read those articles and answer the question.(3 double-spaced pages)

EXPLOITATION CREEP AND THE UNMAKING OF HUMAN TRAFFICKING LAW

Janie A. Chuang*

INTRODUCTION Within the space of only a dozen years, the problem of human

trafficking has assumed a prominent place on government and advocacy agendas worldwide. Increasingly referred to as “modern slavery,” the phenomenon has prompted rapid proliferation of international, regional, and national anti-trafficking laws, and inspired governments to dedicate enormous financial and bureaucratic resources to its eradication. It has also spawned a veritable industry of non-profits that have elevated its “abolition” into a pressing moral crusade, which anyone can join with the click of a mouse.1 Scholars too have jumped into the fray, calling upon governments to marshal human rights law,2 tax law,3 trade law,4 tort law,5

* Associate Professor of Law, American University Washington College of Law;

Fellow (2012), Open Society Foundations. Thanks to the Open Society Foundations Fellowship Program for funding the research for this article. I have benefited from the feedback of participants in workshops held at Harvard Law School, Washington College of Law, University of Southern California, and at the annual meetings of the Labor Law Research Network and the American Sociological Association. I am particularly grateful for the thoughtful comments provided by Janet Halley, Anne Gallagher, Ann Shalleck, Chantal Thomas, Brishen Rogers, Daniela Kraiem, Hila Shamir, Dina Haynes, Jamin Raskin, Fernanda Nicola, Alvaro Santos, Heather Hughes, Denise Brennan, Martina Vandenberg, Neha Misra, and Ashley Parrish on drafts of this Article. Thanks to Jennifer Arais Hagan, Ruhee Vagle, and Dana Sarvestani for their excellent research assistance.

1 See, e.g., I believe in a World Where Everyone Can Walk Free, WALK FREE, http://www.walkfree.org/en/actions/commit (readers enter their contact information and sign a pledge committing to the abolition of slavery); Give to Not For Sale, NOT FOR SALE, https://nfs.webconnex.com/giving/donate (readers can make a donation and “give freedom”).

2 See, e.g., Lorna McGregor, Applying the Definition of Torture to the Acts of Non-State Actors: The Case of Trafficking in Human Beings, HUM. RTS. Q. (forthcoming 2014).

3 See, e.g., Diane L. Fahey, Can Tax Policy Stop Human Trafficking?, 40 GEO. J. INT’L L. 345 (2009).

4 See, e.g., Karen E. Bravo, Free Labor: A Labor Liberalization Solution to Modern Trafficking in Humans, 18 TRANSNAT’L L. & CONTEMP. PROBS. 545 (2009).

5 See, e.g., Note, Remedying the Injustices of Human Trafficking Through Tort Law, 119 HARV. L. REV. 2574 (2006).

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public health approaches,6 labor law,7 and even military might8 to combat this apparently growing international crime and human rights violation.

But what exactly is everyone trying to fight? Notwithstanding the apparent 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 When the international community developed the first modern anti-trafficking treaty in 2000 – the U.N Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children (U.N. Protocol) – elements of the legal definition of trafficking were left intentionally vague for the sake of achieving agreement.10 Reduced to its core elements, trafficking is roughly defined as: (1) an act of recruitment, movement, harbouring, or receipt of a person, (2) by means of force, fraud, or coercion, (3) for the purpose of “exploitation.” The vagaries of this expansive definition have facilitated opportunistic appropriation of the “trafficking” label by diverse advocates, such that what trafficking is – is very much in the eye of the beholder. The definitional muddle has also inspired promiscuous conflation of legal concepts, heated battles over how best to address the problem, and an ever-changing landscape of players sharing in the fervor to abolish that thing we call “trafficking” – or these days, “slavery.”

Much of the field’s first decade, for example, involved a hard-fought effort by human rights advocates to infuse a human rights perspective into the U.N. Protocol’s crime-control-focused framework. But sharp disagreement over whether “trafficking” encompasses all non-coerced prostitution divided the rights community, crippling its ability to secure its broader goal of ensuring rights protections for all trafficked persons.11

6 See, e.g., Jonathan Todres, Moving Upstream: The Merits of a Public Health

Law Approach to Human Trafficking, 89 N.C. L. REV. 447 (2011). 7 See, e.g., James Gray Pope, A Free Labor Approach to Human Trafficking, 158

U. PENN. L. REV. 1849 (2010); Hila Shamir, A Labor Paradigm for Human Trafficking, 60 UCLA L. REV. 2 (2012).

8 See, e.g., Ethan B. Kapstein, The New Global Slave Trade, 85 FOREIGN AFFAIRS 103 (2006).

9 Luis CdeBaca, Ambassador-at-Large, U.S. State Dep’t Office to Monitor and Combat Trafficking in Persons, Freedom Here & Now: Ending Modern Slavery, Remarks Before the Women’s Found. of Minn. and the Ctr. for Integrative Leadership (May 8, 2012), http://www.state.gov/j/tip/rls/rm/2012/189611.htm.

10 See Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime, G.A. Res. 55/25, 2237 U.N.T.S. 319 (Nov. 15, 2000) [hereinafter U.N. Trafficking Protocol]; Anne Gallagher, Human Rights and the New UN Protocols on Trafficking and Migrant Smuggling: A Preliminary Analysis, 23 HUM. RTS. Q. 975, 984-86 (2001) [hereinafter Gallagher, UN Protocols].

11 Gallagher, UN Protocols, supra note 10, at 984-86 (describing role of

EXPLOITATION CREEP 3

These intractable prostitution debates, combined with the mainstream media’s sex-focused reporting, helped maintain an inordinate focus on sex- sector trafficking – despite the treaty’s intended coverage of men, women, and children trafficking into all sectors of the economy. Moreover, in locating the source of the harm in the actions of individual bad actors, the sex trafficking narrative helped entrench the criminal justice paradigm just as rights advocates were seeking to lessen its overwhelming grip on the field.

The last five years have brought dramatic changes, however, inspiring a second generation of debates that carry promising, albeit fraught, potential to fundamentally re-conceptualize both the nature of and approach to the problem of human trafficking. Trafficking is no longer just about women and children trafficked for sex, but also about men forced into agricultural and construction work, women into domestic servitude in private households, and children into cocoa fields, to name just a few examples. A rising chorus of unions, workers’ rights advocates, labor institutions, and labor scholars have entered the field, advocating a labor approach to anti-trafficking interventions. Consequently, trafficking is now increasingly (and accurately) recognized as a phenomenon falling somewhere along a spectrum of abusive labor practices, often (but not always) perpetrated against migrants – though where, precisely, trafficking begins and lesser exploitation ends remains highly debatable.

This turn of events is probably not what the U.N. Protocol drafters intended. Close examination exposes how the U.S. government has prompted these changes through doctrinal manipulation and discursive conflation of trafficking with two phenomena separately prohibited under international treaty law and custom: forced labor and slavery. Wielding its outsized influence over global anti-trafficking policy, the U.S. government has sought to (1) recast all forced labor as trafficking, and (2) label all trafficking as slavery. These moves evince what I refer to as “exploitation creep,” or the labeling of abuses as more extreme than is legally accurate. Exploitation creep is partly well-intentioned, strategic deployment of powerful rhetoric and imagery to galvanize support for eradicating a broader range of wrongful practices than “trafficking” was likely ever intended to encompass.

Whether and how exploitation creep succeeds bringing about this transformation remains to be seen. This Article thus offers only an early assessment by mapping the two “exploitation creep” moves and exploring

prostitution reform debates on negotiations over U.N. Trafficking Protocol); Janie A. Chuang, Rescuing Trafficking from Ideological Capture: Prostitution Reform and Anti- Trafficking Law and Policy, 158 U. PENN. L. REV. 1655 (2010) (describing impact of prostitution reform debate on the trafficking field) [hereinafter Rescuing Trafficking].

4 EXPLOITATION CREEP

their intended and unintended consequences for the anti-trafficking and workers’ rights movements. The Article demonstrates how the two “creep” moves have opposite and conflicting trajectories, when considered in light of their potential impact on legal doctrine, institutional competencies, and grassroots advocacy efforts. On the one hand, conflating trafficking and forced labor offers the potential to shift global anti-trafficking policy towards one that incorporates a labor paradigm that addresses “unfree” or coerced labor through strengthened labor frameworks (particularly migrant labor). On the other hand, the creep towards slavery promotes further entrenchment of criminal justice paradigm dominance in the face of possible labor paradigm encroachment. Both forms of exploitation creep eviscerate the legal definition of trafficking, however, rendering “trafficking” more a advocacy tool than free-standing legal concept.

This Article begins, in Parts I and II, by situating the two exploitation creep moves in historical context. This discussion traces the doctrinal moves that undergird the reframing of all forced labor as trafficking (“Creep 1”), and the discursive shifts that give rise to the contemporaneous move from trafficking to slavery (“Creep 2”). Situated within the history of the evolution of the modern anti-trafficking movement, the analysis underscores how the exploitation creep is both cause of and reaction to the growing influence of labor advocates and institutions in the anti-trafficking field.

Parts III and IV offer close assessment of the actual and potential consequences of each creep move. As Part III demonstrates, there are reasons to be ambivalent – but ultimately cautiously optimistic – about the transformative potential of Creep 1. On the one hand, labeling all forced labor as trafficking renders trafficking redundant as a legal concept, and yields bureaucratic turf wars that potentially do more harm than good for the target worker populations. On the other hand, Creep 1 has brought long-overdue attention to the broader spectrum of labor abuse, infusing anti- trafficking analysis with crucial insights from application of a labor paradigm to the problem.12 The resulting convergence of the previously allergic anti-trafficking and labor movements has deepened our understanding of the underlying structures that create vulnerability to forced labor and trafficking. Convergence furthermore affords strength in numbers for grassroots advocates’ broader endeavor to preserve crucial space to develop and implement alternatives to the dominant, crime-control-focused anti-trafficking approaches preferred by governments worldwide. Such alternatives promise to provide substance to thus far hollow attempts at trafficking prevention.

12 See, e.g., Pope, supra note 7; Shamir, supra note 7.

EXPLOITATION CREEP 5

As explored in Part IV, however, Creep 2 threatens to undermine these potential benefits. Rhetorically conflating trafficking/forced labor with slavery has galvanized governments and grassroots advocates to pursue legal and policy reforms to “abolish slavery.” But the slavery frame adopted by these new abolitionists locates the wrong of forced labor/trafficking/slavery in the actions of individual deviant actors, encouraging simplistic, individualistic responses that fail to account for the structural forces that maintain and encourage exploitation. This frame also narrows the target of intervention to the extreme (slavery) end of the abuse spectrum, implicitly normalizing the “lesser” exploitation – including practices that technically qualify as trafficking and/or forced labor. Such dynamics absolve States of their responsibility to not promote labor and migration structures that create and foster vulnerability to exploitation in the first instance. While slavery creep appears to have drawn greater attention to the seriousness of the trafficking and forced labor problem, it risks undermining substantive efforts to address it.

The modern anti-trafficking movement’s greatest achievement has been shining a spotlight on exploitation in the private economy. Although it has entailed a troubling exercise of U.S. hegemonic power and doctrinal subterfuge, exploitation creep has helped bring us here. With careful maneuvering, anti-trafficking scrutiny could be brought to bear on the poorly-constructed labor and migration frameworks that have proven inadequate to the task of protecting those at the bottom of the global labor hierarchy. The anti-trafficking movement could also place front and center the vexing normative line-drawing questions concerning what types of exploitation are acceptable or not, and why. These are hard issues, for which this Article does not presume to offer definitive answers. The goal here, instead, is to determine out how best to preserve space to frame and ask these questions in the hopes that, one day, the anti-trafficking movement might actually be able to curtail abusive practices that now allow exploitation to thrive in the private economy.

I. EVOLUTION OF THE MODERN ANTI-TRAFFICKING REGIME Understanding the significance of exploitation creep requires first

situating its component moves in historical context. Unlike other fields – where an advocacy movement spurs creation of a new legal regime – in the trafficking field, the law preceded the social movement.13 Governments

13 J.J. Gould, Slavery’s Global Comeback, THE ATLANTIC MONTHLY (Dec. 19,

2012, 7:44 AM), available at http://www.theatlantic.com/international/archive/2012/12/slaverys-global- comeback/266354/ (citing argument made by Ambassador Luis CdeBaca to this effect).

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decided to develop the U.N. Protocol in a moment of “crisis governance,”14 fueled by government concerns over border security and transnational organized criminal syndicates’ role in facilitating clandestine migration. The hastily drafted treaty defined trafficking to include chronically vague elements that remain both undefined under international law and subject to vast differences in interpretation. The U.N. Protocol was clear, however, about prioritizing crime control concerns above its other stated goals: victim protection and trafficking prevention. The first decade of the U.N. Trafficking Protocol was thus marked by battles over definition and the struggle to infuse the dominant crime control approach with human rights standards – a struggle to which labor institutions and advocates came quite belatedly, as described below.

A. Early and Enduring Dominance of the Criminal Justice Paradigm

When the international community developed the U.N. Protocol in

the late 1990s, it did so in the form of a protocol to the U.N. Convention on Transnational Organized Crime (Organized Crime Convention) then being drafted.15 Until that point, trafficking had been an “obscure but jealously guarded” and relatively inactive mandate of the UN human rights system.16 That it had been so “unceremoniously plucked” out of the human rights realm and placed under the purview of the U.N. Office of Drugs and Crime (UNODC) meant that the first effort to draft a modern international anti- trafficking treaty would be undertaken by law enforcement officials who were unversed in human rights standards and interested in them only insofar as they served crime control goals.17 Instead of articulating a comprehensive human rights approach to trafficking, human rights advocates were thus limited to arguing the instrumental value of infusing human rights standards into a criminal-justice-prioritized framework.18

14 Diane Otto, Remapping Crisis Through a Feminist Lens, in FEMINIST

PERSPECTIVES ON CONTEMPORARY INT’L LAW: BETWEEN RESISTANCE AND COMPLIANCE? 75 (Sari Kouvo & Zoe Pearson eds., 2011).

15 UN Trafficking Protocol, supra note 10. 16 Anne T. Gallagher, Human Rights and Human Trafficking: Quagmire or Firm

Ground? A Response to James Hathaway, 49 VA. J. INT’L L. 789, 790-93 (2009) [hereinafter Gallagher, Response to James Hathaway]. The U.N. Working Group on Contemporary Forms of Slavery assumed de facto guardianship of the U.N. Trafficking Protocol’s predecessor, the Convention for the Suppression of Traffic in Persons and of the Exploitation of the Prostitution of Others, the terms of that treaty having not established a formal treaty-monitoring body. ANNE GALLAGHER, THE INTERNATIONAL LAW OF HUMAN TRAFFICKING 62 n.48 (2010).

17 GALLAGHER, supra note 16, at 4. 18 See U.N. Special Rapporteur on Violence Against Women, Position Paper on

the Draft Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially

EXPLOITATION CREEP 7

Crime control prerogatives thus have shaped and dominated the modern anti-trafficking movement since the UN Trafficking Protocol’s inception. Governments framed trafficking as a crime perpetrated by criminal syndicates, unwittingly suffered primarily by innocent women and children, and best addressed by aggressive criminalization.19 To that end, the Protocol and its parent Organized Crime Convention establish an elaborate framework to criminalize trafficking and to facilitate inter-state cooperation to intercept traffickers and control borders through information exchange, mutual legal assistance, repatriation procedures, among other measures.20 Although the dominant rhetoric of the negotiations traded heavily in wrenching imagery of the iconic trafficking victim,21 the Protocol drafters rejected a provision prohibiting governments from imposing criminal penalties on trafficked persons for crimes committed as a result of the trafficking (e.g., prostitution, undocumented migration).22 In stark contrast to the language of hard obligation found in the criminalization provisions, States are only to “consider” and “endeavor to provide” assistance for and protection of trafficked persons, and subject to the caveats of “in appropriate cases” and “to the extent possible under domestic law.”23

To be sure, due to sustained efforts by human rights advocates and the United Nations, human rights norms now play a far more significant role than a decade ago.24 But human rights gains have been largely

Women and Children, Submitted to the Ad-Hoc Comm. on the Elaboration of a Convention Against Transnational Organized Crime, at 4-6, U.N. Doc. A/AC.254/CRP.13 (May 20, 1999) [hereinafter U.N. Special Rapporteur Position Paper]; U.N. High Comm’r for Human Rights, Informal Note by the U.N. High Comm’r for Human Rights, ¶ 16, Ad Hoc Comm. on the Elaboration of a Convention Against Transnational Organized Crime, U.N. Doc. A/AC.254/16 (June 1, 1999) [hereinafter OHCHR Informal Note].

19 GALLAGHER, supra note 16, at 30-31. 20 U.N. Trafficking Protocol, supra note 10. 21 For an insightful discussion of iconic imagery of trafficked persons, see Jayashri

Srikantiah, Perfect Victims and Real Survivors: The Iconic Victim in Domestic Human Trafficking Law, 87 B.U. L. REV. 157 (2007).

22 Gallagher, U.N. Protocols, supra note 10, at 990-91. 23 See U.N. Trafficking Protocol, supra note 11, at arts. 6-7, 9. 24 See, e.g., Council of Europe Convention on Action Against Trafficking in

Human Beings, opened for signature May 16, 2005, C.E.T.S. No. 197 (entered into force Sept. 3., 1953; amended June 1, 2010). States are required, for example, to protect the private life and identity of victims, and to provide victims secure accommodation, psychological, legal, and material assistance, and a 30-day “recovery and reflection period,” renewable temporary residence permit, and a bar against penalties on victims for any compelled involvement in unlawful activities. Compare id., at arts. 11, 12, 13, and 26 (non-punishment of victims) with U.N. Trafficking Protocol, supra note 11, at art. 6 (obliging States “to consider” implementing measures to provide for the physical, psychological and social recovery of victims of trafficking).

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confined to providing victims limited post-trafficking rights protections, leaving unaddressed structural vulnerability to trafficking in the first instance. The criminal justice-dominated dynamics of the field make this hardly surprising. The shift towards greater inclusion of rights protections resulted more from governments’ reluctant recognition of their instrumental value to facilitating prosecution of traffickers than some deepened appreciation of the intrinsic value of human rights. While many more countries now afford immediate protections to trafficked persons once identified – for example, permitting a “reflection period” during which deportation is temporarily stayed and counseling services provided25 – longer-term protections, such as permanent residency status, if afforded, remain contingent on victim cooperation with criminal or civil claims against their traffickers.26

Much as the structure and content of international anti-trafficking norms prioritize crime control concerns, so do the international actors that have assumed leadership of global anti-trafficking efforts: the UN Office of Drugs and Crimes (UNODC) and the U.S. government. As the official guardian of the U.N. Trafficking Protocol,27 the UNODC provides technical and legislative guidance to countries regarding Protocol implementation,28 conducts research and analysis on trafficking,29 and coordinates the annual Conference of States Parties where governments meet to discuss

25 See, e.g., Directive 2011/36, of the European Parliament and of the Council of 5

April 2011 on Preventing and Combating Trafficking in Human Beings and Protecting its Victims, 2011 O.J. (L 101) (mandating a reflection period).

26 In the United States, trafficked persons must pursue civil actions or cooperate in criminal actions against their traffickers in order to qualify for residency status and social benefits—notwithstanding that such measures may very well place trafficked persons at risk of possible trafficker retaliation against themselves, their family members, or both. Victims of Trafficking and Violence Protection Act (TVPA) of 2000, 22 U.S.C. § 7105(b)(1)(E)(i) (2000). Italy, on the other hand, is one of the few countries that de-links victim assistance from victim cooperation, permitting victims to apply for residency status, for example, without having to first cooperate with the police. U.S. DEP’T OF STATE, TRAFFICKING IN PERSONS REPORT 197 (2012) (describing victim assistance measures in Italy) [hereinafter 2012 TIP REPORT].

27 Human Trafficking, U.N. OFFICE ON DRUGS AND CRIME (UNODC), http://www.unodc.org/unodc/en/human-trafficking/what-is-human- trafficking.html?ref=menuside (last visited Aug. 8, 2013).

28 See, e.g., UNODC, MODEL LAW AGAINST TRAFFICKING IN PERSONS, U.N. Sales No. E.09.V.11 (2010),, available at http://www.unodc.org/documents/human- trafficking/Model_Law_against_TIP.pdf.

29 See, e.g., UNODC, Issue Paper: Abuse of a Position of Vulnerability and other “Means” Within the Definition of Trafficking in Persons (2012), http://www.unodc.org/unodc/en/human- trafficking/publications.html?ref=menuside#Issue_Papers.

EXPLOITATION CREEP 9

implementation issues.30 Although other segments of the United Nations also address trafficking issues,31 the UNODC retains ultimate authority over the trafficking mandate and explicitly exercises this power through the lens of being “the only [UN] entity focusing on the criminal justice element of [trafficking crimes].”32 Partly because the U.N. Protocol frames combating human trafficking as a transnational endeavor requiring close collaboration between government law enforcement agencies, the UNODC has refrained from formal assessments of individual country compliance with the Protocol.33

By contrast, the U.S. government has assumed the role of “global sheriff” regarding the anti-trafficking efforts of other governments, wielding its hegemonic power to compel compliance with a set of U.S. anti- trafficking standards.34 The U.S. government had played a prominent role in the U.N. Protocol’s development, authoring the Protocol’s underlying “3P’s” (focused on prosecution, protection, and prevention) policy framework and leading negotiations over the treaty’s substantive contents.35 Within two months of Protocol adoption, the U.S. Congress passed the U.S. domestic law on trafficking, the Trafficking Victims Protection Act of

30 U.N. Convention against Transnational Organized Crime, at art. 32(1), Nov. 15,

2000, 2225 U.N.T.S. 209, (entered into force Sept. 29, 2003) [hereinafter U.N. Transnational Organized Crime Convention]; GALLAGHER, supra note 16, at 460-61 (discussing the decision of the Conference of Parties to extend its monitoring, information exchange, cooperation, and other functions to the Trafficking Protocol.)

31 See, e.g., Introduction to the Special Rapporteur on Trafficking in Persons, Especially in Women and Children, U.N. HUMAN RIGHTS, OFFICE OF THE HIGH COMM’R FOR HUMAN RIGHTS, http://www.ohchr.org/EN/Issues/Trafficking/Pages/TraffickingIndex.aspx (last visited Aug. 8, 2013).

32 On Human Trafficking and Migrant Smuggling, UNODC, http://www.unodc.org/unodc/en/human-trafficking/index.html?ref=menuside (last visited Aug. 8, 2013).

33 See generally Gallagher, U.N. Protocols, supra note 11. The UNODC has recently made a tepid attempt at assessment of government practices, however. The UNODC distinguishes its product from the U.S. TIP Report, noting that “observation of trafficking trends can be comprehensively conducted only from an international standpoint.” UNODC, GLOBAL REPORT ON TRAFFICKING IN PERSONS, at 51, U.N. Sales No. E.13.IV.1 (2012).

