Associate Professor of Law, Indiana University School of Law-Indianapolis; LL.M. New York University School of Law; J.D. Columbia University School of Law; B.A. University of the West Indies. I am grateful for the comments from the audience and my co-panelists on the New Voices in Human Rights Panel at the AALS 2008 Annual Meeting, on the New Voices Panel at the American Society of International Law, 102nd Annual Meeting in 2008, and at the Washington University Junior Faculty Regional Workshop, as well as the attendees at the Case Western University School of Law Faculty Exchange Colloquium in Fall 2007 and the Indiana University School of Law-Indianapolis Faculty Colloquium in Spring 2008. I thank Raj Bhala, Andrea Bjorklund, Tomer Broude, Jennifer Chacón, Dan Cole, Hope Lewis, Maria Pabón López, Louise Shelley, and R. George Wright for their helpful and insightful feedback. Rahma Hersi (Indiana University School of Law-Indianapolis LL.M. 2008) and Laura Boren (Indiana University School of Law-Indianapolis J.D. 2010) provided essential research assistance, and Ruth Lilly Law Library Research Librarian, Debra Denslaw, and the Staff of the Ruth Lilly Law Library were invaluable. A short summary of the thesis of this Article was published as part of the Proceedings of the American Society of International Law, 102nd Meeting, 2008.
T he buying and selling of people is a profitable business because, while globalization has made it easier to move goods and money around the world, people who want to move where jobs are face ever more stringent restrictions on legal migration. 1
[ P]erhaps the most profound challenge of all will be faced by citizens and policy-makers in migrant sending and receiving countries. inhabitants of the latter will have to move beyond the state of denial that so often has characterized their approach to immigration policy to date. They must develop policies that recognize the inevitability of labour flows within a globalized economy characterized by well-established regional networks of trade, production, investment, and communications. Attempts to suppress population flows that are a natural consequence of a nation's insertion into these economic networks will not be successful, but they will present grave threats to individual rights, civil liberties, and human dignity. . . . 2
Human trafficking is usually thought of in terms of criminal or human rights violations, rather than in terms of trade liberalization. By applying trade liberalization principles to the problem of human trafficking, this Article brings together the two superficially unrelated areas of law. The purpose of this inquiry is to enhance understanding of modern trafficking in human beings and to identify a mechanism that will undermine its economic foundations. This Article concludes that, through the liberalization of labor, economic and trade liberalization principles and theories can be used to harness the power of the market to combat human trafficking and to further human rights protection as a whole.
The contemporary enslavement of human beings is said to have increased worldwide in the last few decades. The estimated number of people trafficked annually across international borders or enslaved within states range from hundreds of thousands to millions. 3 In response, states have targeted human Page 548 trafficking through the U.N. Convention Against Transnational Organized Crime ("U.N. Transnational Crime Convention")4 and the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children ("U.N. Trafficking Protocol"),5 which supplements the Convention. In the United States, federal legislators enacted the Trafficking Victims Protection Act ("TVPA"), the provisions of which are aimed at both domestic U.S. and international trafficking, and thrice have reauthorized the legislation. 6
Modern trafficking in humans flourishes within four systemic tensions: (1) the gaps between the rhetoric and reality of trade liberalization undertaken thus far through multilateral and regional international instruments; (2) the gap between the conceptualization of humans as rights-bearing persons and as economic actors-both consumers and labor (an economic input or commodity); (3) the tension between the transnationalization unleashed by trade liberalization and Westphalian concepts of statehood;7 and (4) the tension between the recognition and enforcement of human rights (and individual personhood) and state sovereignty and control over constituent population and territory.
The solution proposed in this Article addresses the first two of these tensions. To combat human trafficking, this Article contends that the economic nature of humans-their economic roles in the global and economic system-must be recognized more fully. That recognition will require that human labor providers have the right to enter and exit individual domestic Page 549 labor markets in response to economic stimuli and, therefore, are contrary to the contemporary default operation of barricaded national borders. 8
In an earlier article, I examined the use of the trans-Atlantic slave trade analogy in the anti-trafficking discourse. 9 That exploration revealed the essential similarity of the two forms of exploitation-fundamentally, they both traffic in human labor.10 Further, the modern traffic in human beings cannot be separated from the forces of globalization. 11 The contemporary model of trade liberalization and the interaction of that model with restrictive domestic immigration laws create disequilibrium and labor market failures which in turn stimulate migration flows.12 Human trafficking is embedded within the disequilibrium and labor market failures. As such, an attack against the structural foundations of human trafficking must target the economic bases of the labor and other exploitation from which human trafficking arises.
The failure to liberalize labor, the last classic factor of production not freed from state constraints (other than immobile land),13 undermines the fundamental underpinnings of the vision of a globalized world that prioritizes competition, efficiency, trade liberalization, and comparative advantage. If Page 550 globalization and trade liberalization strive to and have substantially freed capital and products from the constraints of state borders, why should self-actualized, self-owning humanity not be similarly liberalized?
In addition, the failure to liberalize labor creates and increases vulnerability to exploitation for many human labor providers. Individual migrants, who comprise a significant source of trafficked persons, seek to exchange their labor for value-to respond to market forces that promise higher prices for their labor across internal domestic and/or international borders.14 Those borders are now heavily policed and enforced, and unsanctioned crossing is essentially verboten. In seeking to trade their labor and to navigate the state-created barriers (i.e., borders) to transnational labor markets, individuals become more vulnerable to the predations of exploitative middlemen such as traffickers in human beings.
To directly confront and harness the economic and trade-based forces that support the expansion of modern trafficking in humans, this Article proposes using a trade-law inspired lens that encompasses and supplements the four frameworks now utilized in anti-trafficking efforts to interpret and combat human trafficking.15 To do so, this Article advocates re-conceptualizing modern human trafficking within the framework of the domestic and transnational movement of peoples and migration, both licit and illicit: 16 human trafficking is not a purely illegal and aberrational activity taking place outside of legal and legitimate human economic activity and movement.
This Article also proposes the re-conceptualization of labor's role in the international economic system. It uses trade liberalization concepts to argue Page 551 that...