A new article by Bridget Anderson & Rutvica Andrijasevic
Soundings: a journal of politics and culture, Issue 40 Autumn 2008

“Bonded labourers”, “sex slaves”, “victims of organized crime”. Identified as victims of trafficking, these are the terms commonly used to describe migrant women and men in abusive labour relations/conditions in the UK. In this text we argue that the lack of definitional clarity and the constant slippage between “illegal immigration”, “forced prostitution”, and “trafficking” diverts attention from the role of the state in constructing poor work and vulnerable workers. In discussing trafficking in relation to the politics of sex, the politics of labour, and the politics of citizenship, we bring the state back into the analysis of trafficking, and show that the language of trafficking needs to be recognised as part of a more general attempt to depoliticise migration and struggles over citizenship.

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Trafficking is in the news. It is on the political agenda, both nationally and internationally. Thousands of individuals, hundreds of groups, dozens of newspapers are determined to stamp it out. This public concern with trafficking consistently reflects and reinforces firstly a deep concern with prostitution/sex work, and secondly a concern about immigration, abuse and exploitation. To challenge the expression and some of the actions taken as a response to this concern is akin to saying that one endorses slavery or is against motherhood and apple pie. It is a theme that is supposed to bring us all together. We want to tread the line of challenging motherhood and apple pie without endorsing slavery because there is a real danger that a moral panic over trafficking diverts attention from the structural, systemic causes of abuse and inequality and confuses arguments. In particular it detracts attention from the role of the state in constructing groups of people who can be treated as unequal with impunity.

What is “trafficking”? Definitions and the UN Convention

In November 2000 the UN Convention Against Transnational Organised Crime was adopted by the UN General Assembly. The purpose of this convention was to promote interstate cooperation in the combating of transnational organized crime and to eliminate “safe havens” for its perpetrators. It is supplemented by three additional protocols dealing with Smuggling of Migrants, Trafficking in Persons – especially women and children, and Trafficking in Firearms.  The definition of trafficking in persons contains three elements: an action consisting of “the recruitment, transportation, transfer, harbouring or receipt of persons,”; by means of “the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person”; and for the purpose of exploitation…(which).. 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 .

It is important to remember that the Palermo Protocol as it is known is not a human rights instrument. It is an instrument designed to facilitate cooperation between states to combat organised crime, not an instrument designed to protect or give restitution to the victims of crime. States are to strengthen border controls to prevent trafficking and smuggling. Border controls and police cooperation, not human rights protection lies at the heart of both the smuggling and trafficking protocols. The emphasis is on intercepting traffickers and smugglers and on punishing and prosecuting them. While states are encouraged to offer protection to trafficked persons, in particular to consider providing victims of trafficking with the possibility of remaining, temporarily or permanently, on their territory, actual obligations are minimal and the protection provisions are weak. Of course there are other legal instruments governing trafficking, and some, such as the Council of Europe Convention on Action Against Trafficking in Human Beings and Council Directive on the Short- Term Residence Permit emphasise the victim-protection schemes. However, even in these more progressive instances the protection of trafficked persons still depends on their co-operation with authorities.

The Palermo Protocol’s concerns with crime and borders arose out of a more particular concern about prostitution of women and minors and there is particular and special reference made in the protocol to sexual exploitation and exploitation of the prostitution of others. Media, policy and research on trafficking have for the most part focused exclusively on sex work and trafficking is commonly associated with “sexual slavery” and organized crime. Journalists, politicians, and scholars are quick to depict migrant women in the sex industry in terms of victims of abuse and violence, and traffickers as Mafia-like individuals and/or organizations that enslave women in prostitution. This installs the image of trafficking along simplistic and stereotyped binary of duped/innocent victim (foreign women) and evil traffickers (usually foreign men).

Governments particularly in Europe, blame traffickers for proliferation of irregular migration and abuse of migrant workers. For example, in his foreward to the Home Office document “Enforcing the rules”, then UK Home Secretary, John Reid, said:

Failure to take on the people traffickers who are behind three quarters of illegal migration to this country leaves vulnerable and often desperate people at the mercy of organised criminals.
Enforcing the Rules: a strategy to ensure and enforce compliance with our immigration laws 2007

The image of the Victim of Trafficking (VoT) is used to invoke large numbers, echoing fears of “floods” and “hordes” of (“illegal”) migrants. Of late, there has been a shift in discourse: now the dominant emotion is pity rather than fear. This is a relatively new development – contrast John Reid’s claims with Home Office statements in 2002 when numbers of victims of trafficking were “small” and the majority of illegal migrants were held to be in the UK “by their consent” (Home Office, 2002). There is little evidence to the figures that are bandied about. The US State Department estimates that 600,000 to 800,000 persons are trafficked across international borders annually. Yet the US Government Accountability Office has severely criticised these and other estimates describing them as “questionable” and relying on weak methodologies (United States’ Government Accountability Office, 2006). It points out that since 1999, fewer than 8000 migrants in 26 countries have received assistance through the International Organization for Migration. In the UK there are some 35 places for women identified as victims of sex trafficking and in 2007 only 17 convictions for trafficking offences , all for sex trafficking. There is a significant gap between estimated numbers and identified victims, and the estimates resonate with fears of being overwhelmed by fears of “illegals”.