34See generally Janie Chuang, The United States as Global Sheriff: Using Unilateral Sanctions to Combat Human Trafficking, 27 MICH. J. INT’L L. 437 (2006) [hereinafter Chuang, Global Sheriff]; Anne T. Gallagher & Janie Chuang, The Use of Indicators to Measure Government Responses to Human Trafficking, in GOVERNANCE BY INDICATORS: GLOBAL POWER THROUGH QUANTIFICATION AND RANKINGS 317 (Kevin E. Davis, Angelina Fisher, Benedict Kingsbury & Sally Engle Merry eds., 2012) [hereinafter Gallagher & Chuang, The Use of Indicators].

35 Chuang, Global Sheriff, supra note 35, at 449.

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2000,36 which includes a unilateral economic sanctions regime targeted at the anti-trafficking efforts of other governments.37 The sanctions regime was born of a realization that the success of U.S. domestic efforts to prevent trafficking into the United States turned on the anti-trafficking efforts of other governments.38 Each year, therefore, the TVPA-created State Department Office to Monitor and Combat Trafficking in Persons (the TIP Office) issues an annual Trafficking in Persons Report (TIP Report) ranking countries’ efforts to abide by a set of “U.S. minimum standards for combating trafficking,” with those countries receiving the lowest ranking then potentially subject to U.S. economic sanctions.39 Whether motivated by reputational or economic risk, governments have demonstrated a high level of sensitivity to the rankings, with many having taken actions in pursuit of a good report card.40

The U.S. TIP Office has used its role as “global sheriff” on trafficking to maintain dominance of the criminal justice approach to trafficking globally. Indeed, this is statutorily mandated: the first three of the four “U.S. minimum standards” target governments’ efforts to punish traffickers, while the foremost indicia of the fourth standard focuses on governments’ efforts to “vigorously investigate[] and prosecute[]…trafficking.”41 That the first eight years of the regime’s

36 TVPA of 2000, 22 U.S.C. §§ 7101–10 (2000) [hereinafter TVPA], amended by

the Trafficking Victims Protection Reauthorization Act (TVPRA) of 2003, 22 U.S.C. §§ 7101-10 (Supp. III 2005) [hereinafter 2003 TVPRA], the TVPRA of 2005, 22 U.S.C. §§ 7101-10 (Supp. IV 2007) [hereinafter 2005 TVPRA], the William Wilberforce TVPRA of 2008, 22 U.S.C. §§ 7101-12 (Supp. III 2010) [hereinafter 2008 TVPRA], the TVPRA of 2013, Pub. L. No. 113-4, 127 Stat. 136 [hereinafter 2013 TVPRA].

37 22 U.S.C. §§ 7106-07. 38 Chuang, Global Sheriff, supra note 35, at 454-56 (discussing the battles within

the U.S. government over inclusion of a sanctions regime in the TVPA). 39 These sanctions are non-humanitarian-related and non-trade-related, and include

withdrawal of both U.S. direct financial assistance and U.S. government support for multilateral aid packages (e.g., World Bank or IMF funds). 22 U.S.C. §§ 7106(a), 7107(d)(1). Countries receiving the lowest ranking (Tier 3) in the annual TIP Report have a 90-day grace period during which to improve their performance before the sanctions determination is made. Moreover, the U.S. President can waive sanctions in the U.S. national interest or in the interest of promoting the goals of the TVPA, or in order to avoid significant adverse effects on vulnerable populations. Id., at § 7107(d).

40 Chuang, Global Sheriff, supra note 34, at 464-65; Gallagher & Chuang, The Use of Indicators, supra note 35, at 327.

41 The four minimum standards are as follows: (1) The government should prohibit and punish acts of severe forms of

trafficking in persons. (2) For sex trafficking involving force, fraud, coercion, or in which the

victim is a child, or of trafficking which involves rape, kidnapping or death, the government should prescribe punishment commensurate with that for grave crimes.

EXPLOITATION CREEP 11

application took place during the Bush Administration – which maintained an almost-exclusive focus on sex-sector trafficking – further entrenched dominance of the criminal justice paradigm.42 As sociologist Elizabeth Bernstein has demonstrated, mainstream portrayals of the problem of sex- sector trafficking – i.e., young, innocent, impoverished, naive women debauched by evil traffickers – framed trafficking as a moral problem and crime of sexual violence against women and girls and, as such, best addressed through aggressive criminalization of the wrongdoers.43

Although the TIP Reports have since broadened both focus (e.g., to include non-sex-sector trafficking) and approach (e.g., more robust consideration of victim protections), the TIP Reports continue to showcase and track governments’ efforts to prosecute and punish trafficking.44 With the UNODC as guardian of the UN Protocol and the U.S. government as enforcer of the criminal justice-dominated paradigm, international anti- trafficking laws and policies continue to prioritize crime control over all other goals. It is within this limited space that advocates continue to struggle to bring attention to the “lesser P’s” of protection of victims and prevention of trafficking. While there is now greater incorporation of human rights standards targeting post-trafficking victim protection, prevention measures addressing structural vulnerability to trafficking have remained virtually non-existent – though, as described below, this is on the brink of changing.

B. The (Belated) Entry of a Labor Perspective (3) For the knowing commission of any act of severe form of trafficking,

the government should prescribe punishment that is stringent enough to deter and that reflects the heinous nature of the offense.

(4) The government should make serious and sustained efforts to eliminate severe forms of trafficking in persons.

See 22 U.S.C. § 7106(a). Note that there is a long list of criteria for the fourth minimum standard that has been expanded and refined with each Reauthorization of the TVPA. See 2003 TVPRA §7106(b); 2005 TVPRA §7106(b); 2008 TVPRA §7106; 2013 TVPRA §1204.

42 Janet Halley, Prabha Kotiswaran, Hila Shamir & Chantal Thomas, From the International to the Local in Feminist Legal Responses to Rape, Prostitution/Sex Work, and Sex Trafficking: Four Studies in Contemporary Governance Feminism, 29 HARV. J. L. GENDER 335, 359-60 (2010); Chuang, Rescuing Trafficking, supra note 11, at 1680-1705.

43 Elizabeth Bernstein, The Sexual Politics of “New Abolitionism,” 18 DIFFERENCES 128 (2007) [hereinafter Bernstein, New Abolitionism]; Elizabeth Bernstein, Militarized Humanitarianism Meets Carceral Feminism: The Politics of Sex, Rights, and Freedom in Contemporary Anti-Trafficking Campaigns, 36 SIGNS: JOURNAL OF WOMEN IN CULTURE AND SOC’Y 45 (2010).

44 See, e.g., U.S. DEP’T OF STATE, TRAFFICKING IN PERSONS REPORT 57-62 (2013) [hereinaftaer 2013 TIP REPORT].

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The link between the trafficking phenomenon and labor practices now seems fairly obvious, but the early years of the modern anti-trafficking movement were almost entirely devoid of a labor perspective. As the guardian of international labor norms since the time of the League of Nations, the International Labour Organization (ILO) ought to have been a key player during the U.N. Protocol negotiations. After all, many of the international treaties adopted and promulgated by the ILO codify rights that are violated in the course of a trafficking scheme – forced and child labor in particular.45 Despite its broad and deep expertise in promoting respect for these rights, the ILO purposely deferred to other international institutions to lead the charge for including the coercive elements of forced labor, debt bondage, and slavery-like practices in the trafficking definition.46

The ILO’s posture during the negotiations is at least partly attributable to the notoriously divisive politics surrounding the legal definition of trafficking in the treaty. Debates over whether all prostitution could be considered human trafficking on the theory – advanced by some prominent feminists – that all prostitution is inherently coerced47 consumed negotiations over the trafficking definition.48 The ILO presaged this debate when shortly before the Protocol negotiations began, it released a highly controversial report, entitled The Sex Sector, recommending that governments recognize the sex sector as an economic sector and develop

45 See, e.g., Convention Concerning the Prohibition and Immediate Action for the

Elimination of the Worst Forms of Child Labour, opened for signature June 17, 1999, 2133 U.N.T.S. 161 (entered into force Nov. 19, 2000); Convention Concerning the Abolition of Forced Labour, opened for signature June 25, 1957, 320 U.N.T.S 291 (entered into force Jan. 17, 1959); Convention Concerning Forced or Compulsory Labour, opened for signature June 28, 1930, 39 U.N.T.S. 55 (entered into force May 1, 1932).

46 See The Director-General, ILO, Int’l Labour Conference, 89th Session, Geneva, Switz., Stopping Forced Labour: Global Report Under the Follow-up to the ILO Declaration on the Fundamental Principles and Rights of Work, 48, 100 (2001), http://www.ilo.org/wcmsp5/groups/public/@dgreports/@dcomm/documents/meetingdocu ment/kd00014.pdf. The ILO was noticeably absent from the coalition of other international organizations – including the Office of the High Commissioner for Human Rights, U.N. High Commissioner for Refugees, UNICEF, and the International Organization for Migration – that jointly provided input during the Protocol negotiations.

47 See, e.g., Melissa Farley, Preface to PROSTITUTION, TRAFFICKING, AND TRAUMATIC STRESS xi, xiv (Melissa Farley ed., 2003); KATHLEEN BARRY, THE PROSTITUTION OF SEXUALITY (1995); Dorchen Leidholdt, Prostitution: A Violation of Women’s Human Rights, in 1 CARDOZO WOMEN’S L.J. 133 (1993); Catherine MacKinnon, Prostitution and Civil Rights, 1 MICH. J. GENDER & L. 13, 28 (1993).

48 Gallagher, UN Protocols, supra note 10, at 984-86; Gabrielle Simm, Negotiating the United Nations Trafficking Protocol: Feminist Debates, 23 AUSTL. Y.B. INT’L L. 135 (2004); Jo Doezema, Now You See Her, How You Don’t: Sex Workers at the UN Trafficking Protocol Negotiations, 14 SOC. & LEGAL STUD. 61 (2005).

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laws and policies to protect those working within the sector from abuse.49 Though it explicitly refused to take a stance on whether prostitution ought to be legalized, the ILO report drew a firestorm of criticisms from governments and anti-prostitution feminists for allegedly offering “an economic anointment of the sex industry.”50

Regardless, the ILO was well-aware of the opportunity that the strong international consensus around the Trafficking Protocol presented. The U.N. Protocol was developed on the heels of the ILO’s adoption of its 1998 Declaration on Fundamental Principles and Rights at Work (“Declaration”).51 The Declaration was partly an attempt to revitalize the ILO – an international organization that had long been viewed as “ineffective and weak”52 – by focusing on a core group of treaties with “the most compelling normative claim to adherence” among its membership.53 The advent of the modern anti-trafficking regime enabled the ILO to pursue eradication of forced labor – one of the four core labor standards – with renewed vigor.54 The ILO Governing Body thus created a Special Action Programme to Combat Forced Labor (SAP-FL) in 2001 to spearhead its work on forced labor and trafficking.55

The ILO SAP-FL did not, however, make its formal mark on the anti-trafficking movement until 2005, with the media-savvy release of its

49 ILO, THE SEX SECTOR: THE ECONOMIC AND SOCIAL BASES OF PROSTITUTION IN

SOUTHEAST ASIA (Lin Lean Lim ed., 1998). 50 See, e.g., Janice G. Raymond, Legitimating Prostitution as Sex Work: UN

Labour Org. (ILO) Calls for Recognition of the Sex Industry, COALITION AGAINST TRAFFICKING IN WOMEN, http://action.web.ca/home/catw/readingroom.shtml?x=16741.

51 Int’l Labour Conference, 86th Session, Geneva, Switz., June 18, 1998, ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up, http://www.ilo.org/public/english/standards/relm/ilc/ilc86/com-dtxt.htm (Annex revised June 15, 2010) [hereinafter ILO Declaration]. The decision to adopt the Declaration was highly controversial. Some critics characterize the Declaration as part of an effort to replace the labor rights agenda with a narrower focus on a much more limited corpus of four core labor standards, and to move from an approach grounded in legal obligations towards an approach that is fundamentally promotional. See Phillip Alston & James Heenan, Shrinking the Int’l Labor Code: An Unintended Consequence of the 1998 ILO Declaration on Fundamental Principles and Rights at Work, 34 N.Y.U. J. INT’L L. & POL. 101 (2004).

52 Laurence R. Helfer, Understanding Change in Int’l Orgs.: Globalization and Innovation in the ILO, 59 VAND. L. REV. 649, 704 (2006).

53 Id. at 709. 54 Id. at 704. 55 European Conference on Preventing and Combating Trafficking in Human

Beings, Brussels, Belgium, Sept. 18-20, 2002, Forced Labour, Child Labour and Human Trafficking in Europe: An ILO Perspective, http://www.gaatw.org/working%20paper/usefulresources_labour/Trafficking%20for%20E xploitation/ILO_2002_Forced%20Labour%20ChildL%20and%20HT%20in%20Europe.pd f.

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second quadrennial forced labor report.56 The report drew a great deal of attention partly due to its release of “global estimates” of the numbers of victims of forced labor and, separately, trafficking as a subset thereof57 – at a time when policymakers and advocates were hungry for new trafficking statistics from a reputable international authority to replace existing statistics that had been roundly discredited.58 In addition to reporting the incidence of trafficking and forced labor in subsequent quadrennial forced labor reports, the ILO has also produced a set of “operational indicators of trafficking in human beings” to be used by governments worldwide to collect data regarding human trafficking in their countries.59 Most recently, the ILO has decided to develop a trafficking-focused protocol to its forced labor conventions. Attributing the “significant[] under-detect[ion]” of non- sex-sector trafficking compared to sex-sector trafficking to “criminal justice approaches and prosecutions [] pursued to the exclusion of other relevant areas of law” – the ILO now seeks to establish a “labour approach that takes into account the role of labour administration and labour inspection in preventing and combating forced labour.”60

56 The Director-General, ILO, Int’l Labour Conference, 93rd Session, Geneva,

Switz., A Global Alliance Against Forced Labour: Global Report Under the Follow-up to the ILO Declaration on the Fundamental Principles and Rights of Work, (2005), http://www.ilo.org/public/english/standards/relm/ilc/ilc93/pdf/rep-i-b.pdf. The launch of the report, which this author attended, was hosted by the BBC World Service Trust and the Massachusetts Institute of Technology, with panel discussions broadcasted on WBUR/NPR’s “On Point” radio program (hosted by Tom Ashbrook) and the BBC World’s “The World Debate” (hosted by Zeinab Badawi).

57 Id. at 10-15. 58 See U.S. GOV’T ACCOUNTABILITY OFFICE, GAO 06-825, HUMAN TRAFFICKING,

BETTER DATA, STRATEGY, AND REPORTING NEEDED TO ENHANCE U.S. ANTITRAFFICKING EFFORTS ABROAD 2-3 (2006) (concluding that the “accuracy of [trafficking] estimates is in doubt because of methodological weaknesses, gaps in data, and numerical discrepancies”); David A. Feingold, Trafficking in Numbers: The Social Construction of Human Trafficking Data, in SEX, DRUGS, AND BODY COUNTS: THE POLITICS OF NUMBERS IN GLOBAL CRIME AND CONFLICT 46 (Peter Andreas & Kelly Greenhill eds., 2010) (criticizing the methods by which trafficking data are calculated and presented); Haynes, (Not) Found Chained, infra note 164, at 342-44 (discussing the dramatic reduction in the U.S. government’s statistic of trafficking into the United States from a reported 50,000 in 2002, to 18,000-20,000 in 2003).

59 ILO, Operational Indicators of Trafficking in Human Beings (2009), http://www.ilo.org/wcmsp5/groups/public/---ed_norm/--- declaration/documents/publication/wcms_105023.pdf.

60 See Tripartite Meeting of Experts on Forced Labour and Trafficking for Labour Exploitation, Geneva, Switz., Feb. 11-15, 2013 Report for Discussion at the Tripartite Meeting of Experts Concerning the Possible Adoption of an ILO Instrument to Supplement the Forced Labour Convention, 1930 (No. 29) ¶ 15 (2013), http://www.ilo.org/wcmsp5/groups/public/---ed_norm/--- normes/documents/meetingdocument/wcms_203982.pdf [hereinafter ILO Forced Labour

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Much as a labor perspective was only belatedly brought to bear on anti-trafficking work at the governmental/institutional level, grassroots advocacy was similarly missing a substantive labor perspective until very recently. The first decade of the anti-trafficking advocacy movement was dominated by organizations that promoted a human rights and/or gender approach to the problem of human trafficking.61 While these organizations encouraged the incorporation of labor rights into anti-trafficking policy platforms, workers’ rights organizations and labor unions were largely absent from anti-trafficking working groups and coalitions.62 Labor organizations instead continued to work on workers’ rights issues in parallel rather than in conjunction with the anti-trafficking movement.63

But with the increased focus on non-sex-sector trafficking over the last few years, labor unions and workers’ rights organizations have increasingly engaged in joint advocacy efforts. The inadequacy of existing international and domestic laws to address abuses by third-party recruitment agencies,64 for example, has become a shared target of advocacy by anti- trafficking and labor rights advocates. A more nuanced understanding of how foreign labor contractors create conditions of servitude – through, e.g., exorbitant recruitment fees, non-disclosure of fees and working conditions, and retaliation against worker complaints and worker organizing – has deepened anti-trafficking advocates’ understanding of the structural

and Trafficking Discussion Paper]; Report and Conclusions of the Tripartite Meeting of Experts on Forced Labour and Trafficking for Labour Exploitation, The Int’l Labour Standards Dep’t, 317th Session, Geneva, Switz., March 6-28, ILO Doc. GB.317/INS/INF/3, (2013) [hereinafter ILO Forced Labour and Trafficking Tripartite Meeting Report].

61 These include, e.g., Human Rights Watch, International Human Rights Law Group (later renamed Global Rights), Global Alliance Against Trafficking in Women, and the Coalition Against Trafficking in Women.

62 See generally INT’L TRADE UNION CONFEDERATION, NEVER WORK ALONE: TRADE UNIONS AND NGOS JOINING FORCES TO COMBAT FORCED LABOUR AND TRAFFICKING IN EUROPE (2011) (describing the lack of collaboration between unions and anti-trafficking organizations and the efforts of the ITUC and Anti-Slavery International to encourage collaboration between the two communities) [hereinafter ITUC, NEVER WORK ALONE]. At the invitation of human rights advocates, a few sex-worker groups participated in the U.N. Protocol negotiations, but they ultimately felt marginalized by both the process and the end product. See generally Doezema, supra note 49.

63 Organizations such as the Solidarity Center and the National Guestworkers Alliance were the rare exceptions to this dynamic, explicitly linking their work to improve labor standards for migrant workers to an anti-trafficking agenda.

64 See generally MERCHANTS OF LABOR (Christiane Kuptsch ed., International Institute for Labour Studies 2006), available at http://www.ilo.org/wcmsp5/groups/public/- --dgreports/---dcomm/---publ/documents/publication/wcms_publ_9290147806_en.pdf (compiling research exploring the challenges of regulating foreign labor recruitment and recruiters).

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contributors to trafficking vulnerability.65 At the same time, labor advocates have been able to capitalize on the political will behind anti- trafficking interventions to shine a spotlight on a broader range of worker exploitation issues.66

II. EXPLOITATION CREEP

In one sense, the U.S. TIP Office appears to have welcomed the

infusion of a labor perspective into global anti-trafficking efforts, incorporating more labor analyses into each successive TIP Report, for example.67 But, as described in detail below, through “exploitation creep,” the TIP office has managed to both lay claim to forced labor issues as within its mandate, yet also remain wedded to a criminal justice paradigm.

It bears emphasizing that the chronic vagueness of the legal definition of trafficking facilitates and even encourages, perhaps, exploitation creep. Exploitation creep further adds to the doctrinal muddle. Recasting all forced labor as trafficking, and, moreover, all trafficking as slavery, renders forced labor equivalent to slavery – in contravention of

65 Within the United States, the Alliance to End Slavery and Trafficking (ATEST),

a coalition of anti-trafficking organizations, together with the International Labor Recruitment Working Group (ILRWG), a coalition of human rights and labor advocates focused on addressing foreign labor recruitment abuses across labor sectors, have jointly and successfully lobbied to include provisions addressing abusive recruitment practices in the U.S. Senate’s 2013 comprehensive immigration reform bill. See Border Security, Economic Opportunity, and Immigration Modernization Act, S. 744, 113th Cong., 1st Sess. (2013) (introduced by Senators Schumer, McCain, Durbin, Graham, Menendez, Rubio, Bennet, and Flake) [hereinafter CIR Bill].

ATEST members include the Coalition of Immokalee Workers (CIW), Coalition to Abolish Slavery & Trafficking (CAST), End Child Prostitution and Trafficking-USA (ECPAT-USA), Free the Slaves, International Justice Mission (IJM), Not for Sale Campaign, Polaris Project, Safe Horizon, Solidarity Center, Verité, Vital Voices Global Partnership, and World Vision. See About ATEST, ATEST, http://www.endslaveryandtrafficking.org/about-atest (last visited Aug. 8, 2013). The International Labor Recruitment Working Group, of which the author is a member, comprises AFL-CIO, Solidarity Center, American Federation of Teachers, Centro de los Derechos del Migrante, Inc., Economic Policy Institute, Farmworker Justice, Global Workers Justice Alliance, National Guestworker Alliance, Southern Poverty Law Center, among others. FAIR LABOR RECRUITMENT, http://fairlaborrecruitment.wordpress.com (last visited Aug. 8, 2013) (urging users to support the International Labor Recruitment Working Group (proprietor of the website) and comprehensive immigration reform) [hereinafter ILRWG website].

66 Author Interview with Confidential Source # 1 (labor advocate), Washington D.C., May 28, 2013 (noting that framing projects as trafficking-related significantly increased their funding possibilities) [hereinafter Confidential Source 1 Interview].

67 Note that this is far more noticeable, however, in the Introductions to the TIP Reports than in the substantive country analyses.

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established international law distinguishing the three practices.68 But the deeper significance of exploitation creep lies less in doctrinal distinctions than in how these moves dictate broader framing of the problem in law and policy discourse. On the surface, one might view exploitation creep as a display of hegemonic hubris in response to perceived encroachment of labor institutions in the anti-trafficking arena. But not just bureaucratic turf is at stake. Continued adherence to a criminal justice paradigm reinforces the understanding of trafficking as a problem created and sustained by individual bad actors, and thus best addressed through aggressive criminal justice interventions.

