However, for ten girls from the UK – where there was no such regulation of prostitution – the practical solution was found in the procuring of false birth certificates professing that they were over the age of 21. These false documents were accepted by the police despite ‘a discrepancy between the declared age and the age they appeared to be’.18 Yet, of the British girls, all had been underage prostitutes who had been working in London for some time – save one: Louisa Hennessey. Ms Hennessey had been deceived; promised a job as a receptionist in Paris, she was instead brought to Brussels, where regulations requiring a medical examination found that she was a virgin. ‘The poor girl was sent to a brothel in Antwerp and returned deflowered, two weeks later. She had well and truly been raped’.19 The same Brussels doctor then determined her fit to work in a brothel and the police, despite being familiar with what had transpired, provided certification.20
With this single, isolated case of what would be recognised today as human trafficking, but more so the whole ‘White Slave Trade Affair’, became the basis upon which abolitionists of prostitution staked their claim regarding the scandalous nature of the regulation of prostitution. From this Affair in Brussels one sees emerge the genesis of the movement, the lineage taking us through the twentieth century to our contemporary regime of human trafficking. For Chaumont, prostitutes were very much part of the currents of migration of the latter half of the nineteenth century, which were based on economic necessity:
There was an immense majority of women, both of age and underage, already established prostitutes […] –who were required by material necessity and were that much more determined to escape their misery by all means at their disposal – and an infinitely small abused and coerced minority.21
Yet, as we shall see, the fight against the white slave traffic became the vanguard of border controls.
The momentum started in Brussels in 1880 would, in time, galvanise public opinion throughout the so-called civilised nations and lead first to the 1904 Agreement requiring States ‘to have a watch kept, especially in railway stations, ports of embarkation, and en route, for persons in charge of women and girls destined for an immoral life’. This Agreement was purely meant to address issues of prostitution, rather than those related to forced prostitution through measures at the border. The obligations which flowed from the 1904 instrument were minimal: that the arrival of prostitutes be notified to authorities in the destination State or to diplomatic or consular agents ‘with a view to eventual repatriation’.22 These limited provisions were supplemented by the 1910 International Convention for the Suppression of the White Slave Traffic, which sought to punish the perpetrator. The 1910 International Convention, which originally was meant to come into force at the same time at the 1904 Agreement, laid bare the dichotomy which has persisted amongst those seeking to address human trafficking: the suppression of prostitution versus the suppression of forced prostitution. The solution of the white slave traffic era, which resonates to this day, was to address forced prostitution and, for minors (where consent was irrelevant), any prostitution.23
Taking stock of the white slave traffic up to the start of the First World War, Abraham Flexner had the following to say in his contemporaneous research, which was consulted at the highest levels on both sides of the Atlantic, and which would later inform the work of the League of Nations:
Beyond question an innocent girl might be entrapped, enticed, and immured in a European brothel; but if so, the instance would be an isolated crime, like a mysterious murder or robbery. Under existing conditions, there is absolutely no reason to think that such cases occur frequently, though there are those who would be quick to take advantage of any relaxation of vigilance on the part of governments, the police, and the private organizations constantly on the alert. In the cases to which from time to time attention has been sensationally called, the women involved are neither innocent nor deceived…. The entire White Slave movement is thus forcible interference with the making of prostitutes.24
The regime of the white slave traffic would witness its nomenclature change with its inclusion in the 1919 Covenant of the League of Nations, Article 23(c) of which entrusted to the League ‘the general supervision over the execution of agreements with regard to the traffic in women and children’. During the League of Nations era, two further international instruments emerged: the first, the 1921 International Convention for the Suppression of the Traffic in Women and Children, amalgamated the two previous instruments, and required contracting States to ‘take all measures to discover and prosecute persons who are engaged in the trafficking in children of both sexes’. This provision is worth noting for our purposes, as it was the first of a number of expansions of the scope ratione personae of international instruments addressing human trafficking, as it was now applicable to not only women and girls, but also boys. The 1921 Convention also extended its application so as to punish not only the offences as set out in the 1910 Convention, but also ‘attempts to commit, and, within the legal limits, of acts preparatory to the commission of’ the crime of trafficking’.25
Despite the fact that an expert body, established by the Council of the League of Nations, determined in 1927 that ‘the existence of licensed houses is undoubtedly an incentive to traffic both national and international’; and that a 1932 study on Asia established that ‘the principal factor in the promotion of international traffic in women in the East is the brothel’, there was a lack of political will to focus on brothels within the domestic jurisdiction of States.26 Instead, the 1933 International Convention for the Suppression of the Traffic in Women of Full Age was a further, incremental move, this time addressing the issue of trafficking beyond the destination State. This Convention mandated the holding of individuals responsible for trafficking, ‘notwithstanding that various acts constituting the offence in question have been committed in different countries’. The provisions of the 1933 Convention dealt with the issue of trafficking beyond the destination State. Article 1 reads:
