafficking inscribe both individual victims and certain countries in a relation of dependence: those who need to be helped by the civilised metropolitan community

The second point I want to bring out is the relation of the anti-slavery project to modern understandings of the market and its place in society This is more than an argument that slavery was economically inefficient compared to free labour, which as Quirk points out played only a relatively minor role in the abolition of the institution of slavery;15 rather, it is a broader kind of claim that plays out in a number of different ways

At the most obvious level, the anti-slavery project raises questions about the limits of the market, about what can be bought and sold, and how these limits have been understood over time In the case of chattel slavery, this is literally a matter of the permissibility of treating persons as commodities, but trafficking in a broader sense connotes questions

of trade and how things are brought to the marketplace Trafficking, though, is a term that has more recently acquired negative connotations, as to traffic something suggests that either the object to be sold or the kind of transaction (or both) is illicit, as in drug

or human trafficking, as activities that operate in illicit markets or on the fringes of the market However, understandings of what is illicit themselves depend on understandings

of the proper scope of the market – of the meaning of free labour or proper employment, who can participate in the market or what can be bought and sold and how – though the basis for these understandings is rarely articulated in the debates over trafficking.16 This

is a point that is also explicit in relation to ideas of exploitation The anti-slavery project rests on an implicit contrast between free and unfree labour, or between permissible and impermissible forms of exploitation.17 Part of the case against slavery was based on the superiority – moral and economic – of free labour This is exemplified by Adam Smith’s link between wealth, labour, liberty and social progress: ‘the wages of labour are the encouragement of industry, which, like every other human quality, improves in proportion

to the encouragement it receives’.18 In his view, free labour, properly rewarded, maximised economic productivity and development, which then contributed to the further spread of freedom.19 Slavery was therefore condemned as unproductive because slave labour was the product of compulsion or domination rather than being motivated by self-interest Labour that was freely contracted, by contrast, was seen as legitimate exploitation, as

20 See D Hay and P Craven, ‘The Criminalization of “Free” Labour: Master and Servant in Comparative

Perspective’ (1994) 15 Slavery & Abolition 71 on the relationship between slave and ‘free’ labour and the use of

the criminal law to enforce labour contracts.

21 Though the ‘free-ness’ of free labour can be contested For a historical discussion of the development of

‘free’ labour, see RJ Steinfeld, The Invention of Free Labor: The Employment Relation in English and American

Law and Culture, 1350–1870 (Chapel Hill, University of North Carolina Press, 1991).

22 C Taylor, Modern Social Imaginaries (Durham, NC, Duke University Press, 2004).

23 For a discussion of this, see B Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural

Order (Cambridge, MA, Harvard University Press, 2011) chs 5 and 6.

24 See JF Stephen, A History of the Criminal Law of England (3 vols) (London, Macmillan, 1883) III, ch XXX

at 193 and 203.

it served the interests of both parties In a similar vein, arguments against trafficking and modern slavery rest on the claim that this is an illegitimate form of exploitation, a perversion of the market.20 In the case of slavery and trafficking, the illegitimacy of the practice rests on an implicit comparison with norms of freely contracted labour.21 The anti-slavery project has thus never exclusively been an ethical critique, but has always also been based on ideas about how markets should function and the relationship between a market economy and moral order.22 It is thus crucial that in tracing the development of the anti-slavery project – and the expansion of the crime of trafficking – the changing scope of the criminal law is set against a backdrop of changing understandings of the market and its regulation

This is then connected to the final point, which is that these understandings of markets shape legal understandings of the proper scope of civil and criminal law At the heart of this modern understanding of society is the idea that the market is a separate and autonomous social sphere which operates according to its own distinct logic – a form of natural, self-regulating order.23 Markets are understood as a way of coordinating social conduct between rational, self-interested individuals There is thus a distinction, recognised by social theorists from Adam Smith onwards, between matters of private (self-)interest and matters of public interest, that is then reflected in the distinction between private and public law The general role of criminal law is not to interfere in the operation of the market, but merely to police its boundaries – dealing with egre-gious cases of fraud or misappropriation of property, but generally leaving the regulation

of markets to private interests and the law of contract.24 However, as the criminal law becomes increasingly concerned with illegitimate forms of exploitation, it moves into areas of social life that have traditionally been conceived of as private The overall point

to note here, so far as it concerns the scope of the criminal law, is that what is criminal does not depend only on ideas about harms or forms of wrongdoing that are internal to the criminal law, but on understandings of the proper scope of the market or of legitimate forms of exploitation, and that the content of these is not something which is given, but which changes over time

In the next section, I shall look at these themes by exploring the legal dimensions of different stages in the development of the anti-slavery project – slavery, ‘white slavery’, trafficking and modern slavery – to see how the problems of slavery and trafficking have been framed, the particular practices or types of conduct that have been criminalised, and the kinds of social institutions that have made these developments possible

25 W Blackstone, Commentaries on the Law of England (Oxford, Clarendon Press, 1765–69) 411–13.

26 The Somerset case In Howell’s State Trials, vol 20, cols 1–6, 79–82 (1816); Somerset v Stewart (1772)

98 ER 499 See now also A Lyall, Granville Sharp’s Cases on Slavery (Oxford, Hart Publishing, 2017) For a discussion of this, see E Fiddes, ‘Lord Mansfield and the Somersett Case’ (1934) 50 LQR 499; J Oldham, ‘New Light on Mansfield and Slavery’ (1988) 27 Journal of British Studies 45.

