International cooperation and the anti- trafficking regime
Transcript Of International cooperation and the anti- trafficking regime
WORKING PAPER SERIES NO. 71
International cooperation and the antitrafficking regime
Megan C. Brand [email protected] December 2010 Refugee Studies Centre Oxford Department of International Development University of Oxford
Working Paper Series
The Refugee Studies Centre Working Paper Series is intended to aid the rapid distribution of work in progress, research findings and special lectures by researchers and associates of the RSC. Papers aim to stimulate discussion among the worldwide community of scholars, policymakers and practitioners. They are distributed free of charge in PDF format via the RSC website. Bound hard copies of the working papers may also be purchased from the Centre.
The opinions expressed in the papers are solely those of the author/s who retain the copyright. They should not be attributed to the project funders or the Refugee Studies Centre, the Oxford Department of International Development or the University of Oxford. Comments on individual Working Papers are welcomed, and should be directed to the author/s. Further details may be found at the RSC website (www.rsc.ox.ac.uk).
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Contents
1 Introduction
4
Project outline
4
2 Theory and methodology
6
International regimes
6
International cooperation
8
Public goods and sub-optimal outcomes
8
Incentivizing cooperation
10
3 1949 Convention
12
Drafting background and key concepts
12
Principle 1: Social causes of prostitution
13
Principle 2: Abolitionism
16
Principle 3: Protection regardless of motive of offender
17
Additional considerations in calculus for cooperation
18
Final observations
19
4 2000 Protocol
20
Drafting background and key concepts
20
Principle 1: Comprehensive approach
21
Principle 2: Transnational, organized crime
24
Principle 3: Border control
25
Final observations
27
5 Conclusion
27
Public goods of the anti-trafficking regime
28
Private benefits to states
29
Conclusion
29
References
31
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1 Introduction1
States have cooperated on combating trafficking in persons for over a century. Over this period, the focus of countering trafficking in persons has broadened, moving from women exclusively,2 to include all persons,3 and from prostitution4 to nearly all forms of exploitation.5 As both the definition of groups of trafficked persons and their numbers have expanded, reasons for state cooperation to combat trafficking have also changed. This paper seeks to explain what has induced state cooperation in the negotiation processes of the anti-trafficking regime in 1949 and in 2000 by applying economic and neo-liberal institutionalist international relations theories of public goods. The question of what brings about cooperation in international politics, especially on non-defense issues, has been a significant one for several decades. It is important because understanding reasons for cooperation allows incentive structures to be built that will best encourage cooperation on future issues (see Axelrod 2006, Keohane 2005, Martin 1993, Milner 1992, Ostrom 1990, Young 1989). Economic literature explains how overcoming collective action failures can be accomplished through governing mechanisms or through separate individual incentives (see Cornes and Sandler 1999:143-237, Kaul et al. 2003:21-58, Olson 1965). In the case of international politics, where no one government exists that can bring about public good provision through obligatory contribution like taxation, understanding structural and private incentives are even more important for cooperation theory. Betts observes, “[l]iberal institutionalism has particular relevance for the international politics of forced migration because it can help to explain the conditions under which international cooperation takes place in relation to different aspects of forced migration” (Betts 2009:26). Other authors have applied public good theories to cooperation in similar regimes like the refugee regime (Betts 2003, Surkhe 1998). By explaining what benefits states expected to gain in the 1949 and 2000 cases, both publically and privately through participation in negotiations on two anti-trafficking treaties, we can better understand the starting points of cooperation.
Project outline Section 2 establishes the main theoretical frameworks for analysis: international regimes and international cooperation. Using Krasner’s widely accepted definition of an international regime, Section 2 briefly outlines how anti-trafficking fits within the definition of a regime (Krasner 1983). The section then explains what incentives exist for cooperation that takes place in
1 This paper was originally submitted as a dissertation in partial fulfillment of the requirements for an MSc in Forced Migration at the University of Oxford. The author would like to thank Steele Brand and Alice Edwards for their many discussions about and helpful comments on the paper.
2 International Agreement for the Suppression of the “White Slave Traffic” 1904, International Convention for the Suppression of White Slave Traffic 1910, International Convention for the Suppression of the Traffic in Women of Full Age 1933.These treaties will be referred to hereafter as the “1904 Agreement,” the “1910 Convention,” and the “1933 Convention.”
3 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others 1949, Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children 2000. These treaties will be referred to hereafter as the “1949 Convention” and the “2000 Protocol.”
4 1904 Agreement, 1933 Convention, 1949 Convention. 5 2000 Protocol.
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international politics, especially cooperation not based purely on security alliances, tying back to the role of regimes in establishing such incentives. A specific neo-liberal institutionalist cooperation theory that is insightful for the anti-trafficking regime cooperation is the theory of joint products incentivizing public good provision. This theory draws heavily on economics literature of “warm-glow giving” (Andreoni 1990). According to this perspective, states derive multiple private benefits in addition to the public benefits from cooperation. These private benefits increase incentives for state cooperation that might otherwise be lacking because of concerns about free-riding and cheating.
