This piece was originally published in Disrupted: The Migration Issue in February 2019.
The global migration debate hinges on questions of labelling and categorisation. Regardless of whether this debate is conducted in public, political, or judicial settings, it is deemed imperative to distinguish between border-crossers as eligible or ineligible claimants of state protection and assistance. This formulation often finds expression in a number of mutually-exclusive dichotomies – ‘bogus’ vs. ‘legitimate’ asylum-seekers, trafficked vs. smuggled persons, forced vs. voluntary migrants. This contribution raises the contention that these oppositional relationships between supposedly deserving and undeserving migrants in the context of cross-border mobility ultimately rests on the perception of movement as coerced or consensual. Where the irregular (smuggled) migrant is understood to cross borders entirely of their own volition, the refugee is compelled to travel to escape harm in their country of origin, while the trafficked victim is understood to have been transported against their will for the purposes of her eventual exploitation in the country of destination. As this paper will demonstrate, the construction of women migrants as forced or non-consenting in their mobility has perverse effects on their access to state protection and assistance, particularly in the context of human trafficking.
While “international law does not recognise a general category of forced or involuntary migrant,” (Aleinikoff, 2003: 10) the international protection regime established by the 1951 Refugee Convention contains the most widely-recognised definition of a forced migrant in international law, and thus remains an important source of state obligations towards non-citizens claiming asylum on its territory. In addition to the restrictive scope of grounds covered by the 1951 Convention definition of a refugee, women have historically been excluded from protection under this instrument when persecuted on account of their perceived gender. While refugee law has long been understood to poorly respond to the protection needs of women, the human trafficking legal framework inaugurated by the UN Trafficking Protocol (2000) offers an alternative definition of forced migration which purportedly privileges the safety of women and children. Trafficking is defined under this framework as a “deceptive and coercive process” of recruiting and transferring a non-consenting victim into exploitation (Stoyanova, 2017: 315). While feminist debates have concentrated on the controversial inclusion of the consent element and the question of whether women can legitimately consent to sex work (Elliott, 2014), this preoccupation with forced prostitution at the expense of a more nuanced understanding of the relationship between gender, trafficking and human rights has been instrumentalised by states to construct trafficked women as vulnerable and passive victims in relation to the law. The professed need to ‘rescue’ vulnerable women betrays “an oversimplified perception of victims” (Shin, 2017: 2-3), reflecting “a gender essentialism that fails to take into account multiple and contradictory subject positions” (Lansink, 2006: 51). Importantly, it has also legitimised the expansion of destination states’ criminal and immigration law apparatus to constrain the mobility of migrant women. This highlights “the potential for law to be complicit in reinforcing gender inequalities and in limiting migrant women’s agency” (Mullally, 2014: 175) while treating the mobility of trafficked women as a threat to their own well-being (rather than criminalising the act of exploitation itself). Such has justified a policy of “voluntary return and reintegration” to the country of origin at the expense of opportunities for victims to regularise their migration status in the host state (Anderson, 2014: 364).
The rest of this paper considers how feminist approaches can address this issue. Feminist rights-based theory has made significant progress in elucidating the relationship between gender and human rights violations and thus in addressing protection gaps for women as forced migrants (Pourmokhtari, 2015). The recognition of gender-based persecution in international human rights law (including when perpetrated by non-state actors) has facilitated access to refugee status and subsidiary forms of protection for women migrants, while the UNHCR Guidelines on Trafficking have played an important role in highlighting how trafficked women can qualify for refugee status under the 1951 Refugee Convention. Furthermore, where the trafficking regime established at the UN level deploys tools derived from criminal law to address trafficking as a transnational threat to state security and border control, feminist theory has been instrumental in transferring the referent of security to the trafficked woman (Lobasz, 2009). By advancing an understanding of women as victims of human rights violations both as a cause and consequence of trafficking (and thus going beyond an exclusive focus on forced prostitution), these approaches have helped develop increasingly gender-sensitive and victim-centred trafficking instruments at the regional level.
