Routledge Handbook of Human Trafficking

Ryszard Piotrowicz, Conny Rijken, Baerbel Uhl, Ryszard Piotrowicz, Conny Rijken, Baerbel Uhl, Ryszard Piotrowicz, Conny Rijken, Baerbel Heide Uhl

• Publisher: Taylor & Francis
• Year: 2017
• eBook ISBN: 9781317485681
• Edition: 1
• Topic: Social Sciences
• Subtopic: Sociology
• Index: Social Sciences

Trafficking in human beings (THB) has been described as modern slavery. It is a serious criminal activity that has significant ramifications for the human rights of the victims. It poses major challenges to the state, society and individual victims. THB is not a static given but a constantly changing concept depending on societal changes and opinions, economic situations and legal developments. THB occurs both transnationally and within countries. The complexity of THB is such that it requires a wide range of expertise fully to address the phenomenon.

Edited by a team of leading international academics, the Routledge Handbook of Human Trafficking will provide an interdisciplinary introduction to THB. It is aimed at academics, students, research universities and non-governmental organisations, as well as policy makers. It will review THB through the lens of law, anthropology, social and political science and will address statistical, data protection issues and showcase the most effective research methods, analyse the various actors and stakeholders and the different types of exploitation of trafficked persons. It will critically highlight and analyse the most pressing current challenges posed by THB.

Part 1
International and regional regimes on anti-trafficking

1
Genealogies of human trafficking and slavery

Jean Allain

Introduction

Human trafficking and slavery are often conflated; these terms are often used synonymously, but also as umbrella terms meant to capture various types of human exploitation. This should hardly be surprising as, historically, the very genesis of what we today call ‘human trafficking’ was conceived in terms of the ‘white slave traffic’,¹ thus equating prostitution with the visceral revulsion felt towards the African Slave Trade and slavery. In fact, and in law, these two regimes – human trafficking and slavery – are distinct conceptually, but also have separate historical origins, and only come together with the negotiations of the Palermo Protocol.

This chapter considers the genealogy of both human trafficking and slavery to demonstrate how two very distinct histories were brought together by a century-long pursuit to criminal-ise human exploitation. In so doing, the chapter provides both an understanding of the end of one element of the greater African Slave Trade – the Atlantic Slave Trade – and the origins of the White Slave Traffic; and how, over the twentieth century, the subject-matter of human trafficking grew beyond prostitution to its logical conclusion: to address any and all types of human exploitation.

Slavery and the Atlantic Slave Trade

Slavery has persisted since time immemorial, only having been curtailed internationally for the first time by the 1890 Final Act of the Brussels Conference.² Previous to that, the slave trade in Africans, that very different species of enslavement which fuelled the European colonial venture into the Western Hemisphere, was not only legal but found its justification in the international law of its time. While natural law recognised that slavery was wrong, international law prescribed it with regard to prisoners of war, as an alternative to being put to the sword. In Roman Law, slavery was defined as ‘an institution of jus gentium by which, contrary to nature, a person is subjected to the dominion of another’.³ The nature of the Atlantic Slave Trade made of it something never before witnessed in human history: the industrial-scale enslavement and transportation, over a 350-year period, of more than 12.5 million African men, women, and children, destined to feed the New World plantations with labour.⁴

For reasons which continue to elicit debate, the United Kingdom went from being the greatest slaver nation before 1807 –ships flying its flag having been responsible for transporting more than half of all slaves up to that point – to abolishing the slave trade within its colonies and carrying out a century-long naval campaign to suppress the slave trade at sea more generally. British attempts to end the slave trade were frustrated by other countries, which saw not pious motives, but an attempt by an unrivalled Royal Navy to control the seas by seeking to transform a belligerent right it had grown accustomed to during the Napoleonic Wars into a peacetime right to visit foreign ships on the high seas on the pretext of suppressing the slave trade. Ultimately, the Grotian notion of the ‘freedom of the seas’ would prevail at the expense of British efforts but, in its wake, the UK would create a web of bilateral treaties with thirty-one different States which effectively put an end to the slave trade across the Atlantic Ocean. The 1890 Brussels Conference simply confirmed this by creating a maritime zone, not between Africa and the New World, but in the Indian Ocean where an artisan slave trade was funnelled through Zanzibar, with the enslaved destined for transport north, to various parts of the Arabian Peninsula. The death knell of the legal slave trade was sounded by the 1905 Muscat Dhows case before the Permanent Court of Arbitration; and with it, the slave trade at sea was abolished.⁵

While the fall of the Atlantic Slave Trade would coincide with the rise of the White Slave Traffic, the international abolition of slavery itself is a more recent phenomenon. The League of Nations introduced the Slavery Convention in 1926, calling on States to criminalise enslavement, and to put an end to slavery ‘progressively and as soon as possible’. In 1948, the Universal Declaration of Human Rights was proclaimed, stating, inter alia, that ‘slavery and the slave trade shall be prohibited in all their forms’. By 1956, the Members of the United Nations acted on this proscription, requiring States to end slavery forthwith in a Supplementary Slavery Convention. While some debate would persist as to whether slavery was in law internationally abolished, the 1966 International Covenant on Civil and Political Rights put the question beyond doubt, as the process of its negotiation crystallised international customary law not only of abolition, but the prohibiting slavery worldwide.

