¹ Similar claims about the difficulty of relating the global to the local are also made by leading academics who study such processes. See, e.g., Merry, Sally, Human Rights and Gender Violence: Translating International Law into Local Justice (2006).Google Scholar

² The author was asked to speak at the Palermo workshop organized by the International Organisation for Migration (IOM) because of his writing on this topic, as outlined in Nelken, David, Using the Concept of Legal Culture, 29 Aus. J. Legal Phil. 1 (2004)Google Scholar [hereinafter: Nelken, Culture]. Information about the workshop and the talks delivered there may be found at “Trafficking in persons: ten years after the institution of the ad hoc inter-governmental committee for the elaboration of the Palermo Protocol” Palermo May 21–22, 2009, http://www.italy.iom.int/index.php?option=com_content&task=view&id=75&Itemid=61.

³ Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime, Dec. 15, 2000, 2237 U.N.T.S. 319 [hereinafter The Palermo Protocol] and Convention against Transnational Organised Crime, Dec. 15, 2000, 2225 U.N.T.S. 209.

⁴ Albano, Teresa, Concept Note (May 2009)Google Scholar [hereinafter Concept Note] was distributed to the participants at the Palermo Workshop on Human Trafficking. Some authors put the numbers of trafficking victims even higher. See, most recently, Winterdyck, John & Reichel, Philip, Introduction to Special Issue: Human Trafficking—Issues and Perspectives, 7 Eur. J. Crim. 6 (2010)Google Scholar, citing a figure of 27 million victims.

⁵ United Nations, Global Report on Trafficking in Persons 11 (2009) [hereinafter The United Nations Global Report], available at http://www.cfr.org/publication/18576/un_global_report_on_trafficking_in_persons_2009.html.Google Scholar The Report, which is the principal up to date official source of data on the trafficking problem worldwide, also admits that we have no way of knowing whether the small number of cases reported are representative of the supposedly much larger universe.

⁶ One Italian judge told me of a recent case involving a Chinese worker, kept in a basement with no air, out of sight, and working an extravagant number of hours. Interrogating the victim for evidence against his employers she asked him questions such as what it was like to live day by day in those conditions, and he described what seemed like an impossible way of life. After hearing these horrors, she asked him: “How do you put up with it? How could you survive in those conditions?” But he replied: “It is still better than living in China.”

⁷ Hagan, John & Wyland-Richmond, Fiona, Darfur and the Crime of Genocide (2008).CrossRefGoogle Scholar

⁸ The United Nations Global Report (supra note 5, at 45) points out that the proportion of women offenders involved is at least two to three times higher in these crimes than on average in other crimes.

⁹ The United Nations Global Report reflecting the type of data collected by national administrations, tells us mainly about the national origins of victims and offenders. For example, in Italy, traffickers are mainly of Romanian, Italian, Nigerian, Albanian, Chinese, and Polish nationalities. Id. at 260.

¹⁰ Trafficking often involves nearby countries, although countries in East Africa seem currently the source of many such routes. Id. at 66.

¹¹ Kangaspunta, Kristiina, Can the Seventy of Human Trafficking be Ranked?, 9 Crim. & Pub. Pol'y 257 (2010).Google Scholar

¹² Concept Note, supra note 4, at 1.

¹³ As seen for example in the following statement: “There are no official figures but the International Office for Migration (IOM) estimates there are 70,000 women living in Italy after being trafficked for sexual exploitation. And some local rights groups believe as many as half of them are Nigerian.” See Dream of Freedom Turns to Prostitution Nightmare, J. Culture & Afr. Women Stud. 8 (2006) [hereinafter Dreams of Freedom].