The equation of illegality and trafficking is not supported by the Palermo Protocol. Indeed the key distinctions between trafficking and smuggling as set out in the UN protocols are firstly that entry into a state can be legal or illegal in the case of trafficking, but smuggling can only refer to illegal entry, and secondly that trafficking can take place within national boundaries. Trafficking does not have to take place across international borders, one does not need to be “illegal” in order to be trafficked, as one does not need to be a “prostitute”. Hence in practise, there are crucial definitional problems about what actually constitutes trafficking that have not been resolved. This lack of clarity has not stood in the way of success for the Palermo Protocol; perhaps it has indeed facilitated it. Compared with the ratification of the UN Convention on the Protection of the Rights of All Migrant Workers and their Families approved by the UN ten years earlier in 1990, which in July 2008 had only 15 signatories, the Palermo Protocol has as of July 2008 117 signatories.

Trafficking as “anti-politics”

The lack of definitional clarity results in a constant slippage between “illegal immigration”, “forced prostitution” and “trafficking”. Everyone agrees that trafficking and (sexual) exploitation is wrong, even though there is a problem about what these words actually mean. It seems to be that there is a constraint on political ends indicated – no one can doubt that “trafficking” must be stamped out. However, the slippage between “illegal immigration”, “forced prostitution” and “trafficking” de-politicises anti-trafficking interventions and averts attention from the role of the state. This de-politicisation is, we suggest, actually a form of “anti-politics” (Balibar, 2004) as it smuggles in politics under a “humanitarian agenda” seemingly geared towards victims’ assistance and protection. The VoT is not an apolitical figure, as we have seen, but one that has been taken up by the state. The question then becomes what are the politics that are being smuggled in? We’ll consider a) the politics of sex; b) the politics of labour; c) the politics of citizenship. The fact that these can be imagined as separate terrains of political engagement is perhaps the point most worthy of note.

Politics of sex

Negotiations over the Palermo Protocol brought together states and feminists who were particularly concerned with prostitution and until recently the policy discussions and research on trafficking have been very much focused on sex work. The debates around the Protocol itself were affected by the polarised debate between those who might be termed “feminist abolitionists” and those arguing from a “sex workers’ rights” perspective. Abolitionists argue that prostitution reduces women to bought objects, and is always and necessarily degrading and damaging to women. Thus, they recognise no distinction between “forced” and “free choice” prostitution, and hold that in tolerating, regulating or legalizing prostitution, states permit the repeated violation of human rights to dignity and sexual autonomy. Prostitution is a “gender crime”, part of patriarchal domination over female sexuality and its existence affects all women negatively by consolidating men’s rights of access to women’s bodies. All prostitution is a form of sexual slavery, and trafficking is intrinsically connected to prostitution. From this vantage point, measures to eradicate the market for commercial sex are simultaneously anti-trafficking measures, and vice versa.

Feminists who adopt what might be termed a “sex workers’ rights” perspective reject the idea that all prostitution is forced and is intrinsically degrading. Since sex workers’ rights feminists view sex work as a service sector job, they see state actions which criminalize or otherwise penalise those adults who make an individual choice to enter prostitution as a denial of human rights to self determination. They also strongly challenge feminist abolitionists’ simple equation of the demand for trafficking and the demand for prostitution. From this standpoint, it is the lack of protection for workers in the sex industry, rather than the existence of a market for commercial sex in itself, that leaves room for extremes of exploitation, including trafficking. The solution to the problem thus lies in bringing the sex sector above ground, and regulating it in the same way that other employment sectors are regulated.

Most of the EU states adopt a prohibitionist approach that prohibits prostitution and penalises sex workers. However, the UK Government has been considering following Sweden in adopting a so-called “neo-abolitionist” model. This criminalises the buyers of sexual services and outlaws the purchase and the attempted purchase of sexual services. Within this logic prostitution and sex trafficking are seen as a matter of supply and demand meaning that supply is created by men’s demand for women’s sexual services.

