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From Human Trafficking to Human Rights

In this volume a cast of experts demonstrates that it is time to recognize human trafficking as an issue of human rights and social justice, rooted in larger structural issues relating to the global economy, human security, U.S. foreign policy, and labor and gender relations.

From Human Trafficking to Human Rights
Reframing Contemporary Slavery

Edited by Alison Brysk and Austin Choi-Fitzpatrick

2011 | 280 pages | Cloth $49.95 | Paper $32.50
Political Science / Social Science / General
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Table of Contents

Introduction. Rethinking Trafficking
—Alison Brysk and Austin Choi-Fitzpatrick

1. Rethinking Trafficking: Contemporary Slavery
—Austin Choi-Fitzpatrick
2. Uncomfortable Silences: Contemporary Slavery and the 'Lessons' of History
—Joel Quirk
3. Representing Trafficking: Media in the United States, Great Britain and Canada
—Jeff Gulati

4. Rethinking Trafficking: Human Rights and Private Wrongs
—Alison Brysk
5. The Sexual Politics of U.S. Inter/National Security
—Laura Hebert
6. Rethinking Gender Violence: Battered and Trafficked Women in Greece and the United States
—Gabriela Wasileski and Mark J. Miller
7. Peacekeepers and Human Trafficking: The New Security Dilemma
—Charles Anthony Smith
8. The Good, the Bad, and the Ugly: Assessing the Impact of the OAS and the UN on Human Trafficking in Haiti
—Heather T. Smith

9. Making Human Rights Accessible: The Role of Governments in Trafficking and Migrant Labor Exploitation
Christien van den Anker
10. Human Rights and Human Trafficking: A Reflection on the Influence and Evolution of the U.S. Trafficking in Persons Reports
—Anne Gallagher
11. The Anti-slavery Movement: Making Rights Reality
—Kevin Bales and Austin Choi-Fitzpatrick

List of Contributors

Excerpt [uncorrected, not for citation]

Rethinking Trafficking
Alison Brysk and Austin Choi-Fitzpatrick

Over the last decade, the problem of modern slavery has moved from being a marginal concern to a mainstream issue, with significant advances in levels of public awareness, official engagement, and specialized research. Trafficking in persons for the purposes of forced prostitution has been the primary focal point of this renewed interest in questions of human bondage. From 1865 through 1990 slavery suffered from issue depletion, only to be rediscovered as human trafficking and successfully adopted as a cause célèbre. Scholars, activists, policy makers, and the general public have found the plight of millions to be a departure point for larger conversations about globalization, prostitution, and a host of other issues. While all of this attention is critical, we believe too much of this conversation has been superficial, incomplete, or distorted—leading to a tragically inadequate response. The contributions in this volume stem from a frustration with the status quo understanding of smuggling and outmoded debates around the legalization of prostitution. Our research has shown us new dimensions of the issue that give us the opportunity to push the discourse into original, progressive analysis of rights, slavery, power, and emancipation. Our aim is to move the conversation from sex to slavery, from prostitution to power, and from rescue to rights.

Understanding the Problem

Many advocacy groups cite figures of more than 27 million people worldwide exploited in contemporary forms of slavery, with several million of those forced or tricked across borders (based on Bales [1999] 2004). The U.S. State Department estimates that up to 820,000 men, women, and children are trafficked internationally each year, while the International Organization for Migration cites a rough figure of 800,000 (U.S. Department of State 2009; International Organization for Migration 2011). The International Labor Organization (ILO) estimates that at least 1.39 million people are victims of commercial sexual servitude worldwide, though this figure includes both transnational and domestic trafficking. The U.S. data suggest that about two-thirds are women and girls. Much of this traffic is from east to west (Europe) or south to north (Latin America to the United States, Southeast Asia to Europe and the United States) (U.S. Attorney General 2007).

