Labour Migration, Human Trafficking and Multinational Corporations: The commodification of illicit flows 2011030888, 9780415595995, 9780203134733

Table of contents :
Cover
Labour Migration, Human Trafficking and Multinational Corporations The commodification of illicit flows
Copyright
Contents
List of contributors
Introduction
1. Corporate liability for violations of international human rights law
2. Trafficking for labour exploitation: getting the responses right
3. The commodification of human smuggling and trafficking
4. Child labour migrants or victims of labour trafficking?: a segmental approach
5. Displacing childhood: labour exploitation and child trafficking in sport
6. Labor migration, human trafficking and multinational corporations within the ECOWAS region: challenges and opportunities
7. Adults or children?: the case of trafficking children for purposes of exploitative labour in the fishing industry in Ghana
8. Doing Canada’s dirty work: a critical analysis of law and policy to address labour exploitation trafficking
9. Minimum wage: an ally in the fight against human trafficking for labour exploitation?
10. Responding to labour trafficking: suggestions from experiences of local service providers
11. The programmatic approach to combating trafficking in human beings
Index

Citation preview

Labour Migration, Human Trafficking and Multinational Corporations

Although much literature on human trafficking focuses on sex trafficking, a great deal of human trafficking results from migrant workers, compelled – by economic deprivation in their home countries – to seek better life opportunities abroad, especially in agriculture, construction and domestic work. Such labour migration is sometimes legal and well managed, but sometimes not so – with migrant workers frequently threatened or coerced into entering debt bondage arrangements and ending up working in forced labour situations producing goods for illicit markets. This book fills a substantial gap in the existing literature, given that labour trafficking is a much more subtle form of exploitation than sex trafficking. It discusses how far large multinational corporations are involved, whether intentionally or unintentionally, in human trafficking for the purposes of labour exploitation. It explores how far corporations are driven to seek cheap labour by the need to remain commercially competitive and examines how the problem often lies with corporations’ subcontractors, who are not as well controlled as they might be. The essays in the volume also outline and assess measures being taken by governments and international agencies to eradicate the problem. Ato Quayson is Professor of English and inaugural Director of the Centre for Diaspora and Transnational Studies (CDTS) at the University of Toronto, Canada. Antonela Arhin is a Visiting Junior Fellow at the Centre for Criminology and Sociolegal Studies and the Executive Officer at the Centre for Diaspora and Transnational Studies at the University of Toronto, Canada.

Routledge transnational crime and corruption series Published in association with the Terrorism, Transnational Crime and Corruption Center, School of Public Policy, George Mason University, USA.

1 Russian Business Power The role of Russian business in foreign and security relations Edited by Andreas Wenger, Jeronim Perovic and Robert W. Orttung 2 Organized Crime and Corruption in Georgia Edited by Louise Shelley, Erik Scott and Anthony Latta 3 Russia’s Battle with Crime, Corruption and Terrorism Edited by Robert W. Orttung and Anthony Latta 4 Human Trafficking and Human Security Edited by Anna Jonsson 5 Irregular Migration from the Former Soviet Union to the United States Saltanat Liebert 6 Human Security, Transnational Crime and Human Trafficking Asian and Western perspectives Edited by Shiro Okubo and Louise Shelley 7 Labour Migration, Human Trafficking and Multinational Corporations The commodification of illicit flows Edited by Ato Quayson and Antonela Arhin

Labour Migration, Human Trafficking and Multinational Corporations The commodification of illicit flows

Edited by Ato Quayson and Antonela Arhin

This edition published 2012 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN Simultaneously published in the USA and Canada by Routledge 711 Third Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2012 Ato Quayson and Antonela Arhin for selection and editorial material. Individual chapters, the contributors. The right of Ato Quayson and Antonela Arhin to be identified as editors of this work has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Labour migration, human trafficking and multinational corporations : the commodification of illicit flows / edited by Ato Quayson and Antonela Arhin. p. cm. - - (Routledge transnational crime and corruption series ; 7) Includes bibliographical references and index. 1. Foreign workers. 2. Human smuggling. 3. International business enterprises- -Moral and ethical aspects. 4. Emigration and immigration- Economic aspects. I. Quayson, Ato. II. Arhin, Antonela. HD6300.L33 2012 364.10 37- -dc23 2011030888 ISBN13: 978-0-415-59599-5 (hbk) ISBN13: 978-0-203-13473-3 (ebk) Typeset in Times New Roman by Taylor & Francis Books

Contents

List of contributors Introduction 1 Corporate liability for violations of international human rights law

vii 1

9

MOHAMED Y. MATTAR

2 Trafficking for labour exploitation: getting the responses right

20

ROGER PLANT

3 The commodification of human smuggling and trafficking

38

LOUISE SHELLEY

4 Child labour migrants or victims of labour trafficking?: a segmental approach

56

ANTONELA ARHIN

5 Displacing childhood: labour exploitation and child trafficking in sport

71

DARRAGH MCGEE

6 Labor migration, human trafficking and multinational corporations within the ECOWAS region: challenges and opportunities

91

NDIORO NDIAYE

7 Adults or children?: the case of trafficking children for purposes of exploitative labour in the fishing industry in Ghana

107

DANIEL KWEKU SAM

8 Doing Canada’s dirty work: a critical analysis of law and policy to address labour exploitation trafficking BETHANY HASTIE

121

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Contents

9 Minimum wage: an ally in the fight against human trafficking for labour exploitation?

138

ANNE PAWLETTA AND PHILIPP SCHWERTMANN

10 Responding to labour trafficking: suggestions from experiences of local service providers

152

AMY STEPHENS, ROMESH HETTIARACHCHI AND SUNG HYUN YUN

11 The programmatic approach to combating trafficking in human beings

159

RUUD HILGERS

Index

175

List of contributors

Antonela Arhin is a Visiting Junior Fellow at the Centre for Criminology and Sociolegal Studies and the Executive Officer at the Centre for Diaspora and Transnational Studies at the University of Toronto, Canada. She is currently completing her PhD on the socio-economic dimensions of trafficking in children for labour exploitation. Bethany Hastie is an O’Brien Fellow at the McGill University Faculty of Law, Canada. Romesh Hettiarachchi is a lawyer based in Toronto whose career and research interests focus on the legal needs of social innovators. Ruud Hilgers has worked as a senior criminal policy officer in the field of combating trafficking in human beings and is a staff member of the Bureau for Criminal Law Studies of the Dutch Public Prosecution Service of the Hague. He wrote his chapter à titre personnel. Mohamed Y. Mattar currently teaches courses on international and comparative law at Georgetown University, Johns Hopkins University (SAIS) and American University. Darragh McGee is a doctoral student in the Faculty of Physical Education and Health at the University of Toronto, having obtained a master’s degree in the Sociology of Sport from Loughborough University. Ndioro Ndiaye is currently the president of the Alliance for Migration, Leadership and Development (AMLD), an NGO she founded. Anne Pawletta is working as a researcher for Global Compentences, a project on the recognition of foreign credentials, and as an expert on human trafficking for labour exploitation for a joint IOM-ILO project in Germany. Roger Plant is an independent writer and consultant in the UK. Between 2002 and 2009 he was the Head of the International Labour Organization’s Special Action Programme to Combat Forced Labour.

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List of contributors

Ato Quayson is Professor of English and inaugural Director of the Centre for Diaspora and Transnational Studies (CDTS) at the University of Toronto, Canada. Daniel Kweku Sam is the Field Manager for the International Organization for Migration (IOM), Ghana’s Migration for Development in Africa (MIDA) initiative. Philipp Schwertmann is the head of the counter-trafficking section of IOM Germany. Louise Shelley is a university professor at George Mason University, USA. She founded and directs the Terrorism, Transnational Crime and Corruption Center (TraCCC) at the School of Public Policy. Amy Stephens currently works with Action Coalition on Human Trafficking (ACT) in Edmonton, Alberta as coordinator for the networking group and response team. Sung Hyun Yun is Assistant Professor of Social Work at the University of Windsor, UK.

Introduction

A scene from the film Crash (dir Paul Haggis, 2004) helps to highlight the ambiguities we face in situating human trafficking. Crash itself is a careful interweaving of fragmentary stories set in Los Angeles, a city that provides the varied multi-ethnic setting for the miscommunications and racial stereotypes of the film. In the relevant scene, Anthony (played by the rap artist Ludacris) has stolen a white van and taken it to the repair garage of an acquaintance who receives stolen cars. It turns out that the beat-up van contains a cargo of Asians. They have been chained to the van and there is no knowing how long they have been in that condition and where they came from. Anthony had originally hoped to get a little bit of cash for the van, but he is startled when the garage owner offers to pay ‘$500 apiece’ for the human cargo and tells Anthony he can additionally keep the van. Clearly, the human cargo is worth more to the garage owner than the battered van. Anthony refers to them as ‘Chinamen’, but this stereotypical framing is derided by the garage owner, who says they could be Thais or Cambodians, ‘a different kind of Chinese’ and thus not necessarily from China. The point, however, is that, irrespective of where they came from, the scene sets the terms for the commodification of the human cargo. The process of their commodification has more than one layer for earlier in the film there is a suggestion that money has already changed hands for their delivery. They are to be delivered by an Asian businessman, who has himself ended up in hospital after being run over and dragged half a block by Anthony and his friend Peter in another car they had stolen earlier the same night. We are encouraged to speculate that the injured businessman may be Korean because of the Korean-sounding name his wife keeps shouting out as she runs madly through the corridors of the hospital. When she finally arrives at his bedside his first request is that she take out the cheque from his wallet and go and cash it ‘right away’. Since we know that he is the owner of the van containing the human cargo we have just seen, we may safely surmise that the cheque he is urgently asking his wife to cash has to do with them. In one of the final scenes of the film Anthony takes the human cargo to the old Los Angeles Chinatown on North Broadway. This is apparently to free them. He hurries them out of the van, saying as they do so: ‘This is America; time is money.’

2

Introduction

He then gives $40 to what appears to be the headman of the trafficked labourers to buy some ‘chop suey’ for ‘your people’. With this gesture Anthony has finally accomplished a good deed, and thus regains a semblance of ethical standing after being depicted in the film as a mindless carjacker and paranoid black man. Three things have to be noted regarding the human cargo scenes from Crash. The first is that, despite the uncertainty of their provenance, the facts that the human cargo is originally chained to the van and that there is an explicit statement of their commodification not once but three times in the film give the strong impression that they were being trafficked for labour exploitation. The process of migrant commodification has been supported by literature and research indicating a new era of trafficked people who are treated as a disposable commodity.1 At the same time, the symbolism of chains and cramped passage is strongly reminiscent of the transportation of slave labour, which of course has a particular resonance in American society, but here is relocated into a modern-day cosmopolitan context. When the garage owner offers to pay $500 apiece for them he only further reaffirms their commodity status. And even in the scene of their freeing by Anthony, the fact that he declares that in America time is money cuts in more than one direction. On the one hand, these hapless Asians should be conscious of the pressures of their new country; but on the other, there is the subtle hint that they are being called upon to convert time into money (i.e., through their labour) and that America is a great place for such a conversion. The distance from their own status as commodities to that of their being able to convert their labour time into wages is a very short one, and is suggestive of the inherent precariousness of their continuing status as undocumented aliens with little facility in English in a multicultural yet vast and incomprehensible American city. The second point to be drawn from the film is that the specific old Chinatown location where they are let out suggests a direct identification between the collective ethnicity of the human cargo (speculative as that might be) and the socio-economic enclave into which they are delivered. But the Chinatown socio-economic enclave in many Western metropolises is also well documented as being one of the sites for the reception of trafficked labour. Thus the film shows us another necessary dimension of labour trafficking, namely, the end-point along the labour trafficking continuum. As Louise Shelley shows in her discussion of the relationship between different business models and labour trafficking flows, apart from factories, sweatshops, mines and farms, ethnic enclaves such as Chinatowns are significant locations on the human labour trafficking chains.2 Thus, even though Anthony has freed the human cargo, he has inadvertently delivered the people in the van back into the pool of exploitable victims. The third implication deriving from the human cargo scenes in Crash is much more symbolic than material, and has to do with the implicit idea of the repatriation of victims back to their homelands. This has been the subject of several international legal protocols and scholarly discussions.3 The process

Introduction

3

of repatriation and reintegration of victims is frequently challenged as a legal intervention from the perspective of a host country, and one that potentially causes the victim to be retaliated against and re-trafficked back into exploitation under the premise of his/her continued state of vulnerability.4 For when Anthony delivers his cargo to the Chinatown, he is also delivering it into an ethnic enclave that has the semblance of an autonomous cultural existence within the larger metropolitan entity of Los Angeles and, in several respects, of hegemonic America itself. The labour that flows into Chinese socio-economic enclaves all over the world is often regulated by highly complex familial and sect networks from within the countries of origin.5 These networks tend to replicate certain social forms and relationships, not all of which are necessarily protective of the victims of labour trafficking. The ambiguities with which the film treats these trafficked victims is partly due to the fact that labour trafficking is decidedly not its focal point. Rather, the human cargo only provides the backdrop to the eventual self-discovery motif that is triggered for the unsettled Anthony, and which in fact forms the basis for the trajectories of most of the characters in the film. At a broader level, the illicit implications of trafficked labour are placed by the film alongside the many aspects of licit labour that are hegemonically represented – the policeman, the nurse, the actor/film-maker, the district attorney, etc. – to suggest the entanglements of the licit and the illicit in the make-up of a city such as Los Angeles. Significantly, the ambiguities that attend the human cargo at all levels of Crash (provenance, labour trajectory, the blurred continuum of victimhood versus freedom) seem to mirror in an uncanny way the intricacies that pertain to labour trafficking in the real world. Many of the definitional and conceptual difficulties regarding human trafficking for labour purposes and the relationships between these and commercial enterprises and multinational corporations are the subjects of the chapters in this volume. Shelley in her chapter argues that trafficking organizations have grown at a faster rate, due specifically to their profitable amalgamation of illicit business traits with the practices of successful multinational corporations. Her case studies spanning Latin America, China and Turkey among others draw attention to complexities in discerning between the legitimate and illegitimate transnational businesses. Within such global networks, the task of identifying cases of trafficking is complex for all types of human trafficking, but especially daunting in the case of trafficked children, due to their presumed lack of agency in coping with exploitative conditions. While historically and culturally contextualizing child labour trafficking, Antonela Arhin in her turn adroitly underscores the intricacies of identifying child labour trafficking cases and proposes a segmental approach, making a case that labour trafficking and exploitation might occur as a segment on a migration continuum. If analysed in the context of Crash, while we might arbitrarily assume that the human cargo was being transported from one location of exploitation to the next, which is accidentally interrupted by Anthony’s setting them ‘free’, we might also conclude that their labour trafficking was a segment on a longer migration continuum.

