The SAGE Handbook of Human Trafficking and Modern Day Slavery

Jennifer Bryson Clark, Sasha Poucki, Jennifer Bryson Clark, Sasha Poucki

• Publisher: SAGE Publications Ltd
• Year: 2018
• ISBN:
  9781526450449
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Human Rights
• Index: Politics & International Relations

Millions of people around the world are forced to work without pay and under threat of violence. These individuals can be found working in brothels, factories, mines, farm fields, restaurants, construction sites and private homes: many have been tricked by human traffickers and lured by false promises of good jobs or education, some are forced to work at gunpoint, while others are trapped by phony debts from unscrupulous moneylenders.

The SAGE Handbook of Human Trafficking and Modern-Day Slavery provides a comprehensive, interdisciplinary and global look at the diverse issues surrounding human trafficking and slavery in the post-1945 environment. Covering everything from history, literature and politics to economics, international law and geography, this Handbook is essential reading for academics and researchers, as well as for policy-makers and non-governmental organisations

Part I Defining Contemporary Slavery

1 Conceptualizing the Exploitation of Human Trafficking

Jean Allain

As States have moved to incorporate the United Nations Palermo Protocol and the Council of Europe Convention related to human trafficking into their domestic legislation, they have included an ever-growing list of activities deemed exploitative. Yet, taking the open-ended nature of exploitation to its logical conclusion would recognize that any activity could thus be deemed exploitation. If everything can be deemed exploitative, then the very concept is rid of its content. What this study demonstrates is that more than 30 States have reclaimed a fixed meaning of human trafficking by introducing a residual clause which effectively neutralizes the need to innumerate various types of exploitation. In so doing, they lend weight to an argument developed here that suggests that the time is ripe to move away from an understanding of exploitation based on various types (be it begging or forced labour) and to start thinking of exploitation as a concept. This would have the practical effect of helping to promote the central task of Palermo: mutual assistance in criminal matters. However, perhaps most importantly, it would capture the essence of ‘trafficking', front-loading the crime as being essentially about the means of compelling a person to move, thus allowing for a clear distinction to be made between trafficking and the specifically enumerated types of exploitation set out in the definition of human trafficking as a stand-alone offence, most notably forced labour and slavery.

In November 2000, the United Nations General Assembly adopted the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (hereafter: the Palermo Protocol) – so as to supplement the United Nations Convention against Transnational Organized Crime which has the object of promoting ‘cooperation to prevent and combat crime more effectively'.1 As of August 2018, there are 173 States party to the Palermo Protocol, the vast majority having developed domestic legislation implementing the various obligations flowing from that instrument.2

The definition of trafficking found in the 2000 Palermo Protocol, and reproduced in substance in the 2005 Council of Europe anti-trafficking convention, is here broken down into its component parts (re. methods of movement, means of compulsion, the exploitative purposes):

Trafficking in persons’ shall mean the recruitment, transportation, transfer, harbouring or receipt of persons,

by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person,

for the purpose of exploitation. Exploitation shall include, 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.3

This definition allows the possibility of expanding the enumerated types of practices deemed exploitative through the wording found at the start of the last full sentence of the definition: ‘Exploitation shall include, at a minimum […]'. While the use of the term ‘at a minimum’ allows scope for ‘unnamed or new forms of exploitation’ to be included in domestic legislation, the reality has been that domestic legislators have simply utilized this prerogative to ‘go beyond the offences listed in this definition’ in an ever-expanding manner.4

As to an expansive list of types of exploitation, it may be said that very few States have incorporated verbatim the actual definition of trafficking in persons found in the Palermo Protocol. Instead legislators have set out what is, in essence, variations on the theme, while, in other instances, they have provided a unique reading of trafficking, introducing new types of exploitation which then constitute their criminal offence of human trafficking.

The case of Moldova is indicative of a State with a unique reading of trafficking, wherein the Palermo Protocol definition is used as the foundation to build upon in crafting a new understanding of what constitutes trafficking in a specific domestic jurisdiction. In the main, States have left the ‘methods’ and ‘means’ elements in place and focused on expanding the ‘purpose’ element of the definition – that is to say, expanding the types of exploitation to be covered under their specific understanding of the concept of trafficking. Moldova has, to date, taken the widest understanding of exploitation in anti-trafficking legislation among States. Its provision establishes that exploitation includes:

1. compelling to perform work or services, by use of force, threats or other forms of coercion, in violation of the legal provisions connected to labour conditions, remuneration, health and security;
2. slavery, use of certain practices similar to slavery, or resorting to other ways of deprivation of liberty;
3. compelling to engage in prostitution, to participate in pornographic performances, with a view to the production, distribution and any introduction into circulation of such performances, the acquisition, sale or possession of pornographic material, or practicing other forms of sexual exploitation;
4. compelling harvesting of organs or tissues for transplantation or collection of other component parts of the human body;
5. using a woman as a surrogate mother or for reproductive purposes;
6. abuse of a child's rights with a view to illegal adoption;
7. use in armed conflicts or in illegal military formations;
8. use in criminal activities;
9. compelling to engage in begging;
10. sale to another person;
11. compelling to engage in other activities that violate fundamental human rights and freedoms.5

Having provided the Moldovan examples of an expansive provision which establishes a number of instances which constitute exploitation and thus modifies the Palermo Protocol understanding of trafficking, consideration now turns to various other readings which States have given in their domestic legislation to the notion of human trafficking.