The good news is that UN standards, U.S. aid conditionality, and human rights network campaigns have inspired dozens of countries to prohibit trafficking in persons. There are educational, law enforcement, and victim assistance efforts in sending and receiving countries; via regional programs in North America, Europe, and Southeast Asia; and through global bodies such as the International Organization for Migration, the ILO, and UNICEF. The bad news is that almost a decade of antitrafficking programs have done little to reduce the incidence or the harm of the phenomenon, and they may even have diverted attention from root causes of trafficking, as well as equally harmful practices of labor exploitation affecting even greater numbers. Burgeoning recognition of some of the structural determinants of slavery in migration and prostitution has not yet registered in appropriate policies or a deeper reorientation.

Inappropriate or disproportionate policies may result from ill-founded or incomplete understanding. The United States has the most comprehensive policy and has devoted the most bureaucratic and financial resources to the issue of any single receiving country, averaging around $80 million per year over the past decade. Yet its record under the Bush administration clearly shows the limitations of traditional concepts of trafficking in addressing the problem. In the U.S. Trafficking Victims Protection Act, perhaps the central single piece of legislation, trafficking is defined as when "a commercial sex act is induced by force, fraud, or coercion." Under the Bush administration, the United States ignored the broader UN definition, which encompasses sexual exploitation of voluntary migrants and other forms of nonsexual contemporary slavery. While the U.S. program is theoretically oriented around the "three Ps" of prevention, protection, and prosecution, prevention efforts are quite limited to a handful of education programs, and protection focuses more on training and subsidizing service providers than on direct victim assistance. The bulk of the funding and effort is in law enforcement, both in the United States and abroad. Under the terms of 2003 legislation, renewed in 2005, U.S. policy has even gone so far as to deny funding to health, migration, and sex worker assistance organizations for antitrafficking empowerment and HIV-prevention programs if such NGOs tolerate or advocate decriminalization of commercial sex work As recently as December 2010, congressional Republicans who claim to be concerned with trafficking blocked S.987—the International Protecting Girls by Preventing Child Marriage Act of 2010, a bill expressly designed to address one of the root causes and mechanisms of trafficking.

At the global level, some health workers and scholars believe that an overemphasis on trafficking hinders HIV prevention and empowerment of sex workers to protect themselves, as well as stigmatizing prostitutes on the basis of religion-based ideology (Pisani 2008). Worldwide, antitrafficking programs devote far more attention and resources to prosecution than protection, and still less to prevention. For example, a best-case receiving country sensitive to social context—Australia—has committed almost $7 million per year to combating trafficking in Australia through improving detection and prosecution , while a counterpart sending-country program financed by the ILO in Thailand for prevention through education and job creation provides only around $1 million per year (Australian Government 2009; 2006). Similarly, the vast majority of policies seek source suppression rather than demand control.

Slavery is wrong, and trafficking is slavery—but so are other, often linked forms of migration and labor. As discussed by Choi-Fitzpatrick (this volume), it is important to recognize the multiple forms that power takes in the enslavement process—it is not always explicit and recognizable coercion. Sexual violence is wrong, but trafficking is not always violent—and some of the violence comes from its suppression and illegality. Women are not always safe at home, within their states, families, or workplaces—and empowering them is more effective than rescuing them.

Trafficking as Contemporary Slavery

Rethinking trafficking as one form of contemporary slavery will help us to see more clearly its roots, consequences, and connections to other forms of exploitive labor and smuggling. Choi-Fitzpatrick's chapter situates trafficking in the larger pattern of contemporary slavery, so we can benefit from the insights of existing scholarship and analyze the sources of the harm as disempowerment. He applies a multifaceted analysis of power to theorize the structural, cultural, and psychological sources of domination. This diagnosis leads to a better understanding of a prescription for emancipation based in the agency of all actors situated along the spectrum of enslavement.

Contemporary slavery may take new forms, but it must fundamentally be understood as an "extension and/or reconfiguration of enduring historical themes, rather than as distinctively modern developments" (Quirk, this volume). Quirk also points out that these "enduring historical themes" must be explored in greater depth, as they have critical and unexamined impacts on antislavery efforts, such as the historic connection between abolition and colonial conquest, which predisposes us to rescue rather than to restore rights.