4

Introduction

If Crash provides a somewhat blurred yet highly suggestive window into the various dimensions of human trafficking for labour purposes, the same cannot be said of The Price of Sugar (dir Bill Haney, 2007). The Price of Sugar is a documentary narrated by Paul Newman and follows the charismatic Spanish priest Father Christopher Hartley in his attempts at exposing the exploitation of Haitian labour migrants in the sugar plantations of the Dominican Republic. The film earned a clutch of international awards for its documentary realism, in addition to stirring up major controversy with Cristóbal Colón, the sugar plantation company at the heart of the film. A court case was brought by the Vicini family, who own and run the company in the Dominican Republic.6 Beyond the plaudits and controversy generated by the film, however, is the fact that it illuminates the extraordinary processes involved in human trafficking between neighbouring states, but in a way that serves to highlight the salience of these processes for understanding human trafficking in a transnational frame. All the main actors featured on the labour trafficking chain and who are touched upon in the chapters of this volume appear in The Price of Sugar: desperate families, miserable potential victims, agents and middlemen, compliant border guards, the sugar plantation itself and a sometimes indifferent and sometimes hostile general public in the host country. The film also raises a number of further issues regarding the historic relations of animosity between the two neighbouring states of the Dominican Republic and Haiti: the push and pull factors that lead to people being trafficked for labour purposes; the status of exploited children within these labour chains; the global hunger for sugar and the mechanisms by which the satisfaction of this hunger entails the exploitation of trafficked labour on a horrendous scale; the interests of multinational corporations and even state governments in turning a blind eye at this exploitation; and, finally, the ultimately futile heroism of the individual (here the redoubtable Fr Hartley) in combating what really requires international protocols and regulatory mechanisms. The sub-regional dynamics of labour trafficking between states is dealt with extensively by Ndioro Ndiaye in this volume with a focus on the Economic Community of West African States. In addition to Arhin, the complex question of child trafficking is picked up in the chapters by Daniel Kweku Sam and Darragh McGee. Grounding his analysis on cultural and socio-economic factors, Sam explores the etiology of internal child labour trafficking in Ghana and focuses in particular on recruitment processes. Conversely, McGee attempts to map the field of transnational child trafficking in relation to the world of sport. In doing so he illustrates the familial ruptures that take place as talented young athletes are trafficked and exploited across the world. Both Crash and The Price of Sugar underscore the importance of protecting migrant workers and providing them with decent work, which are some of the key themes discussed within the frame of labour trafficking.7 Analysing these issues in the Canadian context, Bethany Hastie critically examines the domestic legal and policy tools by focusing on migrant labourers under Temporary Foreign Workers Programs, a group found to be particularly vulnerable to

Introduction

5

exploitation and trafficking. Her study reveals a substantial gap in legal mechanisms calling for the revision of these programmes in Canada. Along similar lines and in the same national context, Amy Stephens, Romesh Hettiarachchi and Sung Hyun Yun in their chapter focus on the effectiveness of Canadian programmes to protect victims of labour trafficking. Aiming to promote a best practice approach grounded in the principles of law and social work, the authors draw on local cases to identify the gaps in government policies and programmes. Although literature and research offer some general guidelines and indicators pertaining to labour trafficking,8 a more nuanced approach is warranted in light of numerous ambiguities that this type of trafficking entails. What films and documentaries fail to capture is the less overt side of labour trafficking. Human trafficking for sexual exploitation has an immediate attraction for those that want to argue for codes of public morality; it also provides clear opportunities for intervention and the saving and rehabilitation of its victims. Labour trafficking, on the other hand, is steeped in the imagery of sweatshops and people working in chains, thus obscuring the fact that there are much more subtle forms of exploitation that take place along the labour trafficking continuum. As Roger Plant shows in his chapter, there is a vigorous debate on the precise nature of coercion in relation to the nature of the vulnerabilities of those being trafficked. He points to the problematic case of ‘self-exploitative’ Chinese migrant workers who deliberately endure long hours of work in dreadful conditions in order to pay off their debts and build a life better than the one they left behind. As a result of such intricacies, a number of challenges remain in conceptualizing and addressing forms of trafficking committed in economic sectors such as agriculture, construction, hospitality, manufacturing and domestic work and within the context of both domestic and international labour protocols and laws. There has been a tendency to articulate the issue of labour trafficking in the context of state security and national immigration policies, which has prompted governments to formulate their fight against it by curbing irregular labour migration.9 In perceiving immigration as a threat to the integrity of the state and the nation, human trafficking is thus considered a matter that challenges the principle of state sovereignty.10 Human trafficking as such has become an item in global political agendas within securitization discourses related to illegal migration, organized crime, terrorism and other types of trafficking, and is perceived as a symptom of all of these. Addressing labour trafficking as a matter of criminal law has had a domino effect and has become central to security studies, capturing the attention of academics and researchers and forming a concerted school of thought that is grounded on the premise that human trafficking constitutes, first and foremost, an issue of immigration policies and state security. Opposed to the construction of human trafficking as a security threat are those who perceive it is a humanitarian problem.11 As a violation of human rights, labour trafficking has been analysed against the backdrop of a definition provided by the United Nations

6

Introduction

Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, which states that trafficking is not limited to sexual exploitation but that exploitation also includes forced labour or services, slavery and practices similar to slavery and servitude. A human rights or human security framework situates the trafficked victims in terms of the denied rights to freedom, dignity and security. Although ostensibly contradictory approaches, security and humanitarian discourses can be mutually supportive, as states are required to provide not only secure borders but also the security of people living within them.12 It is our own view that labour trafficking requires a labour market perspective to be rigorously developed alongside other existing paradigms. This would then help us to analyse the key concepts of exploitation within commodified migratory flows, the migrant experiences and the complex operation of licit and illicit labour market institutions. Collectively, all these vectors must ultimately be taken to impact upon national security and to have a bearing on the question of human dignity and rights. Labour trafficking as a product of weakly regulated labour markets is also gradually becoming a centrepiece of campaigning, awareness raising and research in the context of decent work agendas.13 As many migrant workers are compelled by economic deprivation in their home countries to try and seek better life opportunities abroad, many of them are threatened or coerced into entering debt bondage arrangements that have pernicious implications for their rights to freedom, economic independence, human dignity and social status.14 Global markets and the need to stay competitive encourage some corporations and businesses, particularly in the manufacturing and agricultural sectors, to search for cheap transnational migrant labour in lieu of the more expensive domestic labour in an attempt to maximize their profits.15 In addition, companies that provide transportation, subcontractors, and business partners that sell the goods produced by this exploited labour may all be considered part of the trafficking network. As Mohamed Y. Mattar elaborates in his chapter, a number of multinational corporations have been publicly scrutinized for their illegal or improper business practices. And yet, as he goes on to show, the question of corporate liability, whether under national or international laws, remains mired in controversy. In an attempt to provide a solution, he further advocates for non-binding, voluntary standards and the increased involvement of corporations in introducing human rights agendas into their global supply chain mechanisms. On a more local level, and given that labour trafficking implicates various labour market policy tools, the question of a minimum wage as one of the mechanisms for ascertaining not just the issue of exploitation but indeed the likelihood of the labour pool having been trafficked seems especially attractive. Under the assumption that domestic labour regimes do not necessarily prevent labour trafficking, Anne Pawletta and Philipp Schwertmann focus on one of the central aspects of such domestic labour policies – the minimum wage – as a mechanism by which to at least identify and prevent the exploitation of migrant labour. In their chapter they explore this mechanism and evaluate its

Introduction

7

effects in protecting migrants from exploitation, in securing victim compensation and in acting as an overall preventative tool. And in light of the need to employ innovative approaches in tackling human trafficking in general, a Programmatic Approach formulated by the Dutch National Public Prosecution Office is elaborated upon in the chapter by Ruud Hilgers. This approach involves a joint, multi-sectoral operation consisting of a number of stakeholders and administrative partners in the criminal law system and at local and national levels. Such a framework serves to provide more insight into the structural factors of trafficking. The programmatic approach utilizes the barrier model, which entails understanding administrative-legal barriers law enforcement agencies create that may act as preventive measures against criminal networks, and how such networks negotiate the barriers. These barriers include the requirements to do with opening bank accounts, renting or buying houses, procuring identity papers and generally operating within the ambit of licit structures in the pursuit of illicit goals and objectives. This volume was inspired by papers presented at a multidisciplinary international conference held at the University of Toronto on 9–10 October 2009. The conference, entitled ‘The Commodification of Illicit Flows: Labour Migration, Trafficking and Business’, addressed human trafficking for the purpose of labour exploitation within the contexts of migration and the global economy. It brought together government and international organization representatives, academics, lawyers, members of NGOs and consultants. Panels and open discussions provided a forum for the sharing of research and data and identifying gaps within the existing discourse on labour trafficking. This volume is dedicated to all the participants in that extremely stimulating conference. We wish to give special thanks to Claire Dunlop for her magnificent work as the Research Assistant on this project. Antonela Arhin and Ato Quayson Toronto, May 2011

Notes 1 John Salt and Jeremy Stein, “Migration as Business: The Case of Trafficking,” International Migration 35, no. 4 (1997): 467–94; Kevin Bales, Disposable People: New Slavery in the Global Economy (Berkeley: University of California Press, 2000), 1–34. 2 Louise Shelley, Human Trafficking: A Global Perspective (Cambridge University Press, 2010), 114–18; Patrick Radden Keefe, The Snakehead: An Epic Tale of the Chinatown Underworld and the American Dream (New York: Doubleday, 2009), 274–86; Sheldon X. Zhang, Smuggling and Trafficking in Human Beings: All Roads Lead to America (Santa Barbara, CA: Praeger Publishers, 2007), 79–86. 3 Anne Gallagher, “Trafficking, Smuggling and Human Rights: Tricks and Treaties,” Forces Immigration Review 12 (2002): 25–28; Marie Segrave, “Order at the Border: The Repatriation of Victims of Trafficking,” Women’s Studies International Forum 32, no. 4 (July–August 2009): 251–60. 4 Dina F. Haynes, “Used, Abused, Arrested and Deported: Extending Immigration Benefits to Protect the Victims of Trafficking and to Secure the Prosecution of

8

5 6 7

8 9

10 11

12 13 14

15

Introduction Traffickers,” Human Rights Quarterly 26, no. 2 (May 2004): 221–72; Ratna Kapur, “Travel Plans: Human Rights of Transnational Migrants,” Harvard Human Rights Journal 18 (2005): 107–38. Hui Kian Kwee, “Pockets of Empire: Integrating the Studies on Social Organizations in Southeast China and Southeast Asia,” Comparative Studies of South Asia, Africa and the Middle East 27, no. 3 (2007): 616–32. US District Court, District of Massachusetts, 07 CA 11623 DPW, 31 August 2007. OSCE–Office of the Special Representative and Co-ordinator for Combating Trafficking in Human Beings, “A Summary of Challenges on Addressing Human Trafficking for Labour Exploitation in the Agricultural Sector in the OSCE Region,” background paper for the Alliance against Trafficking in Persons Conference: Technical Seminar on Trafficking for Labour Exploitation Focusing on the Agricultural Sector, Vienna, 27 and 28 April 2009; Luca Bicocchi, “Decent Work for Undocumented Migrants,” Policy Brief, April 2007, Platform for International Cooperation on Undocumented Migrants (PICUM): Brussels. International Labour Organization, Operational Indicators of Trafficking in Human Beings: Results from a Delphi Survey Implemented by the ILO and the European Commission (Geneva: ILO, September 2009). Thomas M. Sanderson, “Transnational Terror and Organized Crime: Blurring the Lines,” SAIS Review 24, no. 1 (2004): 49–61; Arthur Rizer and Sheri R. Glaser, “Breach: The National Security Implications of Human Trafficking,” 17 Widener Law Review 69 (2011): 68–94. Didier Bigo, “Security and Immigration: Toward a Critique of the Governmentality of Unease,” Alternatives 27, no. 1 (2002): 63–92. Joan Fitzpatrick, “Trafficking and a Human Rights Violation: The Complex Intersection of Legal Frameworks for Conceptualizing and Combating Trafficking,” Michigan Journal of International Law 24 (2003): 1143–68; Michele Anne Clark, “Trafficking in Persons: An Issue of Human Security,” Journal of Human Development and Capabilities 4, no. 2 (2003): 247–63. Anotela Arhin, “Trafficking in Persons: Human vs. National Security,” Guest lecture at University of Toronto, Canada, 17 November 2011. International Labour Organization, Better Business: Multinationals and Decent Work, World of Work No. 62 (Geneva: ILO, April 2008). Alexis A. Aronowitz, “Smuggling and Trafficking in Human Beings: The Phenomenon, the Markets that Drive It and the Organisations that Promote It,” European Journal on Criminal Policy and Research 9, no. 2 (2001): 163–95; Toman Omar Mahmoud and Christoph Trebesch, “The Economics of Human Trafficking and Labour Migration: Micro-evidence from Eastern Europe,” Journal of Comparative Economics 38, no. 2 (June 2010): 173–88. Ivan Manokha, “Modern Slavery and Fair Trade Products: Buy One and Set Someone Free,” in The Political Economy of New Slavery, ed. Christien van den Anker (London/New York: Palgrave, 2004), 217–35; Ranee Khooshie Lal Panjabi, “Sacrificial Lambs of Globalization: Child Labor in the Twenty-First Century,” Denver Journal of International Law and Policy 37 (2009): 421–64.

1

Corporate liability for violations of international human rights law Mohamed Y. Mattar

Introduction Reflecting the impact of the current economic crisis, the second report by the UN Special Rapporteur on Trafficking in Persons, especially Women and Children, Ms Joy Ezeilo, submitted August 12, 2009 stated that: Trafficking for purposes of labour exploitation is likely to escalate, particularly during the current economic crisis and in light of increasing poverty caused by massive unemployment and the tendencies of employers to use cheap labour in order to cut costs and maximize profits.1 The same assessment was made by the International Labour Organization (ILO) in its annual Global Employment Trends Report 2009. The Report states the expectation that the global economic crisis may lead to a dramatic increase in the number of people joining the ranks of the unemployed, working poor and those in vulnerable employment.2 Recognizing this development, the International Framework for Action to Implement the Trafficking in Persons Protocol was explicit in defining prevention to include “strengthen[ing] monitoring and management of labor markets, including regulation and monitoring of work places and recruitment processes”3 and “implement[ing] awareness-raising campaigns … to address the demand for easily exploitable services and labor.”4

Illegal or improper business practices If we are to succeed in effectively combating labor trafficking, forced labor, and child labor, it is crucial to encourage the private sector to incorporate policies that prohibit any type of illegal or improper business practices. We are all familiar with such illegal and improper business practices. For example, McDonald’s “Happy Meal” toys were found to be made by Vietnamese teenagers who were forced to work 12 hours a day without overtime, not being allowed sick days, and being fined for any mistakes.5 Similarly, Gap Inc., an international clothing retailer, had received merchandise from a factory in India where children as young as ten years old worked sixteen hours a day without pay.6 And Victoria’s Secret had production facilities in Jordan where Bangladeshi and Sri Lankan employees worked 14 to 15 hours a day, seven days a week, receiving, on average, one day off every three or four months.7

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Mohamed Y. Mattar

The question in all of these cases becomes: How does one hold a corporation liable for an illegal or improper business practice? The other question is whether this liability is limited to national laws or whether a corporation can be held liable under international law. And when these illegal or improper business practices also constitute a violation of human rights – is there a place for human rights in business? Of course, it is not easy to answer these questions; especially when a parent company is trying to escape its liabilities for acts committed by its subsidiary or affiliate. How can a corporation be held criminally liable when the corporation is merely a legal fiction? And how can one convince a corporation that observance of human rights would lead to corporate profitability?

Liability of corporations under national legislation The simple answer is that corporations are more likely to be liable under national legislation. Sex tourism industries such as Big Apple Oriental Tours advertise packages for tourists that include hotel, transportation, and some sex on the side. Under the US Protect Act,8 a corporation doing business in the tourism industry may be liable. Match-making organizations may traffic brides; and the court in European Connections v. Gonzalez made it clear that requiring an international marriage broker to reveal information to a foreign bride does not constitute a violation of the US Constitution.9 Under the International Marriage Broker Regulation Act such broker may be liable for failure to disclose information.10 Moreover, USUS contractors who were supporting and up-keeping the USUS military personnel in Iraq exploited victims from Nepal. After being recruited from poor villages in Jordan, through a trail of deceit, fraud, and negligence, twelve Nepalese men were kidnapped from an unprotected caravan and killed by insurgents on their way to jobs at an American military base in 2004.11 This instance led to the amendment of the Trafficking Victims Protection Re-Authorization Act 2005, providing for its application on extra-territorial basis to USUS corporations doing business abroad.12 There are a number of USUS laws that aim to prohibit imports of goods produced by forced labor or child labor. One is the Child Labor Deterrence Act,13 a bill first introduced to Congress in 1992 intending to impose sanctions on entities importing products made using child labor, thus aiming to give effect to the ILO Convention No. 182 on the Elimination of the Worst Forms of Child Labor. Another is the 2000 Trade and Development Act,14 banning importation of products made using forced labor or prison labor. The US 1984 Amendment to the Generalized System of Preference, a program which provides tariff-free access to markets in the developing countries for certain types of goods originating from developing countries, requires that a beneficiary of the program must be making every effort to afford workers’ internationally recognized rights, including freedom from forced labor and

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acceptable conditions at work relating to hours, wages, health, and safety.15 In 1987, Chile was excluded from the program. Free-trade agreements that the USUS signed with foreign countries, including Bahrain, Jordan, and Morocco, impose an obligation on signatories to respect internationally recognized labor rights, including the elimination of all forms of compulsory or forced labor and child labor.16 In the context of NAFTA, the North American Agreement on Labor Cooperation (NAALC) binds each member state to “promote compliance with and effectively enforce its labor law through appropriate government action.”17 These domestic laws must contain the prohibition of forced labor and the protection of children.18 Under the NAALC complaint procedure individual workers or labor organizations may challenge one nation’s failure to enforce its domestic labor laws.19 In its lending programs, the World Bank takes into consideration human rights and core labor standards. Its International Finance Corporation (IFC) and Multilateral Investment Guarantee Agency (MIGA) have explicit policies forbidding the use of harmful child or forced labor in investor projects.20 More recently, the William Wilberforce Trafficking Victims Protection Act addresses rights of migrant workers for the first time. It recognizes the legal rights of immigrant victims of trafficking in persons and worker exploitation, including – (A) the right of access to immigrant and labor rights groups; (B) the right to seek redress in United States courts; (C) the right to report abuse without retaliation; (D) the right of the nonimmigrant to relinquish possession of his or her passport to his or her employer; (E) the requirement of an employment contract between the employer and the nonimmigrant …21 Similar US laws were also utilized to prosecute labor cases on an extraterritorial basis, including the Racketeering Influenced and Corrupt Organizations Act (RICO)22 and the Foreign Corrupt Practices Act (FCPA).23 Over the last years, the number of FCPA investigations has risen drastically: “For example, US authorities brought more defendants to trial in FCPA cases in 2009 than in the preceding five years combined, and obtained convictions on at least some counts in each trial.”24 All these are examples of national laws. In a number of cases, the court held the corporation liable for violation of human rights.

