Vulnerability to exploitation is created by law
State laws and policies enable widespread, standardised, and routinised forms of exploitation to exist. To change that fact, we need to change the law.
PALERMO 20TH ANNIVERSARY SPECIAL
What is exploitation?
Michael Hardt and Kathi Weeks
Alf Gunvald Nilsen
According to its preamble, the United Nations Palermo Protocol on Human Trafficking is designed to combat exploitation. The protocol, however, leaves ‘exploitation’ undefined. It instead provides some examples, such as “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”. Exploitation also regularly appears in political speeches. In 2016, the then home secretary for the United Kingdom, Theresa May, declared that “it is only by working together, taking responsibility and fighting criminality that we can stop the misery of exploitation and enable everyone in society to work without fear.” May was a key figure behind the adoption of the UK Modern Slavery Act of 2015, which codified and consolidated existing legislation on human trafficking and modern slavery. This legislation was, at least initially, widely celebrated. But it is by no means clear that it actually offers an effective platform against exploitation.
There are many reasons to be sceptical here. First, exploitation tends to be narrowly understood in terms of extreme forms of abuse. Severe exploitation is undoubtedly a problem to be tackled. Yet many policymakers who have endorsed efforts against modern slavery have remained silent on, or even actively supported, legal and regulatory frameworks that lead to widespread instances of injustice at work, such as underpayment of wages or work in unsafe conditions. Modern slavery rhetoric can therefore obscure the moral wrong of exploitation by normalising less severe but no less pressing forms of ill treatment at work.
Second, the current approach to exploitation in modern slavery laws mainly identifies individual wrongdoers, and routinely misses the role of state authorities. This plays into the already well-established idea that there are evil traffickers whom the state seeks to intercept in order to protect potential victims. What is missing here is the role that states play in paving the way for exploitation. I will give two examples to illustrate this, before returning to the definition of exploitation.
Structures of exploitation
In January 2018 a frightened, 18-year-old man from Vietnam went to a police station in London and reported that he had spent five years being trafficked in and out of cannabis houses by criminal gangs across the capital. He explained how he travelled from Vietnam to Europe, where he was put in the back of a lorry to come to the UK and work in cannabis cultivation. The police contacted the Home Office. The man was detained and sent to an immigration centre, Brook House, where people are held prior to deportation.
Now, as a general rule asylum seekers and irregular migrants in the UK are prohibited from working. But they are allowed to work while in detention. According to a report on the conditions in Brook House, there were 116 paid work roles in the centre, including “wing orderlies, barbers, kitchen orderlies and posts in the laundry, the garden, the chaplaincy and the food serveries”. Despite performing this work, those detained could not earn qualifications, certificates, or other forms of recognition for it.
People who contact the authorities for help after being trafficked or exploited can ultimately end up being further exploited by the system ostensibly there to assist them.
One detainee wrote that he had morning, afternoon, and evening shifts, as well as shifts in between. There was so much work for him to do that he ended up cleaning all day, seven days a week. He took pride in his work and received positive feedback from staff. But he was only paid £1 an hour, and a maximum of £30 a week, because immigration detainees are excluded from national minimum wage rules. At some point this person will be deported, because that is what happens to people in immigration detention centres. If they are victims of trafficking, it is distinctly possible that they will be trafficked again soon after they are returned. And their ordeal will start all over again.
This example demonstrates that people who contact the authorities for help after being trafficked or exploited can ultimately end up being further exploited by the system ostensibly there to assist them. While there are some exceptions, many end up in immigration detention. There they are exploited through overwork and underpay, eventually deported, and possibly trafficked all over again in order to be exploited once more.
Exploitation is also integral to the design of welfare conditionality, such as that found in the UK’s Universal Credit scheme. Welfare-to-work schemes oblige individuals to seek and accept work under threat of sanction: accept work or lose social support. These schemes are often portrayed as a route out of poverty. Yet the strict conditionality favoured by the UK effectively coerces people who are poor and disadvantaged into precarious and irregular work, which leaves them in poverty even though they are now working.
This happens because jobseekers are expected to accept even zero-hours contracts, which do not offer fixed or even guaranteed work hours. In some countries they are banned. Recent studies in the UK suggest that welfare claimants do not want this kind of precarious and insecure work. One respondent in a recent study reported, for example, that:
I used to work in hotels doing waiting on silver service. I’ve done all kinds of work, do you know what I mean, all kinds. Whatever job come up I’d take really. Mostly factory work. Just boring work really. No skills in it.
Any job I’d do. Any job. As long as I know it’s a permanent job. Not one of these zero hour contract things, because I don’t want to take a job and not afford where I’m living now and end up back on the streets.
Strict conditionality for welfare-to-work forces people into these precarious arrangements and creates opportunities for employers to take advantage of them.
Acceptable and unacceptable exploitation
These examples point to a fundamental tension: governments that have signed up to the Palermo Protocol are committed to tackling exploitation, yet they have simultaneously enacted laws and adopted policies which enable exploitation. In order to square the circle, they seek to justify their conduct in various ways. In the case of asylum seekers and other immigration detainees the system is justified in terms of offsetting the costs of operating the facilities, which is said to merit exclusion from the national minimum wage. In the case of welfare-to-work schemes that compel people into zero-hour contracts and other precarious work, the justification is that work is the best route out of poverty, and that non-standard work offers opportunities for flexibility that is desirable for many. Lines are drawn between ‘acceptable’ and ‘unacceptable’ forms of exploitation.
On the twentieth anniversary of the adoption of the Palermo Protocol, we need to invest in identifying and changing laws that create and sustain structures of exploitation.
This brings into focus the need to look at the concept of exploitation afresh. In some theoretical accounts of exploitation, the wrong in question consists of taking unfair advantage of another person. However, this ‘taking unfair advantage’ is not examined against background conditions of fairness, but rather against what fairness requires in a specific transaction. If people consent to being underpaid, for instance, they are not viewed as exploited unless there are strong indications that the consent is not genuine.
This version of exploitation aligns with the modern slavery and human trafficking agenda, since it focuses attention upon interpersonal relations between individual exploiters and innocent victims. This is illustrated in this piece by Theresa May, in which she writes that “vulnerable people who have travelled long distances believing they were heading for legitimate jobs are finding they have been duped, forced into hard labour, and then locked up and abused. Innocent individuals are being tricked into prostitution, often by people they thought they could trust.” In this familiar scenario, the focus is on how the freedom of innocent victims is physically restricted while the background conditions are generally neglected. Both individual vulnerability and the background conditions, however, need to be considered for exploitation to be fully addressed.
This means rethinking the position of exploitation within the Palermo Protocol. At its core exploitation comprises taking advantage of someone’s vulnerability in order to make profit, but the analysis cannot stop there. We need to re-assess the sources of vulnerability to exploitation, with a specific focus upon the role of the state and its laws as key sources of vulnerability. Sometimes states enact laws that have an appearance of legitimacy, but this legitimacy erodes once we recognise that these same laws lead to the construction of structures of exploitation. As soon as we identify the laws that constitute a source of vulnerability to exploitation, we need to take steps to change these. These steps cannot be limited to punishing individual traffickers. They should involve structural changes, and more specifically changes in the law. On the twentieth anniversary of the adoption of the Palermo Protocol, we need to invest in identifying and changing laws that create and sustain structures of exploitation.
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