27 Mansfield accordingly took the view in other cases that a slave could be bought and sold under English law, that they could not claim wages and that the master’s property in the slave should be respected so far as was consistent with the common law See Fiddes, ‘Lord Mansfield’ (1934) 506 For a full discussion, see S Drescher,

Capitalism and Antislavery (London, Macmillan, 1986) ch 2.

28 Brown, Moral Capital (2006) 95–101 suggests that this was motivated by a desire to keep England both

morally and racially pure.

29 47 Geo III c 46 (1807) & 3 & 4 Wm IV c 73 (1833) See generally S Drescher, Capitalism and Antislavery

(London, Macmillan, 1986) See a full list of legislation from this period at www.pdavis.nl/Legislation.htm.

III SLAVERY, TRAFFICKING AND EXPLOITATION IN THE CRIMINAL LAW

A Slavery and Its Abolition

Legal authorities were ambiguous about the legality of slavery in late century England Blackstone stated emphatically that slavery did not and could not exist in England, arguing that it was contrary to the principles of natural law.25 While he consequently argued that a slave coming to England would become a free man because the law protected his person, liberty and property, this claim was somewhat qualified by his subsequent assertion that such a person would be bound through the principle of contract to serve his master as before This same point was argued in a series of cases between 1677 and 1833, the most famous of which was Lord Mansfield’s decision in

eighteenth-the Somerset case (1772).26 This decision is often read as an emphatic declaration of the illegality of slavery in England, but while Mansfield declared that the escaped slave, Somerset, could not forcibly be removed from England, he carefully refrained from any unequivocal declaration of the illegality of slavery Indeed, there is a clear recogni-tion in the case that slavery was legal in the American colonies and that contracts for the sale of slaves were supported by English law The decision was thus based on the much narrower grounds that certain forms of coercion should not be exercised against slaves while they were resident in England, but that once they left (provided this was not achieved by force), they might be treated as chattels once again.27 These cases were nonetheless important in two respects: first, they gave publicity and encouragement to the anti-slavery movement by articulating legal principles that challenged the institution

of slavery, such that it is reckoned that by the 1790s, slavery was being treated as de facto illegal in England;28 and, second, because they drew the distinction between practices that were permissible in England and in its colonies, or between metropolitan and colo-nial culture, that was to shape the development of attitudes towards slavery over the course of the next century

In the 1780s and 1790s, in the wake of the American Revolution, the anti-slavery movement led by the Quakers and evangelicals coalesced into a more organised public campaign directed at Parliament and focusing initially on the unacceptability of the slave trade Their campaigning led first to the Act of 1807 that abolished the slave trade by British subjects, and then to legislation abolishing slavery in the British Empire in 1833.29

30 47 Geo III c 46 (1807) ss 1 and 3 Under s 12, it was made a felony to forge certificates of bounty (proving the freeing of slaves) with intent to defraud the Treasury.

31 51 Geo III c 13 s 1 (1811) Offences under the Act were to be tried ‘as if’ committed in the county of Middlesex (s 11) This was extended by 5 Geo IV c 113 (1824) s 10 to include dealing in slaves, fitting out slave ships, financing slave ships, serving on slave ships etc.

32 Sections 6 and 8 See also 5 Geo IV c 114 (1824) s 9, under which dealers in slaves on the high seas could be treated as pirates The Slave Trade Act 1843 (6 & 7 Vict c 98) further extended this jurisdiction over the slave trade, applying to all British subjects whether in British dominions or in any foreign country, or foreigners within British dominions or within the jurisdiction of admiralty.

33 S Drescher, ‘From Consensus to Consensus: Slavery in International Law’ in J Allain (ed), The Legal

Understanding of Slavery (Oxford, Oxford University Press, 2012) 90.

34 See C Lloyd, The Navy and the Slave Trade: The Suppression of the African Slave Trade in the Nineteenth

Century (London, Routledge, 1968); H Thomas, The Slave Trade: The Story of the Atlantic Slave Trade 1440–1870 (London, Picador, 1997) Book VI.

35 For a discussion of the case of the Felicidade (1845) and its consequences, see L Farmer, ‘Territorial Jurisdiction and Criminalization’ (2013) 63 University of Toronto Law Journal 225.