Judicial remedies for victims of labor law violations A number of labor cases have been decided under the US Alien Tort Claims Act (ATCA).25 As stated in Sosa v. Alvarez-Machain, the Supreme Court affirmed its judicial interpretation of the ATCA that enables victims of human rights abuses to sue their observers in US courts, as long as it “violates definable, universal, and obligatory norms.”26

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In Roe v. Bridgestone Corp. a number of workers from Liberia alleged that their corporate employer, the Firestone Rubber Plantation, employed children as young as 6 without any health or safety protection, in violation of ILO international labor standards as embodied in Convention No. 182 on the Elimination of the Worst Forms of Child Labor. In this case, the court found that child labor allegations were sufficiently pleaded to permit the claims to be brought under the ATCA.27 Doe v. The Gap, Inc., a case filed in 2002 by foreign-born “guest workers” against USUS retailers for their garment industries in the Northern Mariana Islands, involved weaver workers mostly from Asian countries.28 They were asked to sign a “shadow contract” requiring them to pay a “recruitment fee” and preventing them from exercising their basic labor rights. They were subject to unlawful living and working conditions and long hours without overtime payment. They claimed peonage, involuntary servitude. They also claimed violation of the thirteenth amendment as well as RICO. In United States v. Kil Soo Lee, in 2001, an owner of a clothes factory in American Samoa was indicted for knowingly and willfully holding Vietnamese factory workers in servitude and obtaining their labor by coercion.29 This is an example of a labor trafficking case. A victim of labor trafficking may have the same access under the International Covenant on Civil and Political Rights (ICCPR).30 In fact, there have been a number of cases where a victim of violations of labor law was able to file a complaint before the UN Committee. Article 8 of the ICCPR states: “no one shall be required to perform forced or compulsory labour.” A case was brought by Sri Lankan attorneys who worked for the government of Zambia: the government unilaterally changed the contract so that these attorneys would be paid at a lower rate even to the extent that they could not return home at the end of their employment contract.31

The legal status of a corporation under international law The above are examples of corporate liability under national law. The legal status of a corporation under international law is not as clear. The preamble to the Universal Declaration of Human Rights states that “every individual and every organ of society … shall strive by teaching and education to promote respect for those rights and freedoms and … secure their universal and effective recognition and observance.”32 The European Court of Justice held in Defrenne v. Sabena that the principle of equal pay for equal work as established in the Treaty of the European Community is binding not only upon member states but also, directly, upon private employers.33 The anti-discrimination obligations apply to both state and non-state actors and the obligation to pay men and women equally applies to the employer whether the employer is a private or a public entity. The question is whether or not obligations can be imposed on a legal person. First, one may argue that business is one of the other elements of civil society that a state must cooperate with under Articles 6 and 9 of the UN Protocol

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on Trafficking.34 Article 10 of the UN Convention against Transnational Organized Crime establishes for the first time this possibility, providing that [e]ach State Party shall adopt such measures as may be necessary, consistent with its legal principles, to establish the liability of legal persons for participation in serious crimes …, the liability of the legal persons may be criminal, civil or administrative … [and] shall be without prejudice to the criminal liability of the natural persons who have committed the offences.35 Similarly, Article 12 of the UN Convention against Corruption covers the private sector by stating that state parties shall take measures to prevent corruption involving the private sector by “promoting the development of standards and procedures designed to safeguard the integrity of relevant private entities, including codes of conduct for the correct, honourable, and proper performance of the activities of business …”36 The ILO Convention No. 181 on Private Employment Agencies recognizes the role which private employment agencies may play in a well-functioning labor market and recalls “the need to protect workers against abuses.”37 It also states that “[p]rivate employment agencies shall not charge directly or indirectly, in whole or in part, any fees or costs to workers.”38 And that member states shall … adopt all necessary and appropriate measures, both within its jurisdiction and, where appropriate … to provide adequate protection for and prevent abuses of migrant workers recruited or placed in its territory by private employment agencies. These shall include laws or regulations which provide for penalties, including prohibition of those private employment agencies which engage in fraudulent practices and abuses.39 It also states that members “shall take measures to ensure that child labor is not used or supplied by private employment agencies.”40 It must be noted, however, that the International Criminal Court (ICC) excluded a legal person from its jurisdiction although international business crimes may constitute forced labor or enslavement which includes human trafficking. That may amount to a crime against humanity when committed as a part of a systematic attack against a civilian population.

Voluntary compliance with international declarations, guidelines, norms and principles Nonetheless, there have been a number of voluntary international instruments that provided for guidelines and principles on business standards. First, these include the 2003 UN Norms on the responsibilities of transnational corporation and other business enterprises with regard to human rights. The Preamble to the Norms reminds that transnational corporations and other business enterprises, their offices and persons working for them are also obligated to respect generally

14

Mohamed Y. Mattar recognized responsibilities and norms contained in the United Nations treaties and other international instruments such as … the United Nations Convention against Transnational Organized Crime …41

The General Obligations recall that “States have the primary responsibility to … ensure … that transnational corporations and other business enterprises respect human rights.”42 Norm 3 states: “Transnational corporations and other business enterprises shall not engage in or benefit from … forced or compulsory labor …”43 Norm 5: “Transnational corporations and other business enterprises shall not use forced or compulsory labor as forbidden by the relevant international instruments and national legislation as well as international human rights law and humanitarian law.”44 Norm 6: “Transnational corporations and other business enterprises shall respect the rights of children to be protected from economic exploitation …”45 Second, in July 2000, the UN launched the UN Global Compact concerning “responsible business practices,” another voluntary initiative that consists of ten main principles.46 Principle no. 1 demands that “businesses should support and respect the protection of internationally proclaimed human rights.” According to principle no. 2, they must “make sure that they are not complicit in human rights abuses.” According to principle 4, businesses should uphold “the elimination of all forms of forced and compulsory labor.” Principle 5 calls for “[t]he effective abolition of child labor.” Third, another voluntary or self-regulatory set of standards was developed by the 2000 OECD Guidelines for Multinational Enterprises. These are recommendations, principles, or voluntary standards for “responsible business conduct.” They serve as a guideline which explicitly calls upon corporations to “respect the human rights affected by their activities consistent with the host governments, international obligations and commitments.”47 They should also “contribute to the effective abolition of child labor”48 and “contribute to the elimination of all forms of forced or compulsory labour.”49 Fourth, the ILO adopted the Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy as amended in 2000. It states: When multinational enterprises operate in developing countries, where comparable employers may not exist, they should provide the best possible wages, benefits and conditions of work, within the framework of government policies. These should be related to the economic position of the enterprise, but should be at least adequate to satisfy basic needs of the workers and their families. Where they provide workers with basic amenities such as housing, medical care or food, these amenities should be of a good standard.50 Fifth, in 1998, the ILO released a Declaration on Fundamental Principles and Rights at Work.51 It commits member states to respect and promote the “elimination of all forms of forced or compulsory labour” and “the effective abolition of child labour.”

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Self-Regulatory Codes of Conduct There are many examples of self-regulatory codes of conduct embraced by businesses. The Athens Ethical Principles52 were adopted on January 23, 2006 as part of the End Human Trafficking Now Campaign by the Suzanne Mubarak Women’s International Peace Movement. By signing the Athens Ethical Principles the business companies pledged to: “… Explicitly demonstrate the position of zero tolerance towards trafficking in human beings especially women and children for sexual exploitation. … Encourage business partners, including business suppliers, to apply ethical principles against human trafficking.”53 Similarly, in the tourism industry, ECPAT has designed a code of conduct54 for the protection of children from sexual exploitation in travel and tourism. Some companies voluntarily adopt their own codes of conduct. For example, Reebok International Ltd. “will not work with business partners that use forced or other compulsory labor”55 and “will not purchase materials produced by forced, prison or other compulsory labor, and will terminate business relationship with any sources found to utilize such labor.”56 Gap Inc. in its code of vendor conduct states that “factories shall employ only workers that meet the minimum working age requirement, or are at least 14 years of age, whichever is greater, and factories must comply with all requirements of child labor laws.”57 Levi Strauss Co. states in its Global Sourcing and Operating Guidelines that “use of child labor is not permissible, workers can be no less than 15 years of age and not younger than the compulsory age to be in school.”58 Levi Strauss will also “not utilize partners that use child labor in any facilities.”59

The role of the consumer As stated by the US TIP Report, “one key to addressing such demand [for forced labor] is raising awareness about the existence of forced labor in the production of goods.”60 The Report goes on to say: “in the global marketplace for goods, ensuring that complex supply chains are untainted by forced labor, is a challenge for both businesses and consumers. But denying access to foreign markets for products made with forced labor will reduce the incentive to exploit forced labor and encourage ethical business behaviour.”61 Should we hold liable the consumer of services provided by victims of forced labor, child labor, or trafficking if he has knowledge of the act itself and knowingly and willingly uses such services? It seems that Article 19 of the Council of Europe Convention suggests this approach. The Article provides that [e]ach Party shall consider adopting such legislative and other measures as may be necessary to establish as criminal offences under its internal law, the use of services which are the object of exploitation … with the knowledge that the person is a victim of trafficking in human beings.62 For example, the Netherlands and Germany are currently considering bills to that effect.

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Recognition of human rights by businesses In a survey conducted by the United Nations Special Representative on Human Rights and Transnational Corporations and Other Business Enterprises, Mr. John Ruggie, the question was asked what areas of human rights business firms recognize in their policies and/or management practices. Forced, bonded, or compulsory labor together with child labor was the next most frequently referenced area after freedom of association and collective bargaining.63 And ILO declarations and convention were mentioned as the most “international instruments that set human rights principles in the area of labor and business.”64

Conclusion To conclude, one may see a shift from corporate liability only under national laws to international law. However, non-binding standards which are voluntary in nature are better received by corporations than instruments of compulsory compliance. One may also see the erosion of the traditional view that human rights protection is a state obligation and that corporations as non-state actors are not subjects addressed by international law. In sum, corporations should be held liable to the same human rights standards not only because such compliance would amount to corporate profitability but also because it is the right thing to do so.

Notes 1 UN General Assembly, prepared by Joy Ngozi Ezeilo, “Report of the Special Rapporteur on Trafficking in Persons, Especially Women and Children,” U.N. Doc. A/64/290, August 12, 2009, http://daccess-dds ny.un.org/doc/UNDOC/GEN/ N09/456/04/PDF/N0945604.pdf ?OpenElement, 22. 2 ILO, Global Employment Trends: January 2009 (Geneva: ILO, 2009), http://www. ilo.org/wcmsp5/groups/public/–dgreports/–dcomm/documents/publication/wcms_10 1461.pdf, 20. 3 United Nations Office on Drugs and Crime, International Framework for Action to Implement the Trafficking in Persons Protocol (Vienna: UNDOC, 2009), 40. 4 Ibid., 42. 5 Aaron Glantz and Ngoc Nguyen, “Happy Meals, Unhappy Workers,” CorpWatch (March 6, 2006), http://www.corpwatch.org/article.php?id=13358. See generally China Labour Watch, “The Toy Industry in China: Undermining Workers’ Rights and Rule of Law” (September 2005), www.chinalaborwatch.org/upload/toyindustryreport.doc. 6 Doe I v. The Gap, Inc., No. CV-01-0031, 2001 WL 1842389 (D. N. Mar. I. Nov. 26, 2001); Doe I v. The Gap, Inc., No. CV-01-0031, 2002 WL 1000068 (D. N. Mar. I. May 10, 2002). The case resulted in a settlement, cf. Nikki F. Bas, Medea Benjamin, Joannie C. Chang, Saipan Sweatshop Lawsuit Ends with Important Gains for Workers and Lessons for Activists, Clean Clothes Campaign (January 1, 2004), http://www. cleanclothes.org/newslist/617-saipan-sweatshop-lawsuit-ends-with- important-ga. 7 Jonathan Tasini, “Victoria’s Secret, Slave Labor and So-Called ‘Free Trade,’” The Huffington Post, November 27, 2007, http://www.huffingtonpost.com/jonathan-tasini/ victorias-secret-slave–b_74261.html. 8 Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003, Pub. L. No. 108–21, Sec. 105. 9 European Connections v. Gonzales, 480 F. Supp. 2d 1355, 2007 US Dist. LEXIS 22823 (2007).

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10 Violence Against Women and Department of Justice Reauthorization Act of 2005, Subtitle D: International Marriage Broker Regulation, Pub. L. No. 109–62, Sec. 833. 11 US Department of Labor Office of Administrative Law Judges, P.A. et al. v. Daoud & Partners c/o KBR, Inc. et al. – Decision & Order Granting Claimants’ Motion for Summary Decision, April 16, 2008 available at: http://www.oalj.dol.gov/Decisions/ ALJ/LDA/2007/PA_v_DAOUD_and_PARTNERS_2007LDA00309_%28APR_16_ 2008%29_161544_CADEC_SD_files/css/PA_v_DAOUD_and_PARTNERS_2007 LDA00309_%28APR_16_2008%29_161544_CADEC_SD.HTM. 12 Trafficking Victims Protection Re-Authorization Act of 2005, Pub. L. No. 109–64, Sec. 105. 13 The Child Labor Deterrence Act of 1992, bill, S. 3133, 102nd Congress, was re-introduced several times but never became law, cf. http://www.govtrack.us/congress/ bill.xpd?bill=s106–1551&tab=related (accessed November 30, 2010). 14 Trade and Development Act of 2000, Pub. L. No. 106–200. 15 Generalized System of Preferences Renewal Act of 1984, Pub. L. No. 98–573, Title V. 16 See, for example, Article 6 of the Agreement between the United States of America and the Hashemite Kingdom of Jordan on the Establishment of a Free Trade Area (2000). 17 Article 3 of the North American Agreement on Labor Cooperation (NAALC) (1993). 18 See NAALC Annex 1: Labor Principles. 19 Cf. the Rules of Procedure for Evaluation Committees of Experts of the North American Agreement on Labor Cooperation established in accordance with Article 24 of the NAALC. 20 Cf. International Finance Corporation, Performance Standard 2, Labour and Working Conditions (2006), http://www.ifc.org/ifcext/sustainability.nsf/Attachments ByTitle/pol_PerformanceStandards2006_PS2/$FILE/PS_2_LaborWorkingConditions. pdf. 21 William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. No. 110–457, Sec. 202 (b)(4). 22 Racketeering Influenced and Corrupt Organizations Act, 18 USC. § 1961–68. 23 The Foreign Corrupt Practices Act of 1977, 15 USC. §§ 78dd-1, et seq. 24 Lucinda A. Low and Owen Bonheimer, “The Widening FCPA Dragnet: The Increasing Pursuit of Individuals and Foreign Persons and Expansive Use of Legal Theories,” Journal of Securities Operations & Custody 3, no. 2 (August 2010): 166. 25 28 USC. § 1350. 26 Sosa v. Alvarez-Machain, 542 US 692, 732 (June 29, 2004) (quoting Estate of Marcos Human Rights Litigation, 25 F.3d 1467, 1475 (9th Cir. 1994)). Further: “And the determination whether a norm is sufficiently definite to support a cause of action should (and, indeed, inevitably must) involve an element of judgment about the practical consequences of making that cause available to litigants in the federal courts.” (Ibid., 732, 733) 27 John Roe I, et al. v. Bridgestone Corporation, et al., 492 F. Supp. 2d 988 (S. D. Ind. 2007). Note: this is the first decision allowing a claim for child labor under the ATCA. 28 Doe I v. The Gap, Inc., No. CV-01-0031, 2001 WL 1842389 (D. N. Mar. I. Nov. 26, 2001); Doe I v. The Gap, Inc., No. CV-01-0031, 2002 WL 1000068 (D. N. Mar. I. May 10, 2002). 29 United States v. Kil Soo Lee, 472 F. 3d 638, 2006 US App. LEXIS 318176 (2006). 30 International Covenant on Civil and Political Rights (ICCPR), G. A. resolution 2200A (XXI) (December 16, 1966). 31 Human Rights Committee, 75th session, Decision, Communication No. 825–28/ 1998, U.N. Doc. CCPR/C/75/D/825–28/1998 (July 26, 2002). 32 Universal Declaration of Human Rights, GA Res. 217 A (III) (December 10, 1948).

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33 Case 43/75, Gabrielle Defrenne v Société anonyme belge de navigation aérienne Sabena, EUR-Lex 61975J0043 (April 8, 1976). 34 UNODC, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, GA Res. 55/25, UNODC, 2000. Article 6 – Assistance to and protection of victims of trafficking in persons 1.

2.

3.

4.

5. 6.

In appropriate cases and to the extent possible under its domestic law, each State Party shall protect the privacy and identity of victims of trafficking in persons, including, inter alia, by making legal proceedings relating to such trafficking confidential. Each State Party shall ensure that its domestic legal or administrative system contains measures that provide to victims of trafficking in persons, in appropriate cases: (a) Information on relevant court and administrative proceedings; (b) Assistance to enable their views and concerns to be presented and considered at appropriate stages of criminal proceedings against offenders, in a manner not prejudicial to the rights of the defence. Each State Party shall consider implementing measures to provide for the physical, psychological and social recovery of victims of trafficking in persons, including, in appropriate cases, in cooperation with non-governmental organizations, other relevant organizations and other elements of civil society, and, in particular, the provision of: (a) Appropriate housing; (b) Counselling and information, in particular as regards their legal rights, in a language that the victims of trafficking in persons can understand; (c) Medical, psychological and material assistance; and (d) Employment, educational and training opportunities. Each State Party shall take into account, in applying the provisions of this article, the age, gender and special needs of victims of trafficking in persons, in particular the special needs of children, including appropriate housing, education and care. Each State Party shall endeavour to provide for the physical safety of victims of trafficking in persons while they are within its territory. Each State Party shall ensure that its domestic legal system contains measures that offer victims of trafficking in persons the possibility of obtaining compensation for damage suffered.