A. Creep 1: Trafficking Subsumes Forced Labor

Understanding the mechanics of Creep 1 requires, first, a closer examination of the legal definition of trafficking established by the U.N. Protocol as a matter of international law. Although many advocates and commentators have noted that the anti-trafficking field operates without much doctrinal rigor, the lack of precision has created space for expansive interpretation of the definition. The legal argument in support of Creep 1 has helped legitimate a move that might otherwise be viewed as yet another bald exercise of U.S. hegemonic power to impose U.S. norms on other governments. Moreover, however unsteady the doctrinal foothold, this interpretation has enabled the U.S. TIP Office to gain entry to – and assert authority in – an arena once exclusively dominated by labor institutions and agencies.

1. Doctrinal Creep

The U.N. Protocol defines “[t]rafficking in persons” as:

… 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, or 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….69

Recalling the three elements of the trafficking definition – act, means, and

68 Note, however, that the relevant legal definitions under domestic law might

provide greater basis for conflation. See, e.g., discussion of U.S. anti-trafficking law accompanying infra notes 130-131.

69 UN Trafficking Protocol, supra note 11, at art. 3.

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purpose70 – forced labor thus is one form of exploitation to which trafficked persons may be subjected. Forced labour is defined under international law as “work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.”71 The ILO, the keeper of the international forced labor treaties, interprets trafficked forced labor to include only forced labor involving recruitment or movement by a third party. Situations lacking this process element, such as intergenerational bonded labor (i.e., where individuals are born into bondage)72 are thus considered non-trafficked forced labor. Until 2012, the ILO estimated trafficked forced labor to comprise only 20 percent of all forced labor globally.73

The U.S. TIP Office, on the other hand, argues that all forced labor comprises trafficking. The TIP Office bases this conflation – i.e., Creep 1 – on the UN Protocol definition’s inclusion of “harbouring” and “receipt” (alongside “recruitment” and “transportation”) in the action element.74 Under this construction, the party to whom an intergenerational bonded laborer is indebted “harbours” the laborer, exerting control over the laborer through the debt.

The U.N. Protocol unfortunately does not offer a clear basis for resolving this definitional debate. But, as discussed below, available information indicates that the TIP Office’s expansive interpretation is not what the Protocol drafters intended. Regardless, it appears that support for (re-)interpreting the UN Protocol definition to focus on the exploitation

70 Ongoing confusion over the scope of the trafficking definition has prompted the

UNODC to commission expert studies into key definitional concepts (“abuse of a position of vulnerability,” “consent,” and “exploitation”) from an international legal perspective as well as with reference to the practice of states. See, e.g., UNODC, Issue Paper: Abuse of a Position of Vulnerability and other “Means” Within the Definition of Trafficking in Persons (2012), http://www.unodc.org/unodc/en/human- trafficking/publications.html?ref=menuside#Issue_Papers (2012).

71 See treaties cited at supra note 45. 72 In cases of intergenerational bondage, debts are passed down from parent to

child – once a parent is no longer able to work, the child assumes the debt. This practice occurs in countries with longstanding feudal agricultural societies. Forced and Bonded Child Labor, U.S. DOL, BUREAU OF INT’L LABOR AFFAIRS, http://www.dol.gov/ILAB/media/reports/iclp/sweat2/bonded.htm (last visited Aug. 8, 2013).

73 In its 2005 Forced Labor Report, the ILO reported that, of the estimated 12.3 million in forced labor globally, 2.45 million were trafficked. Supra note 56, at 12-13. The ILO stopped offering a separate trafficking statistic in its 2012 global estimate of forced labor. See infra notes 115-117 and accompanying text.

74 This position has been personally conveyed to the author by TIP Office personnel, including Ambassador CdeBaca on multiple occasions, and confirmed by both TIP Office and Department of Labor personnel as the source of much debate within the U.S. government.

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element as the core harm of trafficking is gaining momentum.

a. The Unmaking of International Legal Definition of Trafficking The TIP Office’s use of “harbouring” – a common criminal law term

that is not defined in international law – is perhaps a plausible reading of the term’s ordinary meaning.75 But as the Vienna Convention on the Law of Treaties instructs, “[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”76 Nothing in the treaty’s structure, the context in which it was developed, or its travaux préparatoires supports the TIP Office’s expansionist interpretation of the trafficking definition.77

As a structural matter, the TIP Office’s broad reading of “harbouring” collapses the drafters’ carefully crafted three-part (i.e., act, means, exploitation) definition of trafficking, rendering “trafficking” legally redundant with its “purpose of exploitation” element. Under the TIP Office’s construction, the trafficking threshold could be met simply by demonstrating the purpose element.78 Neither Protocol text nor its travaux préparatoires offers any suggestion that collapse of the three-part definition was even contemplated, much less intended, however.79 Moreover, if

75 The Oxford English Dictionary notes that the term “harbour,” defined as “to

give shelter to” was formerly often used “in a good sense”: “to keep in safety or security, to protect”; the term is “now mostly dyslogistic, to give secret or clandestine entertainment to noxious persons or offenders against the laws.” OXFORD ENGLISH DICTIONARY (2000). Black’s Law Dictionary defines “harbor” as “to receive clandestinely and without lawful authority a person for the purpose of so concealing him that another having a right to the lawful custody of such person shall be deprived of the same.” BLACK’S LAW DICTIONARY (9th ed. 2009).

76 Vienna Convention on the Law of Treaties art. 31, adopted May 23, 1969, 1155 U.N.T.S. 331, (entered into force Jan. 27, 1980) [hereinafter VCLT] (emphasis added).

77 GALLAGHER, supra note 16, at 30-31. 78 Note that the means element is typically satisfied, as a matter of practice, by the

inherently coercive nature of the end purposes (e.g., forced labor, slavery-like practices). The relationship between the means of trafficking and the exploitative purpose raises a host of issues beyond the scope of this article, but for a glimpse into the concerns that arise from possible conflation of the means and purpose elements of the definition, see generally UNODC, APOV Study, supra note 29.

79 Indeed, guidance from the official Legislative Guide for the Protocol that “[t]he obligation is to criminalize trafficking as a combination of constituent elements and not the elements themselves” suggests a certain adherence to the three-part structure of the trafficking definition. UNODC, LEGISLATIVE GUIDE FOR THE IMPLEMENTATION OF THE UNITED NATIONS CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME AND THE PROTOCOL THERETO, U.N. Sales No. E.0000000 (2004), available at http://www.unodc.org/unodc/en/treaties/CTOC/legislative-guide.html (emphasis added).

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trafficking could be so easily conflated with forced labor or any other of the listed exploitative purposes, it is hard to see why States would have invested resources to create a new treaty regime when the target phenomena were already addressed by well-established treaty and customary international laws.80 That the ILO, as guardian of the international forced labor treaties, was not more active during the Protocol negotiations also suggests lack of intent to update the forced labor regime.

If anything, the Protocol’s context, treaty structure, and substantive provisions support the ILO’s focus on movement/recruitment as a distinguishing feature of trafficking. It was States’ concerns over clandestine migration (including its more abusive forms) and the particular role of organized crime syndicates in facilitating it that prompted development of the Trafficking Protocol and its companion Migrant Smuggling Protocol.81 The Trafficking Protocol’s preamble thus declares that effective action to prevent and combat trafficking “requires a comprehensive international approach in the countries of origin, transit and destination.”82 The substantive provisions of the treaty assign states’ responsibilities according to these categorizations – e.g., with countries of destination to consider providing residency status to victims,83 and countries of origin to accept their return.84

Moreover, the UN Protocol’s travaux préparatoires85 includes several indications that the delegates were operating from the assumption that trafficking entails movement. Indeed, one of the two proposed options for a trafficking definition – retained in the draft Protocol until its near-final form – explicitly required “[t]ransporting a woman to or facilitating her entry into another state.”86 To the extent delegates raised questions or

80 Id; see treaties cited at supra note 45 (forced labor) and infra note 128

(slavery). 81 Protocol Against Smuggling of Migrants by Land, Sea and Air, Supplementing

the United Nations Convention Against Transnational Organized Crime, G.A. Res. 55/25, U.N. Doc. A/55/383 (Nov. 15, 2000). Indeed, States took great pains to distinguish smuggled from trafficked migrants – the former considered complicit in the crime of illegal border crossing and thus not worthy of victim protection, while the latter deemed worthy by virtue of the additional exploitation element. See ANNE GALLAGHER & FIONA DAVID, THE INTERNATIONAL LAW OF MIGRANT SMUGGLING (forthcoming 2013).

82 UN Trafficking Protocol, supra note 11, at preamble (emphasis added). 83 Id. at art. 7. 84 Id. at art. 8. 85 The VCLT permits review of a treaty’s travaux préparatoires, or the

preparatory work of the treaty, as a supplementary means of interpretation. VCLT, supra note 76, at art. 32.

86 Ad Hoc Comm. on the Elaboration of a Convention Against Transnational Organized Crime, Revised draft Protocol to Prevent, Suppress and Punish Trafficking in Women and Children, art. 2, 2d Sess., March 8-12, 1999, U.N. Doc.

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concerns about movement, it was not in the context of debating whether to require movement at all, but rather whether “trafficking” “would also include the transportation of a person within a State or whether it necessitated crossing an international border.”87 Arguing for the former option, U.N. human rights agency representatives participating in the Protocol negotiations – including this author – operated from the assumption that some element of movement was required. The movement/recruitment element was considered a key factor rendering migrants particularly vulnerable to exploitation.88 As the ILO later noted in explaining its position, trafficked forced laborers are “probably worse off” than non-trafficked victims, who exercise more agency in exiting forced labor.89

That the “act” element includes a range of actions beyond movement/recruitment – i.e., “transfer, harbouring or receipt of persons” – is thus not intended to bring all forced labor under the trafficking umbrella. The language “recruitment, transportation, transfer, harbouring or receipt of persons” was introduced in the first working draft of the Protocol – neither the act element as a whole nor any individual component was debated or discussed during the course of the negotiations.90 Recollections of those present during the negotiations confirm that the structure of the act element was assumed to reflect the drafters’ vision of trafficking as a process carried out by multiple actors working in concert.91 Pinpointing each act in the

A/AC.254/4/Add.3/Rev.1. [hereinafter U.S.-Argentina draft], at art. 2 (“option 2) (definition proposed by Argentina). This proposed definition was retained as an option until the April 2000 draft of the Protocol.

87 Ad Hoc Comm. on the Elaboration of a Convention Against Transnational Organized Crime, Revised draft Protocol to Prevent, Suppress and Punish Trafficking in Women and Children, art. 2 n.19, 7th Sess., Jan. 17-28, 2000, U.N. Doc. A/AC.254/4/Add.3/Rev.4.

88 See U.N. Special Rapporteur Position Paper, supra note 18, at 3; OHCHR, Informal Note, supra note 18. Note that the author represented the U.N. Special Rapporteur on Violence against Women during the Protocol negotiations. That trafficking entailed a movement requirement was also working assumption of key U.S.-based non- governmental human rights organizations participating in the UN Protocol negotiations. See, e.g., Ali Miller & Alison N. Stewart, Report from the Roundtable on the Meaning of “Trafficking in Persons”: A Human Rights Perspective, 20 WOMEN’S RTS. L. REP. 11, 14- 15 (1998) (discussing the understanding of U.S.-based human rights organizations that trafficking entailed physical movement or transport).

89 Beate Andrees & Mariska N.J. van der Linden, Designing Trafficking Research from a Labour Market Perspective: The ILO Experience, in 43 INT’L MIGRATION 55, 64, (Jan. 2005) (special issue entitled “Data and Research on Human Trafficking: A Global Survey) (explaining the ILO’s position during the UN Protocol negotiations).

90 See U.S.-Argentina draft, supra note 86, at art. 2, option 1, at 2. 91 Telephone Interview with Anne Gallagher, Legal Adviser to the U.N. and

Association of South East Nations (July 31, 2013). Gallagher participated in the

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process was born of States’ desire to criminalize all actors involved in that process – the recruiters, transporters, owners and supervisors of any place of exploitation – not to equate individual parts of the process with their sum. b. Trafficking v.2.0

Questions of doctrinal accuracy aside, the anti-trafficking field

appears to be on a trajectory towards a view of trafficking that deemphasizes movement and emphasizes exploitation as the core of the harm. The TIP Office and TIP Reports have made abundantly clear that their assessment of State practices will encompass exploitation sans movement.92 Moreover, supporting this shift, the Conference of Parties Working Group on Trafficking in Persons – empowered under the Organized Crime Convention to provide States Parties guidance concerning U.N. Protocol implementation – has recommended that States Parties recognize that the “presence of any of those acts [listed in the act element] could mean that [ ] trafficking had been committed, even in the absence of transit or transportation.”93

The impact of this recommendation remains to be seen. Given the dynamics of the field, one can predict both benefits and drawbacks to removing the movement element from a trafficking analysis. On the one hand, deemphasizing movement can indeed help focus attention on the exploitation element as the core harm of trafficking. After all, States’ tendencies to focus on the migration element have in some cases led to counterproductive responses – e.g., misclassifying (intentionally or not) trafficking cases as smuggling,94 and banning migration of certain

negotiations as the representative of the Office of the U.N. High Commissioner for Human Rights. The author’s recollection from participating in the negotiations – as representative of the U.N. Special Rapporteur on Violence against Women – is consistent with this understanding.

92 See, e.g., 2013 TIP REPORT, supra note 46, at 29 (human trafficking can include but does not require movement….the heart of this phenomenon is the traffickers’ goal of exploiting and enslaving their victims and the myriad coercive and deceptive practices they use to do so.”)

93 Conf. of the Parties to the U.N. Convention against Transnational Organized Crime, para. 55, 5th Sess., Oct. 18-22, 2010, U.N. Doc. CTOC/COP/2010/6.

94 Under international law, the distinction between smuggling and trafficking is significant from a victim standpoint. The greater administrative and financial burden on States vis-à-vis a trafficked person as opposed to a smuggled one “creates a clear incentive for national authorities to identify irregular migrants as having been smuggled rather than trafficked.” Anne Gallagher, Trafficking, smuggling and human rights: tricks and treaties, 12 FORCED MIGRATION REV. 25 (2002); see also Jennifer M. Chacón, Tensions and Trade- Offs: Protecting Trafficking Victims in the Era of Immigration Enforcement, 158 U. PA. L.

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categories of “at-risk” individuals as an anti-trafficking prevention measure.95 On the other hand, as the Protocol drafters implicitly recognized and ILO studies confirm, a trafficked person’s migrant status (documented or undocumented) can exacerbate vulnerability to abuse. Human rights advocates have always considered movement as contributing to vulnerability to exploitation – by virtue, for example, of having to work in an unfamiliar environment with limited language and cultural proficiency and thus less ability to access assistance from law enforcement or service providers.96 Consequently, diverting attention away from the migration element risks promoting too thin an understanding of the trafficking experience, potentially – but not inevitably, as discussed below97 – leaving unaddressed problematic migration policies that help create and sustain trafficking. 2. Institutional Creep

However suspect its legal merits might be as a matter of

international law, doctrinal creep has provided the U.S. TIP Office cover for its expansionist ambitions to police forced labor globally. As discussed in Part I, governmental and non-governmental institutions devoted to anti- trafficking issues have, for the most part, developed separately from (and more recently than) labor institutions long responsible for addressing forced labor issues. This compartmentalization tracks the separation of legal regimes – forced labor matters traditionally falling under labor (or industrial relations) law, with trafficking as a separate regime unto itself (and usually focused on criminal prosecution). The doctrinal conflation of forced labor and trafficking blurs these traditional boundaries, with unsettling implications for international and domestic institutions. While the resulting bureaucratic turf battles might appear of little consequence on the ground, how they are resolved could substantively affect how we frame the problem of trafficking and shape law and policy interventions thereto.

REV. 1609, 1635 (2010) (noting the typical approach of U.S. federal agencies to treat “gray area” cases – falling somewhere in between outright victims of “severe” trafficking and a smuggled migrants subject to everyday forms of labor exploitation – as involving a voluntary migrants ineligible for anti-trafficking protections).

95 U.N. Women, Government of Nepal bans women under 30 from migration in the Gulf – UN Women’s standpoint, Aug 9-10, 2012, http://www.unwomensouthasia.org/assets/Nepal-bans-women-under-30-from-working-in- the-Gulf.pdf.

96 See references cited in supra notes 88-89. 97 See infra notes 187-193 and accompanying text.

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a. A Brewing Conflict For the ILO to situate trafficking as a subset of forced labor in its

2005 quadrennial forced labor report was a jarring challenge to the U.S. government’s presumed authority in the global anti-trafficking arena. Other governments already viewed the U.S. government’s anti-trafficking sanctions regime as a bald, illegitimate exercise of U.S. hegemonic power, particularly on the heels of the internationally-backed UN Protocol. The ILO, on the other hand, enjoyed international recognition as the guardian of international labor law. Moreover, by subsuming trafficking under its forced labor mandate, the ILO could claim specific international authority and expertise dating back to its 1930 adoption of the ILO Forced Labour Convention.98

But when first confronted with the ILO’s contrary view of the relationship between trafficking and forced labor in 2005, the U.S. TIP Office did not directly object. The 2006 U.S. TIP Report simply notes that trafficking does not require movement as a matter of law,99 and selectively reproduces the ILO statistics – carefully referring only to the ILO’s global estimate for “forced labor” and not the smaller “trafficking” statistic.100 The TIP Office’s relatively muted response to this disagreement is likely attributable to at least two key factors. First, this difference of opinion arose during the peak years of the Bush Administration, which adopted a policy perspective that equated prostitution (including “voluntary” adult prostitution) with trafficking.101 The refusal to equate prostitution with “labor” under any circumstances – and to view prostitution as intrinsically coercive, hence not “forced” – prevented trafficking from being connected to “forced labor” as a conceptual matter. This position, combined with the then-TIP Office’s relatively scant attention to non-sex-sector trafficking, together rendered concerns over the relationship between trafficking and forced labor largely irrelevant to its day-to-day functioning.

A second dynamic that likely tempered the TIP Office’s response was the rather inconvenient fact that those parts of the U.S. government specializing in forced labor – the U.S. State Department Bureau of

98 See international forced labor treaties cited in supra note 45. 99 U.S. DEP’T OF STATE, TRAFFICKING IN PERSONS REPORT 10 (2006) (discussing

“the myth of movement”) [hereinafter 2006 TIP REPORT]. 100 2006 TIP REPORT, supra note 97, at 6; U.S. DEP’T OF STATE, TRAFFICKING IN

PERSONS REPORT 6 (2007) [hereinafter 2007 TIP REPORT]; U.S. DEP’T OF STATE, TRAFFICKING IN PERSONS REPORT 7 (2008) [hereinafter 2008 TIP REPORT]; U.S. DEP’T OF STATE, TRAFFICKING IN PERSONS REPORT 8 (2009) [hereinafter 2009 TIP REPORT]; U.S. DEP’T OF STATE, TRAFFICKING IN PERSONS REPORT 7 (2010) [hereinafter 2010 TIP REPORT].

101 Chuang, Rescuing Trafficking, supra note 11, at 1699-1702.

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Democracy, Rights, and Labor (DRL) and the U.S. Labor Department’s International Labor Affairs Bureau (ILAB) – actually sided with the ILO’s position. The DRL had long applied the trafficked versus non-trafficked distinction in its annual State Department Country Reports on Human Rights Practices, assessing government practices regarding trafficking and forced labor as separate analytic categories.102 ILAB similarly adhered to the distinction in carrying out its mandate to address forced labor abroad, for example, viewing issues of intergenerational bonded labor as within its portfolio and outside that of the TIP Office.103

The political landscape changed, however, with the entry of the Obama Administration. The Obama TIP Office made a concerted effort to shift the spotlight to non-sex sector trafficking, making the link between trafficking and “labor” much more visible and explicit.104 It accomplished this in part through the bold and highly controversial move of defining (adult) sex trafficking as including “forced prostitution” or prostitution involving force, fraud, or coercion105 – in effect, reversing the Bush Administration’s position equating voluntary prostitution with trafficking.106 The move was partly a strategic effort to redirect attention and resources away from the divisive and distracting prostitution reform debates. The move also enabled a pivot towards what the Obama TIP Office considered the core harm of trafficking (into any sector): “the many forms of enslavement, not the activities involved in international

102 U.S. DEP’T OF STATE, Human Rights Reports, available at

http://www.state.gov/j/drl/rls/hrrpt/. 103 There, the TIP Office attempted to incorporate its own view of the trafficking

definition into the treaty, but to no avail. Author Interview with International Labor Affairs Bureau, Dep’t of Labor, D.C. (Dec. 2012) [hereinafter ILAB Interview].

104 See, e.g., 2009 TIP REPORT, supra note 100, at 17 (debt bondage among migrant laborers), 18 (involuntary domestic servitude), 26 (strengthening prohibitions against forced labor and fraudulent recruitment of foreign workers). Note that the 2006 TIP Report, issued towards the end of the Bush Administration, made a concerted effort to include substantive discussion of trafficking practices outside the sex sector. See 2006 TIP REPORT, supra note 99, at 6 (noting that the 2006 Report focuses on “slave labor and sexual slavery”) (emphasis in original).

105 The 2009 TIP Report marks the shift in language towards use of “forced prostitution” to describe practices comprising sex trafficking. See, e.g., 2009 TIP REPORT, supra note 100, at 5, 13, 21, 22. The 2010 TIP Report includes the explicit statement that “[p]rostitution by willing adults is not human trafficking regardless of whether it is legalized, decriminalized, or criminalized.” 2010 TIP REPORT, supra note 100, at 8.

106 BUREAU OF PUBLIC AFFAIRS, U.S. DEP’T OF STATE, FACT SHEET: THE LINK BETWEEN PROSTITUTION AND SEX TRAFFICKING (2004) (stating that “where prostitution has been legalized or tolerated, there is an increase in the demand for sex slaves”). Bush Administration’s anti-trafficking interventions targeted prostitution writ large, assuming away any distinction between voluntary and forced prostitution. See Chuang, Rescuing Trafficking, supra note 11, at 1680-1704.

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transportation.”107 Increasingly, however, the TIP Office came to view the ILO’s trafficked versus non-trafficked forced labor distinction – and DRL and ILAB’s adherence to the ILO view – as stumbling blocks to the TIP Office’s efforts to pull focus to a broader range of abusive labor practices, including intergenerational debt bondage. The TIP Office thus began its campaign to bring DRL, ILAB, and ILO in line with its view, as described below.

b. Conquering DRL/ILAB

Beginning in 2009, the TIP Office sought a unified U.S. government

position that the legal concept of trafficking encompasses all forced labor. At stake for DRL and ILAB was not only bureaucratic turf, but the fundamental approach to encouraging other governments to address their forced labor problems. ILAB and DRL typically rely on a “carrot” approach of diplomatic engagement and technical cooperation to promote internationally-recognized workers’ rights, generally, and to eliminate forced labor, specifically. These efforts involve close collaboration with NGOs, trade unions, companies, and international organizations. Although both DRL and ILAB engage in naming and shaming of non-compliant governments through, for example, the annual State Department Country Human Rights Practices Report108 and the Labor Department List of Goods Produced by Child Labor or Forced Labor,109 respectively, the bulk of these offices’ programmatic activity lies in working closely with governments to identify structural factors that facilitate forced labor, and develop alternative solutions. This approach stands in stark contrast to TIP Office efforts in the trafficking arena, which involve diplomacy and technical cooperation, but are best known worldwide for using the “stick” of shaming via TIP Report rankings and sanctions to compel foreign government compliance with U.S. (criminal-justice-focused) anti-trafficking standards.