¹⁴ United Nations, Global Report on Trafficking in Persons (Executive Summary) 5 (2009), http://www.unodc.org/documents/human-trafficking/Executive_summary_english.pdf.Google Scholar

¹⁵ Farrell, Amy, Fahy, Stephanie & McDevitt, Jack, Where Are All the Victims? Understanding the Determinants of Official Identification of Human Trafficking Incidents, 9 Crim. & Pub. Pol'y 2, 201 (2010).Google Scholar

¹⁶ Likewise, media claims that the 2006 World Cup in Germany would attract forty thousand sex slaves to service the spectators, turned out to have no foundation.

¹⁷ Winterdyck & Reichel, supra note 4. In practice, what are called trafficking cases often overlap with prosecutions of sex workers, pimps, brothel keepers, landlords—or even clients.

¹⁸ Id.

¹⁹ Finnegan suggests that this reveals the “formalistic” type of compliance that organizations learned in Communist times. This offers another example of the relevance of legal culture, see Finnegan, William, “The Countertraffickers”: Rescuing the Victims of the Global Sex Trade, New Yorker, May 5, 2008, available at http://www.newyorker.com/reporting/2008/05/05/080505fa_factfinnegan.Google Scholar

²⁰ Id.

²¹ But the difficulty of credibly counting cases of trafficking does not stop the U.S.A. from evaluating countries in terms of their commitment to this struggle.

²² The United Nations Global Report (supra note 5, at 10) explains that most trafficking is done by locals who sell the trafficked person onto networks in other countries, although there may also be some involvement of foreign diasporas in demand countries.

²³ Shelley, Louise, The Crime of Human Trafficking, 4 Global Stud. Rev. 12 (2008).Google Scholar

²⁴ Pastore, Ferruccio, Monzini, Paola & Sciortino, Giuseppe, Schengen's Soft Underbelly? Irregular Migration and Human Smuggling across Land and Sea Borders to Italy, in International Migration 44, 95–119 (2006).Google Scholar

²⁵ In the Concept Note, Albano writes of a variety of factors that help to explain the “low levels of protection and prosecution.” “These reasons” she says

include, primarily, the lack of conceptual clarity, the relative “newness” of the Protocol, the disproportionate focus on combating irregular migration and on the irregular status of the victims rather than on the violation of their human rights; as well as the disproportionate focus on source countries and supply of potential migrants rather than on destination countries and the demand of low skilled migrant manpower.

She points out that “while Prosecution refers openly to criminal law tools, Protection and Prevention explicitly employ the language of human rights, recalling some core challenges related to international migration management, human and social development, migrant workers' mobility and the protection of their rights. The overlooking of the human rights.” See supra note 4, at 2.

²⁶ Cirineo, Andrea & Studnicka, Sacco, Corruption and Human Trafficking in Brazil: Findings from a Multi-Modal Approach, 7 Eur. J. Crim. 29 (2010).Google Scholar

²⁷ Nelken, David, Signaling Conformity: Changing Norms in Japan and China, 27 Mich. J. Int'l L. 933 (2006).Google Scholar

²⁸ Israel is an example of a country that felt obliged to improve its performance after being classified in the lowest tier, tier 3, by the U.S.A. in its TIP (Trafficking in Persons) Report (2001), http://www.state.gov/g/tip/rls/tiprpt/2001/; see also Halley, Janet, Kotiswaran, Prabha, Shamir, Hila & Thomas, Chantal, From the International to the Local in Feminist Legal Responses to Rape, Prostitution/Sex Work, and Sex Trafficking: Four Studies in Contemporary Governance Feminism, 29 Harv. J. L. & Gender 335, 363 (2006).Google Scholar

²⁹ Rosga, Ann Janette & Satterthwaite, Margaret L., The Trust in Indicators: Measuring Human Rights 62 (New York University Public Law and Legal Theory Working Papers No. 91 2008)Google Scholar, argue that

Rather than trusting in numbers' alone, those using human rights compliance indicators should embrace the opportunities presented by this new project, finding ways to utilize human rights indicators as a tool of global governance that allow the governed to form strategic political alliances with global bodies in the task of holding their governors to account.

