Bravo, Karen E., Free Labor! A Labor Liberalization Solution to Modern Trafficking in Humans (August 13, 2008). Transnational Law & Contemporary Problems, 2009. Available at SSRN: http://ssrn.com/abstract=1224422
According to varied sources, 27 million people worldwide are enslaved and 4 million individuals are trafficked annually across international borders, including 17,500 people into the United States. The trade in human beings has significant ramifications for international human rights, international criminal law, and the global economy. Despite the expenditure of a great deal of intellectual, economic, psychological, and other resources to prevent and punish the traffic in human beings, the trade appears to grow annually in scope.
Through this article, I will introduce a new market and trade-based framework for interpreting and combating the trade in human beings. The modern “re-emergence” of trafficking in human beings and of slavery is said to be linked to the deepening interconnection among countries in the global economy, overpopulation (with its consequent production of disposable people), and the economic and other vulnerabilities of the victims. In the international arena, member states of the UN have targeted the human trafficking phenomenon through the 2000 Convention Against Transnational Organized Crime and the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the Convention. In the United States, also in 2000, federal legislators adopted the Trafficking Victims Protection Act (TVPA), whose provisions are aimed at both domestic U.S. and international trafficking.
Together with other domestic and international mechanisms and instruments utilized to combat trafficking, the Convention, the Protocol and the TVPA fall within four commonly utilized conceptual frameworks pressed into service and deployed to foster understanding of and combat the modern trafficking of human beings – the human rights, women’s rights, labor rights and law enforcement frameworks. Of these, the law enforcement framework is predominant both internationally and in the U.S. domestic system.
I propose a trade/market-based framework for interpreting and combating trafficking that would encompass and supplement the four frameworks utilized thus far by the international and domestic U.S anti-trafficking communities. I advocate a re-conceptualization of modern trafficking within the framework of the movement of peoples and migration, both licit and illicit, and call for the drafting and adoption of a multilateral labor liberalization agreement under the auspices of the GATT/WTO: a new Annex to the Agreement Establishing the World Trade Organization, with co-equal status to the Agreement on Trade-Related Intellectual Property Rights (TRIPS), the Agreement on Trade Related Investment Measures (TRIMS) and the General Agreement on Trade in Services (GATS).
The growth of the nation state and the concomitant increase in the legislative and other barriers to the movement of peoples has driven and continues to drive the movement of people (and their labor) underground. The predecessor empires to today’s states, such as Great Britain, Portugal and Spain, funded, supported and protected the birth and rise of the trans-Atlantic slave trade to satisfy the demands for labor of their economies and the economies of their overseas colonies. In the twentieth and twenty-first centuries, by creating the pre-conditions for human smuggling – and by extension human trafficking – together with failure to deploy consistent internal policies regarding the movement of human beings, the U.S. and Western Europe lay the foundations for the thriving market in human labor represented by illegal immigration and its worst form – the trafficking in humans.
A failure to liberalize the trade in labor (the last classic factor of production (other than immobile land) not freed from state constraints, despite re-conceptualization of some labor as “human capital”), undermines the fundamental underpinnings of the vision for a globalized world that prioritizes, for example, competition, efficiency, and comparative advantage. Migrants seek to exchange their labor for value – to respond to market forces that promise higher prices for that labor across international/state borders. If the comparative advantage of some – usually developing – countries is their abundance of available labor, individuals and organizations from those countries should be able to freely trade their labor internationally within the institutional framework of the GATT/WTO system. The increasing use of barriers to movement of human beings (and their labor) is based, among others things, on concern for state national security. Also present is the fear that to allow unconstrained movement of peoples and the sharing in the wealth of Western countries might result in the loss to the West of that wealth and its advantages. It is also sometimes considered as a potential threat to that sacred notion of national identity.