THEORIZING HUMAN TRAFFICKING AND UNFREE LABOR.

• Author: Harnoncourt, Julia

When we try to define human trafficking in connection to labor, it is unavoidable to stumble upon other terms like "(modern) slavery" "slave-like practices," or "unfree labor"--a term that we prefer when talking about labor that is performed under conditions of unfreedom--which all could be translated to the concept of human trafficking. The discussion about juridical definitions and terms is much more important than it appears. After all, juridical definitions generate rights and claims for the victims to call upon, as well as obligations and duties that the states have to meet. (2)

Different states and regions of the world adopted, over the years, different definitions of human trafficking and unfree labor, a fact that did not allow a uniform application of laws against a crime that is, in many cases, carried out transnationally. The need for a definition that was legally binding on an international level (3) was finally answered by one of the Palermo Protocols in 2000, the "Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children" (later on referred to as Palermo Protocol, as the other protocols did not have that big of an impact):

"Trafficking in persons" shall mean the recruitment, transportation, transfer, harboring, or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power, or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery or practices similar to slavery, servitude or the removal of organs. (4) As 178 countries (out of 195) have ratified and implemented the Palermo Protocol in their legislations, this definition is up to today the internationally prevalent one. Here the whole process of human trafficking enters into the definition, meaning the recruitment or transfer into exploitation by using means of coercion, deception, or threats as well as the exploitation itself. Therefore, three components emulate this definition: the act, the means, and the purpose of human trafficking.

Under the act, we subsume, for example, the capture, the transport, and the reception of the victim. The means may be a threat, use of force or other forms of coercion, abduction, deception, or the abuse of a person's vulnerable situation, among other things. The purpose is the exploitation of the person, ranging from unfree labor to the removal of organs. It is worth stressing that the Palermo Protocol does not limit the forms of exploitation or the crime to a transnational action, even though this protocol is part of the United Nations Convention against Transnational Organised Crime. (5)

As researchers, we would like to amplify the field by not only starting with the trajectory of the person who falls victim to human trafficking with the act but with the living conditions before that. We can also point to different actors and factors: first the obvious ones, like the victims, the perpetrators, and a range of middlemen, who are often victims and perpetrators at the same time, but also less obvious ones, like states and their lawmakers, for example, through migration laws influencing the possibilities of migrants to live and work on arrival, nongovernmental organizations (NGOs), or, if mafia-like networks are involved, even the facilitation of human trafficking through politicians. Additionally, global power relations play a role in shaping human trafficking, as well as the laws against it.

For the purpose of our article, after defining our subject, first, we are going to give a short overview of slavery in the Americas as well as its gradual abolition, in order to then look at the later emerging laws against human trafficking. This historical overview is then followed by a critical part, looking at the Palermo Protocol and the application of laws against human trafficking in two example countries: Bolivia and Brazil.

CHATTEL SLAVERY AND ABOLITION

Within this definition, we can see slavery as one of the pre-forms of human trafficking. Regarding the Americas and the Caribbean, especially the transatlantic slave trade with its international infrastructure, the forced transport of laborers over long routes as well as the transport of raw materials and goods lasting from the beginning of the sixteenth to the end of the nineteenth centuries comes to mind. But during this time, also other forms of unfree labor existed in this large world region, the enslavement of indigenous people or the transport of Asian contract workers to Latin America (coolies), for example. (6)

Recent estimates speak of 12.5 million to 13 million people arriving as slaves in the Americas. (7) On their arrival, most of the slaves worked on plantations, mainly producing cotton, sugar, or coffee. (8) But they also worked in the adjacent manufactories, (9) in mines, on farms, as housekeepers, as artisans, or in the military, for example. The amount and the type of products were determined by global demand. (10) Slave labor and the specific treatment of slaves or laws regulating this condition were very diverse over this large array of centuries and regions. During the transatlantic slavery, slaves were mostly bought in Africa--except after the abolition of the slave trade, when slaves were rather sold between different regions in the Americas or some efforts, especially in the United States, to establish "slave breeding." (11) Before being sold to European slave traders on the African West Coast, the future slaves were captured during slave raids farther east, inside the continent. (12) They already had to endure traveling a long distance under terrible conditions even before getting onto a slave ship. On the slave ships, a lot of people were stored, with very little food, water, or hygienic standards, meaning that a lot of people already died down the long road between their hometowns and the slave market in the arrival country. (13) The people who died on the transport are not included in the estimations of 13 million slaves under chattel slavery. (14) Once arrived on the new continent, it is obvious that the slave laborers were now in a situation of total vulnerability. As the French slavery researcher and anthropologist Claude Meillassaux argued, the reproduction of the slaves outside the production facilities was important, in order to establish them as strangers, to erase their personal history and kinship on the new ground. (15) Also, as they had no networks on this new continent--at least at the beginning--fleeing or resistance was made more difficult. With that, we have the initial act, meaning the slave raiding, the transport under already degrading conditions, and the sale; the means, force, and coercion; and the purpose, in most cases exploitation on plantations. (16)

The big difference between slavery and today's relation of unfree labor/human trafficking is its legality: while slavery was a legal form of unfree labor, human trafficking is illegal and therefore works under different premises. Another difference is the number of people under such conditions--slavery definitely being the highest in numbers--and the importance of these systems for the specific societies. Moses Finley talks about "slave societies" in opposition to "societies with slaves." While the latter just declares that slavery exists in a society, the first term describes that slavery constitutes the basis of all power and production relations in this society, as was the case in Brazil, the Caribbean, and the southern states of the United States. (17)

But why was slavery finally banned on the international legal spectrum? And what happened during the abolition process? Here we have different factors: the factor most paid attention to is the pressure exercised by the British state, initiated by anti-slavery interest groups in that country. Through their incessant campaigning, finally, in 1806, the abolition act was proclaimed in Britain. It declared that English citizens were not allowed to participate in the slave trade. (18) At the Vienna Conference in 1814, which was actually held to restore the order in Europe after the French Revolution and the Napoleonic Wars, Britain tried to get a European agreement against the slave trade. (19) The prohibition of slavery itself and the liberation of the slaves in the British Empire, at least legally, happened in 1838. Other states followed and declared the abolition of slavery, the last ones being Cuba in 1886 and Brazil in 1888. (20) But it was not only humanistic reasons that moved Britain to campaign against slavery. After Adam Smith had written in the Wealth of Nations in 1776 that slave labor was less productive than free labor under capitalism, adding an economic argument against slave labor to the moral ones, the abolition movement pushed for the so-called legitimate trade and, with that, for the trade with products produced in Africa, like palm oil, rather than with slaves. This strategy, paradoxically, augmented slave labor inside Africa. (21) Up to today, the doctrine of the incompatibility of capitalism and unfree labor/slavery was and is widely believed. For us, the argument to discard this belief is the so-called second slavery, a new high in the use of slave labor in the nineteenth century and therefore clearly under capitalist premises. (22) Another argument, of course, is that unfree labor/human trafficking, even if illegally, exists today, and this not only in small, local businesses but as part of internationally connected production chains of big enterprises. (23)

So we can also see that slavery still existed after the British Empire abolished the slave trade. Apart from smuggling...