Beyond Trafficking and Slavery

Law’s mediations: the shifting definitions of trafficking

As trafficking becomes increasingly conflated with slavery and forced labor, there is less and less agreement amongst international organisations on the precise definitional boundaries of these terms.

Prabha Kotiswaran
8 October 2014
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Protestors pressure the Irish parliament in October 2012 to recognize the rights of domestic workers. But how much can we hope to accomplish with legal remedies without also changing broader economic and social systems? Michael Debets/Demotix. All rights reserved.

Until very recently the term trafficking typically conjured up for us the image of a young girl forced to perform sex work in a caged brothel in some gritty red-light area in a third world country like Cambodia or India. Today the increasingly visible concern around modern slavery and forced labor has shone the spotlight on the extremely exploitative conditions experienced by men and women in the agricultural, clothing and construction sectors (to name only a few). Little wonder then that the International Labor Organisation (ILO) estimates that there are approximately 21 million forced laborers in the world today. So what are law-makers doing to address this complex, trans-border problem of human trafficking?

Almost 15 years ago, states negotiated a set of international legal instruments called the Palermo Protocols. Specifically, there are three Palermo protocols that supplement the 2000 UN Convention against Transnational Organized Crime, also known as the Palermo Protocols. These deal with human trafficking, migrant smuggling and trafficking in firearms. The Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children was negotiated in 2000. It came into force in 2003 and has been ratified by around 159 countries. As we approach the 15th anniversary of the negotiation of the Protocol, one might ask how it has fared so far.

In the initial years after its adoption (2003 to 2009), states operationalized the Protocol into domestic law to do two things: target sex workers whether they were working voluntarily or by force, and to police borders preventing migrants, undocumented workers and asylum seekers from crossing into their countries. The human rights of these groups were severely compromised during this time. These enforcement efforts were driven largely by the policies of the Bush administration in the US, as well by the requirements of a US law, the Victims of Trafficking and Violence Protection Act (VTVPA), which conditioned foreign aid on compliance with its anti-trafficking standards. Every June, the US State Department issues a Trafficking in Persons (TIP) Report ranking countries according to their anti-trafficking efforts. Countries in Tier 3 lose non-humanitarian, non-trade foreign assistance. This definitional and operational bias however began to shift in 2009, making way for increased attention to trafficking in a range of labor sectors other than sex work.

The definition of trafficking in the Palermo Protocol itself is quite broad. Article 3, which provides this definition, includes three elements:

  1.  an action element, meaning the recruitment, transportation, transfer, harbouring or receipt of persons;
  2.  a means element, referring to the threat or use of force or other forms of coercion, including: abduction, fraud, deception, the abuse of power or vulnerability, or the giving and receiving of payments or benefits to achieve the consent of a person having control over another person
  3.  a purpose element for the purpose of exploitation. Exploitation includes, at a minimum, 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.

None of the legal concepts listed in Article 3 are in fact defined in the Palermo Protocol itself. Certain terms such as ‘forced labour’, ‘slavery’, ‘practices similar to slavery’ and ‘servitude’ are defined under international law but the others are not defined under international or domestic laws. As a result, one could stretch these concepts across a continuum of social possibilities.

Indeed, states adopt definitions of trafficking in their domestic criminal law that suit their particular social and political contexts. So for example, in the Netherlands, undocumented Chinese migrants, working for less than half the Dutch minimum wage, are considered exploited and ultimately trafficked. In Switzerland, on the other hand, all migrant sex workers are considered vulnerable to trafficking even if they have entered this form of work voluntarily. Even the UN Office on Drugs and Crime, which is the guardian of the Protocol, has recently admitted its lack of data on the phenomenon of trafficking, the magnitude of the problem, and the uneven nature of domestic law reform undertaken to align states’ obligations with the Palermo Protocol.

Thus, although non-lawyers may expect there to be a clear-cut legal definition of trafficking, the legal scenario is in fact rather fluid. As the definition of trafficking is stretched, several international players are visibly stepping up their anti-trafficking efforts.

The ILO views trafficking as a form of ‘forced labor’. The International Labour Conference in June 2014 adopted a Protocol and Recommendation to supplement the Forced Labor Convention of 1930, which strengthen the rights of migrant workers and address the structural socio-economic conditions that often lead to their being trafficked. Meanwhile philanthropists like Andrew Forrest, the Australian mining magnate and founder of the Walk Free Foundation, has contributed millions of dollars to counter what he calls ‘modern forms of slavery’. This organisation has recently issued a Global Slavery Index, which ranks countries around the world in terms of the magnitude of their slavery problem. Governments also find this idea of modern slavery appealing, and the UK Parliament, for example, is currently considering a draft Modern Slavery Bill.

As trafficking becomes increasingly conflated with slavery and forced labor, there is less and less agreement amongst international organisations on the precise definitional boundaries of these terms. This serves to further muddy the waters regarding which regulatory agencies are responsible for dealing with these issues. Definitional conundrums are exacerbated by the fact that the Palermo Protocol assumes that states will put into place a criminal law machinery to address trafficking. But the shifts in the definition of trafficking suggest that a broader range of legal techniques (such as labor law, corporate law, immigration law) is necessary to address the problem of trafficking.

The fact that the law does not definitively draw bright-line boundaries around trafficking may appear disconcerting and seem to undermine the fight against trafficking. Yet the malleability of anti-trafficking law also provides an opening for reconceptualising the spectrum of exploitative labor conditions that are endemic to contemporary globalised economies.

More significantly, it reminds us that law is hardly adequate for addressing what are fundamentally complex socio-economic problems of transnational import. On the contrary, the law often reflects intensely political struggles over the meaning of highly contested social problems. To conclude, the law is significant to the anti-trafficking movement, yet a measured appreciation of its strengths and drawbacks is essential in crafting a realistic strategy to combat trafficking.


Beyond Slavery

This article is from the Beyond trafficking and slavery editorial partnership, supported by King's College London, the University of Nottingham and the University of the Witwatersrand.

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