Article 9 – Prevention of trafficking in persons 1.

2. 3. 4.

5.

States Parties shall establish comprehensive policies, programmes and other measures: (a) To prevent and combat trafficking in persons; and (b) To protect victims of trafficking in persons, especially women and children, from revictimization. States Parties shall endeavour to undertake measures such as research, information and mass media campaigns and social and economic initiatives to prevent and combat trafficking in persons. Policies, programmes and other measures established in accordance with this article shall, as appropriate, include cooperation with non-governmental organizations, other relevant organizations and other elements of civil society. States Parties shall take or strengthen measures, including through bilateral or multilateral cooperation, to alleviate the factors that make persons, especially women and children, vulnerable to trafficking, such as poverty, underdevelopment and lack of equal opportunity. States Parties shall adopt or strengthen legislative or other measures, such as educational, social or cultural measures, including through bilateral and multilateral cooperation, to discourage the demand that fosters all forms of exploitation of persons, especially women and children, that leads to trafficking.

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35 Article 10 (1)-(3) of the United Nations Convention against Transnational Organized Crime, GA Res. 55/25 Annex I (November 15, 2000). 36 Article 12 (2) (a) of the United Nations Convention against Corruption, GA Res. 58/4 (October 31, 2003). 37 Preamble of ILO Convention No. 181, Private Employment Agencies Convention (1997). 38 Ibid., Article 7 (1). 39 Ibid., Article 8 (1). 40 Ibid., Article 9. 41 Economic and Social Council, Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights Fifty-fifth session, Agenda Item 4, Norms on the responsibilities of transnational corporations and other business enterprises with regard to human rights, Preamble (August 26, 2003). 42 Ibid., (A) (1). 43 Ibid., (C) (3). 44 Ibid., (D) (5). 45 Ibid., (D) (6). 46 United Nations Global Compact, “The Ten Principles,” http://www.unglobalcompact. org/AboutTheGC/TheTenPrinciples/index.html (accessed November 30, 2010). 47 Commentary on the OECD Guidelines for Multinational Enterprises at http:// www.oecd.org/dataoecd/56/36/1922428.pdf, 4 (accessed November 30, 2010). 48 OECD Guidelines for Multinational Enterprises, 2000, at IV 1 (b). 49 Ibid., (c). 50 ILO, Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy, 4th edition (Geneva: ILO, 2006), 34. 51 ILO, Declaration on Fundamental Principles and Rights at Work, June 18, 1998, Annex revised June 15, 2010 (Geneva: ILO, 2010). 52 “Athens Ethical Principles,” Manpower Inc. Worldwide, http://www.manpower. com/social/athens.cfm (accessed November 30, 2010). 53 Ibid. 54 The Code.org, “We Protect Children from Sex Tourism,” http://www.thecode.org/ (accessed November 30, 2010). 55 “Code of Conduct of Reebok,” The ACTRAV-Turin Labour Education Programme, International Labour Organization, http://actrav.itcilo.org/actrav-english/telearn/ global/ilo/code/reebok.htm (accessed November 30, 2010). 56 Ibid. 57 “Gap Inc. Code of Vendor Conduct,” Gap Inc., http://www.gapinc.com/public/ documents/code_vendor_conduct.pdf (accessed November 30, 2010). 58 “Levi Strauss & Co. Global Sourcing and Operating Guidelines,” Levi Strauss & Co. http://www.levistrauss.com/Downloads/GSOG.pdf (accessed November 30, 2010). 59 Ibid. 60 US Department of State, Trafficking in Persons Report 2009 (Washington, D.C.: US Department of State, 2009), http://www.state.gov/g/tip/rls/tiprpt/2009/123127.htm. 61 Ibid. 62 Council of Europe, Convention on Action against Trafficking in Human Beings art. 19 (May 16, 2005), Council of Europe Treaty Series No. 197. 63 John G. Ruggie, Human Rights Policies and Management Practices of Fortune Global 500 Firms: Results of a Survey (Boston, MA: Harvard, 2006), 4, http:// www.reports-and-materials.org/Ruggie-survey-Fortune-Global-500.pdf. 64 Ibid., 5.

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Trafficking for labour exploitation Getting the responses right Roger Plant

Introduction: the challenge of labour trafficking In December 2000 the United Nations adopted the ‘Palermo Trafficking Protocol’ to its new UN Convention against Transnational Organized Crime (UNTAC). It requires all member states who ratify the Convention to tackle the problems of human trafficking through a range of measures including law enforcement and prosecution, the protection of victims and compensation for the abuses suffered, and prevention. And in doing so, they are required to give equal weight to the trafficking of women and children for sexual exploitation (hence, sex trafficking); and trafficking for the exploitation of persons for forced labour or services, slavery or practices similar to slavery, and servitude (hence, labour trafficking). The following year, in 2001, the International Labour Organization (ILO) created a new Special Action Programme to Combat Forced Labour (SAP-FL). It was the first time in its long history that the ILO attempted to tackle the problems of forced labour through technical assistance. The backdrop was the first global report on forced labour,1 presented to its annual conference in June that year. The report argued that modern forms of forced labour were a truly global problem, with human trafficking in particular affecting richer and poorer countries alike. It depicted human trafficking as the ‘underside of globalization’. After drafting most of the 2001 report as a consultant, I was asked by the ILO to head its new SAP-FL programme, a job I did for eight years until retiring in late 2009. The job provided huge challenges, and also opportunities, as governments, business actors, and others looked to the ILO – as the UN agency with a mandate on labour issues and standards – to provide leadership on the labour dimensions of human trafficking. With a small core group of mainly young professionals, SAP-FL was able to make a creative contribution to global work on forced labour and trafficking, sometimes taking its own initiatives, at other times responding to demand from governments, business and workers’ organizations. Governments ranging from the US to China and Vietnam, from Brazil and the Gulf States to the Netherlands and Poland, all sought training on how to identify and deal with

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cases of labour trafficking. Major multinational corporations sought advice on ways to prevent forced labour and trafficking in their own supply chains. SAP-FL helped the world’s largest trade union confederation to set up its own global programme against forced labour and trafficking. Two more global reports on forced labour were published during this period. The first, in 2005,2 gave the first worldwide estimates of forced labour and human trafficking by an international agency, covering their incidence by region, as well as the huge profits made by the exploiters of trafficking victims. The second, in 2009,3 took a different tack, estimating the many millions of dollars lost to workers by being in a forced labour situation rather than a free employment relationship. The report also examined the murky world of international recruitment, arguing that unregulated contracting systems can allow for exorbitant profits at the expense of vulnerable migrant workers, and be a major contributory factor to forced labour and trafficking. SAP-FL also brought out innovative country studies on Brazil, France, Germany, Portugal, Russia and elsewhere, as well as a generic study on labour exploitation and Chinese migrants in Europe. All of this has helped to raise national awareness, examining the causes and the basic facts of the problems in different national contexts, as well as the adequacy of the law and policy response. By the end of the period, the programme was focusing on training materials, targeted at the needs of different sectors, and actors who can play a key role in the prosecution or prevention of forced labour. Training and guidance materials have been developed for judges and prosecutors,4 employers and business actors,5 and labour inspectors,6 all of these already translated into multiple languages. The training manuals have drawn on the experience of operational projects throughout the world, and have in turn been able to use these projects as a vehicle for testing and using them on the ground. From all this experience, where do we stand? The steady rise in global attention to human trafficking over the past decade, with its spate of new laws and action plans, has been of value in drawing attention to new problems of exploitation, affecting both regular and irregular migrants in today’s globalized economy. Some of this involves blatant and overt coercion; some involves more subtle forms of coercion and deception. In some cases the offenders are criminals acting knowingly outside the law: in other cases the borderline between legality and illegality is difficult to determine, and dubiously legitimate recruiters are making large profits from exploiting loopholes in existing laws. Yet the dilemma is that, while the ‘trafficking discourse’ has generated much-needed analysis and debates about unacceptable forms of worker exploitation on labour markets (particularly the exploitation of female and male workers who are recruited for employment overseas), there is as yet little consensus over the appropriate response, or as to which agencies of government should assume this responsibility. The issues tend to fall into the cracks between criminal justice, the enforcement of employment and labour law, migration policies, and visa arrangements.

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Because human trafficking is generally seen as a serious crime, needing a strong criminal law enforcement response, the lead agencies in action against it tend to be the police, criminal investigation and prosecution, and criminal justice. The most simplistic paradigm is that of a deliberate criminal exploiter, or set of exploiters involved in the trafficking chain from recruitment through to the final destination place, and victims who are openly forced or perhaps subtly deceived into doing something that they would not accept through freedom of choice. While most official resources have been devoted to the fight against sex trafficking, and most media attention still tends to focus on this, there has been steadily growing concern with labour trafficking. Yet national action against labour trafficking has certainly not matched the growing general awareness. There is little data, even less law enforcement, and very few programmes of official support for perceived victims of labour trafficking. In June 2009, for example, in its annual Trafficking in Persons report, the US Department of State for the first time produced global statistics of labour trafficking cases, as well as those of sex trafficking. For labour trafficking, there were 312 prosecutions and only 104 convictions around the world, as opposed to over 5,000 prosecutions and almost 3,000 convictions for sex trafficking. So while forced labour and trafficking issues are creeping up the agenda of governments and business actors, including major multinational companies, it has so far been hard to grasp specific cases of abuse, or even to reach consensus on the scope or nature of labour trafficking. At one end of the spectrum are perceptions that labour trafficking affects only persons subjected to severe physical constraint, perhaps locked in a sweatshop, watched by armed guards, and deprived of any payment at all. A further common assumption is that the victims are always migrants in an irregular situation in a destination country, thereby rendering them vulnerable to abuses of this kind. At the other end of the spectrum are quite persuasive arguments that migrant workers with a perfectly legal status in a destination country, with apparently lawful employment contracts, can become caught up in a trafficking situation through a spiral of deceptive practices that lock them into a form of modern debt bondage. These arguments have been made strongly in the last several Trafficking in Persons Reports of the US State Department,7 which has tended to single out the exploitation of Asian migrant workers in the Middle East. These have identified abusive measures, including: changing the conditions of employment from those stipulated in contracts signed before the workers left their home country; confiscating and holding travel documents; confinement, and threatening physical force; and withholding wages. Moreover, high transaction costs imposed for working abroad are seen to make migrant workers highly vulnerable to debt bondage. And when combined with exploitative practices by unscrupulous labour agents of employers in the destination country, these costs, or debts, become a form of debt bondage. Yet by addressing this kind of concern under the rubric of labour trafficking, one quickly moves beyond the individual cases of criminal justice, involving

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an exploiter and a victim. These are systemic issues of weakly regulated labour markets, often together with poorly managed migration systems. In this sense, a focus on labour trafficking can have multiple objectives. First, it can help to identify the cases of extreme abuse, amounting to forced labour and slavery-like practices, which do warrant criminal law enforcement against the perpetrators. Second, it can be an ‘umbrella concept’ for rethinking many aspects of labour market governance and migration management; and for bringing out in the open many concerns which tend to be swept under the carpet. But to move forward on either issue, it is essential to have a good understanding of the legal principles that underlie the concept of labour trafficking, in international law and emerging national laws on the subject; and then to examine the way in which these principles can be translated into different kinds of action against the exploitation that derives from human trafficking.

Trafficking, forced labour and slavery: concepts and definitions The global movement against human trafficking seeks to capture situations where vulnerable people, for a range of reasons, are forced or enticed by an agent, the trafficker, or traffickers, into situations that constitute exploitation. Despite the interests of the drafters of the Palermo Protocol, who came up with a laborious definition of trafficking, there have been endless debates as to the criteria that constitute the specific offence of human trafficking. Is movement necessary? Can people be trafficked within their own countries? There have also been debates as to whether coercion – as defined by the ILO’s Conventions on forced labour, or the United Nations instruments on slavery and slavery-like practices – is a necessary condition for the offence of trafficking; or whether subjecting people to sub-standard conditions of work can also make up the offence of ‘trafficking for exploitation’. Finally, there has been discussion of the concept of ‘the abuse of power or of a position of vulnerability’ of a person, one of the several constituent elements that make up the trafficking offence. As explained in a legislative guide prepared by the UN Office on Drugs and Crime (UNODC), the custodian of the Protocol within the United Nations system, the reference to the words ‘abuse of a position of vulnerability’ is understood to refer to any situation in which the person involved has no real and acceptable alternative but to submit to the abuse involved.8 Overall, the UNODC guide advises that the obligation for states is to criminalize trafficking as a combination of constituent elements, and not the elements themselves. These elements are categorized as: first, the action such as recruitment or harbouring of the victim; second, the means such as the use or threat of force or other means of coercion; and third, the purpose of exploitation. Other experts have pointed to the forced labour exploitation as the ‘crucial element’ of the Protocol. This was the position taken by an Experts Group on trafficking, convened by the European Union in 2003, which argued that policy interventions should focus on the forced labour and services (including forced sexual services, slavery and slavery-like outcomes of trafficking), no

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matter how people arrive in these conditions, rather than the mechanisms of trafficking itself. States should criminalize any exploitation of human beings under forced labour, slavery, or slavery-like conditions, in line with the major human rights instruments that prohibit their use.9 Within the UN system, the ILO has chosen to see human trafficking as a sub-set of forced labour concerns, or in the case of child trafficking, of the worst forms of child labour. Whether it is for sexual or other forms of economic exploitation, it is all considered to be forced labour. It does not matter whether a particular kind of work or service is recognized as lawful in any one country. What matters is the presence of coercion. Moreover, under international law forced labour is a serous crime. Forced labour has been broadly defined by the ILO, in a Convention dating back to 1930 but still considered valid today, as a situation in which people enter work or service against their freedom of choice and cannot get out of it without punishment or the threat of punishment. Out of almost 190 international labour Conventions adopted by the ILO over a 90-year period, forced labour is the only issue in ILO standards that deals directly with a matter of criminal justice. Article 25 of the 1930 forced labour Convention provides clearly that ‘the illegal exaction of forced or compulsory labour shall be punishable as a penal offence, and it shall be an obligation on any Member ratifying this Convention to ensure that the penalties imposed by law are really adequate and are strictly enforced’. Slavery and slavery-like practices are defined in UN instruments. Slavery was defined in the first international instrument on the subject, in 1926, as the status or condition of a person over whom any or all of the powers attaching to the right of ownership are recognized. It thus involves absolute control of one person or group of persons over another. The legal concept of slavery-like practices is more recent. It was set out in a UN Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices similar to Slavery. It calls on states parties to abolish progressively, and as soon as possible, such practices as debt-bondage and serfdom, for both of which a working definition is provided. It was adopted at a time when developing countries, many of them newly independent, were striving to eradicate such slavery-like practices through land and tenancy reforms. In these international instruments, the concepts of forced labour, slavery, and slavery-like practices have been defined in fairly general terms. Moreover, their main purpose is to set standards for influencing state policies on core human rights concerns. And they can be traced to certain historical periods. The UN’s first Convention on slavery and the ILO’s first instrument on forced labour were in large part a response to the excesses of colonial powers. They sought to achieve the gradual eradication of colonial forced labour practices, while at the same time ensuring that these did not degenerate into outright slavery. The UN’s second Convention on slavery-like practices, and the ILO’s second instrument on forced labour, were both adopted in the 1950s. The ILO instrument, adopted after the genocidal Nazi era in Europe and at the height of the Cold War with its mass imposition of forced labour by Mao and Stalin,

