Introduction

Hila Shamir’s recent article, A Labor Paradigm for Human Trafficking, cri­tiques the current response to human trafficking, arguing that it has failed to make meaningful progress in reducing the prevalence of human trafficking.¹  Her article asserts that to achieve greater success in preventing human trafficking, a labor approach is necessary to address “structural labor market conditions and practices that shape workers’ vulnerability and inferior bargaining power in the workplace.”²  Professor Shamir and I agree that the current framework is not op­timal and that too little has been done to address the root causes of human traf­ficking, including both supply and demand factors.³  We also agree that a labor perspective, which incorporates labor rights, has value in the human trafficking context.  Yet her article suffers from a dichotomous view that may actually be counterproductive: She positions labor approaches in opposition to human rights approaches.⁴  However, in both theory and practice, they overlap and actually can be mutually reinforcing.⁵

Her article places the blame for the failures of current antitrafficking efforts foremost on human rights, arguing that “the prevailing human rights approach to anti-trafficking is not merely acutely limited in its reach but in fact may also be harmful in that it has created the illusion that the international community is taking action . . . when in reality, little is being done to address the underlying causes.”⁶  This leads her to conclude that a labor paradigm should replace, not supplement, a human rights framework.⁷  However, her article mischaracterizes the prevailing response to human trafficking and misstates what a human rights–based approach would offer.  This Essay addresses these aspects of her article and highlights the value of incorporating aspects of both a labor paradigm and a hu­man rights–based approach.  Ultimately, addressing human trafficking suc­cessful­ly will require policymakers and advocates not to swap one framework for another but rather to draw on a range of approaches and methodologies to tackle different components of the problem.

This response proceeds in three parts.  Part I briefly discusses Shamir’s labor-based proposal for addressing the shortcomings in current antitrafficking re­spons­es.  This approach has the potential to strengthen efforts to address human trafficking, and Shamir makes a valuable contribution by bringing labor per­spectives into the dialogue.  Part II addresses the basis for the claim that a par­adigm shift is necessary because a human rights–based approach has failed.  As I discuss, Shamir is correct that a paradigm shift is needed but incorrect that the hu­man rights framework is to blame.  As Part II explains, the current approach to human trafficking is not a human rights framework, but rather it is a criminal law framework.  Part II explicates the current framework and discusses briefly what a human rights framework offers.  Finally, in Part III, I bring together Shamir’s proposal with other perspectives and suggest a multifaceted response to the prob­lem of human trafficking, in which a labor paradigm, a human rights framework, and other approaches all play an important role.

I. The Value of a Labor Paradigm

Shamir writes, “A labor framework is premised on the understanding that the trafficked individual is a worker who is exploited in a market context.”⁸  In this regard, Shamir’s use of a labor lens in the human trafficking context helps reinforce four important lessons regarding human trafficking.  First, human trafficking is a form of exploitation, a phenomenon that is sadly not at all new.  Second, and related, a labor approach helps show that this exploitation occurs on a continuum.  This is an essential point, as many individuals who end up trafficked start out by migrating in search of work.⁹  Understanding trafficking on a spectrum of labor—ranging from safe, secure employment settings, where rights and safety are ensured, to sites where trafficking and other severe forms of ex­ploitation occur and rights are nullified—helps counter the notion that either an individual is a victim or he or she made a choice and therefore can never be a victim.  The reality is far more complex.  A labor spectrum helps to illuminate this point and to reveal that all exploitation—whether it is trafficking, forced labor, or another form—is harmful and should be addressed.

Third, human trafficking occurs in a market context, in which profits are the primary motivator.  Traffickers are pursuing financial gain.¹⁰  Equally im­por­tant, private sector actors, many of which are well positioned to respond to human trafficking, are concerned about bottom line issues.¹¹  Understanding hu­man trafficking in a market context can contribute to a better grasp of sup­ply and demand issues and to a better understanding of how new laws and policies affect the market and can create unintended consequences for vulnerable in­dividuals.