The 1807 Act did not make slave trading itself a felony, merely imposing financial ties on those who were found to be involved in, or associated with, the slave trade.30 The real wrong was seen to be the institution of slavery itself and the further abuses that this gave rise to, and trafficking in slaves was initially outlawed as a means of attacking these greater evils However, a further Act passed in 1811 marked an important change

penal-in approach, as it aimed to make the enforcement of the law more effective by impospenal-ing criminal penalties The principal effect of the Act was to make trading in slaves a felony and therefore capital.31 However, there were two important further measures in the Act: slave trading by British nationals taking place outside the UK could be tried under piracy statutes; and authorising governors of colonies, or persons authorised by them, to seize ships that they suspected of involvement in the slave trade.32 These measures not only

established the moral equivalence of slavery and piracy, as hostis humani generis, but

thereby also authorised the boarding and seizing of slave ships by the British navy and established jurisdiction for the trial of slave traders under the international law of piracy The overall effect was thus not only to make trafficking in slaves a crime, but also to establish the legal means by which Britain would begin to enforce its anti-slavery policy against other countries.33

The system which was established over the next half-century enabled Britain to police the Atlantic slave trade, pursuing not only British slave traders or those shipping slaves

to British colonies, but later also those of any nationality shipping slaves to Brazil and Cuba to work on the sugar plantations there This was authorised by a series of bilateral treaties with other nations under which British ships obtained authority to board ships carrying the flag of those nations and search either for slaves or evidence that ships had been fitted out for slave trading This work was carried out by the ‘West Africa squadron’, which patrolled the western seaboard of Africa, hunting down alleged slavers.34 These operations did not always run smoothly: the British patrols were under-resourced, slav-ers often reacted to the threat of capture by throwing slaves overboard, and there is evidence that numbers of slaves trafficked to Brazil and Cuba actually increased during the 1840s and 1850s when this campaign was at its height.35 However, the British authori-ties understood and justified their conduct as an act of moral leadership in pursuit of the eradication of barbarous practices of slavery Indeed, in the final years of the nineteenth

36 Drescher, ‘Consensus to Consensus’ (2012) 96–97, drawing on M Koskenniemi, The Gentle Civilizer of

Nations: The Rise and Fall of International Law, 1870–1960 (Cambridge, Cambridge University Press, 2001)

See also Quirk (n 4) ch 3.

37 See L Benton, ‘Abolition and Imperial Law, 1790–1820’ (2011) 39 Journal of Imperial and Commonwealth

History 355, who notes that the enforcement of criminal laws against slavers depended on the advancement of

imperial interests.

38 D Turley, The Culture of English Anti-slavery, 1780–1860 (London, Routledge, 1991) 135 On the prison reform movement, see M Ignatieff, A Just Measure of Pain: The Penitentiary in the Industrial Revolution,

1750–1850 (London, Macmillan, 1978).

39 See E Gould, ‘Zones of Law, Zones of Violence: The Legal Geography of the British Atlantic, c 1772’

(2003) 60 William and Mary Quarterly 471, 506–07.

40 See C Hall, Civilising Subjects: Metropole and Colony in the English Imagination 1830–1867 (Chicago,

University of Chicago Press, 2002).

41 Activists such as William Cobbett argued that focusing on the exploitation of slaves in the West Indies ignored the exploitation that went on in Britain See Brown (n 6) 14.

century, this British civilising mission was transformed into a more general mission of Western civilisation, as slavery was declared to be against international law following the international conference on Africa in Berlin in 1884 The effect, as Drescher argues, was

to authorise those Western states which had abolished slavery to intervene in barbarous and backward African states, even by means of violent conquest, as a means of ending the slave trade.36

While this is only a brief summary, we can note two key features of the development

of slavery measures in the law The first is that criminal law was central to the slavery project as a means by which measures against the international trafficking of slaves could be, and were, enforced.37 This, it should be further noted, is a dimension of the anti-slavery movement which has not yet been fully explored Second, the significance

anti-of the use anti-of the criminal law extends beyond its use as an instrument anti-of enforcement,

as the use of criminal law was central to the project of lifting up those groups of persons who were ‘subject to harsh and brutal treatment and regarded as less than fully human by those who exercised power over them’.38 In other words, the object was not only to punish but also to shape individuals and society in a particular way In pursuit of this aim, juris-diction was expanded beyond the simple distinction between metropole and colony found

in Somerset to become organised around a distinction between civilisation and barbarism

that not only extended the law but also changed the shape of its operation, justifying the acquisition of territory.39 African slaves were not seen as the equals of British citizens, but

as persons worthy of better treatment, and it was the responsibility of the British ment to ensure that this was secured in the name of British civilisation.40

govern-B The White Slave Trade 1870–1920

The anti-slavery project markedly broadened its scope with the campaign against ‘white slavery’ in the final decades of the nineteenth century The term ‘white slavery’ was first used in the early part of the nineteenth century to refer to poor working conditions in factories before the passing of the Factory Acts in the 1830s.41 It was used in this sense to claim an equivalence to slavery as an institution, a usage that continued in the critiques of work under capitalism as forms of ‘wage slavery’ However, the term ‘white slavery’ began

42 W Acton, Prostitution Considered in its Moral, Social and Sanitary Aspects (London, John Churchill, 1857) 94 On Butler and the Contagious Diseases Acts, see J Walkowitz, Prostitution and Victorian Society

(Cambridge, Cambridge University Press, 1980); C Devereux, ‘The “Maiden Tribute” and the Rise of the White

Slave in the Nineteenth Century: The Making of an Imperial Construct’ (2000) 26 Victorian Review 1, 10–12;

J Laite, Common Prostitutes and Ordinary Citizens: Commercial Sex in London 1885–1960 (Basingstoke,

Palgrave Macmillan, 2012) ch 6.

