The Palermo Protocol was established twenty years ago. A supplement to the UN Convention Against Transnational Organized Crime, it aims to “prevent, suppress and punish trafficking in persons,” with a specific focus upon “women and children.” Despite receiving numerous expressions of official support in the years that have followed, the protocol has not proved to be especially effective. This is, in part, because it fails adequately to articulate the nature of the problem to be addressed. Our particular concern here is the vague and ambiguous use of two key terms, “exploitation” and “vulnerability,” which lead to ineffective and even harmful solutions. In this article, we argue that a better formulation of the problem will yield more effective solutions.

The protocol defines trafficking in terms of the means that an actor uses, including force or fraud, and the purpose for which the person is trafficked, namely exploitation. Rather than formally defining exploitation, it instead offers a list of examples: “the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.”

These examples are presented as a ‘minimum’, yet they also represent exploitation as an exceptional problem: immoral and illicit profiting from the victimisation of others, especially, as the language makes clear, women and children performing sexual labour. If, as the protocol suggests, the problem is a matter of criminal individuals, then its preferred solution of rescuing the victims and prosecuting the perpetrators might make some kind of sense. But, as we will see, the underlying problem needs to be understood more clearly before an appropriate solution can be found.

The concept of exploitation

To investigate how “exploitation” is used in the protocol, we find it instructive to turn to the theorist who most thoroughly develops the concept: Karl Marx. There are many relevant lessons which Marx can offer here. First, exploitation in capitalist society is the norm. Rather than a form of corruption, exploitation is the very lifeblood of a capitalist economic system. Workers have no choice but to sell their labour in order to live and, when they work, they produce more value than they receive back in the form of wages or other remuneration.

By exploiting others, capitalists are simply playing by the rules of the game, following the economic practices dictated by the system. People are exploited, then, not because their boss is doing anything illegal or even particularly immoral, but because exploitation is intrinsic to the workings of the economic system. The economic surplus that is produced by the many is understood to be legitimately appropriated privately by the few. Income generation and profit generation are two sides of the same coin. Exploitation, in short, constitutes the ‘proper’ functioning of the system, not an exceptional deviation or individual criminal scheme.

It can be very difficult to draw a clear line between relations of “servitude,” which the protocol lists among examples of criminal exploitation, and normal income-generating activities under capitalism. The remarkably unfettered power that employers enjoy needs to be understood as a prerequisite for exploitation: the employer has the legal right to command the employee’s labouring activity. Even the best employment contracts create, at base, relations of command and obedience. Capitalist work has always been a realm of unfreedom. Although Marx only thought about this relationship of domination in terms of economic class, we should also be able to recognise it within other hierarchies that structure contemporary society based upon gender, sexuality, race, and nation. Each of these axes of unequal power define exploitative relationships, and being forced into such asymmetrical relations of power, as the vast majority of people are, constitute relations of servitude. We thus need an expanded vision that grasps all these hierarchies in order to have a complete picture of the ways that labour is exploited in capitalist society.

It is true, of course, that labour can be exploited at different rates, with workers receiving back somewhat more or less of the value of their labour in the form of remuneration. And different workers are subject to more or less control, more or less abuse, and more or less risk from employers. None of these differences are acknowledged, let alone addressed, within the protocol.

Forced labour

The human trafficking definition also focuses on the methods of recruitment into these relations of exploitation. But here, too, what is presented as exceptional activity turns out to be a structural condition. In the language of the protocol, the list of criminal methods of recruitment is expanded well beyond the use of force or fraud to include the astonishingly vague notion of “abuse of a position of vulnerability.” But vulnerability is a generalised social condition. We find it telling, in fact, that in their attempt to operationalise and systematise the ambiguous language of the protocol, the ILO and the European Commission include “economic reasons” in their “list of indicators of recruitment by abuse of vulnerability.”

Marx once again helps us to see the problem more clearly. Economic vulnerability is not an exceptional and illegitimate means of recruiting people into income- and profit-generating work, but instead the normal and necessary method by which capitalism coerces and disciplines labour. What Marx calls alienating work – the “labour of self-sacrifice” in which a worker does “not develop freely his physical and mental energy but mortifies his body and ruins his mind” – is endemic to all forms of employment under capitalism. “Its alien character,” Marx continues, “emerges clearly in the fact that as soon as no physical or other compulsion exists, labour is shunned like the plague.”

Workers accept these jobs because they have no other choice but to sell their labour power to members of the owning class who will appropriate the surplus as their own profit. For that reason, even if they are waged workers rather than enslaved people, their labour cannot be reasonably described as freely offered: it is “not voluntary, but coerced; it is forced labor.” In other words, economic vulnerability is the normal condition of workers who are recruited into work. Capital needs to exploit workers and most workers have no other choice but to be exploited.

Despite various efforts to generate clear criteria to define the exceptional nature of recruitment into trafficking, the boundaries between capitalist labour and criminal activity continually break down. What the Palermo Protocol portrays as exceptional ends up being a description of the conditions of the system itself.