Finally, a labor paradigm helps bring labor trafficking out of the shadows of sex trafficking, as the latter has garnered most of the attention to date.¹²  For these reasons, Shamir’s suggestion of a labor paradigm offers value in understanding the issues.¹³

To advance a labor paradigm, her article proposes five specific measures:

[E]nsure that vulnerable workers have access to the justice system without fear of deportation or criminalization; ensure that the ap­plicable visa re­gime does not formally or effectively bind workers to one specific employer; regulate against work contracts structured around insur­mountable debt; extend the application of protective employment law to sectors susceptible to trafficking; and guarantee the right to un­ionize for vulnerable workers.¹⁴

Each of these measures has potential benefits.  For example, trafficking of do­mestic workers has received too little attention to date, and in many locales, domestic work remains a largely unregulated industry with limited enforce­ment mechanisms.¹⁵  Extending labor law protections in such areas could provide important safeguards against abuse of workers and ensure both better pay and improved working conditions.

Her article suggests that “[a]n effective labor-based framework for anti-trafficking would thus require providing more backing and funding to labor in­spectors in their work and, more generally, require establishing effective mon­itoring frameworks to ensure the enforcement of the workers’ labor and em­ployment rights.”¹⁶  Setting aside the fact that such an approach has the same ex post problem she highlights with the current approach (that is, most labor inspectors will uncover issues after the harm has occurred), the challenge with each of these proposals, much like with a human rights agenda, is to convince governments to change the law and ensure that it is effectively implemented and enforced.  A labor approach, including several of her article’s specific proposals, implicates immigration law and border control issues.¹⁷  Such issues merit at­tention; however, they are also areas in which both labor activists and human rights advocates have struggled to persuade governments to make meaningful change.  Shamir’s proposals are potentially beneficial, but they may encounter some of the same resistance that human rights agendas confront.

II. The Current Antitrafficking Framework and Human Rights

As noted in the Introduction, Shamir is right to critique the current framework.  Numerous other scholars, including myself, have analyzed its short­com­ings.¹⁸  What is surprising is her characterization of the prevailing response to human trafficking.  Although her article makes passing reference to the idea that the “current dominant approach to anti-trafficking can be char­acterized as a combination of the transnational crime framework . . . and the human rights approach to trafficking[,]”¹⁹ it asserts that a human rights approach is the core of today’s response to human trafficking: “[C]urrent anti-trafficking policies are unsuccessful because, among other reasons, they are dominated by a human rights approach to trafficking . . . .”²⁰  In this Part, I discuss how that assessment of the prevailing antitrafficking framework is incorrect.  First, it mis­reads the Trafficking Protocol and Trafficking Victims Protection Act (TVPA) as es­tablishing a human rights framework, when in fact both the treaty and the TVPA create a criminal law–centered approach.²¹  Second, in attributing current failings to the human rights framework, it provides a distorted view of human rights law and the human rights framework, and it positions labor and human rights in opposition to each other, which I believe is counterproductive.

A. Criminal Law Trumps

Although many scholars have critiqued the current antitrafficking framework as being too criminal law–centric,²² Shamir argues that the “Trafficking Protocol has served as the blueprint for a human rights approach to anti-trafficking.”²³  She writes: “Indeed, articles 6, 7, and 9 of the protocol, al­though not formulated in binding language, set up a victim-centered, human rights–based framework that offers protection and assistance to victims after they have been rescued from exploitation.”²⁴

Her article acknowledges, but glosses over, the fact that these pro­vi­sions primarily use discretionary language, such as requiring states parties to “con­sid­er implementing measures to provide for the physical, psychological and so­cial re­covery of victims.”²⁵  In contrast, the criminal law provisions of the Trafficking Protocol employ mandatory language.²⁶  For example, Article 5 of the Trafficking Protocol provides that “[e]ach State Party shall adopt such leg­islative and other measures as may be necessary to establish as criminal offences [the conduct that constitutes ‘trafficking in persons’], when committed intentionally.”²⁷  The com­bi­nation of mandatory criminal law provisions and op­tional victim assistance provisions does not establish a victim-centered approach but instead constitutes a criminal law framework that addresses aspects of victims’ or survivors’ needs.