43 See R Attwood, ‘Lock up Your Daughters! Male Activists, “Patriotic Domesticity” and the Fight against Sex

Trafficking in England, 1880–1912’ (2015) 27 Gender & History 611; MJD Roberts, Making English Morals:

Voluntary Association and Moral Reform in England, 1787–1886 (Cambridge, Cambridge University Press,

2004) ch 6 See also the chapter by Haverkamp in this volume.

44 A Dyer, The European Slave Trade in English Girls: A Narrative of the Facts (London, Dyer Brothers, 1880).

45 ibid 4 Later he argued ‘here she was as much a slave as was ever any negro upon Virginian soil’ (at 7).

prosti-However, the significance of the term ‘white slavery’ changed quite markedly in the 1880s as it was linked to the specific issue of procuring underage girls and selling them into prostitution, particularly to legalised brothels in Belgium The initial campaign was led by Alfred Dyer, a publisher who was secretary of a group called the ‘Friend’s Association for the Abolition of the State Regulation of Vice’.43 He raised the issue in

his luridly titled pamphlet The European Slave Trade in English Girls� A Narrative of the Facts (1880).44 After recounting details of a trip to Brussels and his abortive attempt

to rescue an English woman from a brothel there, Dyer argued that the inmates of such houses were being kept in a state of ‘veritable slavery’.45 These girls were:

[S]old into a condition of slavery infinitely more cruel and revolting than negro servitude, because it is slavery not for labour but for lust; and more cowardly than negro slavery because

it falls on the young and helpless of one sex only 46

We see here that the analogy is drawn with slavery in an effort to point up the ness of the problem: the state of the girls was worse than chattel slavery because it was white (English) girls who were being enslaved and for immoral purposes.47 Moreover, the comparison with slavery was used to point to the capacity of sexual enslavement to reduce the English girl to a state of barbarism: ‘the pure and lovely girl of six months before, becomes literally a wild beast’.48 The clear duty of the English legislature was to take steps to protect young English women in an extension of the role it had played in policing the Atlantic slave trade

serious-As a result of pressure from the newly formed London Committee for the Exposure and Suppression of the Traffic in English Girls for Purposes of Continental Prostitution (headed by Dyer himself), pressure was put on the government to investigate the problem

49 The Select Committee of the House of Lords, Report of the House of Lords Select Committee on the Law

Relating to the Protection of Young Girls (London, HMSO, 1882).

50 Sir William Harcourt, Home Secretary, quoted in S Petrow, Policing Morals (Oxford, Oxford University Press, 1994) 159 Further public support followed the publication of WT Stead, The Maiden Tribute of Modern

Babylon (London, Pall Mall Gazette, 1885).

51 Sections 4 and 5 However, sex with a girl between the ages of 13 and 16 was regarded only as a misdemeanour and not a felony.

52 Section 2 See also s 3 (procuring defilement by threats, fraud or drugs) and s 7 (abduction of a girl under 18 with intent to have carnal knowledge) The consent or non-consent of the woman was irrelevant to the defini- tion of the offence.

53 Section 6 (householder permitting the defilement of a young girl on his premises) and s 9 (power of search

and enforcement provisions) See generally F Mead and AH Bodkin, The Criminal Law Amendment Act 1885

(London, Shaw & Sons, 1885).

54 Criminal Law Amendment Act 1912 See also Petrow, Policing Morals (1994) 158–76.

55 See the evidence of William Coote to the Royal Commission on Alien Immigration, Report of the Royal

Commission on Alien Immigration (Cd 1742) (London, HMSO, 1903) vol II, 425–29, referring to the ‘excess of

vice’ in foreign prostitutes as compared to English women.

56 5 Edw VII c 13 s 3 See generally J Pellew, ‘The Home Office and the Aliens Act 1905’ (1989) 32 Historical

Journal 369.

57 2 & 3 Geo 5 c 20 On the enforcement of these laws, see Laite, Common Prostitutes (2012) 107–15.

