Abstract
Almost twenty years since the adoption of the Palermo Protocol on Trafficking, anti-trafficking law and discourse continue to be in a state of tremendous flux and dynamic evolution. While the efficacy of using criminal law to tackle an irreducibly socioeconomic problem of labour exploitation was always suspect, scholars and activists alike sought to remedy the excesses of a criminal justice approach by articulating a human rights approach to trafficking. Arguing that this did not go far enough, labour law scholars called for a labour approach to trafficking in order to forefront the role that a redistributive mechanism like labour law could perform in supporting the agency of workers to counter vulnerability to trafficking. Since then, trafficking has evolved into a development issue with the articulation of Sustainable Development Goal 8.7 around which international organisations have mobilised considerable resources. Influential actors believe that bringing development to countries of the Global South will help them eliminate 'modern slavery'. My paper instead builds on the critique of the developmental project to elaborate on the key elements of a development approach to trafficking, one which is rooted in the realities of the developing world and which recognizes the fundamentally different configurations of the state, market, civil society and legal system in the Global South. Using the example of India, I argue that conventional regulatory responses to 'trafficking' and 'modern slavery' must be fundamentally rethought and that an uncritical reliance on a criminal law approach to trafficking must be replaced by efforts to implement domestic labour and social welfare laws which are themselves the result of long-term struggles for decent work and against extreme exploitation.
Highlights
Trafficking is considered to be one of the most pressing problems facing the world today
We must account for the expanding welfare functions of the postcolonial developmental state, reimagine labour laws from the vantage point of the informal economy and protect and enforce indigenous responses to extreme exploitation rather than exacerbate the negative externalities of a carceral approach in developing world contexts where the criminal justice system is built on a colonial edifice
In the 1984 case of Bandhua Mukti Morcha, the Supreme Court held that given the likelihood for a forced laborer to have received an advance on his earnings, ‘whenever it is shown that a labourer is made to provide forced labour, the Court would raise a presumption that he is required to do so in consideration of an advance . . . and he is a bonded labourer.’[140]. In response to these Supreme Court decisions, the Indian Parliament passed an amendment to the BLSAA in 1985 declaring that where any contract laborer or ISMW worked in a system of forced labor under the conditions listed in Section 2(g)(v), it would amount to bonded labor
Summary
Trafficking is considered to be one of the most pressing problems facing the world today. Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime (adopted November 2000, entered into in force 25 December 2003) 2237 UNTS 319. Since the late 1990s, an extensive transnational legal order or TLO24 has developed around the Trafficking Protocol[25] supplementing the UN Convention against Transnational Organised Crime 2000 (UN Convention).[26] Participating states promised to criminally sanction anyone recruiting, harboring or transporting a person through means of coercion, force and deception for purposes of exploitation (trafficking).[27] Negotiated within two years ‘at lightning speed on the UN clock’,28 the Trafficking Protocol was adopted in 2000, came into force in 2003 and has been exceptionally well ratified by 174 countries to date. Political and ideological disagreements over the scope of anti-trafficking law have been displaced to questions of measurement on the extent of the problem
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