Whoever, in order to gratify the passions of another person, has procured, enticed or led away even with her consent, a women or girl of full age for immoral purposes to be carried out in another country, shall be punished.27
While the process toward a further instrument meant to consolidate the regime of trafficking was started in 1937, it failed to see the light of day, a victim of the coming of the Second World War. The United Nations, for its part, produced the 1949 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others. As between the Parties, the 1949 Convention consolidated the four previous white slave traffic/trafficking instruments, its content reflecting much of what had come before it. That said, the Convention is explicit in its purpose of the suppression of prostitution, the Preamble emphasising in its first paragraph: ‘Whereas prostitution and the accompanying evil of the traffic in persons for the purpose of prostitution are incompatible with the dignity and worth of the human person and endanger the welfare of the individual, the family and the community’. The 1949 Convention again expanded the scope of its application ratione personae, making trafficking legislation applicable with regard to male prostitutes of full age, by seeking to hold responsible anyone who ‘procures, entices or leads away, for the purposes of prostitution, another person, even with the consent of that person’ and anyone who ‘exploits the prostitution of another person, even with the consent of that person’.28 By 1949, it was deemed possible to achieve what had not been possible during the early twentieth century: to end the licensing of brothels and the regulation of prostitutes. While the provisions of Article 2(1) required the punishment of any person who ‘keeps or manages or knowingly finances or takes part in the financing of a brothel’, the 1949 Convention also required States Parties to put an end to State-regulated prostitution.29
While the application of the instruments related to the White Slave Traffic and human trafficking would widen in scope from the 1904 Agreement focused exclusively o
n women and children, to the 1949 Convention, which sought to address all persons working as prostitutes, the Palermo Protocol changed tack, expanding the scope further, not ratione personae, but rather ratione materiae; this expanded the subject-matter jurisdiction beyond enforced prostitution to addressing all types of exploitation, including both sexual exploitation and labour exploitation, and opened the door to any other type of exploitation which a country might identify. The Protocol extends the ambit of human trafficking from its narrow confines based on prostitution and sexual exploitation and addresses in more general terms the movement across international borders of any persons against their will with the object being their exploitation. The definition, here presented in its component parts (i.e.: methods, means, purpose), reads:
“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 abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or 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.30
Thus, the regime of human trafficking now finds its application beyond the narrow confines of ‘the exploitation of the prostitution of others’ as the basis of the 1949 Convention.
The result of this evolution over time of a number of international instruments addressing first white slave traffic and then human trafficking reached its logical conclusion in the year 2000. The near-century long process culminates with the application of the Palermo Protocol to all persons while being open to addressing all types of exploitation (the Protocol names a handful, including: the exploitation of the prostitution of others, forced labour, and slavery; while leaving the door open to designate other forms of exploitation).
Contrasting human trafficking and slavery
To speak of the African Slave Trade is what in French is termed the ‘Black Slave Trade’ (traite des Noirs). This context provides a better understanding of the emergence of the term ‘White Slave Traffic’ (traite des Blanches) as both juxtaposing the enslavement of Africans and as a means of equating the prostitution of women and girls with that of slavery, and as a social ill requiring the type of international mobilisation which had developed around the abolition of the Atlantic Slave Trade. Yet, the convergence of these two genealogies – of the Atlantic Slave Trade and slavery, and the White Slave Traffic and human trafficking – only truly transpires in the year 2000 with the inclusion, as a type of exploitation, of slavery within the definition of trafficking in persons found in the Palermo Protocol. Beyond the use of the term ‘slave traffic’ as a visceral means of rhetorical inflation, there is little in the genealogies of human trafficking and slavery which bring them together and, arguably, much conceptually which speaks to keeping them apart. This reality was not lost on the people of Brussels in 1880, as an anonymous French-language brochure was in circulation and noted that,
for the people who are not aware of the sad states of things which these pages seek to reveal; no doubt believe that the expression “White Slave Trade” is a simple metaphor used to stigmatise a situation which has nothing in common with what is, at its basis, the buying and selling of slaves.31
The genealogies of human trafficking and slavery presented here speak to one fundamental distinction: that from time immemorial until the abolitionist movement took hold, slavery and the slave trade were legal while human trafficking, at no time, was legal: rather, it was criminal. That is to say, that while prostitution was effectively legal under the so-called French system, never was it legal – in other words, it was criminal – to force a person into prostitution, either before the 1880 White Slave Affairs, or afterwards.
