Protocol at the Crossroads: Rethinking anti-trafficking law from an Indian labour law perspective

Prabha Kotiswaran

doi:10.14197/atr.20121543

Abstract

As we approach the fifteenth anniversary of the United Nations Trafficking Protocol, we can discern several phases of its diffusion, materialisation and interpretation in domestic criminal law regimes across the world. Although not exclusively preoccupied with sex work and sex trafficking anymore, the fact remains that the inordinate attention on trafficking in Western industrialised economies is disproportionate to the extent of the problem. Only 7% of the world’s 20.9 million forced labourers are in developed economies while 56% are in Asia Pacific. Yet in BRIC countries like India, with a substantial majority of the world’s trafficked victims and where 90% of all trafficking is domestic, trafficking has gained policy resonance only relatively recently. Even as India remains an active site for sexual humanitarianism with international and local abolitionist groups actively targeting sex workers, the article argues that less developed countries like India can play a crucial role in reorienting international anti-trafficking law and policy. Towards that goal, this article offers India’s bonded, contract and migrant labour laws as a robust labour law model against trafficking in contrast to the criminal justice model propagated by the Trafficking Protocol worldwide.

Highlights

On the fifteenth anniversary of the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (Trafficking Protocol), this article reassesses the architecture of anti-trafficking law through the lens of transnational legal studies, an emerging field of scholarship mapping the rise of technologies of global governance in response to two decades of globalisation and its
As we mark the fifteenth anniversary of the Trafficking Protocol, the challenges of using a prohibitionist international law to target a highly complex and fluid phenomenon like trafficking, which is itself embedded in global flows of people and products, are becoming apparent
I have argued in this article that the structure of transnational criminal law requires us to zero in on domestic legal regimes against trafficking, where conceptual and institutional innovations are most likely to materialise

Summary

Introduction

353–405; ILO, ‘Operational Indicators of Trafficking in Human Beings: Results from a Delphi Survey Implemented by the ILO and the European Commission’, ILO, 2009, retrieved 6 February 2015, http://www.ilo.org/wcmsp5/groups/public/@ed_norm/@declaration/documents/publication/wcms_105023.pdf coercion and strong exploitation forming a narrow sliver at the top of the pyramid, while the base is occupied by instances characterised by weak coercion in relation to the means and weak exploitation in relation to the purpose.[31] In the context of transnational labour markets, intermediate categories of trafficking might include scenarios characterised by strong coercion (e.g. deception into a certain line of work) and weak exploitation (e.g. pay below minimum wage) and weak coercion (e.g. abuse of position of vulnerability) and strong exploitation (e.g. debt bondage).

Results

Conclusion