Cooperation will be measured by willingness of states to participate in the treaty drafting process and ratification. Fearon specifies that international cooperation involves two problems: first, a bargaining problem and then, an enforcement problem (Fearon 1998: 270). In Fearon’s terms, the paper is looking at evidence of states’ intentions toward contributing to public good provision through bargaining rather than measuring actual contribution or treaty implementation, which is enforcement. In this respect, the arguments are more theoretical than empirical. Nonetheless, participation in initial decisions about regime principles is the important first stage in cooperation. Bargaining processes can identify what motivates states to participate and how states justify cooperation or abstention through reference to either public or private benefits.
Sections 3 and 4 document the major arguments in negotiations leading to the 1949 Convention and the 2000 Protocol through analysis of state commentary in the travaux preparatoires. Combining the study of international public law, such as treaty negotiations, with international relations theories about state behavior is a useful paradigm for the fields share a similar “optic” (Keohane 1997; Slaughter Burley 1993). In researching the topic, I perused over 100 United Nations documents from the travaux preparatoires of these two treaties to understand the major debates in each negotiation context, their resolution, and state reactions.
Section 3 identifies three key principles of the 1949 anti-trafficking regime: the social causes of prostitution, abolitionism, and protection regardless of motive of offender. It then discusses state commentary and amendments to draft articles concerning these principles. It finds that states participated in the drafting process and ratified the 1949 Convention when they perceived they had self-interest in the regime, often in the form of existing domestic legislation that was compatible with the treaty and necessarily agreed with its principles. Because the 1949 Convention could be applied to domestic as well as international trafficking, the incentives for cooperation for the express purpose of providing a public good were less clear than the 2000 Protocol.
Section 4 identifies three key principles of the 2000 Protocol: a comprehensive approach, transnational organized crime, and border control. It finds that while state commentary was not as forthcoming as in 1949 about the specific reasons for accepting or disagreeing with amendments, states nonetheless contributed because of perceived private benefits. Similar to cooperation in 1949, states were hesitant to ratify the 2000 Protocol if domestic policy differed significantly from the principles underlying the regime. Examples suggest that states were willing to cooperate if the principles were less than or equal to existing government commitments on trafficking, but not if they exceeded them. An additional incentive for cooperation stemmed from
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the clear public good provision of the 2000 Protocol: transnational crime cannot be combated by a single state. Only collective action can prevent irregular movement of people and money across borders. Complementing the collective benefits was the private security incentive of strengthening domestic border control measures.
Section 5 concludes the paper with insights about cooperation for reasons of both public and private benefits. The desire to bring about public goods in the 1949 and 2000 contexts could not be categorized as either security or altruism. Instead, state motivations for public good provision were complex and not easily bifurcated into only two categories. States derived private benefits primarily from an altruistic sense of affirming existing state norms and policies. This was especially evident in the 1949 negotiations. States also found social reasons to cooperate such as preventing spread of disease. In 2000, the combination of clear public good provision, security benefits to states, and the comprehensive approach to trafficking provided states with even more reasons to cooperate. Perceived benefits including clear public good provision induce cooperation. Because a state’s decision to cooperate is motivated by numerous factors, helping states understand the multiple benefits that they may gain by participating in the regime may be one way to advance cooperation in the initial stage of bargaining.
2 Theory and methodology
International regimes International regimes facilitate cooperation in a number of ways. While the study of international regimes has numerous definitions and is not without its critics, Krasner has provided a longstanding and widely cited definition of regimes:6
Implicit or explicit principles, norms, rules, and decision-making procedures around which actors’ expectations converge in a given area of international relations. Principles are beliefs of fact, causation, and rectitude. Norms are standards of behavior defined in terms of rights and obligations. Rules are specific prescriptions or proscriptions for action. Decision-making procedures are prevailing practices for making and implanting collective choice (Krasner 1983:2).
Hasenclever explains that from this definition, “only if principles or norms are altered does a change of the regime itself take place; all other changes in regime content are changes within a regime” (Hasenclever 1997:13). In analyzing the international anti-trafficking regime, separate consideration of the 1949 and 2000 treaties is necessary given the differences in key principles of each, which implies that the regime changed over this time period.
Even if principles and norms have varied over the last century, the anti-trafficking regime existed albeit in varying forms, experiencing changes within and to it. Although international relations scholarship has already recognized the prohibition on the trafficking in women and children as a
6 While a detailed discussion of regimes and their critics is beyond the scope of this paper, a range of opinions on the subject can be found in Alter and Meunier (2009), Barnett and Finnemore (1999), Haggard and Simmons (1987), Hasenclever (1997), Keohane (1982), Woods (2002), and Young (1982).