³⁰ Solivetti, Luigi, Migration Integration and Crime in Europe (2010).Google Scholar

³¹ Nelken, David, The “Gap Problem” in the Sociology of Law: A Theoretical Review, in Windsor Yearbook Access To Justice 35 (1981)Google Scholar [hereinafter Nelken, The “Gap Problem”]; Nelken, David, The Limits of the Legal Process (1983)Google Scholar; Nelken, David, The Meaning of Success in Transnational Legal Transfers, in Windsor Yearbook of Access to Justice 349 (2001).Google Scholar

³² Young, Jock, Radical Criminology in Britain: the Emergence of a Competing Paradigm, 28 Brit. J. Crim. 159 (1988).CrossRefGoogle Scholar

³³ Rubington, Earl & Weinberg, Martin S., The Study of Social Problems: Five Perspectives (1981)Google Scholar; Spector, Malcolm & Kitsuse, John, Constructing Social Problems (2001).Google Scholar

³⁴ Westmorland, Louise, Gender Abuse and People Trafficking, in Criminal Justice, Local and Global (Drake, Deborah, Muncie, John, & Westmorland, Louise eds., 2010).Google Scholar

³⁵ Their place as the major threat is now shared with fundamentalist Islamic terrorism and the more diffuse dangers to the environment.

³⁶ Cohen, Stan, Folk Devils and Moral Panics (3d ed. 2004).Google Scholar

³⁷ Calavita, Kitty, Immigrants at the Margins: Law, Race, and Exclusion in Southern Europe (2005).CrossRefGoogle Scholar

³⁸ For a parallel discussion of approaches to the advantages and risks of fighting corruption as a breach of human rights see Nelken, David, Corruption and Human Rights: An Afterword, in Corruption and Human Rights 241 (Nelen, Hans & Boersma, Martine eds., 2010).Google Scholar

³⁹ A well-informed example is Naim, Moses, Illicit: How Smugglers, Traffickers and Copycats are Hijacking the Global Economy (2005)Google Scholar, but many contributions to this literature tends to be sensationalist.

⁴⁰ See Nordstrom, Carolyn, Global Outlaws: Crime, Money and Power in the Contemporary World (2007)Google Scholar; Illicit Flows and Criminal Things: States, Borders, and the Other Side of Globalization (Van Schendel, Willem & Abraham, Itty eds., 2005).Google Scholar But this second narrative receives little open support from governments and NGOs.

⁴¹ Findlay, Mark, Governing Through Globalised Crime (2008).Google Scholar

⁴² Nelken, David, The Globalization of Crime and Criminal Justice: Prospects and Problems, in Law and Opinion at the End of the 20th Century 251 (Freeman, Michael ed., 1997).Google Scholar

⁴³ Emile, Durkheim, The Division of Labour in Society (The Free Press, Simpson, George trans., 1993) (1883).Google Scholar

⁴⁴ Klein, Naomi, The Shock Doctrine 163 (2007).Google Scholar

⁴⁵ Agustín, Laura María, Sex at the Margins: Migration, Labour Markets and the Rescue Industry (2007)Google Scholar; Davies, John, My Name Is Not Natasha: How Albanian Women in France Use Trafficking to Overcome Social Exclusion, Presentation at the Palermo Workshop on Human Trafficking (May 2009)Google Scholar [hereinafter Davies, My Name is Not Natasha].

⁴⁶ As two of the harshest critics of the Protocol, Davies and Davies, conclude, in summary, trafficked women in the EEA have proved a useful boon to various political actors. The heady mix of sexual violence, erotic foreigners, and organized crime have offered the ready means by which to introduce legislation and programmes throughout Europe that conveniently serve various political agendas regarding irregular migration and paid sex. It is time that such uses of trafficked women are more openly acknowledged and appreciated by such political actors and that the role of political traffickers in sustaining trafficking is better researched.