A House of Lords Select Committee took evidence and reported in 1882, recommending changes to the law.49 This body found evidence of registry offices operating in London to persuade women to move to Belgium for employment, and of 33 underage girls (below the age of 21) entering brothels in Belgium A draft bill to amend the criminal law was put before Parliament and was eventually passed as the Criminal Law Amendment Act 1885 This sought ‘to prevent the traffic in young girls who were exported for the purpose of prostitution abroad’ and ‘to prevent the prostitution of children of tender years’ as ‘nothing could be more injurious to the foundations of society’.50 To this end,

it made three significant changes to the law in this area The first was to raise the age of consent to sexual intercourse from 13 to 16.51 Second, the Act criminalised the procur-ing of women or girls below the age of 21 with intent either to have unlawful carnal connexion or to work as a prostitute or in any brothel ‘within or without the Queen’s dominions’.52 Finally, the Act contained provisions which were directed against those who permitted the ‘defilement’ of young girls on their premises – that is to say, it was directed against brothel owners or those who profited from prostitution.53

The measures against white slavery followed two paths after this On the one hand, there was a domestic campaign driven by the National Vigilance Association (NVA) against brothel keepers or those living off the earnings of prostitutes.54 This was animated

by a fear of foreign prostitutes and their ‘bullies’ or souteneurs (pimps) coming to

London.55 The Vagrancy (Amendment) Act 1898 made it a crime for a man to live wholly

or partly on the earnings of prostitution (punishable by flogging) The Aliens Act 1905 gave magistrates power to repatriate foreign prostitutes and aliens convicted of offences punishable by more than a fine – which would include living off the earnings of prostitu-tion, amongst other offences.56 This was followed up by the Criminal Law Amendment Act 1912, popularly referred to as the ‘white slavery bill’, which strengthened the penal-ties against brothel keepers and procurers, allowed the police to arrest on suspicion, and established that men who associated with prostitutes and had no visible mean of support had to demonstrate that they were not living off the earnings of prostitution.57 On the other hand, the NVA pursued a more international programme, launching a campaign

58 Petrow (n 50) 162; Attwood, ‘Lock up Your Daughters’ (2015) 618–19.

59 www1.umn.edu/humanrts/instree/whiteslavetraffic1904.html (amended in 1910).

60 The former was arguably also being articulated against the backdrop of a broader concern with the liberating effects of the market and urbanisation on sexual morality.

61 See, eg, Laite (n 42) ch 6, who argues that the law was aimed at the control of female migration.

62 P Haag, Consent: Sexual Rights and the Transformation of American Liberalism (Ithaca, Cornell University

Press, 1999) 65.

against white slavery with the aim of establishing uniform procedures throughout Europe and making white slavery a crime under international law.58 This led to the creation of international organisations for the suppression of trafficking, such as the International Bureau for the Suppression of Traffic in Persons founded in 1899 and the signing of the Paris Convention 1904 for the ‘Suppression of the “White Slave Traffic”’.59 This agree-ment between the imperial governments of the major European powers established an obligation to keep watch at ports, railway stations and other points of transit for evidence

of criminal traffic, to collect information and to repatriate women or girls who were detained as part of this process

Overall, white slavery was understood as a problem of the abduction and ised prostitution of young women, and the campaigners drew liberally on the tropes

organ-of the anti-slavery movement with its appeals against corruption and barbarism to protect Britain from possible moral pollution It was thus a bringing together of late Victorian concerns about prostitution and child protection, articulated with beliefs about the need to protect the nation from corrupting migration.60 This had its origins

in domestic concerns, protecting English girls from being duped into working in ised brothels in continental Europe, but later gained a more international focus on preventing or policing the movement of foreign prostitutes and their pimps, who were believed to be bringing corrupt practices to England Throughout the period, however, the concern was vice and prostitution, and the threat it posed to domestic order, rather than the movement of persons as such The threat was foreign and was a consequence of increased levels of migration, but the focus in the law and enforcement on ‘trafficking’ was because this was seen as the means by which the ultimate threat could be prevented from materialising.61 The law was also explicitly policing female sexuality, as no distinc-tion was drawn between voluntary or forced sex work Consent or its absence was not really an issue as trafficking was presumed to be non-consensual and coercive.62 To be sure, the age of consent was raised to 16 (for sexual intercourse) and to 21 for abduction; however, this was less a matter of recognising (or protecting) the autonomy of the victim than setting thresholds which would allow for the more effective enforcement of the law Young women were not seen as independent, but as under the protection of their fathers The criminal law was thus (literally) paternalistic in its aims, protecting the family and the state

legal-C The Internationalisation of Trafficking and Slavery

The concern with vice – understood as a problem of the regulation of sexual ity and directed in particular at the control of prostitution – continued to be a major concern throughout the interwar years However, the specific issues of trafficking and

moral-63 https://cil.nus.edu.sg/rp/il/pdf/1919%20Covenant%20of%20the%20League%20of%20Nations-pdf.pdf This article also covered traffic in opium and other dangerous drugs.

64 See D Gorman, ‘Empire, Internationalism and the Campaign against the Traffic in Women and Children in

the 1920s’ (2008) 19 Twentieth Century British History 186.