The proposal to criminalise prostitution in order to combat sex trafficking and exploitation of migrant workers in the sex sector is often based on simplistic view of who are the various actors in the sex industry and how the sector operates. To focus anti-trafficking efforts and policies on the buyers as those causing the demand and/or on “traffickers” as exploiting migrants’ labour, diverts attention from the fact that the emergence of trafficking is contingent on a set of economic, social and political factors and it is mediated by residency and employment regulations in the destination states. This approach also reduces women’s migration and participation in the sex industry to the idea of (sex) slavery, and simplifies social relations by viewing them exclusively in terms of patriarchal oppression, leaving no space for sex workers’ agency. Moreover it adds force to the idea that trafficking equals coerced and illegal migration and fosters an imaginary clear-cut separation between “legal” and “illegal” form of migration. Those advocating criminalization of clients fail to consider that it is precisely the tightening of the immigration control and the restrictive labour laws that create the conditions for proliferation of illegality and labour exploitation.

Politics of labour

State concern with trafficking seems to offer some space for those who are concerned with migrants’ human and/or labour rights and there is increasingly greater pressure to widen the debate from its focus on sex trafficking to a broader concern with forced labour. Academics, migrants’ organisations and some trades unions as well as the International Labour Organisation (ILO) have sought to exploit the apparent common ground delineated by state concern to stamp out trafficking and forced labour.

A key problem here arises from what is actually meant by “force” and “exploitation”? How to distinguish trafficking from legally tolerated employment contracts (also from legally tolerated forms of exploitation of women and children within families)? Questions about what constitutes an exploitative employment practice are much disputed – indeed they have historically been, and remain, a central focus of the organised labour movement’s struggle to protect workers. In the absence of a global political consensus on minimum employment rights, and of cross-national and cross-sector norms regarding employment relations, it is extremely difficult to come up with a yardstick against which “exploitation” can be measured. For low waged migrant labour surely one of the reasons it is permitted and why it is sought by employers, is precisely because it can be exploited. How to draw a line in the sand between “trafficked” and “not trafficked but just-the-regular-kind-of-exploitation” migrants? Indeed, given that movement across international borders is not a requirement for trafficking to take place, how to make this distinction between trafficked migrants and exploited workers in general, and why make it? Abuses can vary in severity, which means they generate a continuum of experience, rather than a simple either/or dichotomy. Ideas about the precise point on this continuum at which tolerable forms of labour migration end and trafficking begins will vary according to our political and moral values. Moreover, workers, migrant or not, cannot be divided into two entirely separate and distinct groups – those who are trafficked involuntarily into the misery of slavery-like conditions in an illegal or unregulated economic sector, and those who voluntarily and legally work in the happy and protected world of the formal economy. Violence, confinement, coercion, deception and exploitation can and do occur within both legally regulated and irregular systems of work, and within legal and illegal systems of migration.

But in this case, why does movement matter at all? For feminists, labour, and migrant rights’ activists, why is being forced into prostitution or to labour at the barrel of a gun when you are in your home town less heinous than being forced into prostitution or work elsewhere? It is the outcome, exploitation and abuse, that is the problem, not where it takes place. It is here that the elision between illegal immigration and trafficking comes into play. For it allows the sidestepping of the question that is key for activists and that states want to avoid: what is the role of immigration controls in heightening vulnerability to exploitation and abuse? If certain immigration statuses create marginalized groups without access to the formal labour market, or any of the protections usually offered by states to citizens and workers, then how can the state prevent itself equipping employers with labour control and retention mechanisms that would not otherwise be available to them and which have the potential to be abused. But attention is diverted from this question and on to “evil employers”. The figure of the evil employer and trafficker throws a shadow over the role of the state in constructing vulnerability. For the Victim of Trafficking or the victim of exploitation it is the employer, pimp or trafficker who denies access to hospital treatment for example. The problem is of course, that if they were not denying her this access then the state would. Indeed one of the keys to vulnerability is state legitimated limited access to rights (health care, employment, discrimination…etc). So a highly political reality about the states’ role in constructing vulnerability for non-citizens, a reality with potential political solutions is obscured by call to the state to protect “human rights” of victims of trafficking and exploited people. It is notable there is no such call by the state to protect “human rights” of “illegal immigrants”.

Politics of citizenship

Trafficking needs to be seen as part of a more general attempt to depoliticise migration: it is about managing what makes economic sense, about appointing experts to determine the niceties of labour supply and demand.  Hampshire describes the new institutional architecture of UK migration as being “an exercise in anticipated blame-shifting” through managerialization, privatization and expertization (Hampshire, 2008). Migration policy thus becomes a matter of operationalising technical judgements rather than a political process, and “reassurance” becomes assuring the public that the right technical decisions will be made.  In fact migration is one of the most fundamental political questions of all: who constitutes the polity?