In the first instance, it should be emphasized that a small number of States such as the Bahamas,6 Liberia,7 and the Philippines,8 have legislation which mirrors the definition as established in the Palermo Protocol. And yet, even in these cases, what constitutes trafficking is not guaranteed to be the same. For instance, the legislation of the Bahamas follows a unique route in defining ‘sexual exploitation’ and incorporating provisions related to such exploitation taking place ‘as a result of being subjected to […] the effects of narcotic drugs'.9

Beyond those States which have incorporated the Palermo Protocol verbatim, other States have incorporated a great number of varied acts which they deem to be types of exploitation. In a number of instances, more than one State has included the following as types of exploitation: begging; illegal adoption; servile or forced marriage; pornography;10 sex tourism;11 surrogacy.12 Further, a number of States have established that the removal of one or more of the following constitute a type of exploitation: blood, cells, organs, tissues, and body parts.13

Beyond these types of exploitation incorporated into more than one domestic legal order, individual States have also set out unique types of acts deemed exploitative in their domestic legislation, including Azerbaijan: ‘bio-medical research on a person';14 Bolivia: ‘farm labour';15 Bulgaria: ‘debauchery';16 Mauritania: ‘unpaid work';17 Oman: ‘sexual assault';18 and Pakistan: ‘purpose of exploitative entertainment', wherein exploitative entertainment is defined as ‘all activities in connection with human sports or sexual practices or sex and related abusive practices'.19 Macedonia has determined that exploitation includes ‘forced fertilization'.20 South Africa, for its part, deems that it includes ‘the impregnation of a female person against her will for the purpose of selling her child when the child is born'. Finally, Uruguay speaks of ‘any activity that undermines human dignity'.21

A number of States have also sought to include in their legislation on trafficking in persons, types of exploitation manifest during times of armed conflict. Thus, Kenya determines that exploitation also includes ‘forcible or fraudulent use of any human being to take part in armed conflict';22 while Kyrgystani, Tajikistani and Ukrainian legislation all speak of using a person in armed conflict.23 Sierra Leone speaks of ‘exploitation during armed conflicts';24 while Norway is more concerned with its citizens fighting for foreign powers: ‘war service in a foreign country'.25

There is one more type of exploitation that a number of States have incorporated into their domestic legislation, which will be considered shortly, as it regards more a means of conceptualizing exploitation than a specific type of exploitation. That said, it should be emphasized that this diversity of types of exploitation incorporated into the domestic legal order of States party to the Palermo Protocol creates a fundamental challenge to the effectiveness of the transnational nature of the regime meant to address human trafficking.

Conceptualizing Exploitation

There is no established definition of ‘exploitation’ in international law. It manifests itself in two ways. In reference to a thing rather than a person, it is deemed positive. Thus, the 1982 United Nations Convention on the Law of the Sea allows for the ‘economic exploitation’ of living and non-living natural resources of both the sea and seabed. However, where it applies to a person, it is considered to be negative. In more visceral terms, the French Representative negotiating the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, noted that ‘to exploit a person always had an evil connotation'.26 In the context of consideration by the negotiators of the e...

Table of contents

• Cover
• Half Title
• Editorial Board
• Title Page
• Copyright Page
• Contents
• List of Figures and Tables
• Notes on the Editors and Contributors
• Introduction
• Part I Defining Contemporary Slavery
• 1 Conceptualizing the Exploitation of Human Trafficking
• 2 The International Legal Framework on Human Trafficking: Contemporary Understandings and Continuing Confusions
• 3 Assessing the Global Slavery Index
• 4 Empirical Research on Sex Work and Human Trafficking in SE Asia and a Critique of Methodologies for Obtaining Estimates of Human Trafficking Numbers
• Part II Forms of Human Trafficking and Contemporary Slavery
• 5 Labour Trafficking
• 6 Practices of Bonded Labour in India: Forms of Exploitation and Human Rights Violations
• 7 The Evolving Concept of Worst Forms of Child Labor
• 8 Organ Trafficking: Transplant Tourism and Trafficking in Persons for the Removal of Organs
• Part III The Context of Human Trafficking and Contemporary Slavery
• 9 The Business of Modern Slavery: Management and Organizational Perspectives
• 10 Human Trafficking, Sexual Slavery, and Extremism
• 11 Human Trafficking, Modern Day Slavery and Organized Crime
• 12 Migration and Trafficking: The Unintended Consequences of Security and Enforcement Frameworks and the Revictimization of Vulnerable Groups
• Part IV Interdisciplinary Approaches to Human Trafficking and Contemporary Slavery
• 13 A Survivor-Centric Approach: The Importance of Contemporary Slave Narratives to the Anti-Slavery Agenda
• 14 Trafficking in Human Beings: The Convergence of Criminal Law and Human Rights
• 15 Pretty Vacant: Stolen Girls and Girlhoods in Anti-Trafficking Discourses
• 16 Indigenous Women in Trafficking: Links Between Race, Ethnicity and Class1
• Part V Case Studies
• 17 Identification of Trafficking Victims in Europe and the Former Soviet Union
• 18 Commercial Sexual Exploitation and Sex Trafficking of Children in the West African Region
• 19 Identifying Human Trafficking Victims Under the Sharia Law in Iran
• 20 Impacts of Cultural Practices in Anti-Trafficking Policies in Southeast Asia
• 21 Human Trafficking in North America
• 22 Legal Yet Enslaved: The Case of Migrant Farm Workers in the United States
• 23 Australia's Response to Human Trafficking Nationally and Regionally: The Question of Impact
• 24 Child Workers: An Ugly Face in the Labour Industry
• Part VI Ending Contemporary Slavery
• 25 The International Law Enforcement Community: Cooperative Efforts in Combatting Human Trafficking
• 26 Identification, Rescue, and Social Intervention with the Victims of Trafficking for Sexual Exploitation in Spain1
• 27 Organizational Configurations in the Provision of Social Services and Advocacy to Victims and Survivors of Human Trafficking
• 28 Contemporary Social Movements to End Slavery – NGOs and Beyond
• Index