As a lay term, exploitation simply means to take unfair advantage of a person. The United Nations protocol on trafficking in persons sets out that exploitation is the purpose of human trafficking, but does not offer a legal definition of exploitation to challenge this standard dictionary definition. Instead, the protocol provides a non-exhaustive list of examples of exploitative practices. This list includes some practices that are defined elsewhere in international law, such as slavery, practices similar to slavery, and forced labour. It also includes other practices that are not defined elsewhere, such as the exploitation of prostitution of others and other forms of sexual exploitation.

These examples were intended by the drafters to allow for flexibility in understanding trafficking, while also offering some parameters around the type of exploitation being confronted. Yet research shows that this lack of precision challenged consistency of response to human trafficking. Can criminal liability be justly attributed to a person for a crime of uncertain parameters and with no clear threshold for severity? What common values, if any, shape understanding of exploitation? And importantly, in a world of socio-economic disparity and cultural diversity, can exploitation be universally understood?

I suggest, perhaps counterintuitively from a legal perspective, that the lay meaning of exploitation as ‘taking unfair advantage of a person’ should not be altered or embellished when understanding exploitation as the purpose of trafficking. We don’t need a separate legal meaning of the term. Rather, we need to remember that exploitation alone does not amount to human trafficking. For exploitation to occur in the context of trafficking, it must reach a threshold of severity, and result from specific actions intended to achieve it.

Questions of context

Evocative depictions of the exploitative conditions endured by victims of human trafficking give rise to the notion that exploitation has some innate rather than instrumental quality. The more egregious those conditions are, the more exploitative they are deemed to be. Indeed, in the most extreme situations marked by violence and harm there is little need to quibble over what is meant by exploitation. A person who works without pay on a fishing vessel for twenty hours per day while being force-fed methamphetamines so that he continues to function is clearly exploited. So too is the person who is recruited into the sex industry on the basis that he will receive $200 per client per hour, yet when the day is done he only receives $150.

But have either been ‘exploited’ in the trafficking sense? Would it have mattered if the latter had only received $50? What about $5? What if he were working in the legal profession rather than the sex industry? It is clear that there is a spectrum at play, with tolerated forms of exploitation falling outside the scope of trafficking at one end, and intolerable forms being included within trafficking at the other. Both the space between those poles and the location of any given scenario along the continuum will be highly contested.

The examples of exploitation found in the protocol are listed as a non-exhaustive minimum, so that any form of exploitation may be captured within the definition of trafficking. This means that the drafters made no presumptions about whether or how the type of exploitation bears on its severity, allowing for exploitation in any sector to be severe. But can all forms of exploitation be treated as ‘like’, or do some types speak to an intrinsic nature of exploitation more than others?

That the type of exploitation has bearing on assumptions about its severity in practice, is perhaps most evident in the context of ‘sexual exploitation’. It is here that the notion that some types of work are ‘innately’ more exploitative than others seems to have taken root. This is not only in the minds of a puritanical few, but also within society more broadly. Think, for instance, of the woman who believes she is bound for work as a waitress only to find herself exploited in the sex industry. This is a commonly used scenario to illustrate deceptive recruitment into trafficking. But the situation of the woman who believes she is bound for prostitution, yet then ends up being exploited as a waitress, is not referred to as an example of trafficking. Why?

Similarly, exploitation that occurs in the context of marriage – whether forced, child, early, temporary or servile marriage – has not inspired a movement of marriage abolitionists in the same way that exploitation in the sex industry is met with demands to abolish prostitution. The same is true for fishing, farming, manufacturing and domestic work. In all of these sectors it is uncontroversial to argue for increased protections against exploitative practices, but calling for their outright ban because of the abuses that occur within them would appear plainly absurd.

The legality of a practice or activity is of equally little help when trying to determine what, if anything, is ‘innately’ exploitative. The quality of ‘legality’ does not mean that ‘unfair advantage’ cannot be derived. On the contrary, law can create, entrench, and legitimise vulnerability to exploitation, for example where workers are driven into debt bondage by legally required recruitment fees. Similarly, the kafala system that ties migrant workers to specific employers is ‘legal’ in many countries, yet may deliver people into exploitative situations. In some countries, marriages can legally take place against the wishes and best interests of the parties involved while also legitimating their labour and sexual exploitation. In short, exploitation can occur in legal and regulated settings as much as in illegal and unregulated ones.

