Exploitation creep and the unmaking of human trafficking law.

Author:Chuang, Janie A.
 
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Over the last fifteen years, the problem of human trafficking has become a focus of government and advocacy agendas worldwide. Increasingly referred to as "modern-day slavery," the phenomenon has prompted rapid proliferation of international, regional, and national anti-trafficking laws, and inspired states to devote enormous financial and bureaucratic resources to its eradication. It has also spawned an industry of nonprofits that have elevated the "abolition" of trafficking into a pressing moral campaign, which anyone can join with the click of a mouse. (1) Scholars have also jumped into the fray, calling on states to marshal human rights law, (2) tax law, (3) trade law, (4) tort law, (5) public health law, (6) labor law, (7) and even military might (8) to combat this apparently growing international crime and human rights violation.

But what exactly is everyone trying to fight? Notwithstanding the global consensus that trafficking is something to be rid of, the anti-trafficking field is a strikingly "rigor-free zone" when it comes to defining the concept's legal parameters. (9) The first modern anti-trafficking treaty, the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Trafficking Protocol) was adopted in 2000 to update earlier anti-trafficking laws--which had focused only on women and girls trafficked into the sex sector--to encompass men, women, and children trafficked into any sector of the economy. The protocol offers a definition of trafficking that, reduced to its core elements, entails: (1) an act of recruitment, movement, harboring, or receipt of a person, (2) by meant of force, fraud, or coercion, (3) for the purpose of "exploitation." (10) For the sake of achieving consensus, however, the protocol's drafters left key aspects of the legal definition intentionally vague. (11) Ever since, diverse advocates have appropriated the "trafficking" label so that the activities covered by the term trafficking remain very much in the eye of the beholder. The definitional muddle has resulted in indiscriminate conflation of legal concepts, heated battles over how best to address the problem, and an expanding crowd of actors fervently seeking to abolish any conduct deemed "trafficking."

From the Trafficking Protocol's inception, the United States has dominated the international anti-trafficking law and policy arena. It led negotiations over the protocol, which adopted the Clinton administration's "3 Ps" anti-trafficking policy framework--focusing on prosecution, (victim) protection, and prevention (with a heavy emphasis on prosecution). Shortly before the protocol's adoption, the United States passed its own domestic anti-trafficking law, empowering the U.S. president to levy economic sanctions against states deemed noncompliant with U.S. anti-trafficking standards. Ever since, the United States has wielded enormous power to shape other states' anti-trafficking laws and policy responses--in the course of which have surfaced the many conflicts among the approaches that different states have adopted (and advocates have proposed).

During the first decade of the modern anti-trafficking regime, the United States used its influence to pressure other states to establish aggressive, perpetrator-focused criminal justice responses to trafficking. The almost-exclusive focus of the George W. Bush administration (2001-09) on sex-sector trafficking and its concomitant goal of seeking to abolish prostitution worldwide provoked considerable conflict. Human rights activists defended the protocol's explicit agnosticism on the prostitution issue, (12) and they fought to have anti-trafficking regimes applied to the arguably larger numbers of men, women, and children trafficked outside of the sex sector, and to afford all trafficked persons more substantive human rights protections.

Dramatic changes in the anti-trafficking field have led to a second generation of battles over definition and approach--prompted by efforts of the Obama administration (2009-present) to promote a broader legal definition and policy understanding of "trafficking." Through doctrinal and discursive conflation, the aggregate effect of different and usually well-intentioned initiatives has been what I refer to here as "exploitation creep." This sprawling phenomenon has many elements, but I focus here on two fundamental shifts. First, all forced labor is recast as trafficking, even if no one changes location at all. Second, all trafficking is labeled as slavery. Exploitation creep thus has been expressed through efforts to expand previously narrow legal categories--at least in terms of rhetoric and policy, but in some cases also in hard law--in a strategic bid to subject a broader range of practices to a greater amount of public opprobrium. This effort has involved, for example, breaking out of earlier legal limitations in which trafficking entailed some element of movement; situations in which people are maintained or born into forced labor are thereby included. Similarly, the legal (and moral) category of slavery--the prohibition of which is considered jus cogens under international law--had previously been reserved for the most extreme forms of exploitation (i.e., exercising the powers of ownership over another individual) but has now been extended to cover all trafficked persons.