Yet her article goes further by stating that this nonbinding language on services for victims actually creates a human rights framework.²⁸  One of the cor­nerstones of human rights is that individuals have rights simply because they are human; the existence of these rights is not dependent on a government granting them recognition.²⁹  Her article overlooks this core principle of human rights when she claims that a provision that requires governments only to “consider” providing assistance to victims establishes a rights-based framework.  It does not.  She also writes that the Trafficking Protocol “promoted a human rights framework to anti-trafficking, particularly in its implementation dynamics.”³⁰  Yet her article never explains the basis for concluding this, and there does not appear to be evidence in U.S. law or the law of other countries that the process of implementing the Trafficking Protocol spurred governments to adopt a human rights approach.³¹  In fact, the TVPA does not ensure victims’ rights to assistance but rather conditions assistance to certain victims on their willingness to co­operate with law enforcement in the prosecution of their traffickers.³²  That is hardly a rights-based approach.

Her argument appears to equate the provision of assistance to select victims as establishing a right to assistance.³³  Though I would be happy if that were true, it is simply not the case.  One needs only to look at U.S. jurisprudence on health rights.  Through programs such as Medicare and Medicaid, the United States has long provided health-related services to individuals in need, but the existence of these programs has not equated to recognition of a “right to health” under federal law.³⁴  In short, when a government elects to provide social services, such action does not necessarily rise to the level of establishing a fundamental right to those services.

Contrary to the claim that the current approach to human trafficking is hu­man rights based, there is ample evidence that the prevailing response to human trafficking is criminal law centered.  As noted above, the Trafficking Protocol, which is a protocol to the U.N. Convention Against Transnational Organized Crime and not to a human rights treaty, primarily uses mandatory language for the criminal law provisions and discretionary language for victim assistance.  U.S. law, including the TVPA (which was adopted just weeks before the Trafficking Protocol), is similarly law enforcement focused.³⁵  Most federal and state leg­islation has focused on criminal law components of a response, with limited support for victim or survivor assistance and almost no measures addressing prevention.³⁶  Indeed, there is widespread agreement that the current approach to human trafficking is largely rooted in a criminal law framework.³⁷  Recent initiatives aimed at advancing a victim-centered approach to human trafficking are a direct response to the criminal law emphasis of antitrafficking law and policy.³⁸  Even those measures aimed at forging a victim-centered approach are frequently rooted in the prevailing rescue narrative and not situated in a human rights framework.³⁹  In other words, mere mention of, or even attention to, the rights of trafficking victims does not mean one is taking a human rights approach or adopting a human rights framework.  A human rights approach is a much broader concept requiring consideration of human rights at all stages of the design, development, implementation, and monitoring of law, policy, and programs.⁴⁰  The assertion that the Trafficking Protocol and other antitrafficking law promulgated a human rights framework does not reflect the criminal law emphasis of the Trafficking Protocol, the TVPA, or the dominant approach to human trafficking today.

B. Understanding the Human Rights Approach

A related shortcoming is the article’s characterization of the human rights framework.  While a human rights approach is not without flaws or weaknesses, what has transpired over the past decade in response to human trafficking has not been, for the most part, a human rights–based approach.

