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.
