Tlaleng Mofokeng

Tlaleng Mofokeng, UN Special Rapporteur on the right to health
The European Court of Human Rights recently handed down its decision on admissibility in the case of MA and Others v France. The case is being brought by 261 applicants (of a wide range of nationalities, all of whom are prostitutes) who wish to challenge the French law 2016-444 of 2016, which amongst other things makes the purchasing of sex unlawful. (A helpful English language overview of this law, provided by the United States' Library of Congress, can be found here.) The Court has not made a decision about the merits of the case; this is in effect permission to go to a full hearing, although in providing this the Court recognises that there is a prima facie argument to be made that a law banning the purchasing of sex is incompatible with the European Convention.

There is a huge amount to say about this litigation in itself and what it reveals about the way human rights law has developed. Much of this will have to wait for future posts, however. Here, I will confine my observations to a broader issue, onto which the case opens a window: human rights advocates - certainly in official UN fora and in the major human rights NGOs - seem to have become very interested in the cause of decriminalising and ultimately normalising the marketisation and commodification of sex. And, as we will see, this brings to the surface a decay at the heart of the system of international human rights law, demonstrating as it does that people who run this system seem to be increasingly contemptuous of the notion that law might have an existence independent of politics.

The case of MA and Others v France originally came to my attention because, as a seasoned observer of the UN human rights ecosystem, I was perusing press releases of some of the Special Rapporteurs. (You can think of these as official UN-appointed chief human rights activists, who are usually given a particular remit about which they produce reports and guide UN strategy.) The UN Special Rapporteur for (deep breath) the right of everyone to the enjoyment of the highest attainable standard of physical and mental health is Tlaleng Mofokeng, a likeable and charismatic South African medical doctor who has gained a certain level of fame as a 'thought leader'.

You might have expected Mofokeng to be chiefly interested in subjects like malaria, malnutrition and so on, or perhaps the youth mental health crisis. But her main strategic priorities (laid out in her first report as Special Rapporter), apart from eliminating racism and colonialism, essentially concern sex: sexuality, gender-based violence and femicide; sexual and reproductive health; sexual and reproductive health and digital interventions; and reproductive cancers. Mofokeng - the author of Dr T: A Guide to Sexual Health and Pleasure - is also heavily involved in the push towards Comprehensive Sexuality Education that is taking place across the UN human rights system, which aims to "equip young people with knowledge, skills, attitudes and values for positive sexuality and good sexual and reproductive health" while - inevitably - addressing "patriarchal domination and toxic masculinity" and, er, "recognising the 'evolving capacities' of adolescents to make their own decisions". And, it turns out, she submitted a written intervention in the case of MA and Others v France back in August 2021, around a year after taking office.

Her submission makes for fascinating reading as an exemplar of a wider phenomenon, which I will come to in due course. This is because, for all that the European Court of Human Rights is a court, and for all that MA and Others v France is a legal dispute which ultimately must concern matters of law (as distinct from policy, or merely of fact), Mofokeng's submission contains almost no reference to legal rules. I don't believe that it cites a single piece of binding case law from any jurisdiction, and the few times law is actually mentioned it is at the very broad level of international treaty provisions (though the document does make extensive reference to the work of the UN treaty bodies, committees of human rights experts who give 'authoritative' but non-binding views on the interpretation of human rights treaties).

Since there are no provisions of international human rights law that have anything to do with decriminalising the purchasing of sex (for the simple reason that the drafters of the main international human rights treaties - the European Convention on Human Rights, the International Covenant on Civil and Political Rights, etc. - did not in their wildest imaginings consider the sex trade to have much at all to do with human rights except insofar as it should be abolished), this is hardly surprising. But this doesn't stop the document offering a slew of tendentious interpretations of international legal provisions which, through motivated reasoning, are said to be dispositive. Here is an example:
Criminalising sex work can lead to violations of the right to be free from torture and other cruel, inhuman or degrading treatment or punishment or other ill-treatment, including in health care settings. States are obliged as a matter of international law to take measures to prevent torture and other ill-treatment, to investigate and prosecute perpetrators and to provide adequate reparations for victims. Further, criminalising the buying or selling of adult consensual sex, or elements of those transactions, threatens the right to liberty where sex workers are arbitrarily detained.
One does not need to be a lawyer to see that this is not legal reasoning, nor indeed reasoning of any kind worthy of the name. "Making behaviour X a criminal offence might lead to abusive treatment or threaten liberty if the law is applied arbitrarily or capriciously" is an argument in favour of due process; it is not an argument against making behaviour X a criminal offence. It certainly does not even come close to explaining why the correct application of the European Convention on Human Rights makes France's Law 2016-444 unlawful.