As a threshold issue, it is important to point out that choosing a labor approach over a human rights approach, or vice versa, runs the risk of suggesting a false dichotomy.⁴¹  As Shamir notes, “The labor movement and human rights movement share significant goals and strategies.”⁴²  Even more so, human rights include core labor rights: The Universal Declaration of Human Rights enshrines the right to freedom of association, as well as the rights to work, to decent wages, to safe working conditions, and to equal pay for equal work, among other rights.⁴³  Her view, however, is that the two “target different spheres of power” with labor targeting the market and human rights targeting the state.⁴⁴  That still does not mean they are mutually exclusive.  A labor approach that targets unfair pay for cer­tain individuals is rooted in human rights—including rights to equal pay for equal work and the right to be free from discrimination—even though it might be ad­dressing a market actor and not a state entity.  It would be difficult, there­fore, to address human trafficking through either approach without incor­porating aspects of the other.

Her article argues further that a human rights approach is inappropriate be­cause, among other things, it addresses only extreme cases of exploitation, “its focus [is] on victim rescue,” and it deals only with “postexploitation sit­u­ation[s].”⁴⁵  Shamir is correct that the current approach helps too few individuals, is rescue focused, and centers primarily on addressing the harm after it occurs.⁴⁶  She provides no evidence, however, as to why that is a product of a human rights approach.  I offer a human rights perspective on each of these three assertions.

First, her article suggests that human rights frameworks deal only with the most extreme violations of rights.⁴⁷  Human rights frameworks are set up to protect individuals from rights violations, to assess whether an individual’s rights have been violated, and to provide a remedy for those whose rights are violated.  Nothing in human rights law suggests that only severe violations are actionable.⁴⁸  For example, under the International Covenant on Civil and Political Rights, “torture[,] . . . cruel, inhuman [and] degrading treatment or punishment” are all prohibited.⁴⁹  Each is a violation of rights.  Nothing in that treaty or any other human rights treaty states that a government needs to refrain from committing, or must prohibit, only certain (read: the worst) offenses.⁵⁰  Should a govern­ment deal only with extreme forms of torture, it is departing from a human rights approach.⁵¹

Second, her article argues that a human rights approach focuses only on the rescue of passive victims.  This is a key point for Shamir: “One of the two prin­cipal lines of divergence between the labor anti-trafficking framework and the human rights framework relates to how they construe the trafficked person—as a passive victim (the human rights approach) or as an agent who can change her situation (the labor approach).”⁵²  Human rights scholars would disagree with the assertion that a human rights approach sees individuals as passive victims; in fact, the idea that victims are passive individuals without agency has been a target of human rights critiques of the current approach to human trafficking.⁵³  Hu­man rights are really about empowering individuals.⁵⁴  The Convention on the Elimination of All Forms of Discrimination Against Women requires states par­ties to take steps to ensure the “advancement of women, for the purpose of guar­anteeing them the exercise and enjoyment of human rights and fundamental free­doms on a basis of equality with men.”⁵⁵  An arguably more striking example is the U.N. Convention on the Rights of the Child, which recognizes children’s right to par­ticipate in decisions that affect their lives.⁵⁶  These examples, and others, contemplate individuals as agents, not as passive victims.⁵⁷  In other words, the dominant rescue narrative that fails to recognize the trafficking survivor’s agen­cy, which some may argue is human rights based, is antithetical to the core principles of human rights.

Third, her article argues that a human rights approach deals only with ex­ploitation after the harm occurs.⁵⁸  This is a significant problem with current responses to human trafficking—one that I have examined in my own research on human trafficking.⁵⁹  However, this issue is not inherent to human rights.  Human rights law imposes requirements on states not only to respect the rights of individuals (that is, to refrain from interfering with individuals’ rights), but also to protect and fulfill individual rights (that is, to take affirmative steps to prevent human rights violations and enable each individual to realize his or her rights fully).⁶⁰  The realization of rights can help individuals reduce their vulnerability to exploitation.⁶¹  The right to birth registration, health rights, and education rights all strengthen an individual’s resistance to vulnerability.  In addition, the principle of nondiscrimination—which is a cornerstone of human rights law that applies to civil and political rights as well as economic, social, and cultural rights—helps prevent marginalization and exploitation of vulnerable populations.  The re­alization of human rights can help position individuals to avoid exploitative settings and strengthen their capacity to articulate demands for improved con­ditions of employment.⁶²