While mention is made of slavery in the Palermo Protocol’s definition of trafficking in persons – which will be considered in more detail in due course – the 1998 Rome Statute of the International Criminal Court, for its part, introduced both the crimes against humanity and the war crimes of enslavement and sexual slavery. With regard to slavery in its contemporary manifestation, while the definition of slavery found in the 1926 Convention and reproduced, in substance, in both the 1956 Supplementary Convention and in the 1998 Rome Statute, was acknowledged as having abolished slavery, that is to say, having ended the legal right to enslave another human being, it was only recently that this definition was shown to also apply to cases of de facto slavery. The 2012 Bellagio-Harvard Guidelines on the Legal Parameters of Slavery appear to have been a watershed. Building on a determination by the High Court of Australia in the 2008 Tang case, the Guidelines demonstrate how the legal definition of slavery can be read so as to be applicable to cases of contemporary slavery. This was confirmed by the Inter-American Court of Human Rights in 2016, when it determined, as a matter of international law, that the Bellagio-Harvard Guidelines set out the means by which to conceptualise the reading of the definition of slavery in law.

That definition of slavery, first set out in 1926, reads: ‘slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised’. As the High Court noted in Tang: ‘status is a legal concept’, while ‘the evident purpose of the reference to “condition”’, the Court noted, is ‘to cover slavery de facto’.⁶ Where the 2012 Bellagio-Harvard Guidelines on the Legal Parameters of Slavery have provided conceptual clarity is to engage with the definition’s property paradigm and set out the parameters of those ‘powers attaching to the right of ownership’ by reference to those commonly understood instances of ownership: to possess, to use, to manage, to profit, to transfer, and/or to exhaust. Reference to possession is both the linchpin of ownership and of the conceptual understanding of contemporary slavery.

That conceptual clarity of the Bellagio-Harvard Guidelines was recognised by the Inter-American Court of Human Rights in the 2016 Fazenda Brasil Verde case against Brazil, as the Court accepted the Guidelines’ reading of the exercise of those powers attaching to the right of ownership.⁷

The Bellagio-Harvard Guidelines acknowledge that possession, in law, is about control. Just as a person can no longer own another person, so too can it be said that in most jurisdictions one cannot own a kilo of heroin. In the situation of the drug dealer before the law, the judge will not ask whether the dealer ‘owns’ the heroin, but rather did he or she possess the drug; did he or she control it? In the same manner, in cases of enslavement, the question turns on control tantamount to possession: did a person have control of another as they would a thing which he or she possessed? As Antony Honoré noted in his canonical writing on the subject, possession is ‘the foundation on which the whole superstructure of ownership rests’; as such, only once control tantamount to possession has been established can we understand that the powers attaching to the right of ownership amount to enslavement.⁸ Thus, we would not consider the mere use of a person to be enslavement, nor would we accept that the management of a person is slavery. But if control is established which is tantamount to possession, then, whether it be in law or in fact, slavery exists. The added value of the Bellagio-Harvard Guidelines is that while engaging with the property paradigm of a definition established nearly ninety years ago, it also captures the lived experience of those enslaved in a contemporary situation.⁹

Human trafficking and the White Slave Traffic

By contrast to slavery and the Atlantic Slave Trade, human trafficking had its origins in seeking to address the ‘White Slave Traffic’ in late nineteenth-century Europe, that is: the prostitution of women and girls. While the past forty years have seen an explosion of scholarship around the history of both the African Slave Trade and, more generally, slavery; the same cannot be said for the history of trafficking, or its origins as the white slave traffic. While human trafficking has embedded itself as a fundamental component of the contemporary international landscape, only recently has scholarship emerged to scrutinise the origins of the white slave traffic.¹⁰ As such, considerations have yet to hit a critical mass, thus what follows can only be considered as a tentative understanding of the origins of the regime of human trafficking: the birthing process of the white slave traffic.

The white slave traffic appears to have its origins in a Victorian paternalism of the latter half of the nineteenth century: a reaction to the ability of women to travel unaccompanied during the Age of Steam. Steam revolutionised the safety of travel, as it meant that passengers no longer feared the highwayman: the speed of travel was beyond the brigand, who preyed upon horse-drawn travel and exposed female travellers to, amongst other things, attacks upon their virtue (a euphemism for rape). During this era, European colonialism, which came to fruition through the large movement of troops made possible by the expansion of railways and steamships, came a call to restrict the movement of European women, who, it was said, put that expansion-ist project at risk through their sexuality. Or at least, through the sexuality of ‘fallen’ women, as calls would emerge to control the movement of women so as ‘to better regulate venereal disease’; this being part of a larger Victorian movement with its noblesse oblige, manifest in causes of public morality such as temperance and the evil of prostitution.¹¹

The need to control sexually transmitted diseases had become acute during the second half of the nineteenth century, as mass prostitution had been ‘organized to serve the needs of colonial troops’.¹² Thus, the origin of what would come to be known as th...

Table of contents

• Cover
• Title
• Copyright
• Contents
• List of tables and figures
• Editors
• Contributors
• Foreword
• Acknowledgements
• Table of abbreviations
• PART 1 International and regional regimes on anti-trafficking
• PART 2 Types of exploitation
• PART 3 Particular legal issues
• PART 4 Needs of victims of trafficking
• PART 5 Critical discourses of the anti-trafficking framework
• PART 6 Statistics, data and knowledge
• PART 7 Actors, stakeholders and institutions
• PART 8 Economic aspects
• Index