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regime with “powerful global norms”, this section will overview how the “anti-trafficking regime” constitutes a regime based on Krasner’s criteria (Nadelmann 1990:479). First, principles are expressed in numerous legal textual documents. These include the 1904 Agreement, the 1910 Convention, the 1921 Convention for the Suppression of Traffic in Women and Children, the 1933 Convention, the 1949 Convention, and the 2000 Protocol. Additional international documents that express related principles of anti-trafficking include the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), Convention on the Rights of the Child (CRC), Declaration on the Elimination of Violence against Women (UN Res. 48/104), International Labour Organization Worst Forms of Child Labour Convention, European Union Council Framework Decision on Combating Trafficking in Human Beings, and the UN ECOSOC Recommended Principles and Guidelines on Human Rights and Human Trafficking, as well as government statements about trafficking such as those published in the annual US Department of State Trafficking in Persons Report. While the trafficking definition has expanded from the 1904 “White Slave Traffic” to today’s force, fraud, coercion, and deception, the body of international anti-trafficking documents lays out the overarching principle of preventing and suppressing exploitation.
The anti-trafficking regime meets the second criteria of norms, which are established through a number of sources. The international treaties on trafficking, after describing their guiding principles, lay out the norms for standards of behavior in terms of rights and obligations. For example, states have the obligation to punish traffickers, and/or acts of trafficking, defined in the various legal texts (see 2000 Protocol and 1949 Convention). They also commit to implement domestic policies that conform to the international anti-trafficking principles. State practice also establishes norms. The “victim-centered” approach to trafficking by some states has meant that victims increasingly have the right to seek assistance and protection and to not be prosecuted for illegal acts they committed while being coerced (UNODC 2009). Finally, institutions like the United Nations oversee the implementation of these standards of behavior. Similar to the principles, norms of the regime can and have evolved, but they generally involve establishing punitive measures for traffickers and protection for victims.
Rules, although sometimes non-binding in the international law context, originate from treaties and from state interactions that set precedents, consequently establishing new prescriptions for action. One example in the modern context is the safe repatriation of victims of trafficking to their state of nationality or permanent residence. Article 8 of the 2000 Protocol outlines how repatriation should take place by establishing rules about victim safety, travel documents, and communication between the sending and receiving states. Article 10 of the 2000 Protocol articulates rules for information exchange between law enforcement agencies. The extent to which states follow rules is a more complicated question. Regardless of adherence to rules, the textual legal evidence over decades does define how states should act.
Finally, anti-trafficking constitutes a regime based on its decision-making procedures: the practices that guide how to implement the principles, norms, and rules cited above. Antitrafficking decision-making procedures originate first from collectively agreed mechanisms like inter-state information sharing, intelligence on trafficking, and government reporting in front of international bodies. States may commit to these procedures through treaty obligations. For
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example, parties to CEDAW report on their progress at least every four years (see Article 18, CEDAW). Inter-state decisions made on a bilateral or multilateral basis about victim treatment and extradition practices for traffickers may also form part of the decision-making procedures. Decision-making procedures, however, may be one of the weaker elements of the anti-trafficking regime because the regime “does not have any enforcement mechanisms akin to those available to some of the human rights treaty bodies” and relies instead on information exchange (Edwards 2007:21). Nevertheless, decision-making procedures are in place, even if not highly enforceable. Overall, a historic set of the principles, norms, rules, and decision-making procedures has addressed the issue of trafficking in persons. While differing principles and their implications for cooperation are the subject of later analysis, for now it is sufficient to establish that efforts to combat human trafficking meet all of the criteria for discussing the “anti-trafficking regime.”
Establishing the anti-trafficking regime is important because international regimes facilitate international cooperation. They monitor behavior to avoid moral hazard; link issues, thereby raising costs of deception and irresponsibility; build ties among officials, which increases the likelihood of mutually beneficial agreements; and overall, reduce uncertainty through reliable information (Keohane 2005:97). Discussing the “anti-trafficking regime” acknowledges the regime’s role in establishing incentives for cooperation.
International cooperation International cooperation can help overcome inefficiencies and sub-optimal outcomes in world politics. Keohane defines cooperation as “when actors adjust their behavior to the actual or anticipated preferences of others, through a process of policy coordination” and occurs when actions of individuals are “not in pre-existent harmony” (2005:51). In other words, cooperation is important part of avoiding collective action failure on issues of international concern in which states have preexisting disagreement, including areas of forced migration, like trafficking in persons.
Public goods and sub-optimal outcomes Several factors can lead to sub-optimal outcomes. First, when property rights are not clearly defined, an inefficient bargaining outcome results (Coase 1960). Prior to the existence of international cooperation, an anarchic international state system has no governing structure that can enforce property rights. Secondly, in the case of market failure, the anarchic state system is unable to solve problems individually because of high costs and imperfect information. Keohane explains that “specific attributes of the system impose transaction costs (including information costs) that create barriers to effective cooperation among actors” (2005:83). Additionally, too many actors can lead to a collective action problem, and actors may base cooperation on expectations of continuing interaction (Milner 1992:473-475).
Collective action problems may manifest themselves in low public good provision. Economic theory differentiates between privately-provided goods and public goods, with public goods differing because of non-excludability and non-rivalry (Kaul et al. 1999:3). Non-excludability occurs when people cannot reasonably be excluded from a good, whether or not they contribute to its existence. Non-rivalry occurs when one person’s use of it does not prohibit another person from using it at the same time. A public good combines both of these properties. The anti-
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trafficking regime is a public good insofar as it provides non-rival and non-excludable benefits to all states. Interception and disruption of transnational criminal trafficking networks by one state is non-excludable because ridding the world of the group benefits all states (less cross-border crime, irregular movement of people, and money), not just those that contributed resources to the interception. The interception and disruption is also non-rival because multiple states’ enjoyment of it does not prevent other states from also benefiting.7 Additionally, victim protection and assistance is non-excludable and non-rival. When a state aids a foreign victim of trafficking and bears the cost of services and protection, all other states gain by not having to themselves aid the victim, even if they contributed nothing to the services. At the same time, all states can benefit from the provision of aid by others to the victim.