Davies, John & Davies, Benjamin, How to Use a Trafficked Woman: The Alliance between Political and Criminal Trafficking Organisations, Recherches sociologiques et anthropologiques 114, 128 (2008).Google Scholar

⁴⁷ Davies, My Name is Not Natasha, supra note 45.

⁴⁸ Id.

⁴⁹ Dreams of Freedom, supra note 13.

⁵⁰ The section on the UK in the The United Nations Global Report (supra note 5, at 291–92) notes 217 prosecutions for trafficking between 2004 and 2007 leading to 81 convictions. But there is curiously little information about victims. We are told that the Poppy Project identified 353 victims and that the Pentameter 2 focused police action rescued 255 victims from sexual trafficking and 5 from work trafficking situations.

But see Davies, Nick, Prostitution and Trafficking—the Anatomy of a Moral Panic, The Guardian, Oct. 20, 2009 and Nov. 14, 2009Google Scholar, who throws doubt on these claims. Those involved in this debate unfortunately do not make reference to Vanessa Munro's findings that the police in the UK tend to use a strict definition of trafficking that insists on proof of lack of consent, see Munro, Vanessa E, A Tale of Two Servitudes: Defining and Implementing a Domestic Response to Trafficking of Women for Prostitution in the UK and Australia, 14 Soc. & Legal Stud. 91, 108 ff. (2005)CrossRefGoogle Scholar [hereinafter Munro, 2005]; Munro, Vanessa E., Stopping Traffic? A Comparative Study of Responses to the Trafficking in Women for Prostitution, 46 Brit. J. Crim. 318, 331 ff. (2006)CrossRefGoogle Scholar [hereinafter Munro, 2006].

⁵¹ International Labour Organisation, Report of the Director General: The Costs of Coercion (2009) [hereinafter The Cost of Coercion], available at http://www.ilo.org/wcmsp5/groups/public/---ednorm/---declaration/documents/publication/wcms_106268.pdf.

⁵² See, e.g., Nelken, David, Corruption in the European Union, in Corruption and Scandal in Contemporary Politics 220 (Bull, Martin & Newell, James eds., 2003).CrossRefGoogle Scholar

⁵³ The Cost of Coercion, supra note 51.

⁵⁴ As Albano put it, the Palermo Trafficking and Smuggling Protocols are framed by the central dichotomy of coerced and consensual irregular migration. People who are trafficked are assumed not to have given their consent and are considered to be “victims or “survivors,” whereas people who are smuggled are considered to have willingly engaged in a “criminal” enterprise; although both Protocols stipulate that the migrants themselves should not be subject to criminal prosecution on grounds of their irregular entry.

See Concept Note, supra note 4, at 2.

⁵⁵ Giammarinaro, Maria Grazie, Trafficking in Human Beings and its Impact on Court Proceedings; (unpublished paper presented at Austrian Judges week: The Judiciary and Human Rights, Moselebauer May 21–25, 2007).Google Scholar

⁵⁶ Nelken, The “Gap Problem,” supra note 31.

⁵⁷ Warren, Kay, The 2000 UN Human Trafficking Protocol: Rights, Enforcement, Vulnerabilities, in The Practice of Human Rights 242–69 (Goodale, Mark & Merry, Sally eds., 2009).Google Scholar

⁵⁸ See catwinternational.org.

⁵⁹ See www.gaatw.org.

⁶⁰ For example, according to the Un Global Report (supra note 5, at 105–06) in an important supply country such as Nigeria, 2329 victims of trafficking in 2004–2006 were identified but that only eight individuals were prosecuted (the number does increases to 40 by the end of 2008) as compared to demand countries quite a high proportion of these are classified as labor trafficking.

⁶¹ For example, different uses of the Protocol in Holland and Sweden have been seen as being shaped by two opposing feminist stances toward trafficking, see Halley et al., supra note 28, at 396–97.

⁶² Personal communication from Professor Cindy Smith, an American researcher into trafficking (Apr. 26, 2009).