DRL was the first to succumb to TIP Office pressure, thus enabling the State Department to have a uniform position on the issue. ILAB, on the other hand, persisted in its refusal to adopt the TIP Office’s viewpoint.110 In addition to viewing the TIP Office’s interpretation of the Protocol trafficking definition as legally inaccurate, ILAB feared that introducing the TIP Office’s “stick” of shaming and sanctions into ILAB’s forced labor

107 Gould, supra note 13. 108 See Human Rights Reports, supra note 102. 109 U.S. DEP’T OF LABOR, Bureau of Int’l Labor Affairs, Trafficking Victims

Protection Reauthorization Act, List of Goods and Countries, available at http://www.dol.gov/ILAB/programs/ocft/tvpra.htm.

110 ILAB interview, supra note 103.

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programming could disrupt diplomatic engagement. More significantly, it could redirect attention and resources to aggressive prosecutorial strategies, rather than strategies targeting root causes like weak labor frameworks.111 Moreover, TIP Office involvement could undercut ILAB’s limited use of its own “stick” of shaming governments that use child or forced labor by introducing a competing metric for country assessments.112

The TIP Office and ILAB at an impasse, the dispute was brought to the National Security Council (NSC) for resolution in 2010. The NSC ultimately decided in the TIP Office’s favor – requiring all U.S. government agencies to hew to the definitional boundaries drawn by the TIP Office. Those boundaries have since enabled the TIP Office to stake its claim to a substantive role in developing international labor standards that bear upon the situation of trafficked persons. U.S. TIP Office representatives attended, for example, the 2010-2011 negotiations over the ILO Domestic Workers Convention, notwithstanding ILAB’s role and presence there as lead U.S. government negotiator for international labor treaties.113 With the ILO proposal to develop a new protocol to its forced labor treaties on the horizon, as discussed below, one can expect continued jockeying for influence between the TIP Office and ILAB.

c. Swaying the ILO

In addition to pursuing uniformity of position across the U.S.

government, the TIP Office has also maintained pressure on the ILO to conform to its expansive interpretation of the trafficking definition. The ILO appeared to succumb – temporarily – to TIP Office pressure, but has ultimately maintained its position. For example, in 2011, the ILO circulated a draft of its survey guidelines for estimating forced labour, entitled Hard to see, harder to count, which offered both a “narrow definition” and a “broad definition” of trafficking. While the “narrow” version retained the trafficked versus non-trafficked distinction, the “broad” definition reflected the U.S. TIP Office’s perspective that: “[i]rrespective of movement…any adult or child worker engaged in forced labour is classified also as a victim of human trafficking.”114 The final (2012) version of the report deletes this language, however.115 At the same time, the ILO studiously avoids the

111 Id. 112 Id. 113 Id. 114 INT’L LABOUR OFFICE, HARD TO SEE, HARDER TO COUNT: SURVEY

GUIDELINES TO ESTIMATE FORCED LABOUR OF ADULTS AND CHILDREN 20 (2011) (on file with author).

115 The ILO notes, instead, the following: In the context of determining an operational definition of trafficking for forced

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trafficking issue altogether in its 2012 “global estimate of forced labor” (updating its 2005 statistic).116 There the ILO reports a total of 20.9 million forced labourers, but unlike in 2005, does not include a separate “trafficking” statistic. Seizing upon the omission, the U.S. TIP Office notes in its 2012 TIP Report that “[the new ILO global estimate] recognizes that human trafficking is defined by exploitation, not by movement.”117

But what the TIP Office interprets as a concession is perhaps more aptly characterized as strategic avoidance – enabling the ILO to keep its options open as it contemplates its future role in the anti-trafficking movement. For example, in response to the question “[i]s [forced labour] the same as trafficking and slavery?” posted on the ILO website releasing the new estimate, the ILO answers only that human trafficking “can also be regarded as forced labour.”118 Tellingly, it avoids entirely the harder question of whether forced labour can be considered trafficking – or slavery, for that matter. Closer review of the global estimate reveals, however, the ILO’s implicit adherence to the trafficked/non-trafficked forced labor distinction, despite the ILO’s avoidance of the term “trafficking”:

The estimates also allow an assessment of how many people end up being trapped in forced labour following migration. There are 9.1 million victims (44% of the total) who have moved either internally or internationally, while the majority, 11.8 million (56%), are subjected to forced labour in their place

labour, for the purpose of data collection, it is necessary to raise two issues: first, whether movement of the victim either within or across national borders is a necessary condition for trafficking, and second, whether the involvement of an intermediary or other third party is required. While neither of these criteria has to be present in order to prosecute a case of human trafficking, national policy- makers may nonetheless decide to distinguish between “trafficked” and “non- trafficked” (or other forms of) forced labour. This may help them to devise differentiated policy responses that are best adapted to the national context and specific target groups. The present guidelines, which are designed for the purpose of statistical data collection, do not adopt a position on this issue.

INT’L LABOUR OFFICE, HARD TO SEE, HARDER TO COUNT: SURVEY GUIDELINES TO ESTIMATE FORCED LABOUR OF ADULTS AND CHILDREN 19 (2012).

116 INT’L LABOUR OFFICE, ILO 2012 GLOBAL ESTIMATE OF FORCED LABOUR 1 (2012) [hereinafter ILO 2012 GLOBAL ESTIMATE]. The ILO reports that 90% of forced labourers are exploited in the private economy (i.e. by individuals or enterprises), and 10% in state-imposed forms of forced labour (e.g., prisons, state military, or rebel armed forces). 55% are women and girls, and 74% are adults. Of those exploited in the private economy, 22% are victims of forced sexual exploitation, and 68% are victims of forced labour exploitation in economic activities, such as agriculture, construction, domestic work or manufacturing. Id.

117 2012 TIP REPORT, supra note 26. 118 International Labour Organization, Questions and answers on forced labour,

Analysis, June 1, 2012, http://www.ilo.org/global/about-the- ilo/newsroom/news/WCMS_181922/lang--en/index.htm.

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of origin or residence.119 Whether and how the ILO ultimately chooses to address the relationship between trafficking and forced labour remains to be seen. That the ILO has decided to develop a trafficking-focused protocol to the ILO Forced Labour Convention promises sustained if not increased involvement in global anti- trafficking law and policy-making.120

B. Creep 2: Calling All Trafficking “Slavery” Curiously, simultaneously with its aggressive efforts to export its

capacious interpretation of the trafficking definition, the Obama TIP Office has also been actively arguing for the “trafficking” term’s obsolescence. In fall 2012, President Obama and former Secretary of State Clinton explicitly advocated replacing the term “trafficking” with “slavery,” deeming the latter the more accurate label:

I’m talking about the injustice, the outrage, of human trafficking,

which must be called by its true name – modern slavery…. Now, I do not use that word, “slavery” lightly. It evokes obviously one of the most painful chapters in our nation’s history. But around the world, there’s no denying that awful reality….Now, as a nation, we’ve long rejected such cruelty. Just a few days ago, we marked the 150th anniversary of …the Emancipation Proclamation….

-- President Barack Obama121 Today, it is estimated as many as 27 million people around the world

are victims of modern slavery, what we sometimes call trafficking in persons. As [TIP Ambassador Luis CdeBaca] said, I’ve worked on this issue now for

119 ILO 2012 GLOBAL ESTIMATE, supra note 116, at 2 (emphasis added). 120 First among the discussion points to be addressed by a February 2013 Tripartite

Meeting of Experts on the proposed instrument was whether and how to define the relationship between forced labour and trafficking, and what regulatory gaps exist regarding trafficking and whether the ILO should address them through the proposed instrument. ILO FL/T Discussion Paper, supra note 60, at para 144 (Discussion point 1: Trafficking in persons). Ultimately, due to deeply divergent views expressed at the expert meeting, the conclusions adopted by the expert group only imply a distinction between trafficking and forced labor, leaving its precise contours unaddressed. ILO FL/T Tripartite Meeting Report, Appendix, supra note 60, at 39 para 2 (noting that “the ILO should pursue complementary approaches in accordance with its mandate and expertise with a view to ensuring effective eradication of forced labour, including forced labour exacted as a result of trafficking.”)

121 The White House, Office of the Press Sec’y, Remarks by the President to the Clinton Global Initiative, N.Y.C, NY Sept. 25, 2012, available at http://www.whitehouse.gov/the-press-office/2012/09/25/remarks-president-clinton-global- initiative.

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more than a dozen years. And when we started, we called it trafficking. And we were particularly concerned about what we saw as an explosion of the exploitation of people, most especially women, who were being quote, “trafficked” into the sex trade and other forms of servitude. But I think labeling this for what it is, slavery, has brought it to another dimension. I mean, trafficking, when I first used to talk about it all those years ago, I think for a while people wondered whether I was talking about road safety – (laughter) – what we needed to do to improve transportation systems. But slavery, there is no mistaking what it is, what it means, what it does…. – U.S. Secretary of State Hilary Rodham Clinton122

The references to slavery are neither new nor surprising, especially given that the year 2013 marks the 150th anniversary of the Emancipation Proclamation. The rhetorical marrying of trafficking practices with slavery has proven an enormously successful tool for galvanizing outrage and create incentives for anti-trafficking advocacy and support. The slavery analogy packs a particular punch in the U.S. context, given this country’s past as a major slaveholding country – its invocation by the United States’ first African-American President all the more powerful.

The Obama/Clinton statements are novel because they shift from invoking slavery imagery for rhetorical flair to explicitly suggesting that “slavery” should replace “trafficking” because the latter is a passé, if not inaccurate, descriptor. This move is a far more intentioned use of the term “slavery” than has ever been used before. Rather than simply a tool to prompt action, “slavery” is now being used to actively re-frame the problem – not only by the highest levels of the U.S. government, but by a wide swath of grassroots advocates and mainstream media outlets. Yet, as discussed below, use of the slavery analogy in the trafficking field comes with a long, fraught history, and efforts to officially equate trafficking with slavery as a matter of U.S. law failed as little as five years ago. What accounts for the sudden embrace of “slavery” as conceptual frame? And, more significantly, at a time when we are also witnessing growing demands for a labor paradigm to be applied to the problem of human trafficking?

1. From Analogy to Framing Device

Efforts to equate trafficking with slavery date back to the earliest

anti-trafficking treaties, from the early 1900s, which targeted what was then referred to as “white slave traffic,” specifically the forcible or fraudulent

122 U.S. DEP’T OF STATE, Release of the 2012 Trafficking in Persons Report,

Remarks by Sec’y of State Hillary Rodham Clinton, June 19, 2012, video and transcript available at http://www.state.gov/secretary/rm/2012/06/193368.htm.

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recruitment into prostitution.123 The use of “white slavery” was intended to both distinguish “female sexual slavery” from African enslavement and to draw a moral comparison between the two practices.124 References to slavery were soon abandoned for “not reflecting the nature and scope of the problem.”125 Moreover, the many international agreements adopted in the late nineteenth and early twentieth century to address enslavement of Africans were never intended or considered to cover the practices now associated with trafficking, including sexual exploitation, forced labor, debt bondage, and child labor.126

Despite its contested use in the past, some activists resurrected the rhetoric of “sexual slavery”127 during the U.N. Protocol negotiations to garner support for using the treaty to abolish prostitution writ large. But few, if any, legal advocates would have suggested that, but for the most extreme cases, trafficking met the legal threshold for slavery under international law. Considered a jus cogens norm under international law, slavery is defined under the 1926 Slavery Convention as “the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.”128 Slavery has typically been associated

123 International Agreement for the Suppression of the White Slave Traffic, May

4, 1904, 1 L.N.T.S. 83, (entered into force July 18, 1905); International Convention for the Suppression of the White Slave Traffic, May 4, 1910, 3 L.N.T.S. 278, (entered into force Aug 8, 2012).

124 GALLAGHER, supra note 16, at 55. 125 GALLAGHER, supra note 16, at 13-14. See, e.g., International Convention for

the Suppression of Traffic in Women and Children, Sept. 30, 1921, 9 L.N.T.S. 415, (entered into force June 15, 1922); International Convention for the Suppression of the Traffic in Women of Full Age, Oct. 11, 1933, 150 L.N.T.S. 431, (entered into force Aug. 24, 1934); Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, Dec. 2, 1949, 96 U.N.T.S. 271, (entered into force July 25, 1951).

126 See Report Presented by the Advisory Comm. of Experts on Slavery, League of Nations Doc. C.189(I).M.145 1936 VI, 24-25 (1936) (stating that “one should realize quite clearly that [debt slavery]…is not ‘slavery’ within the definition set forth in the 1926 Convention, unless any or all the powers attaching to the right of ownership are exercised by the master”). For a thorough examination of the international legal definition of slavery, see Gallagher, Response to James Hathaway, supra note 16, at 799-810.

127 These same activists pushed for incorporation of this concept in the statutes establishing the international criminal tribunals for the former Yugoslavia and Rwanda, and the International Criminal Court. See generally, Janet Halley, Rape at Rome, 30 MICH. J. INT’L L. 1 (2008) (examining feminist advocacy during the formation of new international criminal tribunals during the 1990s).

128 Convention to Suppress the Slave Trade and Slavery, Sept. 25, 1926, 60 L.N.T.S. 253, (entered into force Mar. 9, 1927) [hereinafter Slavery Convention]. Later, the United Nations elaborated a new legal instrument to address certain institutions and practices similar to slavery, specifically debt bondage, serfdom, servile forms of marriage, and exploitation of children. Supplementary Convention on the Abolition of Slavery, the

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with extreme situations, like chattel slavery, involving clear exercise of the powers of ownership.129

In the U.S. context, by contrast, the link between trafficking and slavery has clearer doctrinal underpinnings. As James Pope has powerfully argued, the Thirteenth Amendment aims not only at ending slavery, but also at ‘maintaining a system of completely free and voluntary labor throughout the United States.’130 Subsequent reauthorizations of the TVPA have reaffirmed and capitalized on trafficking’s connection to slavery in various rhetorical gestures.131 Despite embracing a conceptual link between trafficking and slavery, until 2009, the U.S. TIP Office actively resisted substantive conflation of the concepts, notwithstanding the potentially widespread support for doing so.

The evolution of the modern anti-trafficking regime happened to coincide with a popular grassroots effort to abolish “modern-day slavery” led by bestselling author Kevin Bales, who claimed that 27 million people were “enslaved” around the world.132 That statistic was based, however, on Bales’s own made-up definition of slavery, which was far broader than any found in actual law:

the control of one person (the slave) by another (the slaveholder or slaveholders). This control transfers agency, freedom of movement, access to the body, and labor and its products and benefits, to the slaveholder. The control is supported and exercised through violence and its threat. The aim of this control is primarily economic exploitation, but may include sexual use or psychological benefit.133

The TIP Office did not rely on Bales’s 27 million statistic in its annual TIP

Slave Trade, and Institutions and Practices similar to Slavery, Apr. 1, 1957, 226 U.N.T.S. 3, (entered into force Apr. 30, 1957) [hereinafter Supplementary Slavery Convention]. The Supplementary Slavery Convention retained the 1926 definition of slavery and created a new concept of “servile status” as attaching to a victim of slavery-like practices (as opposed to slavery).

129 See discussion accompanying infra notes 250-254. 130 See Pope, supra note 7, at 1850. 131 The 2008 Reauthorization of the TVPA was named the William Wilberforce

Trafficking Victims Protection Reauthorization Act to coincide with the 200th anniversary of the British Parliament’s anti-slave trade legislation and named in honor of the famed British abolitionist. President Obama’s and then-Secretary Clinton’s above-quoted remarks were made to marshal support for the 2013 reauthorization of the TVPA, which was timed to coincide with the 150th anniversary of the Emancipation Proclamation. The Trafficking Victims Protection Reauthorization Act of 2013, Pub. L. No. 113-4, (Mar. 7, 2013).

132 KEVIN BALES, DISPOSABLE PEOPLE: NEW SLAVERY IN THE GLOBAL ECONOMY 8-9 (1999).

133 Kevin Bales, Professor Kevin Bales’s Response to Professor Orlando Patterson, in THE LEGAL UNDERSTANDING OF SLAVERY: FROM HISTORICAL TO CONTEMPORARY 360, 370 (Jean Allain, ed.) (2012) (explaining and defending his definition of slavery) [hereinafter THE LEGAL UNDERSTANDING OF SLAVERY].

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Reports134 – not surprisingly, considering it had been taken to task by the U.S. Government Accountability Office for producing and recycling faulty statistics, including the then-presumed-inflated U.N. estimate of 2.5 million people trafficked worldwide.135 The TIP Office also resisted Bales’ efforts, beginning in 2006, through his non-profit Free the Slaves,136 to seek codification of Bales’s definition of “modern-day slavery” and to create a congressional Commission on Abolition of Modern-Day Slavery to track and address the problem within the United States and abroad.137 These proposed measures would have created a separate government bureaucracy that replicated – under the rubric of “modern-day slavery” – much of what the U.S. TIP Office was already doing under its trafficking mandate.138

Five years later, however, Bales’ once-rejected “27 million enslaved” statistic features on the first page of the 2012 TIP Report.139

134 In its 2006, 2007, and 2008 TIP Reports, the TIP Office simply noted that

“estimates range from 4 to 27 million.” See 2006 TIP REPORT, supra note 99, at 6; 2007 TIP REPORT, supra note 100, at 6; 2008 TIP REPORT, supra note 100, at 7. The 2009 and 2010 TIP Reports drop the reference to 27 million, reporting only the ILO’s 12.3 million in forced labor statistic. U.S. DEP’T OF STATE, TRAFFICKING IN PERSONS REPORT 8 (2009); U.S. DEP’T OF STATE, TRAFFICKING IN PERSONS REPORT 7 (2010). The 2011 TIP Report drops statistics altogether, reporting that the trafficked/enslaved population figures in the “millions.” U.S. DEP’T OF STATE, TRAFFICKING IN PERSONS REPORT 1, 2 (2011).

135 GAO REPORT, supra note 58, and accompanying discussion in text. 136 Widespread attention to Disposable People inspired Bales to create the U.S.-

based non-profit Free the Slaves in 2001, with the goal of “liberat[ing] slaves around the world & chang[ing] the systems that allow slavery to exist.” FREE THE SLAVES, https://www.freetheslaves.net/SSLPage.aspx (last visited Aug. 1, 2013). Free the Slaves has consistently framed its advocacy efforts as targeting “modern-day slavery.”

137 Free the Slaves successfully lobbied to have legislation introduced to that effect. Congressional Commission on the Abolition of Modern-Day Slavery Act, 109th Cong., (2nd Sess.. 2006) S. 3787; 109 S. 3787 (sponsored by Santorum, Pryor, and Dole), January 3, 2006) and 2006 H.R. 6328; 109 H.R. 6328 (sponsored by Christopher Smith (R- NJ) and John H. Lewis (D-GA), Nov. 15, 2006); Congressional Commission on the Abolition of Modern-Day Slavery Act, 110th Cong., (1st Sess. 2007) H.R. 2522; 110 H.R. 2522 (sponsored by John H. Lewis (D-Ga), May 24, 2007).

Had the bills become enacted, the new law would have redefined as “modern-day slavery” practices encompassed by the trafficking definition under both U.S. law and the U.S. TIP Office’s interpretation of the U.N. Trafficking Protocol. For example, the proposed 2007 bill defined “modern-day slavery” as:

the status or condition of a person over whom any power attaching to the right of ownership or control is exercised by means of exploitation through involuntary servitude, forced labor, child labor, debt bondage or bonded labor, serfdom, peonage, trafficking in persons for forced labor or for sexual exploitation (including child sex tourism and child pornography), forced marriage, or other similar means.

Id. 138 Id. 139 2012 TIP REPORT, supra note 26, at 7. The recently-issued 2013 TIP Report

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Language throughout the 2012 TIP Report demonstrates the remarkable slippage in the U.S. government’s treatment of the previously distinct legal concepts of forced labor, trafficking, and slavery that exploitation creep has wrought:

…slavery persists in the United States and around the globe….It is estimated that as many as 27 million men, women, and children around the world are victims of what is now often described with the umbrella term “human trafficking.” The work that remains in combating this crime is the work of fulfilling the promise of freedom – freedom from slavery for those exploited and the freedom for survivors to carry on with their lives….140 On June 1, 2012, the International Labor Organization released its second global estimate of forced labor, which represents what the U.S. Government considers to be covered by the umbrella term “trafficking in persons.” Relying on an improved methodology and greater sources of data, this report estimates that modern slavery around the world claims 20.9 million victims at any time.141

Since all forced labor is trafficking, and all trafficking is slavery, in one fell swoop, the ILO’s 2012 statistic of 20.9 million in forced labor becomes 20.9 million “enslaved.” As if preemptively defending the equivalence to transatlantic slavery, the 2012 TIP Report features a graphic, entitled “Then and Now: Fleeing Slavery” depicting 19th century ads offering rewards for runaway slaves alongside a recent ad offering a reward for information regarding the whereabouts of an escaped Indonesian fisherman.142 Moreover, laying the groundwork for “individuals to understand their connection to modern-day slavery,” the TIP Office has commissioned the development of the Slavery Footprint website, on which one can take an online survey to determine the number of slaves needed to maintain one’s lifestyle.143 Hence, what was once a peripheral tool to garner popular support for the anti-trafficking cause is now the central framing device: recasting trafficking as nothing short of slavery.

similarly includes the “27 million” statistic on the first page of the introduction. Curiously, however, the following sentence refers to a statistic of “more than 26 million” – implicitly suggesting a discrepancy of less than a million to be statistically insignificant. 2013 TIP REPORT, supra note 44, at 7.

140 2012 TIP REPORT, supra note 26, at 7 (emphasis added). 141 Id. at 44 (emphasis added). 142 2012 TIP REPORT, supra note 26, at 19. 143 SLAVERY FOOTPRINT, http://slaveryfootprint.org (last visited Aug. 1, 2013).

The website now features a video entitled “I’m With Lincoln,” “a dramatic commercial depicting modern slavery” as part of a new campaign by the same name, “asking Congress to make ending slavery a priority.”