Betts characterizes public goods in two categories, altruistic public goods and security public goods. Altruistic public goods primarily, according to Betts, fulfill “moral and legal humanitarian obligations” while security public goods attempt to reduce a perceived cost (Betts 2003: 276). The provision of an altruistic public good would seem to relate back more closely to regimes, which by definition derive their existence through shared norms. However, provision of public goods may not necessarily be divided neatly into security and altruism. In fact, the bifurcation of these two categories oversimplifies the complex nature of state decision-making and their consequences in a world in which issue areas overlap and incentive structures are interrelated. Nadelmann describes the complexity of state decision-making in regimes:
[t]he evolution of global prohibition regimes, particularly those which involve intrasocietal interactions as well as interstate relations, thus entails highly complex processes in which not only economic and security interests but also moral interests play a prominent role, in which actions of states must be understood as the culmination of both external pressures and domestic political struggles, in which national and transnational organizations and movements shape the actions of states as well as the actions and opinions of diverse societies (1990:480).
It may be the case that a public good itself provides multiple outputs of humanitarian, legal, economic, and security natures so that a division between only two categories does not sufficiently explain the multifaceted nature of an impure public good. For this reason, analysis of cooperation in the anti-trafficking regime will look for complexity in the public good provision, not assigning a purely security and altruistic label.
Given these characteristics of the anti-trafficking regime as a public good, all states can potentially benefit by preventing and suppressing trafficking through punitive measures against traffickers and humanitarian aid for victims. The cross-border nature of trafficking means that efforts to stop it affect more than one state, making anti-trafficking a global public good. In essence, all states benefit by the provision of the anti-trafficking measures outlined above, even if the benefits may vary according to region or state or the type of trafficking. However, because an individual state’s contribution to anti-trafficking may come at great cost to itself and without a practical way to exclude others from sharing the benefits, it may instead do little.
7 Certainly, advantages may be greater in certain regions than others or in certain states than others. Nonetheless, the dispersion of benefits does take away from the non-rivalry and non-excludability aspects which characterize the public good.
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The reason public goods provision can be lower than the optimum is that while everyone benefits collectively from their existence, individually, no one actor is better off by providing it. Betts explains:
the incentive to provide a Pareto optimum level…would only exist if the states were to share marginal costs in the same proportion as they shared marginal benefits. However, while states continue to act independently, they can best serve their self-interest by understating their evaluation of the public good (2003:275).
In game theory terms, the best overall outcome is for all states to contribute and share the greatest collective benefit (less transnational trafficking, more victim protection). Individually, though, each state is better off cheating, not contributing to the public good provision and instead freeriding on the efforts of others. When each state makes its individual calculation then, it will choose to cheat, with the collective result being that everyone cheats, potentially leading to the worst possible outcome of no public good provision (see Conybeare 1984, Olson 1965). In such a scenario, how can cooperation exist?
Incentivizing cooperation One solution is for government to provide the good (Desai 2003:63). In the international context, though, where no one governing structure defines the property rights, assigns benefits, and taxes to provide the public good, it would seem that no provision would exist. An international legal framework, however, can establish property rights and liability through low-cost information (Keohane 2005:97). Low-cost information helps establish liability by more clearly delineating rights and monitoring other’s behavior (Martin 1999:53). When states have this reliable information and can link negotiations about various issues to each other in a regime, two incentives for cooperation occur. First, the state faces negative consequences for reneging on one agreement if that agreement is tied to state gains in another agreement (Martin 1999:53, Stein 1980). Secondly, states know that all of the other actors face the same outcome, which makes them less likely to cheat too (Keohane 2005). Since each state has something to lose by cheating and something to gain by cooperating and they all know the bargaining position of the other states, cooperation may be more likely to occur. While the certainty that information in a regime provides may cause an initial step in cooperation, additional incentives may be needed.
Private benefits from cooperation are an appealing reason for states to cooperate. When states gain private benefits through contributing to public good provision, the public good actually may be better termed an “impure public good.” Impure public goods have multiple outputs including private benefits to the providers whereas pure public goods produce only the collective benefit. Multiple outputs lead to application of joint-product models (Cornes and Sandler 1999:543).