⁶³ Kennedy, David, The Dark Side of Virtue 34 (2004).CrossRefGoogle Scholar

⁶⁴ Halley et al., supra note 28, at 421.

⁶⁵ Id. at 420.

⁶⁶ The broad definition of legal culture used here is one way of describing relatively stable patterns of legally oriented social behavior and attitudes. The identifying elements of legal culture range from facts about institutions such as the number and role of lawyers or the ways judges are appointed and controlled, to various forms of behavior such as litigation or prison rates, and, at the other extreme, more nebulous aspects of ideas, values, aspirations, and mentalities. Like culture itself, legal culture is about who we are, not just what we do (see Nelken, Culture, supra note 2). For further discussion of the term, see Comparing Legal Cultures (Nelken, David ed., 1997)Google Scholar; Adapting Legal Cultures (Nelken, David & Feest, Johannes eds., 2001)Google Scholar and specifically, on why this term is to be preferred to others such as legal system, legal tradition, legal mentalities, or legal ideology, see Nelken, David, Rethinking Legal Culture, in Law and Sociology 200, 208–11 (Freeman, Michael ed., 2006).CrossRefGoogle Scholar

⁶⁷ Gallagher, Anne T. & Holmes, Paul, Developing an Effective Criminal Justice Response to Trafficking in Persons: Lessons from the Front Line, 18 Int'l Crim. J. Rev. (2008), available at http://ssrn.com/abstract=1292563.Google Scholar

⁶⁸ See Ross, Jacqueline E., Impediments to Transnational Cooperation in Undercover Policing: A Comparative Study of the United States and Italy, 52 Am. J. Comp. L. 569 (2004)CrossRefGoogle Scholar; Ross, Jacqueline E., The Place of Covert Policing in Democratic Societies: A Comparative Study of the United States and Germany, 55 Am. J. Comp. L. 493 (2007).CrossRefGoogle Scholar

⁶⁹ Munro, 2005, supra note 50, at 109 ff.

⁷⁰ Id. at 330–31.

⁷¹ Id. at 331.

⁷² In trying to predict the outcome of anti-trafficking, it can be interesting for example to see how the interventions it inspires interact with other legal rights and obligations such as those that affect tenancy rules in red light districts, the bargaining powers of unionized sex workers or the attempts to reduce the spread of AIDS (Halley et. al., supra note 28, at 416).

⁷³ Favell, Adrian, Philosophies of Integration: Immigration and the Idea of Integration in France and Britain (1998).Google Scholar

⁷⁴ Friedman, Lawrence M., The Concept of Legal Culture: A Reply, in Comparing Legal Cultures, supra note 66, at 34.Google Scholar

⁷⁵ Finnegan, supra note 19.

⁷⁶ Mr. Giusto Sciacchitano, National Anti-Mafia Prosecutor, National Anti-Mafia Directorate, Italy, unpublished speech at the Palermo Workshop.

⁷⁷ In fact, according to The United Nations Global Report (supra note 5, at 284) between 2003 and 2006, Swedish authorities identified 50 offenders suspected of trafficking and obtained 11 convictions. In 2008, however, we are told, the government launched an “action plan.”

⁷⁸ Relatedly, how much can other places learn from Italy or even take it as a model to be imitated?

⁷⁹ Nelken, David, Normalising Time: European integration and Court delays in Italy, in Paradoxes of European Integration 299 (Petersen, Hanne, Krunke, Helle, Kjær, Anne-Lise, & Madsen, Mikael Rask eds., 2008).Google Scholar

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⁸¹ Future Group, Falling Short of the Mark: An International Study on the Treatment of Human Trafficking Victims (2006), available at http://www.oas.org/atip/canada/Fallingshortofthemark.pdf. The U.S. might get a different assessment if we were take into account the massive Mexican—or Chinese illegal immigration to the U.S—and the thousands of Mexicans killed at the border.