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was concerned with the eradication of forced labour by the state. And the second UN instrument was concerned with the widespread social and structural reforms needed to eradicate the bonded labour, serfdom, and semi-feudal arrangements that were then so prevalent in the agrarian economies of developing countries. The Palermo Protocol was adopted in a very different era, following decades of extensive liberalization of land, labour, and financial markets; and at a time of growing international migration, following the relaxation of border controls, particularly in the former Communist bloc. It also came at a time when there were renewed concerns in the main destination countries for reinforcing the powers of government to exercise more control over the migratory flows, of both regular and irregular migrants, which were increasingly seen as a threat to national security and cultural cohesion. Yet, at the same time most of the wealthier countries (whether in the Americas and Australasia, Asia, Europe or the Middle East) came to depend on this supply of migrants to provide cheap labour in the less-protected sectors of their economies. In many of these countries a two-tier labour market had developed, one well regulated and with a high degree of job security, the other dominated by casual and temporary work and limited coverage by employment and social security legislation. In this context, the concept of exploitation in the Palermo Trafficking Protocol assumes considerable importance. It requires legislative attention to the criminal offence of trafficking for exploitation, for which there is little precedent in international law, let alone court decisions. But several countries have now availed themselves of the opportunity provided by the anti-trafficking momentum to legislate against living and working conditions considered incompatible with human dignity, and to provide for appropriate penalties. Both Belgium and France have provisions in their criminal legislation which consider the offence of human trafficking to involve the imposition of living and working conditions considered ‘contrary to human dignity’. Under Germany’s penal code as amended in 2005, the new offence of trafficking for labour exploitation, applicable only to foreigners, includes the concepts of slavery-like conditions and debt bondage. One criterion for this offence is the payment of wages markedly less than those paid to German nationals. There has also been much discussion about the degree or severity of exploitation. It is a very subjective term, which has not generally been covered in labour standards, let alone in criminal law, until the Palermo Trafficking Protocol put the subject so firmly on national legislative and law enforcement agendas. Common sense suggests that people are exploited when others derive unfair advantage, or make unfair profits, at their expense by subjecting them to arduous and morally unacceptable conditions of work. But there are obvious gradations of this. No legislature or judiciary will find it easy to determine which practices should be dealt with through long prison sentences, which through fines, or which through the closure of enterprises. The United States provides an interesting example of the way in which, after a forced labour statute was first included in anti-trafficking law in 2000,

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it has gradually been strengthened to capture the different forms of deception and coercive exploitation. The Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA of 2008) created a new criminal statute prohibiting fraud in foreign labour contracting. It imposes criminal liability on persons who, knowingly and with intent to defraud, recruit workers from outside for employment within the United States by means of materially false or fraudulent representations. It provides for a punishment of up to 5 years’ imprisonment, as compared with 20 years for the more serious offence of exacting forced labour. It is interesting to compare this with Israel, whose 2006 anti-trafficking law is conceptually based on the notion of different crimes of increasing degrees of gravity or ‘gradations in exploitation’. It begins with exploitation, rather generally defined as the lesser offence; forced labour in the middle; and ends with trafficking for a wide array of offences, including slavery and forced labour, which carries the highest penalties. To address these conceptual challenges, the ILO’s SAP-FL programme has cooperated with the European Union, seeking to promote agreement as to what constitutes human trafficking by developing indicators to cover all the often subtle elements of deception, coercion, and exploitation involved. It employed a methodology known as the ‘Delphi method’, originally developed several decades ago, to reach consensus among a group of experts and used for a wide range of applications in the medical, political, and social sciences. Following the definition of human trafficking in the Palermo Protocol, experts were asked to provide a list of indicators (or typical elements) of coercion deception, exploitation, and vulnerability which they know are relevant in modern cases of trafficking in Europe. In a second round of consultation, experts were asked to rank all the proposed indicators by order of relevance, from the highly significant to the insignificant. Overall, 68 experts (39 women and 29 men) from 23 European countries participated in the survey. Experts eventually agreed on a list of 67 indicators, respectively covering: deceptive recruitment; coercive recruitment; recruitment by abuse of vulnerability; exploitative conditions of work; forms of coercion at destination; and abuse of vulnerability at destination. The various combinations can help us to understand the variety and complexity of modern human trafficking. The method involves a proactive approach, digging into a hidden problem that may eventually merit criminal investigation and prosecution, rather than relying on the available criminal statistics (which are highly likely to underrepresent the reality of the problems). And while these indicators were originally developed for purposes of data collection and analysis, a number of countries are now seeking to adapt them to the needs of law enforcement, and integrated approaches to prevention and protection.

The continuum of labour trafficking How much is actually known about trafficking for labour exploitation throughout the world? What are its main forms and manifestations? Which

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persons and groups are most affected, and where? And what remedies are available? If taken from a criminal justice perspective, global figures do not indicate very much. In February 2009 UNODC estimated that 18 per cent of all trafficking around the world was for forced labour, and that these figures were almost certainly underestimated as a result of statistical bias. The ILO, using proactive survey methods rather than police and prosecution records, estimated in its 2005 global report that approximately one third of all human trafficking was for forced labour exploitation. For the past several years the US State Department has provided global figures on both labour and sex trafficking, and they are quite revealing. In 2007, 490 prosecutions were for labour trafficking, as opposed to over 5,000 for sex trafficking. For 2008, the number was down to 312. And actual prosecutions for labour trafficking decreased more than threefold, from 326 in 2007 to 104 in 2008. In Europe, moreover – somewhat paradoxically, in view of the heightened attention to the issue in this region – convictions for labour trafficking fell from 80 in 2007 to only 16 in 2008. More recent figures for Europe are provided in the United States’ annual Trafficking in Persons Report, issued in June 2011. The report estimated that there were a total of 47 prosecutions and 38 convictions for labour trafficking in 2010 (significantly down from its estimate of 160 prosecutions and 149 convictions for the previous year of 2009). The ILO has also sought to estimate both the profits made by offenders and the losses caused to the exploited persons by being in forced labour rather than a free employment relationship. The first estimate, in 2005, was that total illicit profits produced in one year by trafficked forced labourers were just under US$32 billion, half of it made in the industrialized countries. Of this, some US$28 billion was made from exploiting victims of sex trafficking, the remaining US dollars from other forms of economic exploitation (what is usually referred to as labour trafficking).10 The analysis was then extended to all forms of forced labour, beyond that resulting from human trafficking. The figure rose to over US$44 billion per year, with over US$10 billion generated by forced labour outside trafficking. The ILO’s 2009 global report, The Cost of Coercion, took a slightly different angle. What, in addition to human suffering, are the financial costs of coercion to the people who work in forced labour situations? This requires an estimate of the ‘opportunity cost’ of being in forced labour, namely the income lost through being in coercion rather than in a free employment relationship, which can be traced to two main sources. The first is systematic underpayment of wages. People in forced labour obviously receive wages under the market rate, through artificial deductions from wages, inflated accommodation and food charges, forced overtime and other forms of ‘excessive work’ which are inadequately remunerated. The second source of lost income, which arises mainly in cases of human trafficking, is the financial costs associated with the recruitment process. Migrant workers trafficked into forced labour tend to incur a series of charges linked to their recruitment, such as high payments to a job

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broker or recruitment agency, or payments for visas, transportation and other transaction costs. On this basis, the total costs of coercion outside the sex sector were calculated at just under US$21 billion, at least twice as much as the ILO’s earlier 2005 estimate. These estimates were revised because the earlier ones had assumed that, at least in developing countries, modern forced labour is concentrated mainly in the agricultural sector. There has been increasing evidence that victims of forced labour and trafficking are found in a range of sectors – including mining, construction, garments and textile manufacturing, domestic work – and also high-value sectors including electronics and steel production. Thus the new estimate looked at agriculture, industry and services, calculated average profits per worker in different regions, and multiplied these by the known number of workers in different regions. Criminal law enforcement is cracking down on the more egregious cases of labour trafficking, and more rarely on the subtler ones. In Europe, for example, there have been some high-profile prosecutions, in Italy and Poland after 2006, in the United Kingdom in late 2008, and in Spain in early 2009. The facts tend to be fairly similar. In the Italian case, Polish workers had been recruited under false pretences for agricultural work in southern Italy, had been housed in sub-standard conditions, and forced by armed guards to work for almost nothing. Over a hundred workers were eventually rescued and provided assistance by Italian and Polish NGOs, and a number of arrests have since been made in both countries. A high-profile Spanish case in early 2009 involved the arrest of a group of Romanian nationals accused of enslaving their compatriots for forced labour and begging. Victims had been held captive in slum apartments and employed mainly as farm labourers, on excessively long work shifts. They had been recruited in Romania with false promises of jobs, forced to work without pay, and apparently made no attempt to escape these conditions. In the United Kingdom, a high-profile case begun in November 2008 involved the exploitation in agriculture of Lithuanian and Polish workers recruited through advertisements and overseas agencies in their home countries. They had reportedly been given money to reach the UK, then been required to pay it back with interest. Passports were removed, and violence was used against some of the workers. Interestingly, these workers were lawfully in the UK, and were harvesting produce believed to be destined for large supermarkets. In late 2009, pursuant to the 2008 TVPRA amendment, the US Department of Justice announced that it was prosecuting its first forced labour case based on pure economic coercion, with no physical force or restraint involved. It concerned recruiters from Thailand, charged in a human trafficking conspiracy for exploiting Thai farm workers in Hawaii. Interestingly, the workers had been brought to Hawaii under the federal agricultural guest worker programme, an official programme allowing employers to take on foreign workers on shortterm temporary visas when they cannot find nationals to do the work. In this case the recruiters had allegedly arranged for the Thai workers to pay high recruitment fees, financed by debts secured with the workers’ family property

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and homes. The recruiters had confiscated passports, failed to honour employment contracts, and threatened to send the workers back to Thailand, where they would face serious economic harm created by the debts. The indictment also charged a visa fraud conspiracy to obtain employment-based visas. If convicted, the defendants were liable to up to 15 years’ imprisonment. In the meantime, official systems of labour recruitment have sometimes been equated with ‘labour trafficking’. The most prominent example is the criticism, particularly in the last several Trafficking in Persons reports of the US Department of State, of the sponsorship systems used by Middle Eastern countries for recruiting and deploying migrant workers from African and Asian countries. The argument is that a proportion of these migrants encounter unscrupulous labour agencies or employers who place them in situations of involuntary servitude, forced or bonded labour, depending on the tools of coercion used against them. At the inception, it is the high transaction costs paid to a range of recruiting intermediaries that places these poor workers in a situation of vulnerability that can then be abused at later stages of the migratory cycle. Such abusive measures can include, for example: conditions of employment in the destination country different from those specified in contracts signed before the workers left their home country; confiscating travel documents; physical confinement in lodgings that the workers are not permitted to leave; and withholding of wages. Extensive criticism has been levelled at the ‘sponsorship’ systems prevalent in the Gulf States, which tie workers to one employer who possesses their work visa. Confronted with such criticism, however, several of these states are now amending or replacing their sponsorship schemes in order to allow more freedom of movement for migrants. And if we look around the wealthiest countries of the world, we find that several – Australia, Canada, Ireland and the United States to name but a few – have sponsorship-type arrangements not so different from those in the Middle Eastern countries. The difference is that in the Gulf States the vast majority of the workforce is brought in under such arrangements. In the other countries, the arrangements are meant to provide temporary overseas labour for a limited period, at times when employers in certain industries cannot find enough nationals to do the work. An example is the H2 visa programmes in the United States, in which workers are brought in mainly from Central American and Caribbean countries through private recruiters over whom the end-use employers seem to have little control. In 2007, an NGO report equated this so-called bracero programme with slavery-like conditions, documenting a series of abuses, and again observing that the vulnerability could be traced to their high level of indebtedness to recruiting intermediaries in the home country.11 Similarly in Australia, a 2008 government review of a special visa scheme for temporary migrants found that migration agents can charge large fees offshore, of which the actual employer may not be aware. The report documented underhand practices by the recruiting agents, such as charging both

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employers and employees exorbitant amounts for the renewal of visas that were still technically valid. There were cases where the employer sponsors passed on the costs incurred by deducting wages from the workers. And in Ireland, a 2006 NGO study found that almost all the 46 persons trafficked for forced labour had entered the country legally, with valid work permits, but had paid substantial sums of money in advance and were deceived over conditions.12 Chinese migrants, now leaving their country in ever-growing numbers through both lawful and irregular channels, are widely perceived as uniquely vulnerable to forced labour exploitation, often within their own Chinese ethnic niche in the destination country. The stereotype is that of a criminal ‘snakehead’, smuggling victims into a Chinese underworld where they work in slavery-like conditions in clandestine sweatshops. To shed more light on the reality, SAP-FL undertook detailed research both on recruitment methods and agencies in China itself and on the linkages between these and employers of Chinese migrant labour in European destination countries. The research found a complex set of circumstances, but also generated an animated debate among researchers as to whether this was coercion and forced labour or, rather, a voluntary ‘self-exploitation’ in which the Chinese workers calculated the cost of their migration experience, willingly submitting themselves to long hours of work in insalubrious conditions to pay off high debts and eventually build up savings for the future. The studies found that, at departure from China, recruitment was rarely if ever involuntary. Moreover, most migrants were fully aware of the illegal nature of clandestine entry into Europe and of the duress that can result from this. The studies also highlighted the importance of the fees paid to smugglers – they can be as high as US$80,000 per head for reaching the USA – and the difficulties that Chinese migrants encounter in repaying their debts. In this case, however, though the media often refer to the ‘debt slavery’ of Chinese migrants, there was rarely a direct link between the person to whom the migrants were indebted and the employer who exploited them. And as the employer did not use the debt as a direct instrument to gain control over the migrants, this could hardly be qualified as debt bondage in the legal sense. Rather, employers were taking advantage of vulnerable workers. While free consent and forced labour were at opposite ends of the spectrum, a broad range of exploitative employer practices lay in the middle of the spectrum, occupying a ‘grey area that is by nature difficult to define’. These included excessive overtime, low wages, exclusion from social welfare schemes and ‘self-exploitation’. And in both China and destination countries, the report highlighted the need for special attention to the regulation and monitoring of labour brokers and intermediaries.13 In its last global report, the ILO devoted much-needed attention to the role of these labour market intermediaries around the globe, in recruitment either within countries or across borders. A main concern, which has increasingly taxed an organization like the ILO in recent years, was the difficulty of defining the employment relationship when there can be manifold systems of brokerage, intermediation and subcontracting. Global research had consistently shown

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that the manipulation of credit and debt, by either employers or recruiting agents, or a mixture of both, remained a key factor trapping vulnerable workers in forced labour situations. Though the scale varied across countries and regions, the basic methods had much in common. Poor peasants and indigenous people in Asia or Latin America could be trapped into indebtedness, through accepting quite small but cumulative loans from employers or recruiters at a time of scarcity in their own communities. Alternatively, would-be migrants were paying large amounts to the agents who secured their work overseas and facilitated their travel. Contrary to everything that the ILO and its labour conventions stand for, these are disturbing signs that labour is becoming ever more a commodity.

Engaging business actors against forced labour and trafficking We can now turn to a key theme of the present volume, namely the role of business actors, including multinationals, in tackling these problems. Sporadically, a major multinational company will be hit by a high-profile exposure of slavery-like conditions somewhere in its supply chain, most frequently in an Asian factory. Apple, Gap, Nike and Toyota are some of the brand names to face damaging allegations, in electronics, footwear, steel, textiles and other sectors. An example was the widespread publicity given to conditions at the Foxconn facility near China’s southern boom town of Shenzhen, when Apple launched its new iPad in May 2010. ‘A gadget to die for?’ was the headline in London’s Independent newspaper on 27 May 2010, coinciding with the launch. Details were provided of serious labour violations, including excessive working hours, unpaid wages, compulsory overtime and extremely poor dormitory conditions. A number of Chinese workers had been driven to suicide, apparently due to such conditions. Because forced labour, slavery and trafficking are serious crimes – under international law and a growing number of national laws – businesses are legally obliged to eradicate such practices from their company operations. Yet there are two major issues at stake, as regards the limits of private sector engagement. The first is how far an individual company’s liability should extend, when subcontracting chains in the globalized economy are so complex. The second is what actually constitutes the criminal offence of forced labour, meaning that a company is responsible to disengage from the supplier or factory responsible; and what are the grey areas along the forced labour continuum, which the parent company should tackle incrementally through continued engagement. On the face of it, the companies most at risk are the small industries in developing countries, particularly those with a seasonal production cycle and, above all, those bringing seasonal labour to a remote rural area where labour may be scarce. This is why bonded labour has been widespread in South Asian brick kilns, and more recently in parts of China. But major multinationals can be exposed when, under pressure to reduce labour and other production costs,

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they relocate to areas where auditing systems are not in place or are insufficient. And the main problems seem to occur when they do not carry out their own recruitment and job placement. In July 2008, Australian television reported widespread forced labour at the factory of a Malaysian supplier to Nike, where the labour force had been brought in largely by Bangladeshi contractors. The main complaints were the usual ones: high recruitment fees and subsequent deductions from wages, and confiscation of identity papers to reduce freedom of movement and the scope for protests. In the Malaysian case Nike moved swiftly to investigate and remediate, setting up a hotline, insisting that the factory should pay back to the workers any recruitment fees linked to their employment in Malaysia, and stipulating that any such fees would henceforth be paid by the company. European- and US-based companies, including multinationals, have also been exposed to forced labour practices in their own backyard. Once again, the main faultline seems to be the widespread use of labour providers in certain industries, and the failure of beneficiary companies to exercise due diligence over recruitment and, in particular, fee-charging practices. In the UK, abuses came to light in the aftermath of the Morecambe Bay tragedy in 2004, when 23 Chinese irregular migrants recruited by labour providers known in the UK as ‘gangmasters’ died in a shell-fishing accident in northern England. In an article on the ‘underbelly of globalization’, a trade union activist reported in the Guardian newspaper that the poor Chinese cockle pickers were the ‘tip of an enormous iceberg of migrant labour’ working in many sectors of the UK economy, and throughout the country. Respectable providers of labour for seasonal work in agriculture were being undermined by rogue gangmasters who found even the limited protections provided by British employment law to be burdensome. Because the gangmasters were unlicensed and unregistered, no one knew how many there were, but estimates ranged from the official figure of 600 to as many as 3,000. Yet the disaster was the catalyst – with consensus support from business, trade unions and government – for the Gangmasters (Licensing) Act 2004, which creates an offence of acting as a gangmaster without the authority of a licence. The following year a Gangmasters Licensing Authority (GLA) was set up to protect workers in the sectors of agriculture, shellfish gathering, food processing and packaging. Its main task has been to license the labour providers, though it also has the powers to bring prosecutions in serious cases. Within three years there have been almost 60 revocations of gangmaster licences. An example was a case of May 2008, when allegations of forced labour among migrant daffodil pickers resulted in one of the industry’s largest labour suppliers losing its licence. As reported by the Guardian, the GLA accused the company of imposing debts on its mainly Polish workers, failing to provide them adequate housing, and paying sub-standard wages. Investigators found a letter to workers indicating that they could not leave before the end of the contract without paying a substantial sum of money, adding that threats were made against the families of employees in their home countries.14 The same year the