Overall, Shamir’s critique identifies important issues with the prevailing response to human trafficking.  However, the fact that she ascribes all these issues to a human rights–based approach undermines her critique and conveys an inaccurate view of human rights.  It also forges a false dichotomy between labor and human rights, when in fact the two paradigms are mutually reinforcing.  Take for example a young woman who has been denied her right to education.  Setting aside that this makes it more likely that she will end up in potentially exploitative work situations,⁶³ if she obtains a job that purports to come with certain bargaining rights, she is less likely to assert those rights if she has never had experience exercising and realizing her rights.  Securing her rights throughout her life better positions her to realize her labor rights and to protect against exploitation.  Conversely, if she realizes her education rights and other rights, but her employment options are all in places that deny her labor rights, the realization of her education rights may not be enough to protect her from exploitation.  La­bor rights are essential, but equally important are all other human rights.

III. Toward a Multi-Perspective Approach to Human Trafficking

For those troubled by the harms of human trafficking, the desire to find a solution to the problem of human trafficking is understandable.  Advocates and scholars are anxious to find the approach that works to address the problem.  The reality is that a single strategy is unlikely to resolve complex issues of exploita­tion, such as human trafficking.  Shamir makes a valuable contribution by bring­ing labor paradigms into the fold, but human rights—which include core labor rights—should not be pushed aside.  Ultimately, a successful response to human trafficking will incorporate a range of strategies and methodologies.

A labor approach, as Shamir suggests, could “shift the focus away from individual harms to the power disparities between victims and traffickers and the economic and social conditions that make individuals vulnerable to trafficking.”⁶⁴  Human rights strategies could also help address root causes by strengthening individuals’ economic and social rights and addressing various forms of dis­crimination that leave individuals vulnerable to various forms of exploitation, including human trafficking.  Sustainable socioeconomic development programs aimed at poverty reduction could work well in conjunction with both labor and human rights approaches.⁶⁵  In addition, public health methodologies bring im­portant elements to the table, including an emphasis on developing evidence-based research to guide law and policy responses, a focus on prevention as the primary goal, and significant attention to underlying attitudes and behaviors that heighten the risk of harm and foster a climate in which exploitation can persist.⁶⁶  Even current criminal law strategies have a role to play; human trafficking is a severe form of exploitation, and governments should hold perpetrators ac­countable.⁶⁷

From the past decade of experience, we have learned that a criminal law–centered approach will not address the root causes of human trafficking.  In fact, it is not designed to do so.  Thus, although law enforcement remains a key el­ement of any response to human trafficking, a criminal law–centered approach is not well suited to achieving a significant reduction in the prevalence of human trafficking.  A different approach needs to be the primary driver.  Rather than substitute one approach for another, a more effective tactic will be to develop a comprehensive strategy that combines the strengths of human rights, labor, pub­lic health, international development, and other valuable perspectives.

Conclusion

Human trafficking has been recognized as one of the priority issues of our time.⁶⁸  Shamir’s article is correct in arguing that current approaches are not pro­ducing the desired results.  The five specific legal measures she proposes have val­ue not only for those at risk of trafficking but also for other vulnerable workers.  However, she mischaracterizes the current approach as a human rights approach and thus risks pushing aside important human rights law, principles, and strat­egies that can contribute to antitrafficking efforts.  A human rights approach has much to offer; it not only helps to address vulnerability and other root causes, but it can strengthen labor-based initiatives by anchoring them in fundamental rights.  More broadly, a multisector approach that employs methodologies from human rights, labor, public health, international development, and other paradigms of­fers the best hope of developing a comprehensive response that can reduce the prev­alence of human trafficking.