Joint products apply where production of one good produces residual outputs. Olson (1965) finds that large groups have incentives to contribute to a collective benefit when individuals find their own “positive inducements” (Olson 1965:133). Andreoni has modeled impure reasons for giving as “warm-glow,” explaining that people’s contributions to charity are not always purely altruistic (Andreoni 1990, 1989). Taking this idea further, Betts explains that states also can get a warmglow, or as he terms, excludable altruistic benefit, from contributing to a public good. The private benefits states receive because of their cooperation are an essential component of their willingness
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International cooperation and the antitrafficking regime
Megan C. Brand [email protected] December 2010 Refugee Studies Centre Oxford Department of International Development University of Oxford
Working Paper Series
The Refugee Studies Centre Working Paper Series is intended to aid the rapid distribution of work in progress, research findings and special lectures by researchers and associates of the RSC. Papers aim to stimulate discussion among the worldwide community of scholars, policymakers and practitioners. They are distributed free of charge in PDF format via the RSC website. Bound hard copies of the working papers may also be purchased from the Centre.
The opinions expressed in the papers are solely those of the author/s who retain the copyright. They should not be attributed to the project funders or the Refugee Studies Centre, the Oxford Department of International Development or the University of Oxford. Comments on individual Working Papers are welcomed, and should be directed to the author/s. Further details may be found at the RSC website (www.rsc.ox.ac.uk).
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Contents
1 Introduction
4
Project outline
4
2 Theory and methodology
6
International regimes
6
International cooperation
8
Public goods and sub-optimal outcomes
8
Incentivizing cooperation
10
3 1949 Convention
12
Drafting background and key concepts
12
Principle 1: Social causes of prostitution
13
Principle 2: Abolitionism
16
Principle 3: Protection regardless of motive of offender
17
Additional considerations in calculus for cooperation
18
Final observations
19
4 2000 Protocol
20
Drafting background and key concepts
20
Principle 1: Comprehensive approach
21
Principle 2: Transnational, organized crime
24
Principle 3: Border control
25
Final observations
27
5 Conclusion
27
Public goods of the anti-trafficking regime
28
Private benefits to states
29
Conclusion
29
References
31
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1 Introduction1
States have cooperated on combating trafficking in persons for over a century. Over this period, the focus of countering trafficking in persons has broadened, moving from women exclusively,2 to include all persons,3 and from prostitution4 to nearly all forms of exploitation.5 As both the definition of groups of trafficked persons and their numbers have expanded, reasons for state cooperation to combat trafficking have also changed. This paper seeks to explain what has induced state cooperation in the negotiation processes of the anti-trafficking regime in 1949 and in 2000 by applying economic and neo-liberal institutionalist international relations theories of public goods. The question of what brings about cooperation in international politics, especially on non-defense issues, has been a significant one for several decades. It is important because understanding reasons for cooperation allows incentive structures to be built that will best encourage cooperation on future issues (see Axelrod 2006, Keohane 2005, Martin 1993, Milner 1992, Ostrom 1990, Young 1989). Economic literature explains how overcoming collective action failures can be accomplished through governing mechanisms or through separate individual incentives (see Cornes and Sandler 1999:143-237, Kaul et al. 2003:21-58, Olson 1965). In the case of international politics, where no one government exists that can bring about public good provision through obligatory contribution like taxation, understanding structural and private incentives are even more important for cooperation theory. Betts observes, “[l]iberal institutionalism has particular relevance for the international politics of forced migration because it can help to explain the conditions under which international cooperation takes place in relation to different aspects of forced migration” (Betts 2009:26). Other authors have applied public good theories to cooperation in similar regimes like the refugee regime (Betts 2003, Surkhe 1998). By explaining what benefits states expected to gain in the 1949 and 2000 cases, both publically and privately through participation in negotiations on two anti-trafficking treaties, we can better understand the starting points of cooperation.
Project outline Section 2 establishes the main theoretical frameworks for analysis: international regimes and international cooperation. Using Krasner’s widely accepted definition of an international regime, Section 2 briefly outlines how anti-trafficking fits within the definition of a regime (Krasner 1983). The section then explains what incentives exist for cooperation that takes place in
1 This paper was originally submitted as a dissertation in partial fulfillment of the requirements for an MSc in Forced Migration at the University of Oxford. The author would like to thank Steele Brand and Alice Edwards for their many discussions about and helpful comments on the paper.
2 International Agreement for the Suppression of the “White Slave Traffic” 1904, International Convention for the Suppression of White Slave Traffic 1910, International Convention for the Suppression of the Traffic in Women of Full Age 1933.These treaties will be referred to hereafter as the “1904 Agreement,” the “1910 Convention,” and the “1933 Convention.”
3 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others 1949, Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children 2000. These treaties will be referred to hereafter as the “1949 Convention” and the “2000 Protocol.”
4 1904 Agreement, 1933 Convention, 1949 Convention. 5 2000 Protocol.
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international politics, especially cooperation not based purely on security alliances, tying back to the role of regimes in establishing such incentives. A specific neo-liberal institutionalist cooperation theory that is insightful for the anti-trafficking regime cooperation is the theory of joint products incentivizing public good provision. This theory draws heavily on economics literature of “warm-glow giving” (Andreoni 1990). According to this perspective, states derive multiple private benefits in addition to the public benefits from cooperation. These private benefits increase incentives for state cooperation that might otherwise be lacking because of concerns about free-riding and cheating.