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GLA launched an 18-month programme of targeted enforcement through surprise raids throughout the UK. It has brought its first criminal prosecutions; and in May 2009 it launched a consultation on a protocol between the GLA and the leading British supermarkets to combat labour exploitation in the UK. Within the United States, business complicity in forced labour has been exposed by a small number of NGO publications over the past decade, while a limited number of civil action suits have also been brought against alleged offenders. As noted, the 2008 amendment to the Trafficking Victims Protection Act also enables prosecutions for the offence of fraudulent recruitment as well as forced labour, and has paved the way for the first criminal prosecutions. An overall study on forced labour in the United States, published by an NGO and the University of California in 2004, focuses inter alia on the prevalence of forced labour in agriculture by looking at the example of the citrus industry in Florida. One case study concerns the prosecution of farm labour contractors, who forced several hundred workers from Mexico and Central America to work without pay or for far less than the minimum wage, under threat of violence. They did this under the pretence of collecting debt owed for transport from Arizona to Florida and for work equipment, housing, utilities, and other necessities. These contracts had supplied labour to harvest oranges and other citrus products for some of the largest citrus growers in the United States. The study advocates better legal protections and monitoring of vulnerable workers, with the US government promoting accountability in such sectors as agriculture and garments that use subcontracting systems. It also urges the government to eliminate the visa requirement that mandates a worker to remain with one particular employer.15 A key development in the United States has been civil action cases seeking compensation for the abuses suffered by migrant workers. One such example is a civil case brought before a Louisiana court in March 2008, on behalf of several hundred Indian migrants. These men had allegedly been trafficked into the United States through the H2-B guestworker programme, and had been subjected to forced labour as welders, ship fitters, and in other jobs in Mississippi and Texas. The action sought compensation for damages inflicted by the company’s agents both overseas in India and the United Arab Emirates and in the United States itself. The men had reportedly incurred substantial debts and liquidated life savings in order to pay fees related to recruitment of as much as US$20,000 per worker.16 In a further case, the Washington law firm Cohen Milstein has sought to use the new US trafficking statute against a corporation. It has been representing the families of 12 men and one surviving labourer from Nepal, who were originally recruited in 2004 on the understanding that they would work in Jordan, but were instead taken against their will to work for a US military contractor in Iraq. In this tragic case, the 12 men were captured by insurgents and killed on the way to the US base where they were expected to work. The families and the surviving worker filed suit against the contractors, KBR and Daoud and Partners, in the United States under the Trafficking Victims

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Protection Act. They also brought claims under other legislation, the Alien Tort Statute and the Racketeer Influenced Corrupt Organizations Act (RICO). In November 2009 a court in Texas rejected KBR’s efforts to stop the lawsuit. In denying a motion to dismiss, the court found that the trafficking statute applied to this suit, that trafficking and forced labour were violations of international law, and that the RICO violations could be prosecuted extraterritorially.17

Perspectives and challenges In today’s globalized world most severe labour exploitation, potentially amounting to the criminal offences of forced labour and slavery, occurs in the private economy. A common assumption is that the most serious abuses are limited to the rural and informal sector in developing countries, in forest clearing, remote and backward agriculture, brick kilns and small factories on the margins of the modern economy. Research by the ILO and others over the past decade, interventions by NGOs, and in some cases creative and experimental litigation, are now challenging these assumptions. There are many ways in which vulnerable workers in all parts of the world – through unfair and uncontrolled recruitment practices, manipulation of credit and debt, and also loopholes in employment and social protection laws – are being deprived of freedom in employment, and are at risk of falling into exploitative situations that can fall within the ambit of national and international laws against forced labour and trafficking. The most vulnerable persons are women and men who are on the move, particularly those who are enticed to move across international borders and who have few if any remedies against serious abuse. A further common assumption is that irregular migrants are most at risk. Yet recent research has detected countless cases throughout the world where migrant workers with a perfectly lawful status, perhaps possessing written contracts of employment, can be exposed to serious abuse. A further problem is that their contractual status under employment law can be unclear. Companies may wash their hands of any responsibility, suggesting that they have no legal obligations towards a workforce that is provided through a subcontractor. Fortunately, these concerns are now rising higher on legislative, political, and also business agendas. Some companies now have quite detailed provisions against forced labour and trafficking in their corporate social responsibility (CSR) codes. Rather than have a brief general provision against forced labour and trafficking, they are going into considerable depth, for example specifying restrictions on recruitment fees. Some companies have also accepted responsibility for their entire supply chain. A key challenge, however, is to find the right response to the grey areas, which are unlikely to be prosecuted successfully before criminal courts, and perhaps not even before labour tribunals, but which, arguably, constitute unacceptable forms of exploitation in the modern world. Nobody should be

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made to work 14 or 16 hours a day, perhaps seven days a week, with practically no rest periods. And workers need to be protected from the excessive fee charging by recruiters, which is at the root of so much of the debt bondage and slavery-like practices affecting a disturbingly high number of overseas contract workers. The trafficking paradigm is useful, because it has put the spotlight on modern forms of labour exploitation and prepared the political ground for innovative legislation, like that in the United States, which criminalizes fraudulent recruitment with potentially high penalties (though not as severe as for forced labour). Indeed, if national laws are going to capture the more subtle forms of abuse, they will need to accept that there are degrees of exploitation. Prosecutors cannot go for broke by seeking similar maximum penalties for every form or incident of labour exploitation. A major challenge is to reach common standards, both nationally and internationally, on fee charging for recruitment. When poor people are desperate for income, they will take risks, and they are very easily deceived by promises of rich rewards in a destination country, provided that they pay the labour brokers in advance. And on brokerage practices, the gap between lawful and unlawful practices is a particularly murky grey area. Research on the rapidly proliferating labour agencies in China has found that they can carry out a mix of legal and illegal practices. As the main international agency on standard setting for workers’ rights, the ILO has gone through various stages on this point. In its earlier years, it placed more emphasis on strengthening public employment services and seeking the abolition of fee-charging private agencies. Thus its first Employment Service Convention (No. 88 of 1948) required ratifying states to establish and operate an employment service accessible to everyone, free of charge both to workers and employers. Reflecting shifting priorities and the spirit of the time, in the late 1990s it adopted a new Private Employment Agencies Convention (No. 181 of 1997), which provides for cooperation between private and public employment services, aiming to protect job seekers against unethical practices, also protecting workers under subcontracting arrangements and workers recruited from abroad. Also applying to temporary work agencies, it establishes the basic principle that private employment agencies shall not charge directly or indirectly, in whole or in part, any fees or costs to workers. Exceptions to this principle are allowed in respect of certain categories of workers, as well as specific types of services, after consultation with the most representative organizations of employers and workers. Clearly, most countries and many companies are poles apart from the actual application of such a principle. An umbrella body of top-end-of-the-market recruiters, the International Confederation of Private Employment Agencies (CIETT), has grappled with the issue, establishing in its code of practice the principle of free provision of service to job seekers. Prominent global companies such as Manpower have also taken the subject on board, making high-profile commitments to free provision of services. Yet a 2005 study by a US NGO

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which specialized in labour rights and social accountability found that for many Asian migrants, while legal limitations on fee charging were generally set at one month’s salary, it could take workers up to three years to pay off their loans.18 And ILO research in Pakistan found that the average total cost for persons employed overseas was more than 12 times the official ceiling.19 Around the world this kind of labour exploitation is now deeply embedded, preying on the weak and vulnerable, and threatens to get worse unless firm preventive measures are now taken. In the United Kingdom in May 2009, in announcing new measures to tackle food-worker abuse in supermarkets, the Chairman of the Gangmasters Licensing Authority warned that information gathered by the authority suggested exploitation was spreading. Once rigorous research is done, and the information base is more complete, a similar broad picture is likely to emerge in many countries of the world. At the same time, both governments and some business actors are beginning to wake up to the reality of this exploitation, which also poses a potential risk to legitimate business. Stung by growing criticism from the United States, several Gulf States have embarked on labour reforms, including abolition of employer sponsorship schemes and new approaches to migration management. An example is the United Arab Emirates (UAE), which in 2009 proposed a pilot project to the Indian and Philippine governments to survey and document best practices in managing the temporary employment cycle. In the UAE itself, the project would leverage new policy guidelines and enforceable measures to ensure the protection of wages and access to legal redress.20 The way forward will be a mix of policies and approaches. It is imperative to have a legal framework in place, ideally addressing forced labour as well as human trafficking, paving the way for criminal sanctions in the worst cases. This needs to be backed by labour laws and inspections, which can provide redress for workers, including financial compensation for lost earnings. And when the framework is in place, the more creative lawsuits, the better. Judges are not used to dealing with suits of forced labour and trafficking in the private economy. Cases need to be brought before the courts, to establish the judicial precedent. As for business, CSR interventions need to go beyond measures taken by individual companies. Innovative monitoring systems, such as the Gangmasters Licensing Authority in the United Kingdom, came into being precisely when prominent business leaders, governments, and trade unions sat at the same table to reach consensus on the way forward against new forms of exploitation. In most countries there are too many loopholes in existing law, enabling the unscrupulous to get away with unethical recruitment and employment practices. Under the broad banner of action against forced labour, slavery, and trafficking, companies need to identify the roots of the problems and plug the gaps. The outright coercion involved in forced labour and trafficking is a starting-point, at the bottom of the ladder of exploitation. A global campaign against excessive fee charging for workers is needed as the next step.

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Notes 1 ILO, Stopping Forced Labour: Global Report under the Follow-up to the ILO Declaration on Fundamental Principles and Rights at Work (Geneva: ILO, 2001). 2 ILO, A Global Alliance against Forced Labour (Geneva: ILO, 2005). 3 ILO, The Cost of Coercion (Geneva: ILO, 2009). 4 ILO-SAP-FL, Forced Labour and Human Trafficking: Casebook of Court Decisions (Geneva: ILO, 2009). 5 ILO, Combating Forced Labour: a Handbook for Employers and Business (Geneva: ILO, 2008). 6 ILO, Forced Labour and Human Trafficking: Handbook for Labour Inspectors (Geneva: ILO, 2008). 7 See Trafficking in Persons Report, Department of State, United States of America, Washington DC, June 2009. The issues also received significant attention in the reports for 2007 and 2008. 8 UNODC, Legislative Guide for the Implementation of the Protocol, citing the Travaux Préparatoires (UN Doc. A/55/383/Add.1), 63. 9 The Experts Group, Report of the Experts Group on Trafficking in Human Beings (Brussels: European Commission, December 2004). 10 ILO, A Global Alliance against Forced Labour (Geneva: ILO, 2005). 11 Southern Poverty Law Centre, Close to Slavery: Guestworker Programs in the United States (Montgomery, Alabama: Southern Poverty Law Centre, 2007). 12 Migrant Rights Centre Ireland (MRCI), No Way Forward, No Going Back: Identifying the Problem of Trafficking for Forced Labour in Ireland (Dublin: Dublin City University, 2007). 13 ILO, Concealed Chains: Labour Exploitation and Chinese Migrants in Europe, ed. Gao Yun (Geneva: ILO-SAP-FL, 2010). 14 Paul Lewis, ‘Daffodil harvester stripped of gangmaster licence and accused of using forced labour’, Guardian, 8 May 2008. 15 Human Rights Center, Hidden Slaves: Forced Labor in the United States, Free the Slaves and Human Rights Center (University of California, Berkeley, September 2004). 16 ILO, The Cost of Coercion (Geneva: ILO, 2009), 182. 17 Cohen Milstein, ‘Nepali Trafficking’, Access to Justice, www.cohenmilstein.com/ cases/215/nepali-trafficking (accessed May 10, 2011). 18 Verite, Protecting Overseas Workers – a Verite Report (Amherst, MA: Verite, December 2005). 19 G.M. Arif, ‘Recruitment of Pakistani workers for overseas employment: Mechanisms, exploitation and vulnerabilities’, working paper (Geneva: ILO, July 2009). 20 National Committee to Combat Human Trafficking, Combating Human Trafficking in the UAE, Annual Report 2008–09, United Arab Emirates (Abu Dhabi: Ministry of State for Federal National Council Affairs, 2008), http://www.dfwac.ae/e-newsletter/ Annual%20Report%202008.pdf.

3

The commodification of human smuggling and trafficking Louise Shelley

A diversity of actors participate in labor trafficking, ranging from diplomats and employees of multinational organizations to large-scale criminal organizations in Asia. In between these two extremes are small-scale entrepreneurs, who seize on the demand and desire of many to gain meaningful employment.1 This paper will focus on the organized smuggling and trafficking networks that move individuals for labor exploitation, rather than on the elite individuals who move individuals to be used in their home or on their property. Trafficking networks include both economically and politically motivated criminals. Both categories of traffickers often intersect with the larger world of transnational crime. They obtain false documents for their victims from criminal specialists, hire thugs from outside their network to intimidate laborers and move their proceeds through established money-laundering channels. The trafficking networks also interact with the legitimate world as they advertise their products, move their victims through public transport and secure visas from public officials.

Transnational criminals involved in trafficking Criminal trafficking groups are structured in a variety of ways. Few are large groups with pyramidal structures. Many traffickers outside of the large Asian crime groups operate as decentralized networks with loose connections between links in the trafficking chain.2 These groups are frequently ethnically based and depend on diaspora communities in many countries for support. Crime groups cooperate across borders to move individuals long distances, such as in the Balkans-based Tara case discussed later in this paper. Subgroups of criminal trafficking networks often specialize in a particular aspect of the business such as recruitment, transport and supply of false documents.3 Investigations have identified diverse network structures.4 But as trafficking has developed over the last decades, trafficking groups have become more “professional, entrepreneurial and less visible.”5 Buyers and sellers coordinate closely even across long distances.

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Diversity of actors The commitment to trafficking as an activity differs among some criminal actors. Some traffickers are opportunists. They will engage in any illicit activity that yields a profit, trafficking included. These criminals may recruit a few women for a trafficking ring one time and move drugs another. Other traffickers, particularly women, engage exclusively in human smuggling and trafficking, both for labor and for sexual exploitation.6 As opportunists, they have also capitalized on the human misery created by the financial crisis that began in 2008. There are others who participate in segments of the business. For example, coyotes facilitate smuggling across the US–Mexican border. These facilitators may not know the person they are transporting and often provide a service on a pay-as-you-go basis. In many regions, particularly in Latin America, the Balkans and West Africa, law enforcement officials are also implicated in human smuggling, as they are important facilitators. Human traffickers, just like their associates in illicit narcotics trade, are aided by an array of collaborators. Women in every culture assume a significant role in human trafficking. But only in China has a woman been found at the top of a major transnational smuggling organization. Sister Ping was sentenced to 35 years’ imprisonment by an American court for conspiracy to commit alien smuggling, other smuggling charges, and money laundering, after many Chinese died on her vessel the Golden Venture off the East Coast of the United States.7 Prior to this tragedy, she had run a highly successful multimillion-dollar criminal empire that stretched across several continents. Sister Ping rationalized her role in human smuggling by believing she was providing a public service for migrants who could not enter the United States without her services. Members of the Chinatown community where she resided for many years reinforced this perception of her as a service provider to the community.8

The routes of the traffickers Humans trafficked for labor exploitation often travel long routes, as their ultimate destinations are locales with greater demand for labor, which may be far from their homes, in sub-Saharan Africa, Afghanistan and Pakistan, Southern China or the mountainous communities of Southern Mexico. Illustrative of this are the large numbers of Filipinos, Thais and Ethiopians who are trafficked as domestic laborers to the Middle East.9 Hundreds of thousands of Fujian Chinese are in New York and Paris, many of them indentured servants or trafficked laborers. Tajiks and Vietnamese are trafficked as laborers to Moscow, Siberia and all of Russia in between.10 Trafficked Vietnamese in the United Kingdom help to cultivate a large-scale home-grown cannabis crop.11 Traffickers are logistics specialists who can move individuals across vast distances. They often require numerous safe houses along the way where they can lodge their human cargo until it is safe to move them further. Frequently the route is not the most direct, because the traffickers knowingly avoid

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policed roads, border checkpoints and jurisdictions where there is efficient and honest law enforcement. Traffickers and smugglers require a military-like intelligence capacity to successfully avoid these obstacles. Their intelligence capabilities may not be as developed as those of large-scale narcotics traffickers, but they are needed to organize routes successfully and deliver the human product. The end destination for those smuggled and trafficked victims is often one where a diaspora community can absorb the trafficked people, or where an allied crime group can receive and distribute the trafficked laborers. The Protection Project of Johns Hopkins University has constructed maps of the trafficking routes of traffickers of women and children. Affluent countries are particular destination countries, as are oil-rich states of the Middle East. Trafficking is also particularly pronounced in countries with significant domestic organized crime problems, such as Nigeria, as well as the countries of the former USSR, the Balkans, Japan and Mexico.12 Human smuggling, in contrast to trafficking, may indeed attract hordes of people. Illustrative of this are the television reports showing large numbers of desperate Africans attempting to disembark from flimsy boats that have transported them from Africa to the Canary Islands or Lampedusa, close to the Italian shore. This massive smuggling business operating from Mauritania, Gambia, Senegal and Morocco to Europe, according to the UNODC, nets the criminal groups €300 million annually, an enormous amount, considering the limited financial resources of those being smuggled.13 There are many reasons why recruitment occurs within one’s own group. Proximity and access are important. But equally important is trust.14 Trust is important because people often contract with smugglers to move them to a particular locale, to pay them a certain amount of money or to keep them in bondage for a particular period. Trust is more easily established with someone from one’s own ethnic, linguistic or cultural group.

