The Palermo Protocol on trafficking is applauded by anti-slavery NGOs and many liberal human rights advocates as a tool that can be used to combat exploitation and other rights violations. However, the protocol and the anti-trafficking and modern slavery discourse surrounding it are generally discussed – at least privately – in triple-X rated language by critical race thinkers, sex worker rights activists, and many scholars and activists mobilising for labour rights and/or the rights of migrants and their families. Why the gap?

It’s important to remember that while the protocol makes ‘exploitation’ core to its definition of ‘trafficking’, it was not developed to tackle exploitation per se. It exists only to address a subset of cases in which people are recruited and moved into exploitative situations by a third party using coercive or underhand means. Supplementary to the UN Convention on Transnational Organized Crime, the trafficking protocol sits alongside a protocol on smuggling, which allows that exploitation can also feature in the experience of ‘smuggled’ persons. It calls on state parties to criminalise the smuggling of migrants, and to establish as aggravating circumstances to that crime those which “endanger, or are likely to endanger, the lives or safety of the migrants concerned; or that entail inhuman or degrading treatment, including for exploitation, of such migrants”.

So as far as persons over the age of eighteen are concerned, then, these two protocols do not separate migrants according to whether or not they are subject to ‘exploitation’ in the process of movement or at the point of destination. Instead, they divide migrants into two groups according to whether or not they give informed consent to movement. Those who consent to movement are not ‘trafficked’ but ‘smuggled’. These protocols are thus centrally concerned with mobility, and more particularly, with connections between mobility and criminality.

When exploitation and mobility collide

What’s wrong with introducing the term ‘exploitation’ into policy and political discussions around criminalised forms of mobility? The term is used by those who mobilise for workers’ rights – including the rights of migrant workers – so why is it a problem in anti-trafficking and anti-slavery discourse?

The answer is that labour movement activists work with an understanding of labour exploitation that is embedded in a broader critique of capitalism. Anti-trafficking and modern slavery activists do not. They extend the concept of exploitation well beyond labour relations, and also detach it from an analysis of the structural relations of power in which particular acts, transactions, and relationships are embedded. Used in this way, exploitation is nothing but an empty signifier – a word without a meaning – and can therefore be filled with different meanings by different actors. This makes its association with unauthorised migration extremely dangerous.

So, for example, in anti-immigration rhetoric, the false suggestion that smuggling always entails exploitation allows politicians and journalists to employ the categories ‘trafficking’ and ‘smuggling’ interchangeably. Anyone who facilitates unauthorised migration becomes part of the category that Priti Patel, the UK home secretary, brackets as “abhorrent criminal gangs and people smugglers who exploit vulnerable people”. At the same time, such ‘criminals’ are described as exploiting the supposed generosity of EU asylum and immigration systems – or in the UK, what Patel calls the “broken asylum system”. Suddenly, it is possible to present citizens as the real victims of exploitation, as Patel does when she speaks of “criminal gangs” who “laugh in the face of the British people”. Through this lens, migrants and asylum seekers meld into the category of ‘criminals who exploit vulnerable people’. It then becomes not only conscionable, but righteous, to jail asylum seekers who steered small boats crossing the English Channel, and to prosecute the bereaved father of a six-year-old child left to drown by the authorities.

In the US, Australia, and the EU, trafficking discourse has allowed for the sanitisation of some extraordinarily harsh, highly illiberal, and often lethal measures taken to supress unauthorised migration from Latin America, Asia, and Africa. And the impact of the trafficking protocol extends far beyond the borders of countries in the Global North. The language of trafficking in general, and the US TIP process in particular, has also been used to press governments of countries within Latin America, Asia, and Africa to adopt laws and policies that restrict and criminalise mobility, with extremely negative consequences for large numbers of people.

Anti-trafficking and anti-slavery NGOs sometimes, but not always, recognise that current immigration rules contribute to or compound the problems experienced by those seeking to enter countries in the Global North. But their emphasis is on how such rules make migrants vulnerable to trafficking and wrongly penalise its victims. They neither demand an end to bordering regimes and other restraints on mobility nor challenge the global political and economic structures that make mobility into a site of profound inequality.

But as critics of these structures point out, contemporary bordering regimes and other controls over mobility are rooted in histories of colonial violence and dispossession, including transatlantic and Indian Ocean slavery and their aftermaths. They exist not to prevent human movement, but to differentially allocate mobility rights and freedoms. Thus, they largely grant freedom of movement to those who are white and/or relatively wealthy and/or from the Global North, and who are adults. Meanwhile, they heavily restrict the mobility of people from and within the Global South, people who are racialised as black, brown or ‘other’, people who lack economic and social privilege, and people defined as children in international law. The trafficking and smuggling protocols are part and parcel of these regimes, and reproduce their racial and Global North-centric, as well as their class, gender, and age logics.

Features, not faults, of the system

As theorists of racial capitalism argue, the concept of exploitation, even as applied in critiques of capitalism, is not enough on its own to fully explain the racial logics of global capitalism – logics that are central to regimes of bordering and patterns of mobility and immobility in the contemporary world. Such patterns do not only or always spring from capital’s efforts to squeeze more surplus value from the working classes in processes of production and service industries.

Consider, for example, the militarised conflicts over territories containing sought-after resources. Those affected by such processes generally move if they can. Their journeys mostly end in Global South countries, but sometimes they are able to continue on to the Global North. Either way, many find themselves forcibly immobilised in refugee camps or detention centres. They may still be exploited as workers in production processes (as, for instance, many Syrian refugees are in Jordan), but others become the raw material of profit for the many private companies involved in immigration detention, refugee reception centres, and asylum accommodation and support services around the world.

The way in which multinational companies like Serco and G4S extract profit from populations of refugees and immigration detainees is better captured by the Marxist concept of ‘expropriation’. This describes forms of capital accumulation that do not arise from economic exchange with workers, but rather from extra-economic coercion such as the state forcibly caging people, or enforcing a “hostile environment” that prevents certain categories of person from freely entering into market exchanges.

Expropriation is also found within neoliberal economic reforms. Transnational corporations’ trade, investment and financial deals dispossess communities of their subsistence land to make way for profitable agribusinesses, mines, dams and other infrastructure required to power capitalist development. Again, expropriation and exploitation are not necessarily either/or predations – the same populations can be subject to both, as is the case for India’s Adivasis, among many more such examples.

A third ‘ex’ also needs attention – ‘expulsion’. This refers to the processes by which people of no value to capitalism as either workers or consumers are ejected from their political communities and, frequently, from environments in which life itself can be independently sustained. These ‘surplus’ populations in the Global North and South, a large proportion of whom are black, brown, and other groups racialised as ‘other’, are increasingly warehoused in both private and state-run prisons and immigration detention centres. Here, both expulsion and expropriation are at play, and in the case of those who perform below minimum wage paid work while incarcerated, also exploitation.

As Gargi Bhattacharyya argues in Rethinking Racial Capitalism, exploitation, expropriation, and expulsion need to be analysed and addressed as three interlocking regimes. The trafficking protocol and the surrounding discourse of trafficking and modern slavery do not do this. In fact, they continue the tradition of ‘emancipation propaganda’ which, to paraphrase Marcus Wood, provides a symbolic vocabulary that can actually be used to paint over the brutalities of these regimes “in the brilliant brush strokes of the gift of freedom”. That is why many of us think of ‘trafficking’ in triple (e)X rated terms.