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2. A Modern Abolitionist Crusade Despite prior resistance to the conflation of trafficking and slavery,

support is now widespread. Some attribute the governmental shift towards the slavery paradigm to leadership change in the U.S. TIP Office to an Ambassador-at-Large who actively embraces the slavery conflation. As a former federal trafficking prosecutor, Obama-appointed Ambassador-at- Large Luis CdeBaca had worked under a legal regime that situated trafficking within the scope of U.S. slavery and peonage laws.144 One might assume that relevant international legal norms might more prominently factor into the work of a State Department agency. But the reality is that the U.S. TIP Office has always at its core functioned as more an exporter of “U.S. minimum standards” abroad than an arbiter of international standards.145 Just as the U.S. TIP Office has aggressively sought international uptake of its view of trafficking as subsuming forced labor, reframing trafficking as slavery appears teed up for export as well.

The U.S. TIP Office is not alone in succumbing to the seductive power of the slavery paradigm. The TIP Office’s power to frame the trafficking issue for public consumption has affected civil society organizations at home and abroad – affirming the stance of those originally inclined towards slavery creep, and inspiring others to follow suit. Free the Slaves is now one among many organizations that frame their work as modern abolitionism – indeed, it seems now the rule rather than the exception for an organization working on trafficking issues to frame its work as targeting “slavery.” This development is likely partly due to the dynamics of what can only be characterized as the “trafficking industrial complex.”146 In a world of funding scarcity for public interest organizations, abolishing “modern-day slavery” has become a cause célèbre and target of major donor foundations.147 Humanity United, for example, established in 2005 by eBay founder Pierre Omidyar and his wife, both funds and directly coordinates anti-trafficking advocacy, playing a major

144 U.S. DEP’T OF STATE, Biography, Luis CdeBaca, Ambassador-at-Large, Office

to Monitor and Combat Trafficking in Persons, available at http://www.state.gov/r/pa/ei/biog/124083.htm.

145 See supra discussion accompanying notes 34-44. 146 This phrase was coined by leading anti-trafficking litigator, Martina

Vandenberg, formerly the trafficking researcher for Human Rights Watch, and now founder and director of The Human Trafficking Pro Bono Legal Center, http://www.tahirih.org/htprobono/.

147 For an incisive discussion of the “celebritization of trafficking,” see Dina Haynes, The Celebritization of Human Trafficking, ANNALS AM, ACAD. POL. & SOC. SCI. (forthcoming 2013).

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role in anti-trafficking U.S. legislative reform efforts.148 Most recently taking the anti-trafficking advocacy world by storm with the promise of huge funding is the new non-profit, Walk Free – founded by Australian billionaire Andrew Forrest with the support of fellow billionaires Richard Branson and Bill Gates – “to end modern slavery in [Forrest’s] lifetime.”149 Notwithstanding the organization’s infancy, Walk Free has managed to garner the support of governments and international institutions150 – officially launching only in December 2012, in Myanmar, with the country’s first open-air, mass concert, co-hosted by U.S. TIP Ambassador CdeBaca.151 Kevin Bales, recently hired to develop and run Walk Free’s “Global Index on Modern Slavery”152 is now positioned to accomplish the aims of Free the Slaves’ failed proposal for a slavery commission, but now from an international perch with far greater influence and resources at his disposal.153

In symbiotic relationship with these anti-slavery organizations and, indeed, the U.S. government, major media outlets have provided a significant platform for publicizing the problem of “modern-day” slavery and profiling the work of anti-slavery organizations. Examples include CNN’s Freedom Project: Ending Modern-Day Slavery,154 the Guardian’s “Modern-day slavery hub” (in partnership with Humanity United),155 MTV

148 Among other projects, Humanity United convenes and supports the Alliance to

End Slavery and Trafficking (ATEST), described at supra note 65. Humanity United, Modern-Day Slavery: Learn About Our Approach, http://www.humanityunited.org/learn#; Alliance to End Slavery & Trafficking: A Project of Humanity United, http://www.endslaveryandtrafficking.org.

149 Walk Free, http://www.walkfree.org. The website homepage explains that “Walk Free is a movement of people everywhere, fighting to end one of the world’s greatest evils: modern slavery.” Under the “learn” tab, the website reproduces the ILO’s 2012 forced labor statistics, but substitutes slavery terminology in place of “forced labor” – claiming that, e.g., “20.9 million people are forced to live in slavery around the world today” and “modern slavery generates profit of over US $32 billion for slaveholders. Under the “take action” subheading, visitors to the website can sign a pledge committing to a belief that “our generation can build a world without slavery” and committing to “mobilize governments, businesses and communities to end modern slavery.” Id.

150 For example, Walk Free’s Myanmar concert was co-sponsored by U.S. AID, Australian AID, and ASEAN. See MTV EXIT END EXPLOITATION AND TRAFFICKING, Jason Mraz in Myanmar, http://mtvexit.org/worldstage/ (listing co-sponsors).

151 Elisabeth Behrmann, Gates Helps Australia’s Richest Man in Bid to End Slavery, BLOOMBERG, (Apr. 14, 2013; 7:49PM), http://www.bloomberg.com/news/2013- 04-10/gates-helps-australia-s-richest-man-in-bid-to-end-slavery.html.

152 Id. 153 See discussion accompanying supra note 137. 154 The CNN Freedom Project: Ending Modern-Day Slavery, CNN,

http://thecnnfreedomproject.blogs.cnn.com. 155 Modern-day slavery, THE GUARDIAN, http://www.guardian.co.uk/global-

development/series/modern-day-slavery-in-focus.

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Exit (which broadcast the Walk Free launch worldwide),156 and the International Herald Tribune/Thomson Reuters Foundation’s “Trust Women” initiative.157 The 150th anniversary of the Emancipation Proclamation has provided a particularly powerful hook for journalists, who, for example, in an article published in the Atlantic (and funded by MTV Exit) are now pronouncing “slavery’s global comeback.”158 USAID has partnered with MTV Exit, Free the Slaves, and Slavery Footprint.org to engage students worldwide to “challenge slavery” by developing “creative technology solutions to prevent human trafficking, rescue victims, and provide assistance to survivors” to combat traffickers’ use of technology to “ensnare their victims.”159

Even in academic articles, analyses of anti-trafficking laws and policies are now increasingly focused on “slavery” as legal category and frame. Curiously, some legal scholars have even rested their analyses on Bales’s broad definition of slavery in lieu of the legal definitions of slavery and slavery-like practices found in treaty and customary international law.160 Indeed, implicitly acknowledging the difference between practices now referred to as “modern slavery” and practices traditionally considered “slavery” or “institutions and practices similar to slavery” under treaty law, a group of social science and legal academics, including Bales, have sought to expand legal understandings of slavery to help bridge the gap.161

Hence, as one journalist has described it, “[slavery] is an emotive term whose time has come,”162 an elastic and undefined term: “modern-day slavery” now part of the public imagination. In the words of US TIP Ambassador CdeBaca, “more than a decade of governmental and trans- governmental initiatives have seeded the social conversation,” fostering “an

156 MTV EXIT: END EXPLOITATION AND TRAFFICKING, http://mtvexit.org. The

website highlights the Walk Free launch concert – ‘MTV Worldstage: Live in Myanmar’ – “a one-of-kind [sic] concert that will go down in history where 70,000 people gathered in Yangon, Myanmar on December 17, 2012 to raise awareness to end human trafficking and exploitation.”

157 TRUST WOMEN: PUTTING THE RULE OF LAW BEHIND WOMEN’S RIGHTS, http://www.trustwomenconf.com.

158 See, e.g., Gould, supra note 13. 159 Challenge Slavery, https://www.challengeslavery.org. 160 See, e.g., Pope, supra note 7, at 1853; James Hathaway, The Human Rights

Quagmire of “Human Trafficking,” 49 VA. J. INT’L L. 1, 15-25 (2008) (describing a wide range of practices as “slavery” and uncritically quoting Bales’s statement that modern slavery “is not about owning people in the traditional sense of old slavery, but about controlling them completely”). For a powerful critique of Hathaway’s arguments, see Gallagher, Response to James Hathaway, supra note 16.

161 See, e.g., THE LEGAL UNDERSTANDING OF SLAVERY, supra note 133 (compilation of articles from participants in the project).

162 Gould, supra note 13.

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emerging consensus around the language of slavery.”163 Through the two exploitation creep moves, the concept of “slavery” is now fully conflated and interchangeable with the concepts of forced labor and trafficking.

As previously noted, this conflation is highly problematic from the perspective of international law, despite its seductive influence on legal scholarship. Serious questions also remain as to whether this creep towards the rhetorical and legal extreme yields desirable consequences on the ground. What are the implications of the collapse of previously distinct legal categories? Although the push towards the extreme has resulted in a powerful call to action, has it actually created more capacity to address the full continuum of forced labor and trafficking practices? The discussion below assesses the implications and impact of both exploitation creep moves. Close assessment reveals that the two moves have different, and potentially conflicting, trajectories, as explored separately in Parts III and IV below – only one of which has any hope of moving us closer to a world without forced labor.

III. ASSESSING CREEP 1: FORCED LABOR AS TRAFFICKING?

Creep 1’s appeal lies in the opportunity it creates for a labor perspective to take hold and work its influence on global anti-trafficking law and policy. Such a turn would be a dramatic departure from the dominant paradigm’s almost exclusive focus on prosecution of traffickers and post-trafficking protection of trafficked persons – an approach that, as discussed below, has yielded disappointing results. By targeting structural vulnerability to trafficking through strengthened labor protections, a labor perspective promises to give substance to thus far hollow efforts to prevent trafficking in the first instance.

Doctrinal conflation of trafficking and forced labor is, however, an uncertain and fraught means by which to compel a shift towards a labor paradigm. Law’s ability to compel change on the ground is mediated by complex interaction of international and domestic institutions and legal regimes. Motives behind support for Creep 1 stand in tension with each other – with rights advocates hoping to effect a shift towards a labor paradigm, and dominant anti-trafficking institutions seeking greater bureaucratic turf and expanded criminal justice paradigm dominance. The challenges faced by advocates in this context are reminiscent of those confronting human rights advocates in their earlier bid to infuse an alternative approach into the dominant framework. The human rights

163 Gould, supra note 13.

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advocacy experience thus offers crucial insights for current efforts to bring a labor perspective to bear on global anti-trafficking regimes, as explored below. While the challenges are similar, one striking difference this time around is that labor advocates have ready and able allies in human rights advocates, who continue to struggle to lessen the grip of the crime control paradigm.

A. The Failed Promise of the Law Enforcement Paradigm

While anti-trafficking laws and policies have improved significantly

over the last dozen years, critics are right to be concerned about the overall effectiveness of anti-trafficking regimes.164 In 2012, the combined authorities of more than 180 countries officially identified 46,570 victims – a figure that pales in comparison to the purported 20.9 million “enslaved.”165 Even by the U.S. government’s own metric – prioritizing prosecutorial efforts above all others – the global picture reflects dismal failure. The U.S. State Department reports 7,705 prosecutions took place worldwide in 2012 – the bulk of which continue to be for sexual exploitation – yielding only 4,746 convictions.166

Yet, the stark disparity could not be less surprising to anyone who has worked directly with trafficked persons. Prior to the U.N. Protocol’s inception, advocates and scholars warned against – and ever since, have decried – the dominance of the criminal justice paradigm in the trafficking field.167 The clandestine nature of this crime means that victim identification typically comes as a result of victims coming forward to report the abuse. But the substantial risk of retaliation by traffickers against victims and/or their family members, as well as potential re-traumatization by the criminal justice process, provide strong disincentives against doing so, at least in the absence of substantive rights protections.168 Moreover,

164 For an excellent discussion of the failures of the U.S. anti-trafficking regime,

see Dina Haynes, (Not) Found Chained to a Bed in a Brothel: Conceptual, Legal, and Procedural Failures to Fulfill the Promise of the Trafficking Victims Protection Act, 21 GEO. IMMIGR. L.J. 337 (2006) [hereinafter Haynes, (Not) Found Chained].

165 2013 TIP REPORT, supra note 44, at 46. 166 Id.; U.S. DEP’T OF JUSTICE, ATT’Y GEN.’S ANNUAL REPORT TO CONGRESS AND

ASSESSMENT OF U.S. GOVERNMENT ACTIVITIES TO COMBAT TRAFFICKING IN PERSONS: FISCAL YEAR 2011 65 (2011) [hereinafter 2011 DOJ/AG TIP REPORT].

167 See, e.g., HUMAN RIGHTS WATCH/ASIA, RAPE FOR PROFIT: TRAFFICKING OF NEPALI GIRLS AND WOMEN TO INDIA’S BROTHELS (1995); ASIA WATCH AND THE WOMEN’S RIGHTS PROJECT, A MODERN FORM OF SLAVERY: TRAFFICKING OF BURMESE WOMEN AND GIRLS INTO BROTHELS IN THAILAND (1993); Janie Chuang, Reconceptualizing Trafficking in Women: Definitions, Paradigms, and Contexts, 11 HARV. HUM. RTS. J. 65 (1998); Miller & Stewart, supra note 96.

168 See generally Haynes, (Not) Found Chained, supra note 164 (detailing the

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given that many trafficked persons are undocumented migrants and some have committed crimes in the course of the trafficking, there is understandable concern that coming forward could result in their deportation, if not prosecution.169 Even when trafficked persons are recognized as victims and afforded rights protections (including residency status), continued access to those benefits is almost always contingent upon victim efforts to pursue or cooperate in civil and criminal cases against their traffickers.170 Tellingly, for example, of the estimated 14,500-17,500 people trafficked into the United States each year, during FY2002 through 2011, a total of only 4935 victims even applied for residency status and benefits (of which 2635 were successful).171

As grim as the prospects are for trafficked persons writ large, they are particularly so for those trafficked outside the sex sector. The 2012 ILO global statistic estimates that of the 20.9 million in forced labor worldwide, 22 percent are in forced sexual exploitation, while 68 percent are in forced labour exploitation.172 Yet sex-sector trafficking cases comprise the vast majority of prosecutions worldwide. While most countries now criminalize non-sex-sector trafficking, such prosecutions are exceedingly rare. Labor trafficking cases accounted for only 1,153 of the 7,705 prosecutions pursued, and 518 of the 4,746 convictions obtained worldwide in 2012.173 In the U.S. context, for example, anti-trafficking advocates have become resigned to the unfortunate reality that non-sex-sector trafficking cases are highly unlikely to garner the interest of prosecutors.174 This is especially so for cases that do not involve some element of physical violence or threat

many points at which trafficked persons are disserved by the U.S. anti-trafficking operatus); 2006 TIP REPORT, supra note 99, at 12 (discussing the “myth” of victim self- identification).

169 Dina Haynes, Exploitation Nation: The Thin and Grey Legal Lines Between Trafficked Persons and Abused Migrant Laborers, 23 NOTRE DAME J.L. ETHICS & PUB. POL’Y 1, 91-92 (2009) [hereinafter Haynes, Exploitation Nation].

170 See discussion in supra note 26. 171 U.S. law affords trafficked persons an opportunity to apply for temporary – and

potentially permanent – residency status, contingent on their cooperation in pursuit of criminal or civil cases against their traffickers. TVPA §107(b)(1). 2011 DOJ/AG TIP REPORT, supra note 166, at 56. Note that trafficking victims can apply for visas for their immediate family members as well. The total number of such “derivative” T-visa applications for FY2002-2011 was 2282, 2163 of which were granted. Id. Fearing that creation of the T-visa would open the floodgates to fraudulent visa applications, Congress had capped the visas at 5000 per year. TVPA §107(e)(2).

172 ILO 2012 GLOBAL ESTIMATE, supra note 116, at 13. 173 2013 TIP REPORT, supra note 44, at 46. 174 Telephone Interview with Martina Vandenberg, Founder and Executive

Director, The Human Trafficking Pro Bono Legal Center (Aug. 3, 2013) [hereinafter Vandenberg Interview].

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thereof175 – notwithstanding the TVPA’s explicit coverage of a far broader range of types of coercion.176 The cases that prosecutors do consider typically remain in “monitoring” status, with no action taken for years, while the statute of limitations runs out.177 Some seemingly clear cases of trafficking are inexplicably dropped.178 Given these background dynamics, for those trafficked into non-sexual forced labor, the criminal justice system offers slim hope for holding their abusers accountable and affording restitution for their uncompensated labor. Consequently, U.S.-based advocates have rested their hopes on other avenues for accountability and redress – most notably through pursuing civil actions under the TVPA and

175 Anecdotal information from advocates, researchers, and former government

officials indicate that DOJ prosecutors have expressly refused to take on trafficking cases that do not involve an element of actual or threatened physical violence. Vandenberg Interview, supra note 174; Confidential Source 1 Interview, supra note 66; Author Interview with Confidential Source #2 (former government official), in Washington, D.C., (Jan. 25, 2013) [hereinafter Confidential Source 2 Interview]; Telephone Interview with Confidential Source #3 (anti-trafficking researcher and advocate), (July 31, 2013) [hereinafter Confidential Source 3 Interview].

176 The TVPA criminalizes forced labor defined as: (a) Whoever knowingly provides or obtains the labor or services of a person by any one of, or by any combination of, the following means

(1) by means of force, threats of force, physical restraint, or threats of physical restraint to that person or another person; (2) by means of serious harm or threats of serious harm to that person or another person; (3) by means of the abuse or threatened abuse of law or legal process; or (4) by means of any scheme, plan, or pattern intended to cause the person to believe that, if that person did not perform such labor or services, that person or another person would suffer serious harm or physical restraint.

18 U.S.C. §1589. As explained by the Seventh Circuit in United States v. Calimlim, 538 F.3d 706 (7th Cir. 2008), §1589 “is not written in terms limited to overt physical coercion, and we know that…[Congress] expanded the definition of involuntary servitude to include nonphysical forms of coercion.” It is sufficient that a defendant’s misconduct has created a situation where ceasing labor would cause a plaintiff serious harm. Id., at 711-14.

177 See sources cited in supra note 175. 178 For example, federal prosecutors dropped its case against Global Horizons,

Inc., a labor recruiting company accused of exploiting hundreds of farmworkers from Thailand by confiscating their passports, putting them into debt bondage, and threatening to deport them. Eight people were originally indicted, three of which had pled guilty to the charges. Human Trafficking Against Executives Is Dismissed, N.Y TIMES, July 21, 2012. Some individuals familiar with the case believe the case was dropped for specious reasons, the Department of Justice having justified its decision on a minor prosecutorial error that ultimately would not have compromised the prosecution. Sources also indicate that the case was severely understaffed, with the prosecutor single-handedly responsible for interviewing hundreds of witnesses. Confidential Source 1 Interview, supra note 662; Confidential Source 2 Interview, supra note 175; Confidential Source 3 Interview, supra note 175.

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referring cases to the Equal Employment Opportunity Commission (EEOC).179

Notwithstanding over a decade’s worth of targeted anti-trafficking interventions, the rise in the ILO’s global statistic of forced labor from 12.3 million in 2005 to 20.9 million in 2012 suggests that, however one defines its relationship to forced labor, trafficking is on the rise. Even assuming away the challenges to effective and comprehensive prosecution described above, a criminal justice approach has inherent limitations as a preferred vehicle for eradicating the trafficking phenomenon. To be sure, criminal justice approaches can deliver much-needed accountability for egregious wrongs and may also deter future trafficking activities. But while a criminal justice approach might address some of the consequences of trafficking, it is chronically unable to address its root causes. Nuance and context get lost in a system narrowly focused on assigning victimhood and blame to individual actors. The U.S. system, for example, requires the victim to “offer herself up as an easily identifiable ‘victim subject,’ without the clutter and complication of a story in which the ‘victim’ also had some agency in her decision.”180 That trafficking abuses typically occur in the context of individuals seeking their livelihood – often as migrants, sometimes undocumented, sometimes utilizing state-created/sanctioned mechanisms and/and third party actors that offer opportunities laced with potentially exploitative constraints – fades into the background, or can even make prosecution impossible. Yet it is these very factors that interfere with successful prosecutions that hold the key to preventing trafficking in the first instance, as discussed below. Lessening the grip of criminal justice paradigm dominance to enable approaches that target the roots of the problem to take hold is thus crucial if global efforts to eradicate trafficking are to have any hope of long-term success.

179 The EEOC has brought lawsuits against traffickers based on national origin

harassment and race discrimination, seeking a wide array of remedies including, e.g., backpay, compensatory and punitive damages, injunctive relief, and including monetary and non-monetary relief such as reinstatement and injunctive relief. In EEOC v. Trans By Steel, for example, the EEOC obtained a $1 million settlement for a group of 48 trafficked Thai welders, along with a consent decree requiring the defendant to provide claimants future work, housing, and guaranteed minimum base pay, while paying for their housing stipend, local college tuition, and sponsorships to continue work in the United States. The EEOC is now pursuing a case against Global Horizons. See P. David Lopez & Stephanie Gouston-Madison, Employment Discrimination Law: A Model for Enforcing the Civil Rights of Trafficking Victims, in HUMAN TRAFFICKING RECONSIDERED: MIGRATION AND FORCED LABOR (Rhacel Parrenas & Kimberly Hoang, eds.) (forthcoming 2013).

180 Haynes, Exploitation Nation, supra note 169, at 47.

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B. The Transformative Potential of a Labor Approach Labor scholars James Pope and Hila Shamir have powerfully

demonstrated the merits of applying a labor approach to the trafficking field.181 A labor paradigm offers a salvo for one of the key problems with the current anti-trafficking regime: the failure to address how labor relations and labor markets are structured in ways that render workers vulnerable to forced labor and trafficking. A labor lens enables a more nuanced understanding of how coercion operates in the forced labor/trafficking context, exposing the holes in migration and labor structures manipulated by an increasingly complex array of actors to create and sustain conditions of servitude. The global restructuring of work away from direct employment and towards subcontracting has made close scrutiny and reform of labor market structures ever more important.

In addition to usefully complicating our understanding of the problem of human trafficking, a labor approach offers an important set of tools for addressing trafficking. Through collective action and bargaining, workers can reshape power relations and thus transform the economic conditions and legal rules that permit severe labor exploitation in the first place.182 Such measures instantiate James Pope’s “free labor” theory that “when workers have rights, they can exert the ‘power below’ to give employers the ‘incentive above’ to avoid slavery and servitude.”183 A “labor approach,” as construed in this Article, also encompasses employment law frameworks, the regulatory mechanisms used to enforce them, and work visa program reforms to ensure migrant worker access to these protections and remedies.

The prescription offered here does not, however, treat a labor approach as a magic bullet, but rather as an important complement to other anti-trafficking approaches. The crucial task at hand is to foster the continued development of a labor approach to trafficking by staving off encroachment by a criminal justice frame. That in turn requires coordination, not competition, between labor and human rights approaches and among their respective advocates. Such collaboration not only provides strength in numbers in fending off dominant institutions and approaches, but also the substantive potential to develop a multi-pronged approach necessary for a problem of this magnitude and complexity.