Cooperation will be measured by willingness of states to participate in the treaty drafting process and ratification. Fearon specifies that international cooperation involves two problems: first, a bargaining problem and then, an enforcement problem (Fearon 1998: 270). In Fearon’s terms, the paper is looking at evidence of states’ intentions toward contributing to public good provision through bargaining rather than measuring actual contribution or treaty implementation, which is enforcement. In this respect, the arguments are more theoretical than empirical. Nonetheless, participation in initial decisions about regime principles is the important first stage in cooperation. Bargaining processes can identify what motivates states to participate and how states justify cooperation or abstention through reference to either public or private benefits.
Sections 3 and 4 document the major arguments in negotiations leading to the 1949 Convention and the 2000 Protocol through analysis of state commentary in the travaux preparatoires. Combining the study of international public law, such as treaty negotiations, with international relations theories about state behavior is a useful paradigm for the fields share a similar “optic” (Keohane 1997; Slaughter Burley 1993). In researching the topic, I perused over 100 United Nations documents from the travaux preparatoires of these two treaties to understand the major debates in each negotiation context, their resolution, and state reactions.
Section 3 identifies three key principles of the 1949 anti-trafficking regime: the social causes of prostitution, abolitionism, and protection regardless of motive of offender. It then discusses state commentary and amendments to draft articles concerning these principles. It finds that states participated in the drafting process and ratified the 1949 Convention when they perceived they had self-interest in the regime, often in the form of existing domestic legislation that was compatible with the treaty and necessarily agreed with its principles. Because the 1949 Convention could be applied to domestic as well as international trafficking, the incentives for cooperation for the express purpose of providing a public good were less clear than the 2000 Protocol.
Section 4 identifies three key principles of the 2000 Protocol: a comprehensive approach, transnational organized crime, and border control. It finds that while state commentary was not as forthcoming as in 1949 about the specific reasons for accepting or disagreeing with amendments, states nonetheless contributed because of perceived private benefits. Similar to cooperation in 1949, states were hesitant to ratify the 2000 Protocol if domestic policy differed significantly from the principles underlying the regime. Examples suggest that states were willing to cooperate if the principles were less than or equal to existing government commitments on trafficking, but not if they exceeded them. An additional incentive for cooperation stemmed from
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the clear public good provision of the 2000 Protocol: transnational crime cannot be combated by a single state. Only collective action can prevent irregular movement of people and money across borders. Complementing the collective benefits was the private security incentive of strengthening domestic border control measures.
Section 5 concludes the paper with insights about cooperation for reasons of both public and private benefits. The desire to bring about public goods in the 1949 and 2000 contexts could not be categorized as either security or altruism. Instead, state motivations for public good provision were complex and not easily bifurcated into only two categories. States derived private benefits primarily from an altruistic sense of affirming existing state norms and policies. This was especially evident in the 1949 negotiations. States also found social reasons to cooperate such as preventing spread of disease. In 2000, the combination of clear public good provision, security benefits to states, and the comprehensive approach to trafficking provided states with even more reasons to cooperate. Perceived benefits including clear public good provision induce cooperation. Because a state’s decision to cooperate is motivated by numerous factors, helping states understand the multiple benefits that they may gain by participating in the regime may be one way to advance cooperation in the initial stage of bargaining.
2 Theory and methodology
International regimes International regimes facilitate cooperation in a number of ways. While the study of international regimes has numerous definitions and is not without its critics, Krasner has provided a longstanding and widely cited definition of regimes:6
Implicit or explicit principles, norms, rules, and decision-making procedures around which actors’ expectations converge in a given area of international relations. Principles are beliefs of fact, causation, and rectitude. Norms are standards of behavior defined in terms of rights and obligations. Rules are specific prescriptions or proscriptions for action. Decision-making procedures are prevailing practices for making and implanting collective choice (Krasner 1983:2).
Hasenclever explains that from this definition, “only if principles or norms are altered does a change of the regime itself take place; all other changes in regime content are changes within a regime” (Hasenclever 1997:13). In analyzing the international anti-trafficking regime, separate consideration of the 1949 and 2000 treaties is necessary given the differences in key principles of each, which implies that the regime changed over this time period.
Even if principles and norms have varied over the last century, the anti-trafficking regime existed albeit in varying forms, experiencing changes within and to it. Although international relations scholarship has already recognized the prohibition on the trafficking in women and children as a
6 While a detailed discussion of regimes and their critics is beyond the scope of this paper, a range of opinions on the subject can be found in Alter and Meunier (2009), Barnett and Finnemore (1999), Haggard and Simmons (1987), Hasenclever (1997), Keohane (1982), Woods (2002), and Young (1982).
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regime with “powerful global norms”, this section will overview how the “anti-trafficking regime” constitutes a regime based on Krasner’s criteria (Nadelmann 1990:479). First, principles are expressed in numerous legal textual documents. These include the 1904 Agreement, the 1910 Convention, the 1921 Convention for the Suppression of Traffic in Women and Children, the 1933 Convention, the 1949 Convention, and the 2000 Protocol. Additional international documents that express related principles of anti-trafficking include the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), Convention on the Rights of the Child (CRC), Declaration on the Elimination of Violence against Women (UN Res. 48/104), International Labour Organization Worst Forms of Child Labour Convention, European Union Council Framework Decision on Combating Trafficking in Human Beings, and the UN ECOSOC Recommended Principles and Guidelines on Human Rights and Human Trafficking, as well as government statements about trafficking such as those published in the annual US Department of State Trafficking in Persons Report. While the trafficking definition has expanded from the 1904 “White Slave Traffic” to today’s force, fraud, coercion, and deception, the body of international anti-trafficking documents lays out the overarching principle of preventing and suppressing exploitation.