Rethinking trafficking as slavery means rethinking our cultural constructions. Gulati's insightful study (this volume) of media depictions of trafficking in Britain, the United States, and Canada demonstrates empirically what has long been argued by advocates of a human rights approach to slavery. He shows that media reports: (1) tend to characterize the issue as mainly involving trafficking for sexual exploitation and (2) organized crime; (3) draw heavily on mainstream sources, ignoring alternative perspectives; and (4) tend mainly to consider more superficial and technical interventions. Gulati's sharpest critique is reserved for a media that tends to parrot dominant policy approaches, effectively limiting the public's exposure to competing perspectives on the issues at stake.

Prostitution to Power

In Brysk's words, "The problem is powerlessness, not prostitution, and the solution to powerlessness is politics—not prohibition" (this volume). Human rights are increasingly understood to be claims against both governments and other sources of authority typically associated with trafficking and slavery (employers, military leaders, family members), while enforcement is the responsibility of all states (Brysk, this volume; 2005). Analysts of trafficking policy distinguish human rights versus law enforcement versus migration control versus moralistic approaches to trafficking, which prioritize different values of national security, cultural norms, and universal human dignity. But traffickers are not just criminals who can be suppressed by law and order; they are delegated agents of social control in exploitive systems of labor and corrupt regimes. Borders are not just demarcations of territory that can be better ordered, but violently contested market niches. Commercial sex is not just a transgression of socially approved channels for male sexual appetite, but an explicit commodification of female reproductive labor that turns some women into unwilling objects rather than self-determining persons. The common element is that individuals lack agency and control of exploitive social systems: human rights.

Wasilewski and Miller's contribution to this volume reminds us of the role that gender inequity plays in constructing trafficking as a form of violence against women. They show the differential state response to such violence depending on securitization of smuggling, not rights or protection for women who are victims. In a similar vein, Hebert (this volume) suggests the putative human rights approach undertaken by the United States in the form of the Trafficking Victims Protection Act of 2000 (TVPA) lacks a commitment to the indivisibility that underpins the human rights system, and it may in fact exacerbate vulnerability among the enslaved. In her chapter she makes the case that the United States' approach to trafficking is informed by concerns over security and insecurity and is based on prostitution rather than on powerlessness of the victims. Thus trafficked individuals are perpetual outsiders demonstrating the need for enhanced security. But not only is the trafficked individual a threat to the state's physical borders, she is also a threat to the state's moral authority. Trafficked individuals (and migrants in general) are the dreaded Other, a form of cultural contaminant (in this case in the form of a "helpless, disempowered female victim"). In this light, trafficked individuals are neither helpless victims (as in the moral crusader narrative) nor rights-bearing individuals (as in the human rights framework) but are instead seen as dangerous transnational actors. Hebert suggests that the TVPA, far from being a seminal human rights effort to end trafficking, may be better seen as a tool for the regulation of autonomy, especially an autonomy that threatens moral and national borders.

Moreover, international structures of power and political economy now help to constitute domination—even seemingly benign or neutral aspects of global governance. Both Charles Smith (focusing on Kosovo, Haiti, Sierra Leone, and Nepal) and Heather Smith (focusing specifically on Haiti) in this volume contribute to an empirically informed analysis of the ways international actors—in their cases, peacekeepers, themselves a product of earlier human rights victories—generate conditions ripe for human trafficking. These findings challenge assessments of international organizations that would see the influx of peacekeepers as a net-positive contribution to situations of radical instability. In a further move, Charles Smith suggests that when peacekeepers move on and demand diminishes, trafficked individuals are either moved to follow the demand or are repurposed for the very drug or arms trafficking that is often responsible for initiating destabilizing flows of weapons and narcotics—flows that are easily linked to the resurgence of conflict.

This cautionary assessment of international intervention is of a type with Quirk (this volume), who argues that a number of factors, including colonial imperatives and stylized notions of what it meant to be civilized, affected Britain's abolitionist policies and that global hierarchies undermine the export of empowerment. Gallagher (this volume) suggests that while the Trafficking in Persons (TIP) Reports mandated by the TVPA have prompted a stunning number of countries to comply with demands for new policies and approaches, it is not at all clear whether they have been effective in reducing levels of slavery (U.S. Government Accountability Office [GAO] 2006, 2007).