65 Trafficking was defined as ‘the direct or indirect procuration and transportation for gain to a foreign country of women and girls for the sexual gratification of one or more other persons’ (League of Nations,

Report of the Special Body of Experts on Traffic in Women and Children (2 vols) (Geneva, League of Nations,

1927) I, 8–9) See also MR Garcia, ‘The League of Nations and the Moral Recruitment of Women’ (2012) 57

International Review of Social History 97.

66 On the composition and work of the Committee, see J Pliley, ‘Claims to Protection: The Rise and Fall of Feminist Abolitionism in the League of Nations’ Committee on the Traffic in Women and Children, 1919–1936’

(2010) 22 Journal of Women’s History 90; P Knepper, ‘The Investigation into the Traffic in Women by the League of Nations Sociological Jurisprudence as an International Social Project’ (2016) 34 Law and History

Review 45.

67 See Knepper, ‘Investigation’ (2016) 53–56; Garcia, ‘The League of Nations’ (2012) 106–09.

68 League of Nations, Report of the Special Body of Experts on Traffic in Women and Children (1927) An abridged version of the report was published as HW Harris, Human Merchandise: A Study of the Interna-

tional Traffic in Women (London, E Benn Ltd, 1928) This was followed by a further study in 1932, which

had a wider international scope, looking in particular at trafficking in East Asia revealing evidence of global movements of women of a wide range of ethnicities working as prostitutes with varying degree of consent See

League of Nations, Commission of Enquiry into Traffic in Women and Children in the East (Geneva, League of

Nations, 1932).

slavery were (separately) taken up by the League of Nations after its formation in 1919 Under Article 23(c) of the Covenant of the League of Nations, the League took over the general supervision of the execution of the pre-war conventions on the traffic in women and children.63 This was followed by the signing of an Anti-Trafficking Conven-tion in Geneva in 1921 which established a new framework for the enforcement of these conventions

What was distinctive about the Anti-Trafficking Convention was that it was an attempt

to formulate an international response and, while this built on the earlier Conventions of

1904 and 1910, it reformulated the problem of trafficking as a matter of international, rather than primarily domestic, concern.64 This was underlined by an important shift

in terminology, as there was a move away from the language of ‘white slavery’ to speak

of ‘trafficking’ – the victims of which need not only be white women or girls.65 Under the Convention, signatories were requested to submit annual returns on the extent of trafficking and report measures taken to suppress it A further significant outcome of the Geneva conference was the establishment of the Advisory Committee on the Traffic

of Women and Children, which sat between 1921 and 1936.66 This was comprised of a combination of delegates representing countries which were signatories to the Conven-tion and representatives of voluntary organisations, and crucial to the work of the Committee was that it undertook to carry out studies to collect evidence about the extent and forms of trafficking with the aim of establishing the ‘facts’ To this end, the Commit-tee appointed a special body of experts and investigators, funded by the American Social Hygiene Association, that travelled to 112 cities worldwide and interviewed over 6,500 people.67 The results of this research were published in a two-volume report in 1927.68

The report placed particular emphasis on processes of recruitment or procurement in the construction of what the authors of the report saw as global networks of trafficking, detailing a range of different methods used to dupe unwary women and girls into prosti-tution And while it was conceded that not all women were unwilling participants – and,

69 https://ec.europa.eu/anti-trafficking/sites/antitrafficking/files/1933_international_convention_en_1.pdf

On the deliberations of the Committee leading to this, see Garcia (n 65) 109–17.

70 1949 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others (www.ohchr.org/EN/ProfessionalInterest/Pages/TrafficInPersons.aspx) Article 2 specifically identified brothel keeping or letting a building for the purposes of prostitution.

71 Though prostitution itself was never criminalised because of the difficulties in gaining support from countries where brothels were legal.

Slavery in International Law’ (at 99), both in J Allain (ed), Legal Understandings of Slavery (Oxford, Oxford

University Press, 2012).

indeed, that many had been prostitutes before travelling – the report identified procurers

as the agents of the traffic and thus as the proper target of regulation The deliberations

of the Committee eventually led to a revised Convention in 1933, which extended the

1921 Convention to cover women of any age who were procured, enticed or led away for immoral purposes, even if they had consented.69 These were further extended in the 1949

UN Convention for the Suppression of the Traffic in Persons, which covered all forms of exploitation for the purposes of prostitution.70

This process thus saw an international legal regime developing for the control

of trafficking for signatories of the Conventions At the heart of the regime was the commitment to criminalise a range of conduct relating to trafficking for the purposes

of prostitution.71 This initially took the form of a general obligation to prosecute those involved in the trafficking of women and children, but after 1933 this came to be focused more specifically on procurers or pimps – reflecting the findings of the Advisory Committee This was further backed up by the undertaking of states to license employ-ment agencies in order to ensure that only reputable agents could operate and thus to limit the supply of women Corresponding to this were changes in the conception of the agency of victims While the earlier conventions were directed at the protection of those below the age of 20 (1910) and then 21 (1921), following the 1933 Convention, protec-tions were to be extended to women or girls of any age, even if they were consenting.72