This is not simply a question of who constitutes the formal polity, but how is polity created and engaged with  (Balibar, 2004). Citizenship is not simply a legal status bestowed by the state, but it is a dynamic process actively constructed through action.  As such, citizenship is enacted by a variety of actors whose acts are enabled or restricted by the social structures and the material conditions of their lives. As Balibar puts it:

We can view these demands (by migrant workers who demand legal residence for the undocumented) based on resistance and the refusal of violence as partial but direct expressions of the process of creation of rights, a dynamic that allows the political constitution to be recognized as ‘popular sovereignty’ or democracy

Citizenship is hence not simply an abstract manifestation of state power but it is embodied and enacted by individuals who enjoy, negotiate, or fail to negotiate the privileges and/or barriers of membership. It is a site of struggle constituted through a continuous interaction between practices of citizenship and its institutional codification. As such, it is diametrically opposed to the language of trafficking.

While illegal immigration and trafficking are frequently conflated by the media and by the Home Secretary, those who qualify as VoT and are entitled to state’s assistance and protection are only the most victimised, those who are unable to act for themselves. To pass the “test” of trafficking one must be a ‘true’ victim: injured, suffering, and enslaved. Because victims are defined as those who are in need of help (by the state, NGOs, police or clients) they are not seen as political subjects but rather as objects of intervention. Victims cannot engage in the realm of the political but others need to act on their behalf–and indeed there has been a veritable plethora of anti-trafficking organisations and initiatives. The language of trafficking obliterates this struggle and stabilizes the political and social transformations brought about by migration, confining migrants to victimhood. It means that one cannot engage with the notion of citizenship as process, but only with citizenship as formal legal status administered by an omniscient state.

Yet, even citizenship as a formal legal status is a long way off for Victims of Trafficking. It is extremely difficult in the first place to be granted a VoT status. In contrast to large numbers invoked, those the state recognised as VoT are minimal. Moreover, the status of a VoT carries only temporary rights. The possibility of a thirty day reflection period – an opportunity for VoT to consider whether they might take legal action against traffickers and thereby stave off removal or deportation – only became implemented after considerable NGO lobbying. The VoT status does not grant an automatic right to stay in the UK; it simply indicates temporary right to assistance and stay in the UK territory which is removed after the victim’s collaboration with the authorities in order to prosecute the traffickers ends.  What follow is in the language of the Home Office, re-integration and resettlement of victims, alias deportation. The legal category of VoT, is not aimed at protection of victims but rather at prosecution of traffickers. As it allocates temporary and conditional rights, VoT normalises the exclusion produced through restrictive immigration and labour policies and upholds hierarchically organised access to rights and citizenship.

So, on the one hand, the importance of formal citizenship/legal status and the role of the state in constructing vulnerability through denial of legal status is obscured by reference to abuses conducted by individual actors such as brutal traffickers and exploitative employers. Anti-trafficking measures and rhetoric turns political conflict into patching over contradictions and negotiated adjustments of interests where negotiation and patching is usually not being done by migrants.

Conclusion

Many feel a deep concern at the injustices endured by millions of people, particularly when these take place close to home and are a clear manifestation of global inequalities. The enthusiasm with which “anti-trafficking” campaigns and policies are embraced may for many be a manifestation of this concern. Yet, if concerns with regard to trafficking have to do with exploitation and abuse and how to end it, then solutions must move beyond identifying victims and imprisoning traffickers. In embracing anti-trafficking policies and campaigns, there is a danger of being taken in by a sleight of hand that conflates illegality and trafficking and thereby presents ever harsher immigration controls as in migrants’ interests, and as preventing exploitation. Immigration controls produce groups of people that are ‘deportable’ and hence particularly vulnerable to abuse. Through its labour regulations, the state contributes to delineating occupations and sectors that are deregulated and outside of labour protections and is complicit in permitting third parties to profit from migrants’ labour, whether it is in the commercial sex or other sectors. A politically and theoretically informed project should, in our view, put the state back into the analysis and address the role state’s immigration and labour regulations play in creating the conditions for proliferation of trafficking and exploitation of migrant labour.

BALIBAR, E. (2004) We, the People of Europe? Reflections on transnational citizenship, Princeton, Princeton University Press.
HAMPSHIRE, J. (2008) Regulating Migration Risks: the emergence of risk-based border controls in the UK. London Migration Research Group. School of Oriental and African Studies.
HOME OFFICE (2002) Secure Borders, Safe Haven. Integration with Diversity in Modern Britain. London, HMSO.
UNITED STATES’ GOVERNMENT ACCOUNTABILITY OFFICE (2006) Human Trafficking: Better data, strategy and reporting needed to enhance U.S. anti-trafficking efforts abroad. Washington D.C., US GAO.