From Rescue to Rights

How can a human rights approach bring us from protecting our borders from prostitution toward empowerment and true global change? A human rights approach to trafficking and contemporary slavery reorients our analysis and response by showing that:

  • people lacking human rights are the most vulnerable to trafficking and exploitation;
  • trafficking and exploitation are violations of fundamental universal rights, not moral problems of perpetrators, victims, families, or cultures;
  • sending states have a responsibility to protect the human rights of their citizens from all sources, including nonstate actors like employers, smugglers, and families;
  • international responses to trafficking should focus on remedying and restoring rights, ideally through representation and not rescue;
  • receiving states have a responsibility to protect the human rights of all residents on their territory, so crime and border control efforts relevant to trafficking must be rights-based and subject to monitoring and accountability as such.
This is echoed by van den Anker's call for a cosmopolitan model of global justice (this volume). Cosmopolitanism describes an approach in which individuals as well as states have duties across borders to make human rights accessible to all, whether they are in their home country or abroad. Such a model would ultimately serve to reduce human trafficking, especially, she points out, if this cosmopolitanism is recognized as also involving duties to those without citizenship. Clearly the process of recognizing and then obtaining such power and recognition is neither simple nor popular for enslaved individuals or their advocates.

And even in the United States, there are signs that new understandings may provide an opportunity for the further expansion of the human rights approach. The U.S. Trafficking in Persons office has recently highlighted the importance of several key human rights issues: ranking the United States alongside other countries; emphasizing that more people are trafficked for forced labor than for commercial sex; highlighting the significant number of men who are victims of trafficking; and challenging individuals to think about and reduce their slavery footprint (CdeBaca 2010). In her contribution to this volume, Gallagher points out that the Trafficking in Persons Reports generated by the TIP office have a capacity for both destruction and genuine innovation. The reports are modeled on U.S. legislation rather than the international legal standards of human rights law. This move effectively sidelines the core contributions of a rights-based response while generating the potential for violations of individual rights, whether through prosecution for a crime, detention, denial of migration, forced repatriation, required cooperation with authorities, gendered interventions, or blind raids. If the United States wants to improve the legitimacy of its anti-trafficking efforts and the TIP Reports, she argues, it must bring the standards for both into line with international legal norms. On a more positive note, she also argues:

The Reports have done more than perhaps any other single initiative to expose the breadth and extent of contemporary exploitation of individuals for private profit; they have shed light on practices and traditions that have too long remained hidden; they have exposed the complicity of public officials in trafficking-related exploitation; and they have compelled many governments who would not otherwise have done so to take action. (Gallagher, this volume)
Such a report from a longtime critic of the process should give some room for hope.

Civil society campaigns are a necessary complement to cosmopolitan justice and changes in state policy. Bales and Choi-Fitzpatrick conclude this volume with a call and orientation for civil society engagement in ending trafficking and empowering all victims of contemporary slavery. Solidarity with all migrants and all workers is the best human rights strategy for healing the harms of human trafficking.

Toward Rethinking

This volume is an effort to challenge governments, international organizations, corporations, nonprofits, and individuals to close the gap between our human rights ideals and bureaucratic, institutional, economic, and personal practice. Rethinking is the first step toward emancipation for all forms of contemporary slavery.

Rethinking trafficking as slavery and emancipation as human rights can guide us to improved scholarship and policy. From an academic perspective, more contextual analyses such as Gulati, Quirk, and Brysk show us that we cannot understand contemporary slavery without investigating its historical trajectory and cultural meanings. Our volume helps to build the emerging approach that shows how slavery and rights are historically constructed, in order to suggest how they can be deconstructed.

Our approach also aims to move the study of trafficking from protectionist polemic to political analysis. The contributions by Hebert, Wasileski and Miller, Gallagher, and Charles Smith each demonstrate that trafficking patterns and responses must be interpreted as outcomes of power and interests. As Brysk and others have pushed human rights debates to address the politics of "private wrongs"—human rights abuses committed by non-state actors—we must always ask what power structures drive trafficking and which domestic, international, and gendered elites benefit from it—even when they do not cause it directly.

