Leiden Law Blog

What’s in a name? Are labour exploitation and human trafficking one and the same?

What’s in a name? Are labour exploitation and human trafficking one and the same?

Millions of people become victims of human trafficking each year. Various NGOs and governmental agencies estimate that human trafficking is among the world’s largest criminal enterprises, and victims often suffer from severe physical and mental health problems. Combatting human trafficking features high on national and international policy agendas. But what is it exactly?

Last month I started a 4-year research project on human trafficking in the context of labour exploitation for which I was awarded a (Dutch research council) Veni grant. Ever since I started, I find myself explaining what labour exploitation is, or at least what I conceive it to be. It seems as if most people think of labour exploitation as a violation of labour law standards, but not as something that is criminalised as human trafficking. In part, this may be because its criminalisation is still relatively recent.  In many countries, labour exploitation was only recently criminalised as human trafficking (in the Netherlands in 2005). Because of its relatively recent criminalisation, the scarce empirical research that is available on human trafficking has traditionally focused on sexual exploitation, leaving the significantly more widespread phenomenon of labour exploitation largely unexplored.

Another reason why people do not associate labour exploitation with human trafficking is because they think of human trafficking as something that involves border crossings. Indeed, human trafficking is often confused with human smuggling. Moreover, ‘trafficking’ seems to imply movement and trade, but legally, human trafficking is about exploitation. According to Dutch criminal law, human trafficking does not require border crossings, but the presence of three elements: an act (e.g., transporting, accommodating or sheltering a person), means (e.g., coercion or deception), and the purpose of exploitation (e.g., financial gain). At present we do not know how many cases of human trafficking actually involve border crossings. Moreover, not much is known about the actual exploitation taking place between employers and victims. This is problematic as recent research indicates that violations and abuse during transportation are less common than harm inflicted by employers at the workplace.

Does the law offer clarity?

For the sake of reaching consensus, key aspects of the legal definition set out in the Palermo Protocol have been kept intentionally vague. The result of this space offered by the definition of trafficking has led many stakeholders to give their own interpretation of the concept . According to Chuang (2014) , a definitional muddle and discursive battle over what constitutes human trafficking is the result.

Moreover, empirical research in the US has shown that professionals on the ground, involved in law enforcement or victim assistance, struggle with the question of what constitutes human trafficking too. Faced with limited resources, the priorities and day-to-day decisions these street level bureaucrats make are not always in line with the frames and priorities of those of law and policymakers. The tensions that arise between discursive struggles over law and policies in the books – and discursive battles taking place in practice do not always play out in the interest of victims, nor do they contribute to combatting human trafficking in an effective way. 

Whereas there are forms of labour exploitation that are criminalised as human trafficking, other forms of labour exploitation of course also exist that are not criminalised as such. These forms can be problematic from a labour law perspective. Perhaps labour exploitation can be conceptualised on a continuum with mild violations of labour law standards on the one hand and severe forms of exploitation on the other. At this moment, it is not clear where on this continuum labour exploitation turns from being considered a problem of labour law to becoming an issue under criminal law.

Labour exploitation criminalised as human trafficking is considered a violation of human rights and a serious offence leading to penalties of up to 12 years’ imprisonment. The numerous victims of this crime suffer from both physical and mental health problems, including post-traumatic stress symptoms. Furthermore, labour exploitation interferes with the principles of fair competition. The current lack of conceptual clarity and empirical research is problematic because it is hampering meaningful policy discourse and the development of effective countermeasures. I certainly hope and believe that my research project has an important contribution to make in the future. 

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