This assumption of a lack of agency was further reinforced by the undertaking to riate victims, which was established in Article 3 of the 1904 Convention These criminal measures were then backed up by measures to improve the enforcement of the law These focused on the exchange of information between signatories on a range of issues from records of conviction, or where a person had been denied entry to a country or expelled from it These measures also coincided with the development of measures to control national borders and migration, notably with the development of the international pass-port system in the 1920s which enabled states to begin to track the movements of persons across borders.73

repat-At the same time as these measures were being adopted, the League of Nations was addressing the issue of slavery in the Slavery Convention 1926, the first international treaty directed at slavery as well as the slave trade.74 Slavery was defined as ‘the status

or condition of a person over whom any or all of the powers attaching to the right

75 Article 2 See also art 4 of the UN Declaration of Human Rights 1948: ‘No one shall be held in slavery or servitude: slavery and the slave trade shall be prohibited in all their forms.’

76 www.ohchr.org/EN/ProfessionalInterest/Pages/SupplementaryConventionAbolitionOfSlavery.aspx.

77 OHCHR, Contemporary Forms of Slavery (Fact Sheet 14) (Geneva, United Nations Press, 1991).

78 Schrover, ‘History of Slavery’ (2015) argues that from the late 1920s, formal definitions of trafficking and slavery began to converge.

79 Knepper suggests that people trafficking was taken up on the model of drugs and arms trafficking, as areas within which the League of Nations could develop jurisdiction See P Knepper, ‘Dreams and Nightmares: Drug

Trafficking and the History of International Crime’ in P Knepper and A Johansen (eds), The Oxford Handbook

of the History of Crime and Criminal Justice (Oxford, Oxford University Press, 2016) Also important here is

the role of the International Labor Organization, though there is not the space to discuss this here.

80 Garcia (n 65).

81 See S Legg, ‘“The Life of Individuals as Well as of Nations”: International Law and the League of Nations”

Anti-trafficking Governmentalities’ (2012) 25 Leiden Journal of International Law 647; Gorman, ‘Empire,

Internationalism’ (2008).

of ownership are exercised’ This wide definition committed the signatories to attack slavery and the slave trade ‘in all its forms’.75 This was extended by the Supplementary Convention on the Abolition of Slavery 1956, which included all forms of servitude (specifically debt bondage, servile marriage, serfdom and child labour) within the defi-nition of slavery.76 In 1975, a UN Working Group further recommended the adoption

of an open-ended definition: forced exploitation and restrictions on the freedom of the individual causing hardship or serious deprivation of liberty.77 The outcome of this process was the opening up of the definition of slavery to analogous forms of servitude

or exploitation and, in the measures to criminalise and to protect victims, a growing convergence between definitions of trafficking and slavery.78

Overall, these developments move the questions of trafficking from the domestic to the international plane – not least because it was one of the few areas in which agree-ment could be secured at an international level.79 The regime that was established had a number of key features As we have seen, international bodies were charged with collec-tion of evidence about trafficking and prostitution on which legal initiatives were to be based The legal initiatives were increasingly focused on the use of the criminal law, at

a domestic level, to limit the supply of trafficked women and girls and to ‘rescue’ the women who had been recruited.80 International law was thus intervening in the lives

of individuals on a humanitarian model – by identifying the groups to be assisted and intervening on a basis that paid little heed to agency or decisions of those who were to

be saved.81 Protection was equated with emancipation, even where this might have gone against the wishes of the victims The focus on supply was partly a matter of pragma-tism, with the recognition of the Advisory Committee that legalised prostitution was deeply entrenched in many countries and that it would accordingly be difficult to obtain widespread international agreement on any measures that sought to criminalise prostitu-tion directly, but this framing of the problem also reflected the deeper understanding that the problem should be understood in terms of the operation of a market The question thus became that of how supply and demand could be controlled through the use of the criminal law which focused on points of movement across borders This framed traffick-ing as an international problem that allowed a nascent global civil society to regulate migration and to civilise vice

82 J Halley et al, ‘From the International to the Local in Feminist Legal Responses to Rape, Prostitution/Sex

Work, and Sex Trafficking: Four Studies in Contemporary Governance Feminism’ (2006) 29 Harvard Journal of

Law & Gender 335.

83 For a discussion of this, see Gallagher (n 1) ch 1.

84 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, menting the United Nations Convention Against Transnational Organized Crime, www.unodc.org/documents/ treaties/UNTOC/Publications/TOC%20Convention/TOCebook-e.pdf.

Supple-85 V Mitsilegas, The Criminalization of Migration in Europe: Challenges for Human Rights and the Rule of

Law (London, Springer, 2015) ch 3 See also the chapter by Herlin-Karnell in this volume.