181 Pope, supra note 7; Shamir, supra note 7. 182 Shamir, supra note 7, at 81. 183 Pope, supra note 7, at 1862.

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1. Understanding Coercion As Shamir explains, a labor approach spotlights the power

disparities between victims and traffickers and the underlying economic and social conditions that foster vulnerability to trafficking.184 In this sense, a labor frame enables a more nuanced understanding of “coercion” that better captures the sociological realities of the trafficking experience. Coercion in the trafficking context is, as Professor Kathleen Kim aptly demonstrates, “situational.” Coercion does not always take the form of direct threats of harm, and may instead result from a combination of factors (e.g., immigration status, poverty) that create conditions under which workers cannot leave their jobs, regardless of how abusive the working conditions.185 Addressing the structural market conditions and practices that shape workers’ vulnerability and inferior bargaining power in the workplace”186 rightly draws attention to factors currently overlooked – if not dismissed – by dominant anti-trafficking approaches.

Take, for example, a recent case involving the trafficking of Filipino teachers into the United States.187 Approximately 300 Filipino teachers paid more than $16,000 each (four times their annual salaries in the Philippines) to a recruiter for jobs teaching in Louisiana public schools under the H-1B visa program. The Louisiana school district had retained the recruiter notwithstanding her having previously pled guilty to money laundering and serving time for defrauding the California health care system. After charging the teachers an initial $5000 recruitment fee, the recruiter demanded an additional, previously undisclosed, fee of $7500 immediately prior to departure (or forfeit the $5000 initial fee). Upon the teachers’ arrival in the United States, the recruiter threatened to them unless they committed to work an additional year (for which they would pay the recruiter 10 percent of their salaries and additional recruitment fees), and to pay the recruiter hundreds of dollars above market rate for their substandard, group housing. The recruiter brooked no criticisms or complaints, going so far as to sue one of the teachers when a group of

184 Shamir, supra note 7, at 81. 185 See Kathleen Kim, The Coercion of Trafficked Workers, 96 IOWA L. REV. 409

(2011). 186 Shamir, supra note 7, at 99. 187 Mairi Nunag Tanedo vs. East Baton Rouge Parish School Board, No. SA

CV10-01172 JAK, (C.D. Cal. 2012) (class action lawsuit brought on behalf of Filipino teachers under the TVPA, RICO, and state laws regarding fraud and unfair business practices, among others); Farah Stockman, Teacher Trafficking, BOSTON GLOBE (June 12, 2013) (detailing the teachers’ experiences); Testimony of Ingrid Cruz, ILRWG website, supra note 65.

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teachers criticized the trafficking scheme on an anonymous blog.188 Under the weight of insurmountable debt and the recruiter’s repeated threats of deportation and lawsuits, the teachers felt powerless to change their living and working conditions.189

In contrast to the violent and/or sex-sector trafficking cases that typically grab headlines and prosecutorial attention, this case involved documented migrant workers trafficked into formal, public sector jobs, trapped in those jobs by a third party to the employment relationship, and all within the context of a formal U.S. guestworker program. Underscoring the role of the State in creating structures that render migrant workers vulnerable to trafficking, this case (along with many others in U.S. visa programs) has inspired advocacy targeting the foreign labor recruitment industry and the structure of U.S. temporary worker programs.190 U.S. workers’ rights and anti-trafficking advocates thus have sought greater government oversight of the U.S. visa programs, recruiter transparency, fee disclosures, and anti-retaliation worker protections and remedies.191 At the same time, anti-trafficking and workers’ rights advocates have directed their attention to alternatives to reliance on third party labor recruiters – through, for example, creating and expanding government-mediated direct hire systems that cut out the middleman,192 and exploring the possibility of transnational worker organizations empowered to manage cross-border recruitment of their members.193

188 Navarro v. Cruz, 2009 WL 6058120 (Cal. Super. 2009). 189 See references cited in supra notes 187. 190 See VISAS, INC.: CORPORATE CONTROL AND POLICY INCOHERENCE IN THE U.S.

TEMPORARY FOREIGN LABOR SYSTEM (2012) [hereinafter VISAS, INC.]; THE INTERNATIONAL LABOR RECRUITMENT WORKING GROUP, THE AMERICAN DREAM UP FOR SALE: A BLUEPRINT FOR ENDING INTERNATIONAL LABOR RECRUITMENT ABUSE (2013); Janie A. Chuang, The U.S. Au Pair Program: Labor Exploitation and the Myth of Cultural Exchange, 36 HARV. J.L. & GENDER 269 (2013); ILRWG website, supra note 65.

191 See CIR Bill, supra note 65. 192 Advocates working on behalf of Filipino and Indonesian migrant domestic

workers in Hong Kong, for example, have called for the Hong Kong government to work with the Indonesian and Philippines governments to implement a direct hire system. Author Interview with representatives from the International Domestic Workers Network, the Hong Kong Confederation of Trade Unions, and Mission for Migrant Workers, April 24-25, 2013. Taiwan has a direct hire system, but the complicated and time-consuming application process has made it an unpopular option for prospective employers. Author Interview with Peter O’Neill, Hope Workers Center, in Chungli, Taiwan (Apr. 30, 2013); Author Interview with Yuling Ku, Taiwan International Workers Association, in Taipei, Taiwan (Apr. 30, 2013).

193 See Jennifer Gordon, Towards Transnational Labor Citizenship: Restructuring Labor Migration to Reinforce Workers’ Rights (January 2009) (describing emerging models of “mobile labor citizenship” including those foster union-union job referrals).

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2. Labor Approach as Complement, Not Substitute The ability of a labor approach to address the underlying structures

that enable trafficking to occur, and with impunity, is crucial to a comprehensive anti-trafficking strategy. The apparent failure of the international labor regime to reduce the incidence of forced labor, however, strongly cautions against putting all of one’s eggs in the labor basket.194 A labor approach cannot – nor should it – replace either a human rights or even a criminal justice approach to trafficking.

Granted, some have criticized human rights approaches to trafficking as savior-driven in their focus on post-hoc remedies, and complicit in exceptionalizing certain abuses over others.195 But these criticisms wrongly presume that the limited human rights gains achieved in the face of criminal justice paradigm dominance reflect the breadth of what was sought196 and, indeed, what is possible within the human rights rubric, as explored further in Part III.C.1 below.197 What tends also to be overlooked is that those same hard-fought gains by human rights advocates laid crucial groundwork for the labor movement’s belated entry into the field – enabling labor institutions and advocates to grab part of the spotlight of condemnation and shine it on the broader spectrum of labor abuses,198 and to access protections and remedies (e.g., residency status, compensatory and punitive damages) for abused workers that would not exist but for human rights advocates’ efforts.199

If anything, viewing trafficking through a labor lens has exposed just how deeply invested states and their corporate partners are in the labor and migration structures that enable and sustain human trafficking. There is much to be gained, therefore, from combining human rights advocates’ traditional focus on limiting the power of the state with labor advocates’

194 The low ratification of ILO treaties, their weak enforcement regimes, and the

apparent increase in forced labor worldwide are among the many reasons for skepticism. 195 See, e.g., Hathaway, supra note 160, at 7-15 (arguing that human rights

advocates were complicit in unjustifiably privileging the most extreme forms of labor exploitation), but see Gallagher, Response to Hathaway, supra note 160, at 795-818 (noting Hathaway’s mistaken understanding of the scope of the legal definitions of trafficking and slavery). See also Shamir, supra note 7, at 106-112 (claiming the human rights approach construes trafficked persons as victims rather than agents, and conceptualizes trafficking as an exceptional and distinct crime).

196 See infra discussion accompanying notes 206-211. 197 Id.; see also Special Rapporteur on Trafficking in Persons, Especially Women

and Children, U.N. Doc. A/HRC/23/48/Add.4 (Mar. 4, 2013) (by Joy Ngozi Ezeilo), (discussing the need to develop benchmarks and indicators to specify corporate responsibilities vis-à-vis trafficking in persons in global supply chains).

198 See supra discussion accompanying notes 51-60. 199 Confidential Source 1 Interview, supra note 66.

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focus on limiting the power of private actors in the market.200 As Jonathan Todres has aptly demonstrated, human rights strategies can “strengthen labor-based initiatives by anchoring them in fundamental rights,”201 enabling workers to articulate political claims and hold truth to power. The benefits of this synergy are already apparent in the U.S. context – for example, in joint advocacy efforts to gain worker protections from employer/recruiter retaliation against those engaged in worker organizing or speaking out about their exploitative workplace conditions.202 A joint project by the International Trade Union Confederation and Anti-Slavery International to encourage collaboration between human rights organizations and trade unions has resulted in innovative efforts to address forced labour in Azerbaijian, Belgium, Italy, Poland, and Germany.203

Moreover, inasmuch as the criminal justice approach has underserved – and sometimes harmed – trafficked persons, its contributions to the field cannot be denied. Prior to the U.N. Protocol, seven decades’ worth of treaties addressing forced labor, slavery-like practices, migrant workers’ rights, and sex trafficking had accomplished exceedingly little to address private exploitation. Criminal justice concerns effectively took trafficking out the closet and placed it alongside other pressing issues of government concern. Criminal justice interventions can serve important goals of holding the perpetrators to account – providing a rare sense of justice for victims and possibly deterring future trafficking activity.204

200 See generally Kevin Kolben, Labor Rights as Human Rights, 50 VA. J. INT’L L.

449 (2010) (contrasting labor rights and human rights’ approaches to social change, and assessing the turn to human rights discourse by labor scholars and labor organizations).

201 See Jonathan Todres, Human Rights, Labor, and the Prevention of Human Trafficking: A Response to a Labor Paradigm for Human Trafficking, 60 UCLA. L. REV. DISCOURSE 142, 158 (2013).

202 See THE POWER CAMPAIGN, http://thepoweract.com (website to support passage of the Power Act, federal legislation to provide whistleblower protections for immigrant workers). The recently passed Senate comprehensive immigration reform bill incorporated Power Act worker protections against retaliatory termination and deportation. See CIR Bill, supra note 65.

203 See, e.g., ITUC, NEVER WORK ALONE, supra note 62 (describing results of project to create a European coalition of anti-trafficking NGOs and trade unions to address forced labor and trafficking).

204 In practice, criminal procedures may even provide better and greater options for restitution than available civil options. In the United States, pursuing criminal restitution offers a potentially higher sum of money than available civil remedies. 18 U.S.C. § 1593(b)(3) (defining the term “full amount of victim’s losses” to include “the greater of the gross income or value to the defendant of the victim’s services or labor or the value of the victim’s labor as guaranteed under the minimum wage and overtime guarantees of the Fair Labor Standards Act.”). Moreover, the restitution obtained under § 1593 is tax-free, unlike that obtained through civil actions under the TVPA or labor law. See IRS notice 2012-12, Restitution Payments under the Trafficking Victims Protection Act

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Given the major and likely permanent criminal justice role in anti- trafficking law and policy-making, any viable reform project must account for and seek to maximize the benefits of the approach while staving off, as much as possible, its harmful consequences. To be sure, conflict will ensue and advocacy success is far from guaranteed, but the potential gains to be had – and, frankly, the lack of better options – make this a worthwhile endeavor.

C. Reaping the Benefits of Creep 1 The question remains, however, as to how, as a practical matter,

Creep 1 might bring a labor paradigm to bear on the anti-trafficking field. The dynamics of the anti-trafficking field now are quite different than those that marked the first decade after U.N. Protocol adoption – and in ways that bear significantly upon current efforts to shift the field towards incorporating a labor approach to trafficking. Mapping the differences and similarities is crucial to the project of establishing a blueprint for reform efforts. To that end, this discussion begins by examining why human rights advocates were unsuccessful in their prior efforts to shift the field away from its criminal justice-dominated frame.205 Building upon the insights gleaned from that experience, the discussion then identifies both opportunities for and impediments to realizing Creep 1’s potential benefits.

1. Lessons from Failed Human Rights Advocacy

This would not be the first time that rights advocates have sought to shift away from the dominant criminal justice paradigm towards one that addresses structural vulnerability to trafficking. The history of anti- trafficking human rights advocacy is riddled with unsuccessful efforts to demonstrate how eradicating the trafficking phenomenon requires that we target the underlying economic and social rights violations that create vulnerability to trafficking.206 These targets include, among others, unequal

of 2000. Moreover, pursuing criminal restitution saves victims the hassle of discovery and affords them better options for concealing their identities in the process. Vandenberg Interview, supra note 174.

205 Note that Shamir offers a contrary perspective, arguing that the current anti- trafficking framework is dominated by a human rights approach. For an incisive response to and critique of Shamir’s argument, see Todres, supra note 201.

206 The right of opportunity to gain a living by work one freely chooses or accepts, the right to just and favorable conditions of work, the right to an adequate standard of living, and the right to education, for example, are all rights contained in the International Covenant on Economic, Social, and Cultural Rights. International Covenant on Economic, Social, and Cultural Rights, G.A. Res. 2200, U.N. GAOR, 321st Sess., Supp. No. 16, at 49,

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access of women to employment, social benefits, and educational opportunities; remittance and labor export policies that encourage women to work abroad and grant them few protections; and the failure to afford rights to those laboring in those (particularly informal) sectors that serve destination countries’ unrelenting demand for cheap, unprotected labor.207 Moreover, mindful of the challenges of line-drawing and consequent exclusion from protected categories, human rights advocates active during the Protocol negotiations explicitly agreed that “human rights principles demand that any remedies directed toward trafficked persons must be crafted with a view toward also promoting the rights of persons found not to have been trafficked, yet still exploited.”208 Human rights advocates demanded such protections prior to and during the U.N. Protocol negotiations,209 and have continued to sound the alarm ever since. Rights advocates – and scholars, including this author – have both criticized the dominant “repressive strategies” that focus on suppressing (perceived) negative phenomena related to trafficking (e.g., illegal migration, labour migration, illegal and forced labour), and demanded “empowering strategies” to reduce vulnerability to trafficking in the first instance.210

Notwithstanding these efforts, at least until very recently, criminal justice dominance has narrowed the range of advocacy pursued. The over- prioritization of aggressive criminal justice imperatives has rendered the welfare of trafficked persons a secondary concern. Human rights advocates consequently have had to devote their limited resources to damage control – preventing the rights floor from falling out of the system entirely rather than affirmatively pursuing the broader range of rights initially sought.

U.N. Doc. A/6316 (Dec. 16, 1966), arts. 6, 7, 11, 13. The chronic challenge advocates face in advocating for realization of the economic, social, and cultural rights portion of the international human rights corpus, however, is the standard objection (by governments) that such rights are resource intensive and therefore only aspirational in nature. A growing body of jurisprudence and scholarship has helped unsettle these assumptions, demonstrating how, for example, there are non-resource-intensive steps towards economic and social rights realization – e.g., upholding race and gender-based non-discrimination norms with respect to access to work and educational opportunities. See generally ECONOMIC, SOCIAL AND CULTURAL RIGHTS (Asbjorn Eide et al. eds., 2d. rev. ed. 2001).

207 See, e.g., Miller & Stewart, supra note 96 (describing human rights advocacy targets); BARBARA LIMANOWSKA, TRAFFICKING HUMAN BEINGS IN SOUTH EASTERN EUROPE (2005) [hereinafter SEE REPORT] (assessing prevention strategies in South Eastern Europe); COMM. ON FEMINISM AND INT’L LAW, INT’L LAW ASS’N, WOMEN AND MIGRATION: INTERIM REPORT ON TRAFFICKING IN WOMEN (2004).

208 Miller & Stewart, supra note 96, at 12 (describing principle number 4 of the Roundtable on “The Meaning of ‘Trafficking in Persons’: A Human Rights Perspective”).

209 See, e.g., sources cited in supra note 167; U.N. Special Rapporteur Position Paper, supra note 18.

210 See, e.g., SEE REPORT, supra note 207; Janie Chuang, Beyond a Snapshot, 13 IND. J. GLOBAL. LEG. STUD. 137 (2006) [hereinafter Chuang, Beyond a Snapshot].

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Moreover, human rights advocates have struggled to have even those limited rights protections recognized under the law applied to all trafficked persons – i.e., to not only the iconic victims (women and children in the sex sector) but also men, women, and children trafficked outside the sex sector, into agriculture, construction, domestic work, among many other sectors.211 The result of this limited scope of advocacy, not surprisingly, is that the human rights component of modern anti-trafficking regimes is largely limited to post-hoc victim protections. This state of affairs has rendered the product of human rights advocates’ efforts vulnerable to the criticism that such protections evince a savior complex that disempowers the very population it aims to help by one-dimensional treatment of them as “victims” deprived of agency.212 The inability of rights advocates to situate trafficking within a spectrum of exploitative practices that share common root causes has sparked accusations of exceptionalism that “normalizes the harsh realities of exploitation experienced by many migrant and nonmigrant workers in labor sectors prone to trafficking.”213 As valid as these criticisms may be, it is important to recognize that the constrained content of human rights interventions is not inherent to the human rights rubric, but rather a function of the particular political and social dynamics of the time.

The factors that cabined human rights success were also internal to the movement, however. Internecine battles over prostitution reform214 caused deep rifts within the advocacy community and diverted time and resources away from joint advocacy targeting a broader range of rights protections. Moreover, the “neo-abolitionist” feminist faction215 – which dominated the debates through much of the first decade of the anti-

211 See, e.g., Testimony of Martina E. Vandenberg, Legal Options to Stop Human

Trafficking, Senate Judiciary Subcommittee on Human Rights (Mar. 26, 2007) (describing gaps in legal protections for persons trafficked by U.S. government contractors for forced labor on U.S. military bases, and by diplomats for domestic work in private households); Martina E. Vandenberg & Alexandra F. Levy, Justice at the Door: Ending Domestic Servitude, 7 INTERCULTURAL HUM. RTS. L. REV. 77 (2012) (describing challenges posed by diplomatic immunity to efforts to achieve justice for women trafficked by diplomats into domestic servitude).

212 See, e.g., Shamir, supra note 7, at 107. This critique echoes the trenchant internal critiques of the human rights system made by Makau Mutua and David Kennedy. See, e.g., Makau Mutua, Savages, Victims, and Saviors: The Metaphor of Human Rights, 42 HARV. INT’L L. J. 201; David Kennedy, The International Human Rights Movement: Part of the Problem?, 15 HARV. HUM. RTS. J. 101, 118 (2002).

213 Shamir, supra note 7, at 103. 214 For a more exhaustive account of this battle and its impact on the anti-

trafficking movement, see Chuang, Rescuing Trafficking, supra note 11. 215 See references cited in supra note 43. According to sociologist Elizabeth

Bernstein, feminist neo-abolitionists believe in “carceral feminism” that upholds punitive and criminal paradigms of justice as the preferred frame of anti-trafficking interventions.

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trafficking movement, at least in North America and Europe – helped construct and maintain criminal justice paradigm dominance. Viewing all prostitution as inherently coerced and thus sex trafficking, neo-abolitionists believe in the role of criminal law to stigmatize the buyers of sex as socially or morally tainted and to aggressively prosecute the owners and managers, clients, and any third parties involved in prostitution; and the role of advocates to rescue and rehabilitate the women, as victims of patriarchy and/or social deviance.216 With both government and powerful anti- prostitution advocates prioritizing an aggressive criminal justice paradigm, (other) human rights advocates were ill-positioned to effectuate a shift towards a more expansive human rights frame that addresses a range of norms, much less a labor one.

Equally devastating to this project was the failure of core human rights governance institutions to provide conceptual and operational support for development and implementation of a human rights frame. The international human rights treaty-monitoring bodies have – to this day – done precious little to clearly identify the “wrong” of human trafficking with regard to States’ specific responsibilities under international human rights treaties, typically choosing instead to refer States to the UN Protocol and the UNODC for guidance. Particularly disappointing is the failure of the CEDAW Committee – the treaty-monitoring body established under the U.N. Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)217 – to link States’ Article 6 explicit obligation to “suppress trafficking” to any of many economic, social, and cultural rights protection required by the treaty.218 In a similar vein, U.S. government’s own internationally-focused human rights body – DRL – has been equally lackluster and deferential to the TIP Office.219

216 See Chuang, Rescuing Trafficking, supra note 11, at 1669. 217 CEDAW is one of only two international human rights treaties that explicitly

prohibit trafficking. Convention on the Elimination of All Forms of Discrimination Against Women, G.A. Res. 34/180, U.N. Doc. A/RES/34/180 (Dec. 18, 1979).

218 The CEDAW Committee explicitly side-stepped an opportunity to do so in its General Recommendation 26 on migrant workers. For in-depth discussion of this and other issues regarding CEDAW’s work on trafficking, see Janie Chuang, Article 6, in THE UN CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN 169, 173-74 (Marsha A. Freeman, Christine Chinkin, & Beate Rudolf, eds., 2011).

219 Prior to 2010, the DRL produced human rights-focused analysis of anti- trafficking efforts for each country covered in its annual U.S. Department of State Country Reports on Human Rights Practice (DOS Human Rights Reports) – analysis that tended to be more nuanced and targeted at structural factors than found in the annual TIP Reports. See Chuang, Global Sheriff, supra note 34, at 476, 481-483 (discussing as examples Cuba and Venezuela). Concerned over possible inconsistencies, however, the TIP Office had DRL excise and replace those analyses with a simple reference to the annual TIP Reports. See Human Rights Reports, supra note 102.

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2. A Second Bite at the Apple?

The anti-trafficking field today is dramatically different to what it was a dozen years ago. Significant improvements in the advocacy landscape, discussed below – e.g., increased collaboration between labor and human rights advocates, and ILO commitment to standard-setting in the area – promise a strengthened position from which to push back against criminal justice dominance and encroachment. At the same time, however, Creep 1 likely not what governments intended when they signed onto with the U.N. Protocol, one can expect heightened vigilance and caution about governments making any concessions to a labor/human rights frame. The following discussion explores in greater depth the possible reasons to be guardedly optimistic about prospects for change, but also mindful of recurrent and potentially new barriers to substantive reform.

a. Grounds for Guarded Optimism

As discussed above in Part II, in shifting the spotlight to non-sex-

sector trafficking, Creep 1 has helped push the prostitution reform debate to its rightful place on the periphery, rendering the neo-abolitionist agenda less of a distracting, if not oppositional, influence. By shifting attention to non- sex-sector trafficking, Creep 1 has helped bring trafficking out of the bedroom and shadowy alleys and into our everyday lives – making more visible for the mainstream public the possibility that the produce we eat, the clothes we wear, the household caregivers we employ, and the services that sustain our military abroad may be tainted by trafficking. By focusing attention on the exploitation element of trafficking, Creep 1 has also helped make more apparent that the coercion that those producing these goods and services experience comes in more subtle, non-violent forms – e.g., through insurmountable recruitment fees and/or control over immigration status. That these abuses are occurring in the context of official government- sponsored guestworker programs220 and government contracting relationships221 has also helped surface the role of governments and corporations in facilitating, if not actively perpetrating, trafficking and forced labor in our global economy.