Transport and entry Smugglers and traffickers face important logistical challenges in moving people long distances. These challenges are similar to some faced by narcotics traffickers – they must coordinate transport, evade border and customs controls and ensure entry of the product into the market. But human smuggling and trafficking also poses unique challenges. The human cargo must be fed and housed in transit, and delivered in “serviceable” condition. Small shipments of drugs can be readily moved by couriers, but a shipment of human beings cannot be so easily disguised. Investigated smuggling and trafficking cases reveal every known form of transport, from travel by foot to that on airplanes. In some cases individuals travel in horrendous conditions – in the holds of cargo vessels, in small boats with no protection from the sun or rain, or in specially constructed and poorly ventilated compartments of trucks. Many become ill, but the traffickers, seeking to minimize costs, rarely provide medical care. The conditions of transport recall the abysmal conditions in which slaves were transported in past centuries to the New World.15

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A Balkan human smuggling ring case named “Tara” with 52 identified participants, which was dismantled as a result of regional coordination, reveals the complexities of illegally transporting job seekers hoping to find work in Europe across numerous different borders. Four criminal groups, each one in a different country, cooperated to move at least 192 people from the Near and Far East, charging those seeking to enter the European Union €1,000 to €1,500 apiece. The smugglers were very careful about their business, trying to cover up their tracks by all means, i.e. to stay below the radar. The groups from Croatia were connected with smugglers from other countries. The persons transported across the border with regular transport lines, in personal vehicles, taxis or vans. The persons were accommodated at secret locations before the transport and payments were conducted via messengers – drivers of regular bus routes or Western Union … The arrested criminals often used illegal border crossings and a guide.16

This case is not exceptional. The Chinese who died in the van crossing the English channel had been initially transported by Snakeheads, a Chinese crime group, by plane from Beijing to Belgrade. Then, with the efficiency of a well-coordinated international business, they were moved by auto through Hungary, Austria, France and the Netherlands before the group was loaded for their last fateful leg to the United Kingdom.17 Smugglers and traffickers use an enormous variety of techniques to move people and to facilitate their entry into their destination countries. Corruption, as previously mentioned, is often an integral part of the transport process, as border guards, customs officials, consular officers and other diplomatic personnel must be bribed or extorted.18 Collusive relationships are established with real or bogus travel agencies to facilitate the trafficking. In one example in Bulgaria, in the mid-1990s, a former senior Bulgarian intelligence official opened a travel agency. By establishing close relations with a Western embassy in Sofia, official tourist visas were delivered en masse to the travel agency for travel to Western Europe. This allowed the agency to facilitate human smuggling and trafficking, activities it combined with money laundering.19 In other parts of the world, smuggling and trafficking victims suffer enormously. Thousands of trafficking victims illegally cross the US–Mexican border in tiny boats, or walk through huge and specially constructed subterranean tunnels. Others cross hundreds of miles of desert on foot. Hundreds die each year of starvation and dehydration, having been deceived or abandoned by their traffickers. In 2008, 54 women from Myanmar perished in a freezer truck used to transport seafood.20 More secure are the individuals who travel on overcrowded and uncomfortable buses across large distances. This was the case of a group of Georgian labor

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trafficking victims who had traversed a large expanse of Russia before entering Finland, which was merely a transit point to their ultimate destination of Italy.21 Moving significant numbers of individuals is challenging in itself, but moving them across guarded borders can be even more difficult. Fortunately for the smugglers and traffickers, vast parts of Africa, Latin America, Asia, the former Soviet Union and the Middle East can be traversed with relative ease. Border posts can be crossed with small payments, large stretches of border are uncontrolled and can be easily traversed by knowing traffickers and the illicit movements of people can easily be disguised within licit movements. As in the “Tara” case above, illegal border crossings are used. Traffickers use particular ingenuity to facilitate the movement of their “commodities.” In most consulates around the world, foreigners attempting to obtain visas complain of the enormous obstacles. To overcome these roadblocks, traffickers often do more than bribe officials. Examples of corrupt consular officials facilitating trafficking by providing visas have been discovered by American, Swiss, Belgian and German investigations. Many cases of corruption in visa and passport issuance can be traced to India and Pakistan, to Latin America as well as to the Balkans and Eastern Europe. A US State Department official was arrested in 2000 in Guyana, having amassed more “than $1.3 million in cash and gold in a conspiracy to sell US visas to foreigners.”22 In 2005, another visa bribery scheme was detected in the embassy in Mexico City and dozens of port of entry and border patrol officials have been arrested for corruption.23 Insights into how officials are corrupted can be gained from a 1990s case investigated by the US Immigration and Naturalization Service that resulted in the ruin of the career of a young consular officer stationed in India. Just as the security police in the Soviet era looked for diplomats whom they could blackmail to do their bidding, the Indian crime groups were on constant alert for the same vulnerabilities. Demoralized by the heavy workload and the constant strain of turning down visa applicants, the recently stationed American diplomat proved to be an excellent target for the human smuggling/trafficking network. Placed in a compromising position by the organized crime group, he was subsequently blackmailed by the criminals. He provided visas to the crime ring, which in turn received large sums for its ability to move its clients into the United States. But the Indian crime operation went sour and the facilitating role of the American visa officer was disclosed while he was still in India.24 Swiss authorities had similar problems with their embassy in Pakistan in 2006. Swiss officials in the Department of Foreign Affairs reported that criminal gangs “involved in human trafficking had almost certainly infiltrated the visa section of the Islamabad embassy and corrupted officials.”25 As in the Bulgarian case above, Pakistani travel agencies were complicit in the visa fraud.26 Lawyers are also hired by smugglers and traffickers to obtain residence permits. The fees paid to the lawyers are often the largest cost to the traffickers. In one case in the mid-1990s investigated in the United States, a small New York

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law firm was engaged in visa fraud, concocting applications for permanent residence to aid an Indian smuggling operation. A more famous case involved a Harvard-educated lawyer, Mr Robert Porges, and his wife, Sherry Lu Porges, who together gained $13 million between 1993 and 2000 as a result of filing false political asylum claims for large numbers of Chinese persons smuggled to the United States by a Chinese crime ring.27 Documents seized from the traffickers revealed that one quarter of the proceeds of the crime group were spent on legal fees.28 In the Indian subcontinent officials are corrupted in any type of foreign embassy that can aid the smugglers/traffickers, not just those of Western states. A group of Indians transited through the Erevan airport in the 1990s on Armenian passports. They obtained the passports after smugglers bribed high-level embassy officials or “stole” the passports from the Armenian embassy in India.29 At the end of the Shevardnadze era in Georgia, in the summer of 2004, a high-level border guard official watched another group of Indians exiting from a Moscow flight move through a special line at passport control in Tbilisi, where no passport checks were made.30 Both of these cases reveal the cross-border linkages of the criminals, the careful preparation of the human smugglers and the complicity of officials that facilitate this movement. During the same time period, a Belgian employed in the protocol service of the Belgian Ministry of Foreign Affairs arranged the distribution of diplomatic passports and “sold at least 300 residence permits to people associated with the Russian mafia. One of the accomplices in this case was an important figure in a large Russian company engaged in money laundering.”31 Threats are made by smugglers and traffickers in labor cases. International communications facilitate the delivery of threats long distances. In the late 1990s, the family of a Chinese individual smuggled to Canada had not made expected payments. Phone calls were repeatedly made to the family in China during which the screams of the tortured trafficking victim were heard. Canadian law enforcement sought to break up the ring but could not trace the phone calls, which were routed from Canada through the United States to China. With the cooperation of American law enforcement, the calls of the traffickers in Canada were traced back to their home base in China. With this proof, diverse elements of the criminal organization who were terrorizing the victim and his family in China could finally be arrested.32

Victims of trafficking Victims of traffickers rarely seek assistance. The reasons for inaction are multiple. Often they do not have the language or the capacity to contact law enforcement. Other victims have such ingrained fear of law enforcement from their countries of residence that they do not expect to obtain any assistance in the country to which they are trafficked. Others know from the experience of their fellow trafficking victims that their appeals to the police are hopeless. Law enforcers in league with the traffickers will resell the victim, and the

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victim may be subjected to intense violence as a punishment for the escape attempt.

Regional differences in trafficking Distinctive regional differences in trafficking are not a contemporary phenomenon. In the past, there was no single model of slavery. Slavery was different in the American colonies, Brazil and the Horn of Africa.33 Just as the trade in humans was shaped in the past by cultural, geographic and economic forces, today’s human trafficking is also shaped by these forces, as well as by historical tradition. Some groups specialize in human trafficking, whereas others commit diverse crimes simultaneously.34 Others make more use of corruption and technology. Still others exploit the absence of effective state controls in their home country, whereas others use underground banking or commodities to launder their money. Awareness of these distinctions is essential for understanding the business operations of human trafficking groups in different regions of the world. Here three different business models of traffickers from different regions of the world will illustrate the diversity of the phenomenon. The business models of Chinese, US–Mexican and Turkish traffickers are analyzed. Chinese smuggling/ trafficking for labor exploitation sends people around the world, but especially to Western Europe and North America. The US–Mexican trafficker moves people not only from Mexico but also from Central America and even South America, as the southern US border is the entry point for Latin Americans. Turkish groups are an important conduit for people being moved from Asia, especially the Indian subcontinent, and the Middle East to Europe. They work closely with the Balkan groups mentioned previously. All three trafficking groups move individuals for labor exploitation across long distances under difficult conditions. Similar models can be developed for North African, Central Asian and Pakistani groups, based on available data. In these cases, however, there would be some differences. North African groups move individuals from their own region and often from sub-Saharan Africa to Europe. Often traveling in flimsy boats, many die or are stranded in transit. The Central Asian model includes members of the republics of Kyrgyzstan, Tajikistan and other poor Moslem Soviet successor states who move their compatriots most often to Russia and, to a lesser extent, Ukraine, Kazakhstan and elsewhere. Fellow citizens facilitate their movement or meet them upon arrival in Russia and put them into work brigades, depriving them of their passports and forcing these unskilled workers to work long hours for minimal or often unpaid wages. They collect all the wages from the employers and transport the workers back and forth from the sub-standard housing where they confine the workers each night. Payments are made to government officials to ensure that the illegal workers keep working without state intervention.

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Pakistani groups move educated residents of their country to Great Britain, where those who are smuggled will work for years in situations that others would describe as labor exploitation, in order to send some remittances home.35 All of these models are ideal types, and not every crime group from a particular region fits within a particular model. Each group is analyzed in terms of many criteria, including: business strategies, advertising, profit margins and goals, use of violence and corruption, and the educational level of the traffickers. These models are not confined to the country or region of origin, as the smugglers and traffickers cross continents.

Trade and development model – Chinese traffickers The Chinese trade and development model36 is most applicable to the smuggling of men for labor exploitation, but also applies to the trafficking of women, who may represent as much as 10 percent of the total human trade conducted by Chinese groups, judging from confiscated ships’ logs and recent investigations.37 Chinese smuggling organizations operate as businesses, based on family networks, that are integrated from start to finish. They record their expenses in minute detail, listing the costs of bribes and even of the $20 bus fares for transfer between Chinatowns of the northeastern US on so-called Chinatown buses.38 They control those smuggled from recruitment through debt bondage. Corruption is an integral part of the business, from start to finish. As in the former Soviet states, state controls are eliminated because Chinese government officials in southern China either are bribed or are directly implicated in the trafficking networks.39 Seized ledgers and investigations reveal that corruption costs are an integral cost at every stage of the business. This is their largest expense, except in cases where they incur legal expenses.40 Without such payments, smugglers could not move tens of thousands of people out of the tightly controlled territory of China.41 Officials are bribed both at the source and in transit countries in the Americas; even at high levels of the US Citizenship and Immigration Services, corruption has facilitated this trade.42 Chinese smugglers, however, save on advertising costs because they do not need to publicize their businesses in order to recruit or sell the services of the smuggled humans. The smugglers’ links ensure a steady flow of human beings from the source communities, with guaranteed placement upon delivery, although, as the Fujian area has become more prosperous, there is less desire to incur large debts to emigrate and smugglers have to look to other parts of China for others who will pay for their service.43 Men are required to work long hours in restaurants, sweatshops and other businesses controlled by the Chinese diaspora community. Girls and women are required to work in sweatshops or brothels.44 In a large-scale investigation by the US Immigration and Naturalization Service (INS) of Chinese smuggling into the United States, entitled “Asian Cruise,” smuggled migrants were tied to 400 Chinese restaurants or take-outs in the Washington, DC area.45 The

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conditions of employment, according to analysts of their work environment, often resembled those of trafficked rather than smuggled people.46 The control of the trafficked humans from recruitment through exploitation results in significant and long-term profits. This illicit trade in people resembles other Chinese trade that is integrated across continents and in which the significant profits are repatriated for investment in southern China. Assets are sometimes laundered home through wire transfers, but multimillions of dollars are returned through the system of Chinese underground banking, which launders money through gold shops and other long-established techniques.47 Money generated from human smuggling and trafficking can be moved extremely rapidly through the underground banking system. After the arrest of the lawyer-facilitator Mr Porges, mentioned earlier in this chapter, tens of millions of dollars were moved through the underground banking system back to China before law enforcement investigators in Washington could freeze the accounts of the smugglers.48 Chinese are smuggled and trafficked not only into the United States but also into Europe, Australia and many parts of Asia, as well as parts of the former Soviet Union as the following chapters will discuss. Much of the 13th arrondissement in Paris has been taken over by Chinese, a large percentage of them smuggled migrants. The International Labour Organization (ILO) estimates that there are now 50,000 illegal Chinese immigrants in France, 70 percent of them in Paris.49 Great Britain is also filled with large numbers of smuggled Chinese, as the tragic deaths in the van crossing the Channel and the deaths of 20 smuggled cockle workers in 2004 made many realize.50 Illegal Chinese work in horrendous labor conditions in the Italian textile and leather industry, which investigators there find difficult to penetrate. In a bizarre case, Chinese smugglers formed an alliance with the IRA, a terrorist organization, in order to enter Northern Ireland.51 Smuggled Chinese have different fates, depending on their destinations. Smugglers of Chinese citizens to the United States free those whom they have smuggled after they have worked off their debt, whereas prosecutors in Italy report that the individuals trafficked there often remain enslaved even after their contracted period of bondage is over. Part of the reason for this divergent treatment is that Chinese migrants cannot be readily absorbed into the legitimate economy. Thus, freed Chinese cannot pay the smugglers to move other family members as frequently as occurs in the United States.52 Furthermore, smugglers have greater difficulty in delivering replacement workers to Italian sweatshops. The underground factories that exploit the workers are therefore reluctant to free them. In the United States, it is in the financial interests of the smugglers to uphold their contracts with those smuggled, but that is not always the case in Italy. The Chinese model results in less-significant violations of human rights than does the post-Soviet model because the Chinese smugglers and traffickers have an interest in gaining long-term profits from those whom they have smuggled. The smugglers need to keep those transported healthy so as to

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ensure that the workers can labor and perpetuate the cycle of smuggling. Furthermore, the fact that the smugglers’ success in recruiting future clients within the closely knit communities of southern China depends on the experience of those they have previously smuggled means that there are some limits on the abuse that this human cargo can suffer. Violations may be greater in Europe than in the United States, where smuggled migrants have less chance of succeeding financially in their new country and therefore are of less long-term benefit to their smugglers.