This exploitation creep has the compelling goal of widening the anti-trafficking net to capture more forms of exploitation. But close analysis reveals that it is also a technique to protect the hegemony of a particular U.S. anti-trafficking approach--one having broad bipartisan support in U.S. politics--and to fend off competing approaches calling for labor rights and migration policy reforms that are particularly contentious in the U.S. context. Exploitation creep enables the United States to expand its "anti-trafficking" influence over areas once deemed non-trafficked forced labor and to generate, via "slavery" rebranding, heightened moral condemnation and commitment to its cause.

Exploitation creep has produced two possible trajectories for the anti-trafficking movement. First, it has had the intended effect of fueling an approach that I refer to here as modern-day-slavery abolitionism (MDS abolitionism). Locating the source of trafficking harm in the deviant behavior of individuals (and corporations), MDS abolitionism prioritizes the accountability of individual perpetrators and the rescue and protection of victims. Its preferred techniques are aggressive criminal justice responses and reputational harm. Joining the United States in promoting MDS abolitionism is an increasingly influential type of actor in the international realm--the well-resourced, funder-founded nongovernmental organization (NGO). With these powerful champions, MDS abolitionism has overtaken the trafficking field with high-profile media campaigns directed at rescuing a growing population of victims from "modern-day slavery."

Second, exploitation creep has unintentionally infused a labor perspective into anti-trafficking law and policy regimes. That is, by expanding the reach of anti-trafficking regimes to include forced labor, exploitation creep has also made labor policy and the concept of labor itself explicitly relevant to a field that had long been narrowly focused on sexual exploitation. From this labor perspective, trafficking needs to be understood as a product of weak labor and migration frameworks. A rising chorus of labor institutions and advocates is consequently seeking strengthened labor protections as a means of reducing vulnerability to trafficking.

Exploitation creep has thus helped bring the anti-trafficking field to a crossroads: whether to stay the course of criminal justice--focused policy or to also pursue the structural changes that a labor approach prescribes. This article argues for embracing the latter option. Since the modern anti-trafficking regime's inception, crime control--focused interventions have produced disappointing results even by the United States' own (flawed) metrics--with a reported 44,000 survivors found worldwide last year, and over 20 million victims yet to be identified. (13) For most of the relatively small number of "rescued" survivors, life post-trafficking involves the same structural vulnerabilities that enabled them to be trafficked in the first place--for example, working in low-wage, precarious jobs for which forced labor is an inherent risk. (14) Crucially needed are alternatives that provide long-overdue substance to the third prong of the 3Ps approach to trafficking--prevention. With MDS abolitionism now in its stride, the 2014 edition of the United States' annual Trafficking in Persons Report (TIP Report) tellingly omits the prevention prong from its opening analysis and recommendations. Pursuing the trajectory of integrating a labor-infused approach recovers this lost, but crucial, prong and imbues it with transformative potential.

To illustrate how, the article maps exploitation creep and assesses its implications for international anti-trafficking law and policy. Part I situates exploitation creep in its historical context, tracing the development of the modern international anti-trafficking legal regime and the United States' rise to power as "global sheriff' on trafficking. The discussion demonstrates how exploitation creep has resulted from the Obama administration's efforts both to reject certain aspects of Bush administration policies and to maintain U.S. anti-trafficking hegemony in the face of actors and perspectives belatedly laying claim to the anti-trafficking cause. It then explores how exploitation creep has changed the landscape of global anti-trafficking efforts, fueling a widespread "anti-slavery" movement and also inspiring a convergence of human rights and labor advocates around broader exploitation issues.

Part II assesses the actual and potential effects of...

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