Trafficking framed in this way makes all the more apparent to

220 See references cited in supra note 190. 221 See Sarah Stillman, The Invisible Army, NEW YORKER, June 6, 2011, at ,

(describing trafficking of foreign workers into U.S. military bases in Iraq and Afghanistan); Cam Simpson, Pipeline to Peril, CHI. TRIB., Oct 9, 2005, at , (describing the trafficking of Nepalese men to work for U.S. army contractors in Iraq).

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policymakers and the mainstream public the role that labor institutions and labor law could and should play in anti-trafficking efforts. Thankfully, key labor institutions like the ILO and ILAB have staked a claim to anti- trafficking expertise and authority – something their human rights counterparts never managed even to attempt. And they have done so notwithstanding heavy pressure to defer to dominant anti-trafficking institutions. The ILO’s efforts to develop a trafficking-focused protocol to the ILO forced labor treaties will be a significant testing ground for that commitment. Even accepting the many weaknesses of the ILO as an institution and governments’ underwhelming adoption of ILO treaties, the proposed protocol offers a prime opportunity to conceptualize trafficking as a labor issue.222 In addition to clarifying specific State obligations (particularly vis-à-vis their corporate partners), the proposed ILO protocol could reaffirm and elevate the role of domestic labor institutions in strengthening and ensuring implementation of protections against forced labor and trafficking. Doing so would acknowledge a growing (and largely overlooked) reliance on labor institutions to provide measures of accountability for trafficked persons.223

The strongest reason to be guardedly optimistic lies in how Creep 1 has helped transform a previously atomistic grassroots advocacy landscape into one involving active and rich collaboration across disciplines and advocacy communities. Whereas most of the first decade of the modern anti-trafficking movement was marred by the in-fighting that prostitution reform battles inspired, there is now a palpable turn towards exciting inter- disciplinary collaboration across advocacy communities. The product of that collaboration can already be seen, for example, in efforts to cast increased scrutiny on abusive recruitment practices for guestworker programs,224 the vast supply chains that wrap around the world and back in the course of producing goods and services for daily consumption,225 and the subcontracting chains that undergird government contracts for services,

222 Some human rights advocates are now looking to the prospect of an ILO

trafficking protocol as a second bite at the apple – an opportunity to harden the rights protections States accepted as merely aspirational under the U.N. Protocol. Dep’t of Labor, Int’l Labor Affairs Bureau, Feb. 5, 2013 (meeting with labor and human rights advocates regarding the proposed ILO protocol to the forced labor treaties).

223 For a comprehensive discussion of the U.S. Department of Labor’s role in anti- trafficking efforts, see Counteracting the Bias: the Department of Labor’s Unique Opportunity to Combat Human Trafficking, 126 HARV. L. REV 2012 (2013) [hereinafter Counteracting the Bias].

224 See references cited at supra note 190. 225 See, e.g., California Transparency in Supply Chains Act of 2010, S.B. 657,

2010 Reg. Sess., 2010 Cal. Legis. Serv. Ch 556 (West 2010) (codified at Cal. Civ. Code §1714.43). For an assessment of this law, Jonathan Todres, The Private Sector’s Pivotal Role in Combating Human Trafficking, 3 CAL. L. REV. CIR. 80 (2012).

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to name a few examples.226 A case in point is the current effort by a broad- based coalition of U.S. unions and human rights/labor rights/migrants’ rights advocates to include an “anti-trafficking” provision in the comprehensive reform bill that targets the foreign labor recruitment industry for a range of abuses – including situations that fall short of trafficking.227 Parallel efforts to create international standards for foreign labor recruitment through codes of conduct, for example, reflect similarly collaborative engagement.228 These efforts demonstrate how labor-based and human rights-based responses are overlapping and potentially mutually reinforcing,229 and perhaps, even transformative.

b. Potential Pitfalls

Together, the above-described developments have created crucial

space for the conceptual, institutional, and advocacy changes necessary for a labor perspective to take hold in the anti-trafficking field. But maintaining and building upon the above-described gains requires carefully navigating doctrinal and institutional challenges that issue from conflating forced labor and trafficking – as discussed below.

While Creep 1 has helpfully deepened and broadened our understanding of the trafficking phenomenon, the doctrinal and conceptual problems that issue from Creep 1’s conflation of trafficking and forced labor cannot be assumed away. For example, the rights of criminal defendants to be fully informed of the nature of the charges against them are surely implicated when the legal definition of the alleged crime is a moving target. The doctrinal consequences extend beyond the blending of the legal concepts of forced labor and trafficking, opening a Pandora’s box of related, equally challenging issues that necessitate fraught line-drawing. The concept of debt bondage, for example, now appears to be used in a much broader sense than its legal definition would permit230 – i.e., to include

226 See, e.g., The White House, President Barack Obama, Executive Order –

Strengthening Protections Against Trafficking in Persons in Federal Contracts (Sept. 25, 2012) (ordering measures to implement the U.S. government’s “zero-tolerance” policy on trafficking in persons by Federal contractors and subcontractors).

227 See CIR Bill, supra note 65. 228 See, e.g., VERITÉ, MANPOWER GROUP, AN ETHICAL FRAMEWORK CROSS-

BORDER LABOR RECRUITMENT: AN INDUSTRY/STAKEHOLDER COLLABORATION TO REDUCE THE RISKS OF FORCED LABOR AND HUMAN TRAFFICKING, available at http://www.verite.org/sites/default/files/ethical_framework_paper_20120209_PRINTED.p df.

229 Todres, supra note 201, at 144. 230 Debt bondage is defined under international law as:

the status or condition arising from a pledge by a debtor of his personal services or of those of a person under his control as security for a debt, if the value of those

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debts that are burdensome but for which repayments are nevertheless properly assessed and applied to the debt’s liquidation.231 But this broader conception raises the question of whether the Chinese migrant who assumes a $50,000 debt to migrate to the United States to work in a restaurant – to be methodically paid down over a few years of work – is trafficked, or engaging in “self-exploitation.” Implicated in questions like these are fee structures that are common to guestworker programs worldwide – at what point is a recruitment fee considered too exploitative, and how ought law and policy interventions balance this tipping point against migrants’ willingness to pay these fees for job opportunities abroad? What level of responsibility for trafficking or forced labor should be attributed to countries of origin, like the Philippines, whose economies are built on the remittances from laborers who routinely pay large recruitment fees for the privilege of working abroad – or, conversely, countries of destination like the United States, whose economies are built on the backs of cheap migrant labor? What is acceptable exploitation given the workings of the modern global economy, and what is not? In the same vein, labor and human rights advocates and institutions will also have to confront the vexing question of whether to incorporate sex worker interests and advocates in their activities. First marginalized during the U.N. Protocol negotiations due to the controversy around equating sex with labor, sex workers have been left out of Creep 1’s explicit turn to a labor framework – and anecdotal information suggests that they experience even greater marginalization than before by virtue of their exclusion from the emerging labor perspective.232 Although the ILO has indirectly and cautiously recognized the possibility of sex work as labor,233 current efforts to frame the proposed ILO protocol appear to exclude the sex sector from its scope.234 While the prostitution reform debates no longer take center stage, they remain an active and potentially explosive presence in the anti- trafficking field.235 With the link to labor made explicit in the ILO protocol

services as reasonably assessed is not applied towards the liquidation of the debt or the length and nature of those services are not respectively limited and defined.

Supplementary Slavery Convention, supra note 128, art. 1(a). 231 See, e.g., U.S. Dep’t of State, What is Modern Slavery?,

http://www.state.gov/j/tip/what/ (equating concepts of bonded labor, debt bondage, and peonage).

232 Confidential Source 2 Interview, supra note 175. 233 See, e.g., ILO, THE COST OF COERCION ¶ 196 (2009) (noting that forced labour

occurs in private homes and commercial sex, where labour inspectors face great challenges in monitoring and enforcing labour law).

234 See references cited in supra note 60 (noting how ILO Governing Body had limited the parameters of potential standard-setting to trafficking for forced labour (as opposed to trafficking for “sexual exploitation”)).

235 See, e.g., Holly Burkhalter, Sex Trafficking, Law Enforcement, and Perpetrator

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context, the stakes for prostitution reformers are even higher than they were during the U.N. Protocol negotiations, and compromise possibly more difficult to strike. This is not to say, however, that common ground is impossible to find. As James Pope insightfully points out, even if one accepts prostitution/sex work as inherently destructive, including sex workers/prostitutes within the embrace of labor protections “provide[s] the best practical opportunity for sex workers to carve out a space for collective deliberation and action.”236 Within this space, a sex worker can better exercise agency to resist being forced into prostitution. Perhaps more importantly, improving the conditions of work in other sectors, especially those at the bottom of the global labor market, could provide more viable and appealing alternatives to sex work.237 But to ensure the necessary space for workers for collective action – both within and outside the sex sector – requires that the ILO’s vision of a complementary “labor approach” to trafficking/forced labor substantively encourages and protects “bottom-up” measures such as protecting freedom of association and collective bargaining. Not surprisingly, given the ILO’s tripartite structure – wherein employers and governments are represented in addition to workers – the initial discussions of the ILO’s proposed role have focused on “top-down” labor administration and inspection as complement to law enforcement strategies to ferret out and address situations of forced labor/trafficking.238 In the course of these discussions, there was glancing acknowledgment that sectors where workers’ right to freedom of association are violated are “particularly exposed to the risks of forced labour.”239 But far more robust and explicit linkage between the ILO’s work on forced labor and its work on freedom of association and the right to collective bargaining – which the ILO also deems to be “core labor standards”240 – is necessary for ensuring substantive application of a labor approach to the problem.

Accountability, Melissa Ditmore & Juhu Thukral, Accountability and the Use of Raids to Fight Trafficking, Aziza Ahmed & Meena Seshu, ‘We have the right not to be “rescued”…’: When anti-trafficking programmes undermine the health and well-being of sex workers, in 1 ANTI-TRAFFICKING REVIEW 122-49 (2012) (debating the merits of current anti-prostitution approaches to combating trafficking).

236 Pope, supra note 7, at 1874. 237 Id. 238 See generally ILO Forced Labour and Tripartite Meeting report, supra note 60. 239 Id., at para 95. 240 The ILO’s core labor standards include: (1) freedom of association and the

right to collective bargaining; (2) the elimination of forced and compulsory labor; (3) the abolition of child labor; and (4) the elimination of discrimination in the workplace. See ILO Declaration, supra note 51, at para 2 (identifying core labor standards to which all members of the ILO, even without ratifying the relevant Conventions, have an obligation to promote and realize by virtue of the very fact of their membership in the ILO).

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Ultimately, Creep 1 has shone a spotlight on a broader range of abusive labor practices than the Protocol drafters likely intended. However doctrinally problematic, the challenge for advocates now is to maintain that scrutiny and strategically marshal the political will behind anti-trafficking campaigns for the benefit of a broader range of coercively exploited workers. The proposed ILO Protocol and U.S. domestic efforts to target abusive labor recruiters demonstrate that this is possible – but only with careful navigation to avoid the unintended consequences of forced labor/trafficking conflation. Governments having likely not anticipated what Creep 1 has wrought, one can be sure that governments will exercise far greater caution with regard to any new standard-setting. The greatest risk to efforts to reap the benefits of Creep 1, however, lies in Creep 2’s ability to entrench approaches to anti-trafficking interventions that focus on individual deviant behavior and enable States to resist structural change, as explored below.

IV. CRITIQUE OF CREEP 2

Around the [time the modern anti-trafficking movement started], a movement started against sweatshop labor that developed its focus not broadly on the issue of forced labor but narrowly on the conditions of the sweatshops themselves, sometimes even just on safety issues within them. Luis CdeBaca, the U.S. ambassador at large to monitor and combat trafficking in persons, sees [this framework] as inhibiting and, intentionally or not, ways to feel too comfortable about addressing the issues in question. “If we say the problem with domestic servants is that they’re not covered by the Fair Labor Standards Act, and so let’s just go out and make sure they get covered by labor laws around the world, we get to ignore, for example, the fact that domestic servants are being locked in and raped. It’s not a wage issue; it’s a crime issue….”

– Slavery’s Global Comeback, The Atlantic241 It bears noting, at the outset, that there may be situations of

contemporary exploitation that comprise “slavery” within the evolving contours of the international law norm and/or domestic anti-slavery norms.242 In such cases, the “slavery” label is justified – hence, not “creep”

241 Gould, supra note 13. 242 Within the U.S. context, for example, careful use of the slavery frame has

proven instrumental in bringing African-American and migrant low-wage workers together in a common struggle against systemic workers’ rights abuses. These advocacy efforts deploy what James Gray Pope describes as a “free labor” approach that empowers workers to “exert the ‘power below’ necessary to give employers the ‘incentive above’ to avoid slavery and servitude.” Pope, supra note 7. This approach is rooted in U.S. case law that

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– and depending on how the law is constructed, could prove a useful vehicle for pursuing the structural changes sought by Creep 1.

In contrast to these efforts, Creep 2 is the (largely rhetorical) move to label all forced labor and trafficking practices “slavery” without regard to legal accuracy, and in the service of an expanded prohibitionist approach to the problem. Creep 2 deploys slavery imagery to create a simple moral imperative and ready political consensus around governmental and grassroots action that frames forced labor/trafficking/slavery as rooted in deviant behavior and thus mandates a strong criminal justice response. Wielded by governments, NGOs, and the “charitable-industrial complex”243 alike, Creep 2 has been extremely effective in incentivizing governments to pass legislation, foundations to donate funds, and the broader populace to take up the “anti-slavery” cause. As reflected in the quote above, some proponents even argue that characterizing the targeted practices as anything less emotive than “slavery” is to use euphemisms that justify lesser responses.244 The creep towards slavery is thus rationalized as strategic deployment of crucial and rare political will in the service of trafficked and forced laborers who have long suffered from inadequate protections under the law. But its prescriptions aim to protect and save those vulnerable to the prohibited practices, rather than to change the conditions that create and sustain vulnerability to a range of labor abuses or to empower individual and collective resistance.

However laudable the intentions, there are very good reasons to be deeply skeptical of the ability of Creep 2 to deliver on its promise of freedom. Its highly charged imagery promotes doctrinal slippage in the wrong direction, raising the legal thresholds for prosecutions, and thereby

interprets the Thirteenth Amendment to not only prohibit slavery and involuntary servitude directly, but to also mandate a positive strategy of “ ‘maintain[ing] a system of completely free and voluntary labor throughout the United States’ ” through recognition of such rights as the right to change employers. Id., citing Pollock v. Williams, 322 U.S. 4, 17 (1944). Advocates such as the National Guestworkers Alliance have relied on this “free labor” approach to argue rights to organize, and change employers, among other rights. Telephone Interview with Jennifer Rosenbaum, Legal Director, National Guestworkers Alliance (July 26, 2013). See, e.g., First Amended Complaint and Expert Affidavit of James Gray Pope, in Jimenez v. Vanderbilt Landscaping LLC, Civ. Action No. 3:11-0276, filed Apr. 6, 2011, U.S. District Court, Middle District of Tennessee Nashville Division. Scholarship looking at the shifting historical meanings of the Thirteenth Amendment point to its exciting potential as a tool for protecting immigrant workers from servitude. See, e.g., Risa L. Goluboff, The Thirteenth Amendment in Historical Perspective, 11 J. CONST. L. 1451 (2009).

243 Peter Buffett, The Charitable-Industrial Complex, N.Y. TIMES, (July 26, 2013) (critiquing “the world of philanthropy as practiced by the very wealthy” as a form of “conscience laundering” that “just keeps the existing structure of inequality in place”).

244 Gould, supra note 13.

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lowering victims’ prospects for finding accountability for the abuses suffered. At the same time, Creep 2 encourages the State to focus attention and resources on bad actors acting individually or in concert, reasserting dominance of the criminal justice paradigm with respect to framing the problem and identifying institutions and methods best positioned to address it. Governments and their corporate partners are absolved of their responsibility for having fostered the labor and migration structures that promote vulnerability to trafficking. In moving towards the slavery extreme, Creep 2 thus pivots policy-making sharply away from long-term, structural solutions to the problem of human trafficking.

A. Diluting the Slavery Norm, Raising the Trafficking Threshold

However skeptical one might be about the TIP Office’s equating

forced labor and trafficking as a matter of international law, the claim that trafficking is slavery is even more specious. Tellingly, the TIP Office has yet to offer a legal argument in support of this particular manifestation of exploitation creep. The state of relevant international law norms would make finding a legal justification for equating trafficking with slavery a doomed endeavor, despite the energetic efforts of those who have single- mindedly pursued such a course.245

Nothing in the U.N. Protocol suggests that trafficking itself is a form of slavery. Like forced labor, the trafficking definition lists slavery as one possible purpose element, alongside “practices similar to slavery,” servitude, and sexual exploitation.246 The notion that the treaty drafters intended to permit collapsing the three-part definition into a single purpose element is even less plausible in the slavery context than it is in the forced labor one.

As a jus cogens norm, the prohibition on slavery has a special status superior to those of all other rules of the international community.247 The extraordinary status of jus cogens norms derives from recognition of these norms as “laying down international obligations so essential for the protection of fundamental interests of the international community that their breach is recognized as a crime by that community as a whole.”248 This

245 See, e.g., Kevin Bales, Slavery in its Contemporary Manifestations, and 2012

Bellagio-Harvard Guidelines on the Legal Parameters of Slavery, at Guideline 2–The Exercise of the Powers Attaching to the Right of Ownership) [hereinafter Bellagio-Harvard Guidelines], in THE LEGAL UNDERSTANDING OF SLAVERY, supra note 133, at 281-303, 375-80.

246 U.N. Trafficking Protocol, art. 3 (defining “trafficking in persons”). 247 ANTONIO CASSESE, INTERNATIONAL LAW 199 (2005). 248 Id., at 202, citing former Article 19 of the ILC Draft Articles on State

Responsibility.

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rarefied status means that the prohibition against slavery cannot be derogated from by treaty – contrary treaty or customary rules are null and void ab initio – and can be modified only by another jus cogens norm.249 However one interprets it, the U.N. Protocol trafficking definition cannot reasonably be read to catapult trafficking into the international legal norm stratosphere.

Nor can any legal support for Creep 2 be found in customary international law. Granted, the substantive content of the customary international law prohibition against slavery is, “in a state of flux,” with indications that legal conceptions of slavery have expanded to include practices beyond chattel slavery.250 Activist scholars have advocated for a broad interpretation of the 1926 Slavery Convention definition251 in an effort “to captur[e] the essence of contemporary slavery.”252 As Gallagher has demonstrated, however, an absolute claim that trafficking, in all its modern manifestations, is included in the customary and jus cogens norm prohibiting slavery remains difficult to sustain.253 Only the egregious cases involving the “clear exercise of powers attached to the right of ownership”254 would likely qualify as slavery.

Even if one could equate trafficking and slavery as a matter of law, it is far from clear that one should. Equating trafficking with slavery risks at least two negative outcomes: (1) diluting the slavery norm, and (2)

249 Vienna Convention on the Law of Treaties, art. 53. 250 GALLAGHER, supra note 16, at 191. 251 See Slavery Convention, supra note 128. 252 For example, a group of historians, sociologists, and property law scholars

developed the 2012 Bellagio-Harvard Guidelines, supra note 245, suggesting that ‘powers attaching to the right of ownership’ “should be understood as constituting control over a person in such a way as to significantly deprive that person of his or her individual liberty, with the intent of exploitation through the use, management, profit, transfer or disposal of that person.” Id. For insightful critique of such strained efforts to expand yet also cabin the legal concept of slavery, see Chantal Thomas, Immigration Controls and “Modern-Day Slavery” (paper on file with author).

253 GALLAGHER, supra note 16, at 190. 254 As Gallagher explains, of the scarce interpretative guidance on this point, is

one UN Secretariat report identifies six characteristics of the various “powers attaching to the right of ownership” that when exercised give rise to a situation of slavery, including: (1) the individual may be made an object of purchase; (2) the master may use the individual, in particular his or her capacity to work, in an absolute manner; (3) the products of the individual’s labor become the property of the master without any compensation commensurate to the value of the labor; (4) the ownership of the individual can be transferred to another person; (5) the status/condition of the individual is permanent in the sense that it cannot be terminated at the will of the individual; and (6) the status/condition is inherited/inheritable. GALLAGHER, supra note 16, at 184, citing UN Economic and Social Council, Slavery, the Slave Trade and Other Forms of Servitude: Report of the Secretary- General, UN Doc. E/2357, Jan. 27, 1953, at 40.

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raising the trafficking threshold. As to the former, one need not be a legal purist to appreciate problems that come with diluting the jus cogens norm prohibiting slavery. As is the case with conflation of forced labor and trafficking, dilution undermines the right of those accused to be informed in detail of the nature of the charges against them.255 Dilution furthermore risks compromising the ability of the international community to bring to justice alleged perpetrators of chattel slavery – a practice, though rare, that still exists in parts of the world (e.g., Mauritania).256 Much like in the genocide context, the gravity of one of the most extreme human rights abuses thus demands judicious use of the “slavery” label,257 or else risks minimizing the experiences of the men, women, and children subjected to actual slavery.

At the same time, equating trafficking with slavery can implicitly raise the legal threshold for trafficking by creating expectations of more extreme harms than those required under anti-trafficking law. Invoking slavery dredges up a tragic and shameful past and its attendant imagery of people laboring in fields, sometimes in chains and beaten into submission. But that imagined scenario comprises one extreme and an exceptionally small fraction of a wide range of trafficking practices involving varying types and levels of force or coercion, not necessarily physical violence. The distance between what is branded into the public imagination as “trafficking as slavery” and what legally counts as trafficking is thus quite substantial.258 That space only widens the cracks in the system through which trafficked persons already fall. Pushing conceptions of trafficking to the slavery

255 Gallagher, UN Protocols, supra note 16, at 799. 256 Despite passage of a law criminalizing slavery in 2007, government

enforcement of the law is widely acknowledged to be inadequate, with reportedly up to 20 percent of the population still living in conditions of de facto chattel slavery. 2013 TIP REPORT, supra note 46, at 258.

257 For a description of life as a slave in Mauritania, and the failures of the government to enforce anti-slavery laws, see John D. Sutter, Slavery’s last stronghold, available at http://www.cnn.com/interactive/2012/03/world/mauritania.slaverys.last.stronghold/index.ht ml.