The anti-trafficking regime meets the second criteria of norms, which are established through a number of sources. The international treaties on trafficking, after describing their guiding principles, lay out the norms for standards of behavior in terms of rights and obligations. For example, states have the obligation to punish traffickers, and/or acts of trafficking, defined in the various legal texts (see 2000 Protocol and 1949 Convention). They also commit to implement domestic policies that conform to the international anti-trafficking principles. State practice also establishes norms. The “victim-centered” approach to trafficking by some states has meant that victims increasingly have the right to seek assistance and protection and to not be prosecuted for illegal acts they committed while being coerced (UNODC 2009). Finally, institutions like the United Nations oversee the implementation of these standards of behavior. Similar to the principles, norms of the regime can and have evolved, but they generally involve establishing punitive measures for traffickers and protection for victims.
Rules, although sometimes non-binding in the international law context, originate from treaties and from state interactions that set precedents, consequently establishing new prescriptions for action. One example in the modern context is the safe repatriation of victims of trafficking to their state of nationality or permanent residence. Article 8 of the 2000 Protocol outlines how repatriation should take place by establishing rules about victim safety, travel documents, and communication between the sending and receiving states. Article 10 of the 2000 Protocol articulates rules for information exchange between law enforcement agencies. The extent to which states follow rules is a more complicated question. Regardless of adherence to rules, the textual legal evidence over decades does define how states should act.
Finally, anti-trafficking constitutes a regime based on its decision-making procedures: the practices that guide how to implement the principles, norms, and rules cited above. Antitrafficking decision-making procedures originate first from collectively agreed mechanisms like inter-state information sharing, intelligence on trafficking, and government reporting in front of international bodies. States may commit to these procedures through treaty obligations. For
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example, parties to CEDAW report on their progress at least every four years (see Article 18, CEDAW). Inter-state decisions made on a bilateral or multilateral basis about victim treatment and extradition practices for traffickers may also form part of the decision-making procedures. Decision-making procedures, however, may be one of the weaker elements of the anti-trafficking regime because the regime “does not have any enforcement mechanisms akin to those available to some of the human rights treaty bodies” and relies instead on information exchange (Edwards 2007:21). Nevertheless, decision-making procedures are in place, even if not highly enforceable. Overall, a historic set of the principles, norms, rules, and decision-making procedures has addressed the issue of trafficking in persons. While differing principles and their implications for cooperation are the subject of later analysis, for now it is sufficient to establish that efforts to combat human trafficking meet all of the criteria for discussing the “anti-trafficking regime.”
Establishing the anti-trafficking regime is important because international regimes facilitate international cooperation. They monitor behavior to avoid moral hazard; link issues, thereby raising costs of deception and irresponsibility; build ties among officials, which increases the likelihood of mutually beneficial agreements; and overall, reduce uncertainty through reliable information (Keohane 2005:97). Discussing the “anti-trafficking regime” acknowledges the regime’s role in establishing incentives for cooperation.
International cooperation International cooperation can help overcome inefficiencies and sub-optimal outcomes in world politics. Keohane defines cooperation as “when actors adjust their behavior to the actual or anticipated preferences of others, through a process of policy coordination” and occurs when actions of individuals are “not in pre-existent harmony” (2005:51). In other words, cooperation is important part of avoiding collective action failure on issues of international concern in which states have preexisting disagreement, including areas of forced migration, like trafficking in persons.
Public goods and sub-optimal outcomes Several factors can lead to sub-optimal outcomes. First, when property rights are not clearly defined, an inefficient bargaining outcome results (Coase 1960). Prior to the existence of international cooperation, an anarchic international state system has no governing structure that can enforce property rights. Secondly, in the case of market failure, the anarchic state system is unable to solve problems individually because of high costs and imperfect information. Keohane explains that “specific attributes of the system impose transaction costs (including information costs) that create barriers to effective cooperation among actors” (2005:83). Additionally, too many actors can lead to a collective action problem, and actors may base cooperation on expectations of continuing interaction (Milner 1992:473-475).
Collective action problems may manifest themselves in low public good provision. Economic theory differentiates between privately-provided goods and public goods, with public goods differing because of non-excludability and non-rivalry (Kaul et al. 1999:3). Non-excludability occurs when people cannot reasonably be excluded from a good, whether or not they contribute to its existence. Non-rivalry occurs when one person’s use of it does not prohibit another person from using it at the same time. A public good combines both of these properties. The anti-
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trafficking regime is a public good insofar as it provides non-rival and non-excludable benefits to all states. Interception and disruption of transnational criminal trafficking networks by one state is non-excludable because ridding the world of the group benefits all states (less cross-border crime, irregular movement of people, and money), not just those that contributed resources to the interception. The interception and disruption is also non-rival because multiple states’ enjoyment of it does not prevent other states from also benefiting.7 Additionally, victim protection and assistance is non-excludable and non-rival. When a state aids a foreign victim of trafficking and bears the cost of services and protection, all other states gain by not having to themselves aid the victim, even if they contributed nothing to the services. At the same time, all states can benefit from the provision of aid by others to the victim.