The document is full of this kind of sloppiness with respect to legal argument. And it must here also be said that it does not even anywhere address the substance of the case. Paragraph after paragraph we find reference to the negative consequences of "criminalising sex work". But the punchline is that MA and Others v France does not concern a law which criminalises the sale of sex; the law in question actually decriminalised it. Law 2016-444, the subject of the dispute, made the selling of sex effectively legal. What it actually criminalised was the purchasing of sex - in other words, it puts into effect a 'Nordic model' which targets only clients, pimps and sex traffickers, while leaving prostitutes (conceptualised as victims) alone. Mofokeng in other words seems to have submitted a written intervention for a non-existent dispute in which a non-existent law which criminalises sex work is being challenged.

What explains this basic failure to give the law its due? The truth of the matter, of course, is that - like the entire UN human rights apparatus - Mofokeng can only really think of the law in instrumental terms: how it can be used to justify desired policy. Policy comes first; the law is then interpreted in such a way as to give it legitimacy. One begins from the idea that sex work should be normalised, and one works backwards from there. If the law seems consonant with the objective one hopes to achieve, then great; if it doesn't, it can be ignored or - better - bent so that it does. Hence we get bizarre contortions like this one:
Criminalising sex work can create a permissive environment for discrimination, harassment and intimidation of sex workers, in violation of the right to equality and the principle of non-discrimination... Sex workers are overrepresented among those experiencing intersecting forms of discrimination based on gender, race, ethnicity, caste, indigenous identity or migrant status or a combination of them, are often over-represented among individuals selling sex [sic].
This is not the argument of somebody who is dispassionately applying the law concerning non-discrimination (which, if anything, would suggest that since sex work has such obvious discriminatory consequences it should be prohibited). This is the argument of somebody who has started from the position that sex work must be normalised and is pulling at legal straws to justify that position. In case there is any doubt about this, she makes the position clear towards the very start of her intervention:
Sex work is real work. Men, women, non-binary people and transgender people who sell sex are exercising their agency to make a realistic choice from the options available to them. The idea of purchasing intimacy and paying for the services can be affirmative for many people.
It's not in other words that the proper application of international human rights law provides a convincing case that the purchasing of sex should be made lawful. It's that sex work should be normalised, and international human rights law must be forced into to providing the justification as to why.

But it would be unfair to single out Mafokeng in making this kind of argument; she is merely channeling a view, and a style of argumentation, which is becoming increasingly dominant within the cutting edge of the international human rights movement. Here is a quote from Amnesty International - probably the name that is more closely associated with the human rights movement than any other in the public consciousness - in its intervention in the same case:
Sex work remains highly stigmatised... contributing to discrimination and marginalisation of sex workers. ... Guaranteeing human rights without discrimination is the most effective way to ensure the empowerment of people involved in sex work and the protection of individuals from discrimination, violence and coercion.
Note the emphasis. While few would disagree that protecting prostitutes from violence and coercion is important, nowhere does Amnesty International suggest that perhaps the sex trade is a bad thing and ideally nobody would be selling sex. Far from it; if anything the main goal should be destigmatising sex work itself and "empowering" sex workers, along with (as Amnesty suggests elsewhere in its intervention) "improved rates of pay".

And here, meanwhile, are two of the recommendations that Tomoya Obokata, UN Special Rapporteur on contemporary forms of slavery, made on a visit to Canada just a few weeks ago:
Stop the conflation between sex trafficking and sex work in order not to stigmatise sex workers who are not trafficked;

Fully decriminalise sex work in law and practice, and eliminate discriminatory policies that prevent migrants from engaging in sex work.
In turn, the mood music in 'big human rights' has become increasingly critical of the Nordic model, which as we have seen aims to abolish the sex trade by decriminalising prostitution while punishing the purchasing of sexual services. The Nordic approach, which, to remind you, targets clients, pimps, brothel owners and sex traffickers, and leaves prostitutes themselves alone, would doubtless make intuitive sense to most voters in most jurisdictions. But its overarching aim of eliminating the purchasing of sex is now considered too 'stigmatising' and 'disempowering' for many human rights activities, not to mention discriminatory. Far better to just legalise the sex trade tout court - including the purchasing of 'intimacy', brothel-keeping and all the rest. Indeed, when the EU Parliament's Committee on Women's Rights and Gender Equality issued a report recently on adopting an EU-wide adoption of the Nordic model, Human Rights Watch, no less (second only to Amnesty International in terms of prestige among human rights NGOs), gave it extensive and negative coverage, listing among the supporters of total decriminalisation of the purchasing of sex a smorgasbard of the great and good, including the Joint United Nations Programme on HIV/AIDS (UNAIDS), the World Health Organisation, the UN Population Fund, the UN Development Programme, Human Rights Watch itself, Amnesty International (see above), the International Planned Parenthood Foundation and, bizarrely, the Lancet.