⁸² There is some confusion in the data from Italy cited in The United Nations Global Report (supra note 5). We are told that between 2003 and 2007 there were 594 arrests for trafficking in persons (Codice penale [Italian Penal Code] art. 601), but we are also informed that as many as 972 people were prosecuted for the same offense. The source for the first statistic is the Anti Mafia Bureau, for the second, the Central Direction of the Anti-Crime Police. As the Report notes Italy has “no central data base.” Id. at 258. The Report also informs us that, in addition to prosecutions for trafficking, there were 2297 prosecutions for reducing others to slave conditions (Article 600 of the Penal Code) and 268 for trading in slaves. But it says that there is an uncertain overlap between the number of offenders charged under more than one of these sections of the penal code (id. at 258). Tellingly, no information is provided on the number of successful convictions.

⁸³ Sciacchitano, unpublished speech, supra note 76.

⁸⁴ The figures for Germany (the Federal Republic and Berlin only), in the United Nations Report for 2003–2007 (id. at 253) indicate that 4,313 victims were identified and have that there were 597 convictions, mostly involving sentences of one to five years almost all for sex trafficking. As for the Netherlands, we are told (id, at 267) that the authorities have found 1664 (possible) victims from 2003 to 2006, but (id. at 266) that on that basis the State has managed 709 prosecutions and 357 convictions!

⁸⁵ According to The United Nations Global Report (supra note 5), Spain, relying on older criminal laws other than the Protocol, succeeded until 2008 in identifying a larger number of victims (with a population two-thirds that of Italy's). Adding the figures presented for the years 2003–2008 gives a total of 12,411, id. at 283); from 2003 to 2007 a total of 6,126 offenders were arrested, three quarters for sex trafficking (id. at 282).

⁸⁶ The United Nations Global Report (supra note 5, at 260) explains that victims can choose the judicial or social path and speaks of 950 foreign victims being given permits to stay in Italy “for social reasons.” It also notes, unusually, that social assistance and integration programmes for trafficked victims are run by the Ministry for Equal Opportunities.

⁸⁷ Italians refer to this as the so-called role of supplenza of the judges.

⁸⁸ Nelken, Culture, supra note 2; Nelken, David, Defining and Using the Concept of Legal Culture, in Comparative Law: A Handbook 109 (Orucu, Esin & Nelken, David eds., 2007).Google Scholar

⁸⁹ The term “external legal culture” may be seen as one way of conceiving of a transmission belt from wider culture to legal culture.

⁹⁰ Toyin Falola & Niyi Afolabi, The Human Cost of African Migrations (2007).

⁹¹ But Mohamed Mattar, a leading expert on human trafficking, who is also Muslim, does also admit that there are important differences between Sunnis and Shiites over temporary marriage and child marriage before puberty. Other widespread practices he considers to be a result of tribal law or a misinterpretation of Koranic principles. See Mattar, Mohamed Y., Trafficking in Persons: An Annotated Bibliography, 96 L. Lib. J. 669 (2004)Google Scholar and also later supplement, see Mattar, Mohamed, Trafficking in Persons: An Annotated Legal Bibliography Delineating Five Years of Development, 2005–2009, 2 Protection Project J. Hum. Rts. & Civ. Soc'y 154 (2009).Google Scholar

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⁹⁷ Fukumi, Sayaka, Cocaine Trafficking in Latin America: EU and US Policy Response (2009).Google Scholar

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⁹⁹ As seen not only in the differential national application of the Protocol but also in the differential availability of types of information about the application of the protocol (e.g., as provided by Germany and Italy).

¹⁰⁰ Although within the literature on “social problems” there are those who argue that there can never be anything other than contestable “claims” about such problems, see Nelken, David, Immigrant Beach Selling along the Italian Adriatic Coast: De-Constructing a Social Problem, Crime, L. & Social Change 297, 302 ff. (Ponsaers, Paul & Lippens, Ronnie eds., 2007).Google Scholar