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The role of the state and law in trafficking and modern slavery

Beyond Slavery introduces its new issue on the state and the law, elements which not only define slavery but shape the channels through which it is addressed.

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The role of the state, and national legislation in particular, is absolutely crucial to the ‘modern slavery’ debate. Indeed, the construction of the concept of ‘modern slavery’ is itself predominantly reliant on individual states as well as the international and regional organisations they constitute. National legislation and international legal conventions determine the conditions under which phenomena are discursively constructed as instances of ‘modern slavery’ and when they are not. Similarly, state authority and complicity determines whether the forced movement of a man across national borders by a group of racist, violent thugs, leading to his death is classed as deportation (and hence ‘acceptable’) or ‘human trafficking’ and a form of ‘modern slavery’. In sum, the social relations and practices classified as modern slavery exist in much the same way as they have existed historically and spatially, but their legal classification as crimes, ‘modern slavery’ or as entirely different phenomena is exclusively at the behest of the state. To put it rather crudely, without the agreement of the state and the laws it creates, ‘modern slavery’ cannot become a legal category, which is what the UK Modern Slavery Bill seeks to do.

With this in mind, modern abolitionists have long lobbied politicians and governments in an attempt to legitimise their own understanding of contemporary forms of slavery. Indeed, modern abolitionism appears to be one of the few spaces in which the oddest of bedfellows manage to find common-ground: left and right wing politicians, corporate institutions, ethical consumer groups, human rights activists, academics, and actors from what has been classed as the ‘rescue industry’. These actors are united in their demands for states to enact or enforce legislation that prevents ‘modern slavery,’ and to pursue and punish those deemed to be contributing to the phenomenon.

Many states have obliged, enacting various laws that are purportedly aimed at addressing ‘modern slavery’. As demonstrated by numerous pieces already published on this platform, this claim starts to unravel when the laws are subjected to any real scrutiny. A number of these laws have been problematised on the basis that they fail to address problems such as humiliating poverty and socio-political conflict or persecution, among others, that produce vulnerability and lead many into the conditions defined as ‘modern slavery’. Other laws are vehemently opposed even by those they purport to benefit, because of their adverse consequences. Overall, scrutiny of these laws shows that while state power and legislation can be used for positive ends, they can equally be employed in the pursuit of measures that run contrary to human rights concerns.

The real problem is that ‘modern slavery’ is an entirely political subject, which has been depoliticised by modern abolitionists and the state. What gets defined as ‘modern slavery,’ and the laws that are consequently formulated to address it, mirror and promote certain basic political, socio-economic and other interests or concerns of politicians and national governments. Across North America, Western Europe and elsewhere in the Global North, far from exclusively serving human rights interests, ‘anti-trafficking’ legislation and related measures such as border militarisation have actually created conditions for gross human suffering and needless deaths over the world. In many cases, state actions or inactions have also been found to be directly linked to the creation of the conditions they purportedly aim to eradicate.

This is evident in our lead piece from Kate Roberts, an advocate at Kalayaan, which explores the vulnerability-inducing restrictions placed on migrant domestic workers in the UK, as well as the current battle in the UK Parliament to change them. These tie overseas domestic workers to their employers, thereby preventing them from legally exiting dangerous and abusive situations for as long as they remain in the UK. As Roberts and others have argued, this measure violates the fundamental freedom of workers to change employers and ultimately creates a pool of human beings ripe for exploitation by their employers.

Another dimension to this is access to justice, without which human rights can be intolerably violated. One of the most essential services lawyers in the UK could provide to those who have been exploited in ways deemed to constitute ‘modern slavery’ is to give them free legal advice, made possible through legal aid. However, the UK government utilises the residency test to restrict the receipt of legal aid, meaning that even when the police and other state agencies fail to act on complaints of exploitation by overseas domestic workers, they may still have no resource to justice.

Later on, Carol Leigh demonstrates that anti-trafficking legislation has historically been used to harm the rights of sex workers, rather than protect them from violence and exploitation. Similarly, Sealing Cheng explores how the state’s privileging of the criminal justice approach over the human rights approach to trafficking in South Korea, in addition to narrowly interpreting trafficking in terms of prostitution, has severely undermined the rights of sex workers. Alice Miller reflects on how the constant ‘bait’ of sexual harm permits a constantly changing ‘switch ’ to operate with relative impunity in the US. As a result, she argues, little research has been done on the intersection of labour importing and labour rights restrictions within anti-trafficking regimes. Nandita Sharma argues that laws enacted by migrant receiving countries purportedly to combat ‘human trafficking’ are in reality anti-immigration tools.

Trade unions have long been familiar with the problems faced by migrant workers. Zuzanna Muskat-Gorska and Jeroen Beinhart, both of the International Trade Union Confederation, convincingly argue that states’ adoption of the criminal justice paradigm has not brought about any significant reduction in the numbers of trafficked victims. Arguing for a paradigm shift, they suggest that states adopt preventive measures that focus on equal treatment, income insecurity, living wages, real collective bargaining power, recruitment and employment protection.

The ineffectiveness of the rescue and rehabilitation model is particularly evident in the context of Cambodia, where Anne Elizabeth Moore shows how so-called ‘trafficked victims’ are led by rescuing NGOs to work in garment production under conditions that produce extreme vulnerability. In other words, unless the precarious conditions of workers are not fundamentally addressed, even those rescued from trafficking will find themselves exposed to the risk of being re-trafficked albeit with the full support of rescue agencies.

About the authors

Prabha Kotiswaran lectures in Criminal Law at King’s College London. She is the author of Dangerous Sex, Invisible Labor: Sex Work and the Law in India, published by Princeton University Press (2011) and co-published by Oxford University Press, India (2011). She also blogs for the Interdisciplinary Project on Human Trafficking.

Sam Okyere is a lecturer in Sociology at the University of Nottingham. He is primarily interested in sociological, anthropological and policy analysis of childhood, child rights, human rights, social justice, (in)equality, globalisation, migration, racism and identity.


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