And we see in all of this the same basic pattern. The starting point is that it would be a jolly good idea if the buying and selling of 'intimacy' was destigmatised and indeed normalised. If this were to happen, sex workers would be better able to access health care and other public services, and would be free from violence and intimidation from the police. (The subtext, of course, is that society would also become more 'enlightened' about matters concerning sex and traditional morality would be consigned to the dustbin of history - always a good result for 'thought leaders'.) Since this would be a good set of outcomes, then the law surely mandates their realisation, and insofar as law stands in the way - for instance, by making the purchasing of sex unlawful - it must be abolished through creative interpretation of a higher law (as may be the fate of France's Law 216-444) or ignored. (This latter option is the case with the 1949 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, which I earlier alluded to. This Convention is never mentioned in any of the commentary by the likes of Human Rights Watch or Amnesty International with regard to these matters - perhaps because it begins with the awkward preamble: "prostitution and the accompanying evil of the traffic in persons for the purpose of prostitution are incompatible with the dignity and worth of the human person and endanger the welfare of the individual, the family and the community.")

As anybody familiar with the system of international human rights law will know, however, the issue of sex work is a microcosm for the wider whole: human rights advocates have lost the sense that law should have an existence independent of policy, and indeed only really seek to make law the servant of policy when they see fit to mention it at all. The law does not, in the mainstream view, do anything so quaint as to enshrine social and moral norms in enforceable rules. It exists simply to provide the justification for doing whatever is felt to be right at any given moment by the 'experts'. As the international legal theorist Martti Koskenniemi once put it, speaking about this tendency in the round, to this way of thinking "law was anyway always only a second best - a pointer to good purposes, but pointless if those purposes were known, and harmful if poised against them".

This was all foreseen long ago by Hannah Arendt in her writing On Revolution. As Arendt put it, when the realm of "the social" - that is, "the cares and worries which actually belong in the sphere of the household" - become enmeshed with politics, they quickly transform into "matters of administration, to be put into the hands of experts". Law as a consequence diminishes in importance, and loses respectability: since the making of law cannot resolve "the cares and worries which actually belong in the sphere of the household" (how could it?) political actors turn instead to "bureaucratic measures" and pervasive regulatory tactics. Government cannot simply make a rule to solve the household cares and worries in question, and must instead engage in much more direct and minute tinkering in daily life, advised of course at every turn by technical expertise. The people charged with applying their technical expertise, it goes without saying, have no patience with or respect for law as a field of authority in its own right; to them law at best gives their own efforts a veneer of legitimacy, and at worst just gets in the way.

One could not of course identify an issue that more fully meets Arendt's definition of "the social" than matters of sex and sexuality, and it is therefore no accident that as the boundaries between the private household domain and the public sphere have broken down, we are seeing a burgeoning interest in the regulation of sex and sexuality by technical experts - in this case, located in the domain of human rights. We should hardly be surprised that this means that there is growing dissatisfaction amongst these people with the notion that there is such a thing as law, which has an independent existence and which has a role in reflecting the moral expectations and social norms of the society from which it springs. To contemporary human rights experts, law simply does not really matter. What matters is that issues of "the social" are resolved in the appropriate way and with the appropriate outcomes - as determined, of course, by themselves.

Where will this take us? It is easy to forecast the direction of general travel, though difficult to predict it in detail. Since the making of law is bound up inextricably with the matter of morality (despite decades upon decades of legal theorists doing their best to argue otherwise), and since human rights advocates increasingly have contempt for law, the consequences are in a sense obvious. I can only refer to Mafokeng's own words, which state the position with such perfect clarity it is scarcely credible:
Evidence, not morality, should guide law reforms and policy.
In this, she speaks for increasing numbers of human rights advocates in the round. Morality is old hat; technical experts who marshal the evidence are the only game in town. I will cover the extraordinary implications of this foolish notion further in the coming months.

Dr. David McGrogan is an Associate Professor of Law at Northumbria Law School.