As a result of it being legal, slavery and the slave trade could prosper and develop on an industrial scale, manifest in the feeding of the New World plantation system through the Atlantic Slave Trade. It was, as Jean-Michel Chaumont and Anne-Laure Wilbrin argue, the collaboration and complicity of the State in slavery and the slave trade which allowed it to flourish in ways that neither the White Slave Traffic nor human trafficking ever could.32 If the enslaved tried to escape his or her predicament, not only would they have to outrun the master and posse, but also the police and others responsible for ensuring respect for the rule of law: the metaphorical ‘long-arm of the law’. While slave-owners could turn to the courts to validate their claims of ownership and property in the enslaved, in no instance could a prostitute be compelled to labour by the courts. Rather, as is the case today, it has always been (short of those legally enslaved), that State officials have a positive obligation to remove those persons from their sequestration and situations of prostitution transpiring against their will. If it were otherwise, as Chaumont and Wilbrin relate, and forced prostitution or human trafficking, more generally, transpired on an industrial scale with the compliance of the State, it would be the thing of ‘bad science-fiction’.33
Where Chaumont and Wilbrin also take issue with the use of the language of ‘slave traffic’ in relation to the origins of the genealogy of human trafficking is with regard to coercion. While coercion qua violence was fundamental to the African Slave Trade, where the white slave traffic was concerned, its societal focus had been for many about ending the evil of prostitution rather than forced prostitution. As they note, with regard to poverty and economic imperatives during the era of white slave traffic: in ‘the crushing majority of cases, coercion was no longer necessary as these young women knew exactly what to expect with regard to the nature of their work they were expected to undertake once they reached their destination’.34
Conclusion
There remains much conflation between human trafficking and slavery. The usable past which emerges from a consideration of their genealogies demonstrates that they are very much two distinct concepts, each with its own history. While they intersect within the definition of trafficking in persons found in the Palermo Protocol, their histories have very little in common but for the fact that each sought to address an issue of human exploitation. Fundamentally, the distinction lies in the fact that slavery was legal and the State could be depended upon to facilitate it, even to the industrial level of the Atlantic Slave Trade. By contrast, the language of the ‘white slave traffic’ was used, from the late nineteenth century to the establishment of the League of Nations, to designate a movement which sought to address the vice of prostitution. Yet these two very different genealogies would converge, in the year 2000, with the end product being no longer focused on prostitution and exploitative practices therein, but rather on exploitation writ large, within the context of human trafficking. The Victorian impulse to address prostitution, both forced and otherwise, remains at the heart of contemporary human trafficking, though its impulse has diminished as States recognise that exploitation can exist not only in sex work, but in any labour situation. What began as an attempt to utilise the visceral capital of the abolition of the Atlantic Slave Trade, with its own ‘white slave traffic’ meant to address prostitution, has evolved over a century to being a fundamental tool in addressing a larger social ill: the sharp end of inequality where one person benefits from the exploitation of another. While it may be recognised that exploitation was at the heart of the genealogy of trafficking, it was not expressly so with regard to slavery. However, despite very different genealogies, today we can and should speak of human trafficking and slavery in the same breath, recognising that there is a State and societal interest in suppressing exploitation wherever and by whatever means it manifests itself.
Notes
1 The first two international agreements related to trafficking were titled: the 1904 International Agreement for the Suppression of the White Slave Traffic;
and the 1910 International Convention for the Suppression of the White Slave Traffic.
2 See the chapter titled: “Fydor Martens and the Question of Slavery at the 1890 Brussels Conference”, in Allain, J. (ed.), The Law and Slavery: Prohibiting Human Exploitation (Leiden: Brill Nijhoff, 2015), pp. 101–120.
3 Allain, J., Slavery in International Law: Of Human Exploitation and Trafficking (Leiden: Martinus Nijhoff Publishers, 2013), p. 14.
4 See www.slavevoyages.org/assessment/estimates.
5 See Allain, J., “Nineteenth Century Law of the Sea and the British Abolition of the Slave Trade” (2008) 78 British Yearbook of International Law 342–388; also reproduced in The Law and Slavery: Prohibiting Human Exploitation (2015).
6 The Queen v. Tang [2008] HCA 39, 28 August 2008, para. 25.
7 See also: Case of the Workers of Fazenda Brasil Verde vs Brazil, Inter-American Court of Human Rights, Judgement (Preliminary Objections, Merits, Reparations and Costs), 20 October 2016, para. 270–271. For the Bellagio-Harvard Guidelines on the Parameters of Slavery, see: Allain, J. and Bales, K., “Slavery and Its Definition” (2012) 14 Global Dialogue 1–15, and more generally Allain, J. (ed.), The Legal Understanding of Slavery: From the Historical to the Contemporary (Oxford: Oxford University Press, 2012).
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