The case of sex work

The porous border between everyday capitalist exploitation and exceptional criminal abuse is especially apparent when it comes to debates over sex work and trafficking. The case of trafficking into sexual labour exploitation, which the protocol singles out as an area of emphasis, reveals that the blurring of the boundary is not the result of sloppy thinking or writing by committee. Instead, it is a conscious strategy on the part of the feminist prostitution abolitionists who left an indelible mark on the document.

The conflation of sex trafficking and sex work is a key strategy of extremist abolitionist organisations. The Coalition Against Trafficking in Women, for example, insists that “the exploitation of prostitution and trafficking cannot be separated” and therefore equates the work of any form of prostitution to sexual violence and abuse. The protocol and the national anti-trafficking policies modelled on it have served as tools to reinvigorate the policing and prosecution of sex workers more broadly.

One clear example of this agenda in action is the SESTA/FOSTA bills passed by the US Congress and enacted into law in 2018. The law is intended to combat both prostitution and sex trafficking – the two are consistently linked in the text – by targeting online sites and platforms sex workers use to market their services and screen clients on the grounds that they could also be used by traffickers. The law jeopardises the safety and livelihood of the many sex workers using these tools as part and parcel of the effort to de-platform the small numbers of traffickers who might also use these sites. With assistance from all the sensationalised media stories about sex trafficking, the by now common conflation of sex work and sex trafficking has been a boon to sex work abolitionists in the US.

It is worth noting (although this point deserves a separate argument) that the expansive reach of human trafficking laws is also used as a weapon against migrants and migrant aid networks. Just as the law tends to cast all sex work as trafficking, so too migrant aid has become subject to prosecution as “trafficking in persons.” As a result, humanitarian projects, such as rescue missions in the Mediterranean to aid migrants in distress, have been criminalised and repeatedly charged under anti-trafficking laws.

The power of the exploited

It should be clear from the proceeding analysis that exploitation is a structural characteristic of capitalist society – not the exception but the norm – and is thus a much larger problem than presented by the protocol. As such it may seem that a solution will be much more difficult, if not impossible, to find. At this point another aspect of Marx’s concept of exploitation comes into view.

In contrast to standard notions of domination or repression, the Marxist approach to exploitation regards workers as much more than victims. Exploited workers must have a certain power, since if they were powerless and unproductive there would be no way to exploit them. This power of the exploited, which is currently harnessed in the relationship with the exploiters, has the potential to be deployed by the workers themselves. The potential of the exploited, in fact, must be explored not just in terms of economic class but also along all the hierarchies of power that we mentioned earlier. The exploited in all these cases are not victims (or, not only victims) but rather potential agents of power. Since exploitation is structural, not exceptional, and since those exploited are endowed with potential, organising them to act politically for themselves is not only possible but also necessary.

We are not saying that workers are never deceived, forced, or held against their will or that these practices are not odious. Our point is that, as the protocol’s own tendencies to expand its scope demonstrate, these problems exist on a continuum with the far more common problems workers face. Rendered vulnerable by economic circumstances and a dearth of other options for generating income, workers end up in relations of labour exploitation characterised by low pay, danger, subordination, unfreedom, and drudgery. The protocol focuses on exceptional criminal activity rather the structures of inequality. But if the goal of the protocol was to distinguish criminal trafficking from business as usual, then it has failed miserably. The language of exploitation and vulnerability blurs the boundary between the exception and the rule. Take away the moralising evocation of villains and victims and the sensational references to sexual exploitation, slavery, servitude, and organ removal – posed as a simple list with a kind of poker-faced neutrality – and the protocol’s language could well describe many bad jobs.

It is ironic that feminist prostitution abolitionists, who had outsized influence in the drafting of the protocol, actually repeat one aspect of Marx’s argument, albeit in a distorted and limited way. They too reject the division between sex work and sex trafficking. Perhaps, one might think, we could simply expand the frame further from “all sex work is exploitation” to “all capitalist work is exploitation.” But the prostitution abolitionists cannot accept that sex work is like other work; it must remain exceptional, in part because of the fundamentally moral basis of their condemnation. And, as a result, their preferred solution must revolve around criminal prosecution, such as the Nordic model that criminalises the consumers of sexual services in a bid to destroy the sex work sector.

Not rescue and prosecution, but empowerment and organising

In order to arrive at a real solution, we need a better formulation of the problem. If, as we have argued, economic vulnerability and exploitation are general conditions in capitalist society, then the problem is much larger than recognised by the Palermo Protocol. Moreover, the two facets of Marx’s understanding of exploitation – its structural rather than individual nature and the potential power of the exploited it reveals – demonstrate that the adequate strategy to combat vulnerability and exploitation is not rescue and prosecution, but empowerment and organising. First, since most people are recruited into work by means of their economic vulnerability, then the way to address this is to empower them by creating genuine economic security. Endeavours like poverty-reduction initiatives, debt relief programmes, and projects to end homelessness. Second, since the exploited in capitalist society – those exploited in terms of hierarchies of class but also of gender, race, sexuality, and nationality – have a potential power, they are able to organise politically. A genuine solution to the problem of exploitation will thus have to be initiated by modes of coalitional labour organising that are able to address all of these hierarchies together.