Allowing states parties to the trafficking protocol some degree of flexibility in determining what comprises ‘unfair advantage’ in their context is of course necessary for meaningful domestication of the international counter-trafficking framework. But cultural relativity cannot be given so wide a berth that it results in the degradation of human dignity and freedom. Court-sanctioned forced marriages and legislatively prescribed, worker-paid recruitment fees do not remove the taint of exploitation; they sow its seeds. Context then may be relevant to determining where on the spectrum a given situation may fall, but internationally agreed human rights and labour standards must steer the course and set the bar.

Questions of commerce

The current global economic order is steeped in inequality. Some have access to social safety nets when they opt to quit jobs they don’t like, while others pay exorbitant fees and incur debts in order to get any work at all. Given these variations, objectively agreeing on a universal understanding of ‘exploitation’ seems as feasible as describing the air we breathe. We live in the ether of exploitation. I recall a meeting with counter-trafficking stakeholders in the Horn of Africa to discuss challenges of applying these concepts in practice. At some point as we unpacked the nexus between vulnerability and exploitation, a participant laughed out loud and waved his arm to gesture towards the world outside the meeting room: “Who here isn’t in a situation like that!?” In so far as exploitation is the purpose of trafficking then, it must be narrowed down.

Here, what the protocol’s drafters opted to omit from their list of exploitative forms is as telling as what they included. The International Labour Organization’s (ILO) proposal to include the broader concept of ‘labour exploitation’ was rejected, pointing to the drafters’ intention that the exploitation at issue would have some degree of severity and scope and not apply to all situations of labour that are exploitative. Here, we are back to the issue of a spectrum of exploitation and no agreement regarding where any given situation should sit upon it to meet the threshold for trafficking.

We should not automatically assume that trafficking has occurred whenever a vulnerable migrant accepts a low-paying job because it provides an income he would not otherwise have. But nor should we assume the opposite. Why? Firstly, because the protocol tells us that a person’s consent to exploitation is irrelevant where ‘means’ have been used. And secondly, because exploitation in the protocol does not refer to what the victim experiences, but to the unfair advantage intended to be taken by the perpetrator. To identify a situation as being one of trafficking then, we must look to the actions and intentions of the trafficker, not the actions and intentions of the victim.

Questions of conduct

In its sibling protocol on smuggling of migrants, the purpose specified for that crime is “financial or other material benefit”. But no such benefit is explicitly required for trafficking. During negotiations of the trafficking protocol, suggestions to include a profit element were rejected, with concerns raised that it would be too restrictive and that a broader understanding should prevail.

But perhaps material benefit is anyway entailed in the understanding of exploitation. As explained elsewhere, the trafficking protocol applies to offences that “are transnational in nature and involve an organized criminal group” (according to article 4 of the same protocol). And organised criminal groups, according to the United Nations Convention against Transnational Organized Crime, act for “financial or other material benefit”. But in practice, material benefit is treated as inessential to exploitation; as something that is incidental to its more abstract and conceptual ‘know it when we see it’ character.

If exploitation means to take unfair advantage, in extreme situations it seems sufficient to infer from the circumstances that advantage has been derived. We can know it when we see it in such cases by adjusting our perception of what ‘it’ is to the economic and cultural context. The risk in such an approach is that the same type and severity of exploitation may be condemned in one place while accepted in another. And even if that standard could be harmonised in an ideal world (through universal fulfilment of human rights and labour standards), still not every instance of exploitation would occur in the context of trafficking.

The definition of ‘trafficking in persons’ set out in the trafficking protocol describes a very specific form of criminal conduct. The tripartite definition requires that an “act” be done, by use of “means”, for “the purpose of exploitation”. Critically, this definition speaks to the conduct and intentions of the trafficker, not the plight of the victim. In reality, the conditions that exploited people endure may not always be the result of somebody proactively intending to take advantage of them. Indeed, many situations that may seem like trafficking may simply be people working in unfair and unsafe conditions, for want of options for decent work. At the same time, particularly in settings where exploitation is pervasive, it may be difficult to detect those exploitative instances that traffickers have brought about with the intention of benefiting from them, allowing criminals to carry on unseen and with impunity.

In the final analysis then, it is sufficient to understand exploitation as ‘taking unfair advantage’ of a person. But it is only when we identify who is receiving that advantage, and how they delivered a person into the exploitative situation to begin with, that human trafficking can be understood and addressed as criminal conduct taking place against a wider backdrop of economic, social and cultural inequity that provides fertile ground for exploitation.