ABSTRACT

In the years surrounding the adoption by the United Nations General Assembly in 2000 of the Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children (hereafter the Palermo Protocol or Trafficking Protocol), a vociferous debate regarding sex trafficking emerged, born from disputes between so-called ‘pro-sex’ and ‘anti-porn’ feminists in the 1980s and 1990s about pornography and sex work.1 On the one hand, we can read the Trafficking Protocol as an important legal instrument that builds on the success of the 1993 Vienna Conference on Human Rights, the 1995 Beijing Platform, and the 1999 Optional Protocol to the Convention on the Elimination of Violence against Women to recognise violence against women, whether public or private, as ‘subject to human rights scrutiny’.2 On the other hand, as many scholars have noted, the Trafficking Protocol privileges sex trafficking over labour trafficking as an area of concern (labour issues are more often read under the Protocol against the Smuggling of Migrants by Land, Sea, and Air, also signed in Palermo and adopted in 2000), and it conflates prostitution and trafficking, correspondingly reinforcing both normative constructions of gender as well as the state-centred carceral networks that would maintain them.3 All four of these outcomes – the focus on sex trafficking, conflation of prostitution and trafficking,

Alexandra Schultheis Moorea and Elizabeth Swanson Goldbergb

gender normativity, and punitive state sovereignty under the umbrella authority of the UN – align the legislation with colonialist agendas that would produce and regulate gender and sexuality in the service of either state authority or the authority of inter-state security networks. The Palermo Protocol draws an ostensibly clear line between victims and perpetrators in order to rescue the former and criminalise the latter by bolstering the power of border control and police operations, as well as by strengthening the regulatory role of the state over trafficked persons. Because migrant sex workers do not conform to the iconic representation of the trafficked woman or child, they, too, may become criminalised, such that the application of the law inscribes normative gender roles and oppressive migration policies, often in racially motivated ways.4