258 This dynamic risks renewing the skepticism expressed by mainstream media outlets in the past over the true extent of the trafficking problem in the United States – which they perceived as overinflated when the U.S. government placed the number of persons trafficked into the United States at 50,000 per year, and 800,000 worldwide. See, e.g., Jerry Markon, Human Trafficking Evokes Outrage, Little Evidence, WASH. POST (September 23, 2007) (criticizing the disparity between the trafficking statistic and number of victims identified); see also sources cited in Chuang, Rescuing Trafficking, supra note 11, at 1708 n. 221 (citing dispute among journalists over the accuracy of the claims made in a New York Times Magazine cover story entitled Sex Slaves of West 43rd Street). That the U.S. government now estimates the problem at 27 million “enslaved” worldwide promises to exacerbate the public perception problem.

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extreme undercuts social service providers, and law enforcement authorities’ ability to accurately identify victims, prosecutors’ willingness to prosecute abuses, and juries’ willingness to find the trafficking threshold met and award trafficked persons the relief sought.

This dynamic has come into play in the litigation strategy, if not the results, of cases brought by victims against their recruiter-traffickers.259 Defense counsel in the Filipino teacher trafficking case described above, for example, used the slavery imagery to good effect in his closing statement:

Trafficking, in its form – in its real form exists when a worker…becomes a virtual slave to the employer. The more she works in the cotton fields, in the lettuce fields, in the strawberry fields…260

The jury awarded the teachers $4.5 million based on a finding of deceptive business practices, not human trafficking – apparently unable to comprehend how the teachers, who had conceded their love of teaching and fondness for their students, could possibly be “trafficked.”261 Not only does Creep 2 undermine trafficked persons’ pursuit of civil remedies, but it helps maintain the apparent and troubling trajectory of trafficking prosecutions in the United States towards focusing on cases involving violence or confinement.262 This obviates the TVPA’s intended goal of enabling prosecutors to pursue cases involving a broader range of the types of coercion (e.g., psychological) used to traffic people.263

B. Absolving the State, its Corporate Partners, and the “Charitable Industrial Complex”

In locating the harm of trafficking in the actions of bad actors, Creep

2 also conveniently diverts attention from the broader economic, political, and social context within which trafficking is occurring. As sociologists Julia O’Connell Davidson and Bridget Anderson explain, slavery rhetoric is

259 Vandenberg Interview, supra note 174 (describing how defense counsel have

been using the slavery analogy to their advantage in avoiding liability in civil cases brought under the TVPA).

260 Trial Transcript, December 14, 2012, Mairi Nunag Tanedo v. East Baton Rouge Parish School Board, et al, supra note 187.

261 See Stockman, supra note 187; Testimonial of Ingrid Cruz, at ILRWG website, supra note 65.

262 Confidential Source 1 Interview, supra note 66; Vandenberg Interview, supra note 174.

263 Prior to the TVPA, the definition of involuntary servitude, criminalized in 18 U.S.C. § 1584, had required that a victim be held against his/her will by actual force, threats of force, or threats of legal coercion. The TVPA’s criminalization of “forced labor” included coercion involving threats of “serious harm.” 18 U.S.C. §1589, quoted above at supra note 176.

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a discourse of depoliticization.264 It creates a simple moral imperative with enormous popular appeal, while it depoliticizes and absolves – behind a humanitarian agenda – the State for its role in creating structures that permit, if not encourage, coercive exploitation of workers, particularly migrants.265

The complex phenomenon of trafficking is distilled into a simple narrative of a crime perpetrated by evil, often foreign, criminal organizations and individuals, best solved through aggressive prosecution and policing of the border.266 Assuming the “mantle of righteousness,”267 States’ deployment of anti-slavery rhetoric distances them – and their domestic and multi-national corporate partners – from their own complicity in the trafficking phenomenon, and refashions them as allies and heroes in the anti-slavery crusade. Meanwhile, as “slaves,” trafficked persons are recast as perennial victims, who, like trans-Atlantic slaves, must have been kidnapped and otherwise brought to the destination countries against their will. This imagery conveniently elides the reality that the vast majority of trafficked persons’ narratives begin with an act with agency, a desire to move and/or search for a livelihood. Those who migrated invariably intended to do so, whether as survival migrants in response to acute insecurity at home, or as opportunity-seeking migrants.268 The slavery makeover thus depicts trafficked persons not as political subjects, but as objects of intervention, and consequently, “obliterates any idea of struggle and works to stabilize the political and social transformations brought about by migration, as it confines migrants to victimhood.”269

Slavery creep thereby renders unnecessary deeper inquiry into how countries of origin and destination – and corporate interests – construct labor and migration frameworks that encourage maximum migration and

264 Julia O’Connell Davidson, Absolving the State: The Trafficking-Slavery

Metaphor, 14 GLOBAL DIALOGUE 31 (2012) [hereinafter Absolving the State]; Julia O’Connell Davidson, New slavery, old binaries: human trafficking and the borders of ‘freedom,’ 10 GLOBAL NETWORKS 244 (2010) [hereinafter New slavery, old binaries]; Bridget Anderson and Rutvica Andrijasevic, Sex, slaves and citizens: the politics of anti- trafficking, 40 SOUNDINGS 135 (2008) [hereinafter Sex, slaves and citizens].

265 Absolving the State, supra note 264, at 31. 266 See Chacón, supra note 94, at 1630-31 (2010) (describing the imagery

inscribed in the training of U.S. officials to recognize trafficking situations and its effect of fueling popular discourse that perceives the noncitizen as a criminal threat).

267 Karen E. Bravo, Exploring the Analogy Between Modern Trafficking in Humans and the Trans-Atlantic Slave Trade, 25 BOSTON U. INT’L L. J. 207, (2007).

268 See generally ANTI-SLAVERY INTERNATIONAL, THE MIGRATION-TRAFFICKING NEXUS (2003) (providing an overview of the push and pull factors driving international migration and resulting impact on human trafficking) [hereinafter ASI MIGRATION- TRAFFICKING NEXUS].

269 Sex, slaves, and citizens, supra note 264, at 143.

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minimum protection for the migrants in the course of the labor migration stream. This dynamic makes invisible how countries of origin like the Philippines pawn off their responsibility to protect their nationals onto recruitment agencies that routinely escape accountability for profiting from and facilitating forced labor.270 Also hidden from scrutiny is how, in destination countries like the United States, the combination of corporate control and policy incoherence in the U.S. guestworker programs make conditions ripe for trafficking of migrants and accountability for the abuses unattainable.271 The rampant exploitation suffered by the migrant workers who produce the remittances and the low-wage labor that sustain origin and destination country economies is rendered entirely disconnected from the trafficking-cum-slavery phenomenon that modern-day abolitionists stand ready to fight. Conveniently obscured is the central truth that trafficking is often labor migration gone horribly wrong – at least partly due to tightened border controls that have created a growing market for clandestine migration services and lax labor laws that permit employers and recruiters to coercively exploit their workers with impunity.272

The reductive narrative embraced by slavery creep instead justifies anti-trafficking interventions that fail to respond to the lived realities of trafficked persons,273 and assume away the role of States and corporations in creating and benefiting from vulnerability to trafficking. As O’Connell Davidson points out, one can pity slaves – as objects and eternal victims – more unreservedly than we can those whom we see as authoring and controlling their own destiny.”274 The slavery frame thus rationalizes States’ thirst for increased border controls that weed out as “not trafficked” those who fail to fit the mold of the naïve, innocent, unwilling migrant.275 It also

270 See generally Graziano Battistella & Maruja M.B. Asis, Protecting Filipino

Transnational Domestic Workers: Government Regulations and Their Outcomes, Philippine Institute for Development Studies, Discussion Paper Series No. 2011-12 (describing government efforts to regulate recruitment of Filipino transnational domestic workers).

271 See generally, VISAS, INC., supra note 190. 272 This dynamic is apparent, for example, in the context of migrant domestic

work. For an excellent discussion of how the political economy of migrant domestic work renders these workers vulnerable to exploitation, see Judy Fudge and Kendra Strauss, Migrants, Unfree Labour, and the Legal Construction of Domestic Servitude: Migrant Domestic Workers in the UK (paper on file with author).

273 See generally DENISE BRENNAN, LIFE INTERRUPTED: TRAFFICKING INTO FORCED LABOR IN THE UNITED STATES (forthcoming, Duke University Press 2013) (explaining how glossing over the element of agency is fundamentally at odds with how trafficked persons view themselves).

274 New slavery, old binaries, supra note 264, at 256. 275 Jennifer M. Chacón, Misery and Myopia: Understanding the Failures of U.S.

Efforts to Stop Human Trafficking, 2976, 3038 (2005); Haynes, (Not) Found Chained,

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enables States to avoid responsibility for establishing restrictive migration frameworks that fail to absorb the number of migrants pushed and pulled into the migration stream by State interests’ in remittances and cheap labor.

C. State and Corporate Saviors

At the grassroots level, Creep 2 has also bred a new generation of

“anti-slavery” organizations – referred to here as the “new abolitionists”276 – that embrace this reductive narrative, seeking to mobilize and focus public outrage on the “dark side of globalization.”277 But, as O’Connell-Davidson notes, the new abolitionists are not, for example, demanding a transformation of attitudes adopted by the privileged towards the death or suffering of irregular migrants…[p]assivity in the face of their misery remains entirely conscionable.”278 These campaigns do nothing to challenge the idea that “inequality and poverty are providential.”279

Instead, the new-abolitionist campaigns call upon individual and corporate consumers to consume more ethically – “an act of moral agency that can be encouraged by, and exercised in alliance with capitalist enterprises.”280 As Bernstein explains,

the dichotomy between slavery and freedom poses a way of addressing the ravages of neoliberalism that effectively locates all social harm outside of the institutions of corporate capitalism and the state apparatus….big business, the state, and the police are reconfigured as allies and saviors, rather than enemies, of unskilled migrant workers…”281

Trafficking is no longer the product of global disparities in wealth, and social exclusion and discrimination in labor and migration frameworks. Rather, human trafficking is “a humanitarian issue global capitalists can help combat.”282

The work of Walk Free is a prime example of this dynamic, and – given its apparently vast resources and its skyrocketed stature in the anti- slavery movement – is worth looking at more closely. Believing that

supra note 164, at 349-52.

276 The “new abolitionists” described here does not include, for example, U.K.- based Anti-Slavery International (ASI), established in 1839 to address chattel slavery, and which has carefully broadened its mandate over the years to address forced labor and trafficking through careful reporting and analysis of the structural determinants of forced labor and trafficking. See, e.g., ASI MIGRATION-TRAFFICKING NEXUS, supra note 268; ITUC, NEVER WORK ALONE, supra note 62.

277 Gould, supra note 13, quoting Walk Free founder Andrew Forrest. 278 Absolving the State, supra note 264, at 39. 279 Id. at 38. 280 Id. 281 Bernstein, New Abolitionism, supra note 43, at 144. 282 Id. at 141.

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“business has always been a key driver of social change,” Walk Free has called upon governments and major corporations to sign a “zero tolerance for slavery pledge” to eliminate forced labor from their supply chains.283 Likely eager to distance itself from its notorious history of trafficking and forced labor practices,284 the Myanmar government was the first to sign the pledge – though officials of its still-military and undemocratic new government apparently were short on details as to plans for implementation.285 Notwithstanding human rights advocates’ caution against too-rapid Western re-engagement with Myanmar,286 Walk Free Founder Andrew Forrest, applauding Myanmar’s pledge, has implored Western business leaders to “look at the great benefit which your investment in Myanmar can make in the long-term interest of tens of millions of people whose lifestyle may not improve without your investment.”287

283 As Walk Free CEO Nick Grono explained, “If Corporate Giants – 25 of the

world’s top businesses whose net worth make up US$5 trillion – prioritize the abolition of modern slavery as their next major innovation, we could quickly deal a major blow to the slavery industry in this generation.” Walk Free Calls on Big Business to End Slavery Worldwide, PR NEWSWIRE (DEC 16, 2012) (listing targeted companies, including Apple, Exxon Mobil, Microsoft, Wal-Mart, Shell, General Electric, Google, IBM, among “corporate giants” implored to sign the pledge by March 31, 2013). Perhaps tellingly, Walk Free’s otherwise frequently-updated website makes no mention of the results of the corporate pledge campaign. See Walk Free (website), available at http://www.walkfree.org. Current campaigns appear focused on encouraging the public to pressure corporations to rid themselves of forced labor in their supply chains – e.g., Target to eliminate Uzbek cotton in its products, Nintendo to eliminate “slave-mined minerals” from its gaming consoles. Id.

284 Myanmar’s persistent refusal to address its forced labor problem inspired the ILO to exercise – for the first time – its power to levy trade sanctions against a Member State. See Francis Maupain, Is the ILO Effective in Upholding Workers’ Rights?: Reflections on the Myanmar Experience, in LABOUR RIGHTS AS HUMAN RIGHTS (2005). The TIP Report ranked Burma Tier 3 from 2001 until 2012. See 2013 TIP REPORT, supra note 44, at 112.

285 Sam Holmes & Shibani Mahtani, Concert Against Slavery Draws Big Myanmar Crowd, WALL STREET JOURNAL (December 17, 2012), available at http://blogs.wsj.com/searealtime/2012/12/17/concert-against-slavery-draws-big-myanmar- crowd/.

286 Holmes & Mahtani, supra note 285 (describing violent government crackdown on protestors at a copper mine, for which the Myanmar government apologized for the injuries inflicted, but not for the crackdown). For an insightful critique of “constructive engagement” with Burma, see generally JOHN G. DALE, FREE BURMA: TRANSNATIONAL LEGAL ACTION AND CORPORATE ACCOUNTABILITY (2011) (assessing governments’ past use of a combination of (economic) carrots and sticks in their dealings with the Myanmar government).

287 Myanmar President emphasizes benefits of investment, ASIALINK (March 19, 2013), available at http://asialink.unimelb.edu.au/calendar/Recent_Events/Myanmar_President_emphasises_b

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In similar vein, Walk Free’s much-touted, Bales-led Global Slavery Index appears to incorporate an assumption that prevalence and risk of slavery is inversely proportional to a country’s level of political and economic development.288 The Index purports to rank governments’ anti- slavery efforts based on “a composite index, constructed by combining underlying indicators in a standardized way to provide a statistical measure of the prevalence of slavery for most of the world’s countries and the factors that create the risk of slavery.”289 The Index thus is derived from amalgamating an estimate of national slavery figures with an amalgamation of “risk factors.” The risk factors, however, comprise a broad and random assortment of measures, some of which have no apparent bearing on forced labor (e.g., HIV prevalence rate, availability of weapons, political instability). Only one of the twenty or so indicators deals with labor rights, and the vast majority of them deal with general country conditions that together contain an inherent bias in favor of wealthy countries (e.g., development indicators). Hence, it can come as no surprise that wealthy countries dominate the “Top Ten” countries290 despite some, including the United Kingdom, currently engaging in retrogressive measures that affirmatively increase the prevalence of “slave-like” conditions.291

Leaving aside the legal inaccuracy and dubious legitimacy of the entire exercise, the problem with such “anti-slavery” measures goes beyond their reaffirmation of neoliberal assumptions that undergird the very structures that create vulnerability to trafficking and forced labor. The concomitant harm is that these measures exist alongside – and in tension with – “anti-trafficking” measures that are increasingly targeting those same structures and holding states and corporate actors accountable. Not surprisingly, the same wealthy governments that rank at the top of the Global Slavery Index also happen to be the same wealthy governments that have argued against the need for the proposed ILO forced labor protocol on

enefits_of_investment (describing speech given by Andrew Forrest at Asialink dinner).

288 WALK FREE, GLOBAL SLAVERY INDEX (2013) (February 2013 draft) (on file with author) [hereinafter GLOBAL SLAVERY INDEX].

289 GLOBAL SLAVERY INDEX, supra note 229. 290 These include Canada, Austria, Norway, Japan, Denmark, Iceland, Australia,

United Kingdom, France, and Luxembourg. GLOBAL SLAVERY INDEX, supra note 229. 291 In 2012, the U.K. government’s concerns over the possibility of migrant

domestic workers remaining permanently (via visa renewals) led to new visa rules preventing migrant domestic workers from switching employers—a move that rights advocates criticize as “turn[ing] back the clock 15 years” and creating a system that would now mirror the “kafala” system across the Middle East where a change of employer amounts to a loss of residency. Alan Travis, New visa rules for domestic workers ‘will turn the clock back 15 years,’ GUARDIAN, Feb. 29, 2012; Aidan McQuade, Slavery is real—we must protect its victims, GUARDIAN, Feb. 29, 2012.

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grounds on that their national measures are sufficient.292 The Global Slavery Index, based on deeply flawed assumptions, thus plays into wealthy governments’ continued resistance to labor scrutiny.

Walk Free’s campaigns also let their corporate targets off the hook, even as they exhort them to rid their supply chains of forced labor. Walk Free and other anti-slavery organizations like the Not for Sale Campaign293 typically encourage companies to adopt voluntary codes of conduct, and rely on transparency measures and possible public shaming as vehicles for compliance. Having governments and corporations promise to do better is a poor substitute for pursuing structural safeguards that would obligate them to do so.

Such new abolitionist strategies stand in stark contrast to those pursued by anti-trafficking and forced labor advocates. In addressing foreign labor recruitment, for example, these advocates are targeting issues that directly implicate deeply-entwined state and corporate interests in maintaining the availability of cheap and exploitable labor. Battles in the United States over a draft anti-trafficking law prohibiting recruitment fees for those participating in U.S. guestworker programs provide a case in point. The proposed legislative reforms prompted aggressive efforts by the recruitment industry and the businesses they service to exclude what is de facto the largest U.S. guestworker program from its scope – the J-1 Visitor Exchange Program.294 Technically a “cultural exchange” program administered by the State Department, the J-1 Program brings young foreigners (typically students) to the United States to work and/or experience American life.295 But government oversight offices have repeatedly concluded that several of these programs function as guestworker programs on the cheap and lowdown – providing student labor

292 See Letter from Aidan McQuade, Anti-Slavery International to Nick Grono &

Fiona David, Walk Free, June 6, 2013 (offering a scathing critique of the draft Global Slavery Index).

293 According to its website, Not For Sale fights modern-day slavery around the world using business creation, supply chain evaluation and aftercare aid around the globe. By creating enterprise for vulnerable communities, offering social services to survivors and those at-risk to human trafficking, and evaluating the use of forced labor in mainstream supply chains, Not For Sale works to make sure no one is for sale.

Not For Sale (website), available at http://www.notforsalecampaign.org. 294 Fredreka Schouten, Au pair groups, others fight Senate immigration rules,

USA TODAY (June 19, 2013); Kristina Peterson, Worker Bill Roils the Au Pair World, WALL STREET JOURNAL (May 24, 2013); Annys Shin, Au pair agencies win fight to keep recruitment fees, WASH. POST (June 25, 2013); ILRWG website, supra note 65.

295 U.S. Department of State, J-1 Visitor Exchange Program (website), available at http://www.google.com/search?client=safari&rls=en&q=j-1+visa+program&ie=UTF- 8&oe=UTF-8.

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at rates below what official U.S. guestworkers are required to earn, and moreover, all the while shielded from labor scrutiny by their “cultural exchange” classification.296 Student participants have thus found themselves, for example, working over-full-time at Hershey packing plants for less than a dollar-an-hour, and caring for children for well over the 45- hour au pair workweek limit– yet compelled to remain in these jobs due to exorbitant (and entirely unregulated) recruitment fees they unwittingly paid for the privilege of obtaining these jobs.297 Stoking fears of small business owners and American families of increased financial burdens, the J-1 industry lobby successfully organized a massive letter-writing and calling campaign to Congress to protect their ability to charge students recruitment fees.298

Trafficked as these students may have been, Creep 2 by excluding them from its framework maintains them on the periphery of mainstream concern. Migrating for labor (even if mixed with “cultural exchange”) in our global economy is an endeavor laden with risk. Creep 2 does precious little to reign in the abuses of the recruiters and businesses that rely on cheap, exploitable labor, and to provide protection to the individuals who provide it. Particularly when juxtaposed against the progress Creep 1 could make towards those ends, Creep 2’s promise of freedom is ultimately hollow.

CONCLUSION

Exploitation creep has helped bring the modern anti-trafficking movement to an important crossroads. The doctrinal manipulations entailed may ultimately render the concept of trafficking more a advocacy tool than a freestanding legal concept. But to what end? – is the challenge that

296 See, e.g., U.S. DEP’T OF STATE & BROADCASTING BD. OF GOVERNORS OFFICE

OF INSPECTOR GEN., INSPECTION OF THE BUREAU OF EDUCATIONAL AND CULTURAL AFFAIRS (2012) (questioning “the appropriateness of using J visas in work programs,” particularly the Summer Work Travel, au pair, and intern programs).

297 REPORT OF THE AUGUST 2011 HUMAN RIGHTS DELEGATION TO HERSHEY, PENNSYLVANIA (2011), http://www.guestworkeralliance.org/wp- content/uploads/2011/09/Human-Rights-Delegation-Report-on-Hersheys-J-1-Workers.pdf (criticizing violations of workers’ rights); Julia Preston, Foreign Students in Work Visa Program Stage Walkout at Plant, N.Y. TIMES, Aug. 17, 2011, at A11; Editorial, Not the America They Expected, N.Y. TIMES, Aug. 18, 2011, at A22, available at http://www.nytimes.com/2011/08/19/opinion/not-the-america-they-expected.html.

298 See references cited in supra note 294. The final legislation imposed regulatory limits upon – rather than prohibiting – fees paid by J-1 visa-holders on the justification – voiced by the State Department and recruitment agencies – that students, unlike other guestworkers, were rightly paying for the privilege of “cultural exchange.” Id.; CIR Bill, supra note 65.

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confronts us. We could continue along the trajectory set at the movement’s inception and maintained by Creep 2, targeting deviant actors and hapless victims for prosecution and rescue, respectively. History has demonstrated the limited effectiveness of this approach, however – with precious few trafficked persons identified, and those that are, ultimately finding themselves, once “freed,” back in low-wage jobs for which forced labor conditions remain an inherent risk.299 Or we could pursue the course correction made possible by Creep 1. Though not devoid of minefields, this path offers to bring a labor paradigm to bear on the problem of human trafficking, and with it interventions that target the structural contributors to the problem and offer possibilities of more effective remedies. Efforts by the International Labor Organization to consider adopting a trafficking- focused protocol to its forced labor treaties, and by the U.S. Congress to adopt laws to address recruitment abuses in the U.S. guestworker program are two recent moves in this direction. Such moves instantiate a more nuanced understanding of how power relationships among employees, employers, contractors, recruiters and other actors create vulnerability to trafficking and forced labor. Joint efforts by a broad swath of civil society organizations to share these insights with policy-makers and the mainstream public might one day result in a world simply where identifying a practice as “forced labor” is a powerful call to action. Only then can we truly realize the emancipatory potential of the modern anti-trafficking movement.

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299 See generally, BRENNAN, supra note 273.