The Human Rights Paradigm to Trafficking in Persons and the Challenge of Labor Rights

The past decade witnessed growing interest in the legal category of human trafficking in international and national law. Anti-trafficking laws and policies that proliferate around the globe are influenced predominantly by a transnational crime framework and a human rights framework to trafficking. Surprisingly, although human trafficking is defined in international instruments as an issue of labor exploitation, anti-trafficking policies are not informed by a labor rights framework.

The article argues that the language and methods of human rights do not suffice to effectively counter human trafficking, and that for anti-trafficking efforts to become effective trafficking needs to be understood predominantly as an issue of economic labor market exploitation, that should therefore be dealt with using the tools of labor and employment rights.

The article explores the reasons for the absence of a labor framework to anti-trafficking regimes, and argues that there is a conceptual tension between labor rights and human rights concerning trafficking. The two frameworks pursue different goals, operate under different assumptions, and use different legal strategies to bring about change. The deep tension between the human rights and labor rights frameworks suggests that in order to incorporate a labor framework into the current human rights framework to anti-trafficking significant adjustments to the current regime – both discursive and structural – are required.

Anti trafficking instruments have created a regime that extends relatively generous legal rights to victims of trafficking. It offers victims of trafficking a set of protections unavailable to other exploited workers, migrants and refugees. Yet despite this significant achievement the current regime pays insufficient attention to the market and economic realities of the labor markets in which trafficking occurs. This gap can be filled by incorporating a labor framework into the current mix of human rights and transnational crime frameworks that animate anti-trafficking instruments and policies. However, as the article showed, the labor rights and the human rights frameworks do not easily complement each other. Significant divergence between the two frameworks exists around the issues of the trafficked persons’ agency or victimhood, the exceptional nature of trafficking among the varieties of exploitative market practices, and strategies for social change in face of a globalised economy.

In order to effectively incorporate the labor rights framework into the current trafficking regime, therefore, basic tenets of the regime need to be re-conceptualized. Such reconceptualization reaches deep into core tenets of the trafficking regime and requires significant changes to the regime’s underlying assumptions and justifications: namely, the extension of unique rights to victims of trafficking, and to them alone, which is justified due to their presumed innocence and victimhood; the exceptional character of the trafficking experience; and the assumption of the individual nature of their harm. Taking the labor framework into account undermines these three core elements and therefore risks weakening the current basis for the anti-trafficking regime.

Year of publication: 
2011
Author: 
Hila Shamir