Despite the progress made by feminist rights-based approaches, this author argues that they have nonetheless struggled to undermine the fundamental architecture of the trafficking legal framework that continues to hinge on the problematic opposition between consent and coercion, particularly in defining victims in opposition to ‘consenting’ (smuggled) migrants. In the context of human trafficking, the feminist split on “liberalist” and “paternalist” stances towards the capacity of women to consent to sex work overlooks other manners in which women are exploited and the root causes of their vulnerability to trafficking (Elliott, 2014: 8). Furthermore, it deflects attention from other issues deriving from the coercive definition of trafficking, namely how it excludes those who have migrated voluntarily and found themselves in exploitative situations in the host state, or those who have been subjected to forms of violence and abuse by smugglers who they have employed to facilitate their movement across borders.
By foregrounding the victimisation of trafficked women, feminist approaches can therefore risk reproducing “gendered notions of agency that frame men as actors and women as victims—those acted upon,” (Lobasz, 2009: 339) privileging the dominant perspectives advanced by the state-centric trafficking regime rather than advancing “a critical feminist politics concerned with constructing more inclusive legal responses that acknowledge the intricacies and diversity of women’s lives” (Carline & Pearson, 2007: 73). This creates issues of identification, where women migrants (often from the Global South) can only access assistance and avoid immediate deportation if they conform to pre-established stereotypes of passivity, “perform[ing] the real victim script” of the vulnerable, coerced, neo-colonial subject to pass as a credible victim rather than an irregular migrant (Serughetti, 2018: 28). In this sense, foregrounding the victimised status of trafficked women has not fully overcome the problem of gender essentialism identified in relation to the ‘rescue’ paradigm advanced by the UN Trafficking Protocol.
The final part of this paper makes the argument that a feminist foreign policy can more effectively address the c
onsent issue detailed above, and thus respond to the inability of legal definitions to capture the nuances of female migrants’ experiences and agency. While states are unlikely to abandon the consent-derived definition of human trafficking (which has gained considerable traction in international and regional legal instruments), this author believes that gender-sensitive foreign policy approaches can address some of the structural factors underlying the migratory trends of women that are obscured by excessive engagement with the notions of coercion and forced migration, such as economic deprivation, gender equalities, and more flagrant human rights abuses such as violenceagainst women. In recognising that trafficking across borders is often initiated on a voluntary basis (Lansink, 2006: 46), states can address many of the same ‘push factors’ that motivate women to migrate in the first place, whilst achieving the goal of reducing pressure on their immigration systems (Ruchti, 2017). Such a foreign policy approach must be complemented by addressing the ‘pull factors’ and domestic demand for the exploitation of women which underpin the whole operation of trafficking in women, namely unregulated forms of feminised labour (beyond sex work alone) grouped collectively under the term “commercialized intimacy” (Ruchti, 2017: 77).
Furthermore, in assessing current trafficking foreign policies from a feminist perspective, it is important to go beyond commentaries that have focused almost exclusively on US foreign policy and standard-setting under the Trafficking Victims Protection Act (Moxley & Noyori-Corbett, 2016). More attention should be focused on advancing a feminist foreign policy in other key destination countries for trafficked women, as well as for key global actors in migration management, namely the European Union (EU). While a comprehensive analysis of the EU’s different counter-trafficking programmes and networks of cooperation is beyond the scope of this article, there is a need to acknowledge how the indiscriminate nature of EU extraterritorial border controls (Moreno-Lax, 2017) has a disproportionate impact on women’s experience of “transit” and increases the risk of exploitation, underlining the need for access to safe migration pathways for migrant women (Alison and Pickering, 2014). Furthermore, while certain instruments of cooperation between the EU and countries of origin for trafficking victims acknowledge the need for gender-sensitive approaches, these have given way to various modes of “coercive governance” through EU external counter-trafficking policies, where trafficking has been integrated into the criminal law-focused framework of the ‘fight’ against ‘illegal’ migration (Berman and Friesendorf, 2008). In sum, only through acknowledging the drivers underpinning the migratory trajectories of women and girls in foreign policy, rather than the ill-defined voluntary or coercive nature of their movement in the context of immigration, can destination states truly address issues of gender equality in relation to migration and tackle the root causes of the exploitation of migrant women.
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John Trajer is currently an LL.M. researcher in Comparative, European and International Laws at the European University Institute (Florence), with a focus on European and international legal obligations towards victims of human trafficking in the context of transit migration.