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.