86 Article 3.

D Trafficking and Modern Slavery

The new initiatives against trafficking which developed from the early 1990s were driven,

on the one hand, by a concern with large-scale population movements as a consequence

of wars, famine and economic deprivation, and, on the other hand, by feminist ism at an international level.82 While these initiatives initially remained focused on the trafficking of women for the purposes of prostitution, this gradually broadened out to include other forms of exploitation and was driven by combination of motives ranging from the desire to control migration and people smuggling, to prevent organised crime,

activ-to address violence against and exploitation of women, as well as activ-to protect the human rights of trafficked persons.83 This combination of motives was reflected in the Palermo Protocol (2000) This was one of three supplements (protocols) to the UN Convention against Transnational Organised Crime – the others were on the smuggling of migrants and the illicit manufacture and traffic of firearms.84 The link to organised crime and people smuggling (illicit migration), as also recognised by bodies such as the EU, thus placed trafficking in a framework which linked the enforcement of the law to the control

of migration, crime and security.85

The Palermo Protocol adopted a broad definition of trafficking:

Trafficking in persons shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduc- tion, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments of benefits to achieve the consent of a person having control over another person, for the purpose of exploitation Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs 86

On the basis of this definition, trafficking is, in principle, distinguished from people smuggling as it is not defined in terms of illegal migration, but as a crime against the individual centred around the core idea of exploitation, which may be manifested in the particular forms of coercion and forced labour (including sex work) This has three core

elements: conduct (recruitment, transportation etc) carried out by certain means cion etc) and for the purpose of exploitation, which have now begun to find their way

(coer-into domestic legislation Signatory states additionally committed to measures to protect victims, as well as to establish detection and enforcement mechanisms for controlling irregular migration (Articles 9–13) and to repatriate victims (Article 8) It is thus a broad definition, which through the definition of exploitation links trafficking to slavery

87 Modern Slavery Act 2015; cf the Human Trafficking and Exploitation (Scotland) Act 2015, which creates a

separate offence of slavery (s 4).

88 MSA, ss 1(5) and 2(2).

89 cf Human Trafficking and Exploitation (S) Act 2015, ss 1–3.

90 Corresponding to the deterritorialisation of the UK border See N Vaughan-Williams, ‘The UK Border

Security Continuum: Virtual Biopolitics and the Simulation of the Sovereign Ban’ (2010) Environment and

Planning D: Society and Space 1071.

91 See the chapter by Matravers in this volume See also J Collins, ‘Exploitation of Persons and the Limits of

the Criminal Law’ [2017] Crim LR 169.

This link is explicitly recognised in recent UK legislation, where the definition of ficking adopts, in a slightly modified form, the tripartite structure of the international instruments.87 In the Modern Slavery Act 2015 (MSA), there are separate offences of trafficking and slavery Trafficking is defined in section 2 as arranging or facilitating travel for the purposes of exploitation; the definition of exploitation then includes slavery or servitude, sexual exploitation and the removal of organs, as well as subjecting a person to force, threats or fraud to make them provide services or benefits of any kind (section 3) Slavery is defined in section 1 as holding another person in slavery or servitude, or forc-ing them to perform forced labour in circumstances which constitute exploitation The consent of victim is irrelevant to both definitions.88 Travel is defined as coming to any country, departing from any country or movement within any country – the significance

traf-of which is that the idea traf-of trafficking now loses any specific reference to the crossing

of national borders and instead becomes something that precedes or is preparatory to the exploitation Indeed, trafficking, in the sense of movement, is no longer constitu-tive of the crime, which is increasingly focused on illegitimate forms of exploitation An important feature of the English legislation, then, is that as slavery is made the primary offence, trafficking becomes a kind of inchoate offence, setting out conduct that might

be carried out for the purposes of enslaving another (although the definition of tation is arguably wider than that of slavery).89 The crime of trafficking in section 2 is defined as ‘arranging or facilitating the travel of another person (V) with a view to V being exploited’ The crime under section 4 is defined as committing any other offence with the intent of committing an offence under section 2 (trafficking) It is also worth noting that the crime has a wide extraterritorial ambit, being capable of being committed

exploi-by UK citizens anywhere in the world or exploi-by citizens of any other country if the crime is

to be committed in the UK.90

It is worth noting the significance of the focus on exploitation, which means that the offence is not defined simply in terms of conduct, but also in terms of purpose and circumstances This requires a judgment that the conduct was done with the purpose

of exploitation in mind and that the circumstances or relations between persons were exploitative Exploitation is not in itself impermissible, but only becomes so when it is

of a certain degree or type – something which goes beyond normal labour relations or market conduct.91 In the MSA, exploitation is defined either by reference to the further set of situations in section 3, which are deemed to be exploitative (sexual exploitation, removal of organs etc), or in the more general terms of section 3(5) and (6) as where

a person is subjected to force, threats or deception to induce him or her to perform a service, or where services are obtained from a child or a vulnerable person This focus

on purpose and context is an increasingly common characteristic of the modern