Betts characterizes public goods in two categories, altruistic public goods and security public goods. Altruistic public goods primarily, according to Betts, fulfill “moral and legal humanitarian obligations” while security public goods attempt to reduce a perceived cost (Betts 2003: 276). The provision of an altruistic public good would seem to relate back more closely to regimes, which by definition derive their existence through shared norms. However, provision of public goods may not necessarily be divided neatly into security and altruism. In fact, the bifurcation of these two categories oversimplifies the complex nature of state decision-making and their consequences in a world in which issue areas overlap and incentive structures are interrelated. Nadelmann describes the complexity of state decision-making in regimes:
[t]he evolution of global prohibition regimes, particularly those which involve intrasocietal interactions as well as interstate relations, thus entails highly complex processes in which not only economic and security interests but also moral interests play a prominent role, in which actions of states must be understood as the culmination of both external pressures and domestic political struggles, in which national and transnational organizations and movements shape the actions of states as well as the actions and opinions of diverse societies (1990:480).
It may be the case that a public good itself provides multiple outputs of humanitarian, legal, economic, and security natures so that a division between only two categories does not sufficiently explain the multifaceted nature of an impure public good. For this reason, analysis of cooperation in the anti-trafficking regime will look for complexity in the public good provision, not assigning a purely security and altruistic label.
Given these characteristics of the anti-trafficking regime as a public good, all states can potentially benefit by preventing and suppressing trafficking through punitive measures against traffickers and humanitarian aid for victims. The cross-border nature of trafficking means that efforts to stop it affect more than one state, making anti-trafficking a global public good. In essence, all states benefit by the provision of the anti-trafficking measures outlined above, even if the benefits may vary according to region or state or the type of trafficking. However, because an individual state’s contribution to anti-trafficking may come at great cost to itself and without a practical way to exclude others from sharing the benefits, it may instead do little.
7 Certainly, advantages may be greater in certain regions than others or in certain states than others. Nonetheless, the dispersion of benefits does take away from the non-rivalry and non-excludability aspects which characterize the public good.
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The reason public goods provision can be lower than the optimum is that while everyone benefits collectively from their existence, individually, no one actor is better off by providing it. Betts explains:
the incentive to provide a Pareto optimum level…would only exist if the states were to share marginal costs in the same proportion as they shared marginal benefits. However, while states continue to act independently, they can best serve their self-interest by understating their evaluation of the public good (2003:275).
In game theory terms, the best overall outcome is for all states to contribute and share the greatest collective benefit (less transnational trafficking, more victim protection). Individually, though, each state is better off cheating, not contributing to the public good provision and instead freeriding on the efforts of others. When each state makes its individual calculation then, it will choose to cheat, with the collective result being that everyone cheats, potentially leading to the worst possible outcome of no public good provision (see Conybeare 1984, Olson 1965). In such a scenario, how can cooperation exist?
Incentivizing cooperation One solution is for government to provide the good (Desai 2003:63). In the international context, though, where no one governing structure defines the property rights, assigns benefits, and taxes to provide the public good, it would seem that no provision would exist. An international legal framework, however, can establish property rights and liability through low-cost information (Keohane 2005:97). Low-cost information helps establish liability by more clearly delineating rights and monitoring other’s behavior (Martin 1999:53). When states have this reliable information and can link negotiations about various issues to each other in a regime, two incentives for cooperation occur. First, the state faces negative consequences for reneging on one agreement if that agreement is tied to state gains in another agreement (Martin 1999:53, Stein 1980). Secondly, states know that all of the other actors face the same outcome, which makes them less likely to cheat too (Keohane 2005). Since each state has something to lose by cheating and something to gain by cooperating and they all know the bargaining position of the other states, cooperation may be more likely to occur. While the certainty that information in a regime provides may cause an initial step in cooperation, additional incentives may be needed.
Private benefits from cooperation are an appealing reason for states to cooperate. When states gain private benefits through contributing to public good provision, the public good actually may be better termed an “impure public good.” Impure public goods have multiple outputs including private benefits to the providers whereas pure public goods produce only the collective benefit. Multiple outputs lead to application of joint-product models (Cornes and Sandler 1999:543).
Joint products apply where production of one good produces residual outputs. Olson (1965) finds that large groups have incentives to contribute to a collective benefit when individuals find their own “positive inducements” (Olson 1965:133). Andreoni has modeled impure reasons for giving as “warm-glow,” explaining that people’s contributions to charity are not always purely altruistic (Andreoni 1990, 1989). Taking this idea further, Betts explains that states also can get a warmglow, or as he terms, excludable altruistic benefit, from contributing to a public good. The private benefits states receive because of their cooperation are an essential component of their willingness
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