Human rights scholarship struggles to locate the duties that correspond to rights. In our volume, Heather Smith, Christien van den Anker, Anne Gallagher, and Kevin Bales also move forward the call for responsibilities to protect and fulfill migrant, labor, and women's rights. Across the levels of global governance, state policy, and social movements, a humanitarian problem-solving approach must be expanded to systematically consider both rights and duties, and to hold all actors responsible for the rights implications of their interventions. Sending countries, host countries, international society, and domestic society are all the addressees of human rights claims.

Rethinking emancipation also generates and guides new approaches to policy. Our authors concur that trafficking policy must be a situated form of broader human rights policy, not an episodic campaign or intervention. If victims of trafficking are simply the weakest link in interdependent domestic and international systems of exploitation, chapters by Brysk and Choi-Fitzpatrick suggest that we cannot protect them without strengthening rights and empowerment for all women, all workers, and all migrants. Isolated antitrafficking initiatives may easily push vulnerable populations into equally abusive forms of smuggling for other markets, nonsexual slavery at home or abroad, or domestic sexual exploitation replacing transnational prostitution. Rethinking trafficking as slavery also reminds us that for all forms of slavery, law enforcement and source suppression are not sustainable without structural demand control, usually located in host countries and markets. Some host countries' recent introduction of extraterritorial prosecution of their own citizens for sexual exploitation of children overseas is a first step, but greater control and stigmatization of host nationals' sexual exploitation of trafficked women at home is also needed. Choi-Fitzpatrick, Bales, and Brysk all emphasize that the move from protection to empowerment is a longer-term process of social change, not just a single intervention; true emancipation requires follow-up for liberated victims and longer-term economic and educational programs for at-risk populations.

More specifically, our authors recommend or imply the following policy changes. The chapters by Gulati and Bales and Choi-Fitzpatrick show that anti-trafficking policy must not be limited to government action, or even rescue-oriented campaigns, but must instead mobilize broader transnational social efforts for education, economic conditionality, and lobbying. Media, consumers, and educators must be shown the bigger picture, given incentives and resources, and directed to leverage points. In a different vein, the work by Wasileski and Miller, Hebert, and Gallagher critiques the insufficiencies and unintended consequences of U.S.-generated anti-trafficking legislation. The implication is twofold: enforcement-oriented legislation is necessary but not sufficient, and it must be coupled with supportive measures to reduce spillover effects on victims and diversion of the same abuses into other channels. Protection must not be tied to prosecution, and regulatory efforts must encompass the wider spectrum of violence against women—regardless of migration status. The essays by Charles Smith and Heather Smith deliver an important warning to international organizations to evaluate the impact of their intervention activities on trafficking and sexual exploitation, and to set up mechanisms of empowerment and accountability for the governed population vulnerable to abuse. Moreover, Heather Smith's comparison of the harms of intervention by different organizations suggests that democratization of international organizations is a necessary concomitant of global governance.

Finally, Van den Anker, Bales, and Choi-Fitzpatrick show the importance of establishing migrant and labor rights organizations and campaigns within broader human rights groups to complement any governmental or international intervention and to sustain longer-term emancipation. This is especially critical given the distortions of U.S. resistance to sex workers' organizations and most host countries' ambivalence regarding migrants' rights. Reframing labor, migrant, and sex-worker rights as human rights grants greater access to existing organizations and greater legitimacy and accountability vis-à-vis host governments.

Rethinking trafficking means rethinking how we see, understand, and embrace "the least among us," which is the true test of engaged human rights scholarship. Such rethinking involves overcoming several of the most difficult barriers to the development of human rights discourse: women's rights as human rights, labor rights as a confluence of structure and agency, the interdependence of migration and discrimination, the ideological and policy hegemony of the United States in setting the terms of debate, and the politics of global governance—and the international human rights regime itself. In this volume, by rethinking trafficking, we attempt to contribute to the larger project of rethinking and reclaiming human rights across borders.

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