Supermarket model – low cost and high volume – US–Mexican trade The Supermarket Trade Model is based on maximizing profits by moving the largest numbers of people with relatively low costs for each individual moved.53 Smugglers before 2001 often charged as little as several hundred dollars for their services. The increased controls on the US–Mexican border since September 11th, 2001 have raised the costs of transiting the border to thousands of dollars in many cases. In the period since 2001, drug organizations that previously confined their activities to moving narcotics have diversified to facilitate human smuggling.54 Also, violent and multi-member gangs such as MS-13 have entered the human smuggling business because large profits can be made by moving hundreds of thousands of men and women annually.55 This model is applicable to the smuggling of both men and women. The trade in women is part of a much larger trade that involves moving large numbers of people across the border at low cost. In most cases, the smugglers only facilitate the cross-border trade, a feat that may require multiple attempts. According to a US Government Accountability Office (GAO) report, “From 1994 through 2004, Border Patrol records indicate that between 0.9 and 1.7 million migrants were apprehended in the nine southwest Border Patrol sectors each year,” with the figure peaking in 2000.56 In a small percentage of cases, after entry traffickers exploit particularly vulnerable individuals such as deaf mutes forced to beg or young girls, as will be discussed in more detail in Chapter 8.57 Most of the Mexican “people movers” benefit from a trade that is based on large-scale supply and, until 2007, seemingly endless demand. The on-going trade requires significant profit sharing with local border officials. Estimates by American law enforcement officials policing the US–Mexican border suggest that as many as 90 percent of their Mexican counterparts may be taking bribes.58 Corruption of American officials is a constant and growing concern, and the Inspector General’s Office in the Department of Homeland Security has documented numerous cases.59 This corruption is believed to be rising because of the enormous financial temptations and the close kinship ties that exist between the Mexican and American border officials.60 As security has increased at the border, the payments to smugglers on the border have escalated. Thus, many individuals entering the United States owe thousands to the human smugglers. Smugglers also extort money from family

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members already in the United States by threatening to do grave physical harm to those whom they have transported across the US border. The increased costs of cross-border facilitation mean that the likelihood of trafficking increases because individuals cannot pay their debts to the smugglers. With the economic contraction since 2007, many illegal individuals are in limbo. They are unable to obtain work to repay their debts and yet they cannot return home and rejoin their families because their earnings in Mexico would never allow them to repay their smugglers. Indentured servitude often follows. Traffickers launder their money in traditional ways, returning millions of dollars in profits to Mexico, where it is invested in land and farms. Traffickers’ investment patterns resemble those of migrants rather than those of drug traffickers, who often stockpile cash or buy businesses. Just as individuals smuggled to the United States send home remittances to buy land or to build and improve homes, the smugglers follow the same pattern but on a larger scale. Traffickers of even limited numbers of women or workers can invest millions in Mexican farms because they make enormous profits from their human exploitation.61 This model results in many significant violations of human rights, and even the deaths of those smuggled and trafficked. Because there is little profit to be gained from each individual who is moved, smugglers are not always concerned about the safe delivery of those smuggled to their ultimate destination. Crossing the deserts that lie on the US–Mexican border requires providing significant water to those being moved, an obligation that is not always fulfilled. Traffickers also prey on the most vulnerable sectors of Mexican society such as the deaf, minors and those from areas of the highest unemployment. The debts to organized crime incurred by many workers during the economic crisis that started in 2007 may enhance their vulnerability in the future.

Trade routes of the former Ottoman Empire – Turkish human smuggling Turkish human smuggling follows the trade routes of the former Ottoman Empire. Instead of bringing spices and silks from the Orient to Western Europe, the trade is now in human beings, most often labour migrants and political refugees from conflicts in Afghanistan, Iraq, Pakistan and Somalia, as well as those who are seeking to earn more in the economies of Europe. Turkish organized crime has become globalized in recent decades, facilitating this trade from East to West.62 The geographical location of Turkey on the Black Sea and its borders with Soviet successor states, Iraq, Syria and Iran all facilitate this trade. Moreover, its long Mediterranean border is too long to be fully policed, making it an excellent transit point for entry into and exit from the country. High levels of corruption in the transit countries facilitate the movement of people. Turkish law enforcement investigations of human smuggling have

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disclosed that corruption not only in sending countries but also among law enforcement officials in the Balkans facilitates this trade.63 The cooperation with Balkan crime groups recalls the era of the Ottoman Empire, when much of this territory was under Turkish rule. The international illicit trade routes used to move drugs to Western Europe are also exploited to move people. Just as was seen in the case of the US–Mexican border, the drug traffickers and drug routes are also used to move people. The reason for this is that, once the links with other crime groups are established, the corruption needed to move illicit cargo is in place. Also, Turkish crime groups have become specialists in the logistics needed to move drugs and people. The presence of strong crime groups in the Eastern parts of Turkey, especially on the borders with Iraq and Syria, has helped to facilitate this illicit trade.64 In some cases, there are links with the crime groups connected with the terrorist organization PKK (Kurdish Workers’ Party).65 Data from the Organized Crime and Smuggling section of the Turkish National Police reveal that many transnational criminals and crime groups composed of members from different countries are now operating in Turkey, facilitating this trade. In 2008, criminals from 64 different countries operating in conjunction with different Turkish crime groups were arrested in Turkey.66 Many of these groups are functioning in the drug arena, but their networks are also exploited for the trade in human beings. Central to human trafficking for labor exploitation are the Turkish diaspora communities that voluntarily or as a result of coercion collaborate with the Turkish crime groups. Because these networks are strong in the UK, Belgium, Netherlands, Germany and elsewhere in Western Europe, Turkish groups can smuggle individuals into Western Europe, where their labor can be effectively exploited.67 This reliance on diaspora communities in labor trafficking was also seen in the Chinese and Latin American groups discussed above. The proceeds of labor exploitation are repatriated, often using cash couriers. They are invested in resorts, hotels and restaurants in major cities and coastal regions. This is a pattern similar to that seen in other transnational crime groups that invest in land and the entertainment sector. This has been shown in Dutch investigations of human trafficking.68

Conclusion The trafficking that is conducted for labor exploitation is not as chaotic as the presence of shiploads of illegal immigrants or the unskilled agricultural workers on American farms suggest.69 Trafficking businesses exploiting unskilled labor have many features common to large-scale legitimate transnational businesses – the retention of specialists, the division of functional responsibilities and the need to invest profits.70 The flexibility of these illicit businesses, their exploitation of advanced technology and expert use of corruption make them highly viable and profitable. Trafficking organizations have experienced greater growth than most other transnational businesses

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because they have successfully combined the characteristics of illicit businesses with the practices of successful multinational corporations. The networked structures of the human smugglers and traffickers allow their trade to continue even if a particular division such as a logistics cell is disrupted. Human trafficking is also growing because there are financial advantages for many participants besides the actual criminals who move and exploit human beings. Many legitimate enterprises, such as farms, restaurants and transport companies, make significant profits by turning a blind eye to this pervasive phenomenon. Despite the common characteristics of human traffickers, their businesses closely resemble the trade patterns and cultures of the region from which they emanate. This has been seen in the Latin American, the Chinese and the Turkish cases analyzed here in depth. The same can be said for the Balkan, post-Soviet and Indian subcontinent examples mentioned. Trafficking is not a sui generis business model but closely mirrors the trade in legitimate commodities. The trade patterns of the regional crime groups discussed here reflect patterns of trade that are centuries old. For China, trade is used to fuel economic development. The Chinese model, like others discussed here, is based on family ties. Low-cost cross-border smuggling has characterized the situation on the US–Mexico border for more than a century. Thus, with human trafficking for labor, a live rather than an inanimate commodity is now being moved. Historically, the Ottoman Empire facilitated trade along the silk route, which linked Europe and Asia. The Ottoman Empire is gone, but the trading role is now performed by Turkish groups in the domain of human smuggling and trafficking. The profits of the trafficking business are enormous. Trafficking organizations, especially from Asia and Turkey, invest in the tourism sector. They buy hotels, resorts and restaurants. Profits from trafficked Chinese labor make restaurants profitable. Profits from trafficking can be invested in the development of other illicit businesses, such as gambling establishments and the drug trade, or can be used to acquire legitimate businesses. Conversely, profits from the drug trade can help diversification into human smuggling and trafficking, as is seen now with Mexican groups. In some cases, labor trafficking may fuel development and support families without other means of support. The remittances sent home by the trafficking victim, however small, may maintain a child or family in a precarious situation. Understanding that trafficking sometimes serves an important economic function not only for the smuggler but also for the communities in which they operate is crucial to explaining its endurance. Many smuggling and trafficking groups repatriate profits to buy political influence, to neutralize law enforcement and to prevent future prosecutions. Trafficking groups in the Balkans and Asia are the most ready to influence the political process, but Mexican smugglers, emanating from the large-scale drug trade, have also shared this objective. For many traffickers, the acquisition of political influence is the best use they can make of their profits. This allows the criminals to become embedded in the power structures of their home communities.

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Trade in human beings has recently become one of the fastest-growing forms of transnational crime and is now estimated at $10 to $32 billion in annual profit.71 Yet not enough is being done to go after the profits of this crime or the money laundering associated with it. Thus, the criminals are able to enjoy or to invest their profits, with little concern for their seizure. Most traffickers launder their profits outside the traditional banking system.72 Instead, as previously mentioned, they use wire remittance services, cash couriers and elements of underground banking. The money flows often follow the same routes as the people. There is one important distinction – the money and the people often flow in opposite directions.73 The phenomenal growth of human smuggling and trafficking is explained by more than the criminals’ ability to respond to supply and demand. Smuggling and trafficking groups have been major beneficiaries of globalization because they have simultaneously exploited advanced technology, the diminution of state control over territory and citizens and the growing international illicit economy. Consequently, their rapid expansion is not a transient phenomenon. Human smugglers and traffickers are poised for future growth in the 21st century because of their business acumen,74 logistics capacity and expert use of facilitators. The persistent demand by people in poorer countries to work in the more affluent regions of the world, unfortunately, portends significant future growth in the exploitation of humans by those who are capitalizing on this form of human suffering and on the world’s economic disparities.

Notes 1 United Nations Office on Drugs and Crime (UNODC), Trafficking in Persons: Global Patterns (UNODC, 2006), 68, http://www.unodc.org/pdf/traffickinginpersons_ report_2006–04.pdf (accessed July 28, 2009); Eurojust, “Human Trafficking: the State of Affairs,” October 2005, http://polis.osce.org/library/f/3273/2219/EU-NLD-RPT3273-EN-Eurojust%20and%20Human%20Trafficking%20-%20The%20State%20of %20Affairs.pdf (accessed July 28, 2009); Cornelius Friesendorf, “Introduction: The Security Sector and Counter-Trafficking,” in Strategies Against Human Trafficking: The Role of the Security Sector, ed. Cornelius Friesendorf (Geneva: DCAF, 2009), 57. 2 UNODC, Trafficking in Persons, 69. 3 Francesca Bosco, Vittoria Luda di Cortemiglia, Anvar Serojitdinov, “Human Trafficking Patterns,” in Strategies Against Human Trafficking, ed. Cornelius Friesendorf (Geneva: DCAF, 2009), 67. 4 John Picarelli, “Organised Crime and Human Trafficking in the United States and Western Europe,” in Strategies Against Human Trafficking, ed. Cornelius Friesendorf (Geneva: DCAF, 2009), 124. 5 Jana Arsovska and Stef Janssens, “Policing and Human Trafficking: Good and Bad Practices,” in Strategies Against Human Trafficking, ed. Cornelius Friesendorf (Geneva: DCAF, 2009), 178. 6 Alexis A. Aronowitz, Human Trafficking, Human Misery: The Global Trade in Human Beings (Westport, Conn. and London: Praeger, 2009), 52–55. 7 ICE news release, “Sister Ping Sentenced to 35 years in Prison for Alien Smuggling, Hostage Taking, Money Laundering and Ransom Proceeds Conspiracy,” http://www. ice.gov/pi/news/newsreleases/articles/060316newyork.html (accessed March 16, 2006);

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11 12 13 14 15 16

17 18 19 20 21 22 23 24 25 26 27

Louise Shelley http://www.usdoj.gov/usao/nys/pressreleases/March06/sisterpingsentencingpr.pdf (accessed July 26, 2009). P. R. Keefe, “The Snakehead,” New Yorker, April 24, 2006, 68–85; Patrick Radden Keefe, The Snakehead: An Epic Tale of the Chinatown Underworld and the American Dream (New York: Doubleday, 2009). Aronowitz, Human Trafficking, Human Misery, 81; for discussion of Ethiopians, US Department of State, Trafficking in Persons Report 2009, 239, http://www. humantrafficking.org/countries/thailand (accessed July 30, 2009). Liudmila Erokhina, “Trafficking in Women in the Russian Far East: A Real or Imaginary Phenomenon,” in Human Traffic and Transnational Crime: Eurasian and American Perspectives, ed. S. Stoeker and L. Shelly, Lanham, MD: Rowman and Littlefield, 2004, 79–94; People’s Daily Online, “50,000 Illegal Chinese Immigrants Miserable in Paris,” June 24, 2005, reporting on the ILO report, Chinese Immigrants Victims of Labor Exploitation in Paris, http://english.peopledaily.com.cn/200506/24/eng20050624_1921 89.html (accessed June 9, 2007); Ko-lin Chin, Chinatown Gangs: Extortion, Enterprise and Ethnicity (New York and Oxford: Oxford University Press, 1996). Interview with members of Serious Organized Crime Agency, Washington, DC, May 2009. UNODC, Trafficking in Persons. Caroline Brothers, “Criminal Gangs Profit from Smuggling of Illegal Immigrants from Africa into Europe,” http://www.iht.com/articles/2007/03/19/news/crime.php (accessed June 10, 2007). See Valerie Braithwaite and Margaret Levi, eds., Trust and Governance (New York: Russell Sage Foundation, 1998). H. S. Klein, The Middle Passage: Comparative Studies in the Atlantic Slave Trade (Princeton: Princeton University Press, 1978). For a discussion of the case see “SECI Bucharest,” Southeast European Cooperative Regional Center for Combating Trans-Border Crime, http://www.secicenter.org/ p450/02+April+2009 (accessed July 29, 2009); for the specific quote see “Smuggled 200 people to EU via Croatia,” April 2, 2009, http://www.javno.com/en-croatia/ smuggled-200-people-to-eu-via-croatia_248077 (accessed July 29, 2009). “Britain’s Straw Says Truck Deaths a Warning,” Reuters, June 19, 2000; Warren Hoge, “Trucker Found Guilty in Death of Immigrants,” New York Times, April 5, 2001, A6. John Pomfret, “Bribery at Border Worries Officials:Mexican Smugglers Intensify Efforts to Entice US Agents,” Washington Post, July 15, 2006, A01. Arsovska and Janssens, “Policing and Human Trafficking,” 190. Lwin Aung Soe, “Myanmar Migrants Suffer in Lorry,” August 10, 2008, http:// antidictatorship.wordpress.com/2008/04/10/54-burmese-illegal-immigrants-die-insidecontainer-van/ (accessed July 27, 2009). Tamar Mikadze, “Human Trafficking Won’t Go Away in Georgia,” CACI Analyst, June 15, 2005, http://www.cacianalyst.org/newsite/?q=node/3112 (accessed June 22, 2007); interview with International Law Enforcement advisor in Georgia in 2005. John Allen Williams and Richard E. Friedman, “The Intersection of Immigration and National Security,” American Bar Association National Security Law Report 30, no. 4 (November/December 2008): 17. Ibid. This case was investigated by an INS agent with whom the author worked closely. Leslie Holmes, “Corruption and Trafficking: Triple Victimisation,” in Strategies Against Human Trafficking, ed. Cornelius Friesendorf (Geneva: DCAF, 2009), 103. Ibid. These two cases were discussed with the author by INS investigators in 1998 and 1999; Graham Rayman, “Human Smuggling Lawyer Charged in Schemes to Sneak Chinese into Country,” Newsday, September 21, 2000, http://www.friendspartners.org/lists/stop-traffic/1999/1159.html (accessed January 9, 2009).

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28 Discussion with INS agents and analysts examining the financial flows in the case. 29 This was part of a well-documented asylum case in which the author served as an expert witness in June 2003. 30 The border official who reported this worked closely with the TraCCC center in Georgia. 31 Arsovska and Janssens, “Policing and Human Trafficking,” 190. 32 Case of a Washington-based federal prosecutor reported by him November 30– December 1, “Transnational Crime, Corruption and Information Technology,” American University, Washington, DC, http://www.american.edu/traccc/events/ attended.html (accessed June 22, 2007). 33 David Northrup, Indentured Labor in the Age of Imperialism 1834–1922: Studies in Comparative World History (New York: Cambridge University Press, 1995), 156–57; Hugh Tinker, A New System of Slavery: The Export of Indian Labour Overseas, 1830–1920 (London: Oxford University Press, 1974), 114. 34 Kevin Bales and Stephen Lize, Trafficking in Persons in the United States (Washington, DC: National Institute of Justice, November 2005), 5, http://www. ncjrs.gov/App/Publications/abstract.aspx?ID=233446 (accessed September 3, 2009). In the White Lace case, the post-Soviet group engaged in identity theft. Los Angeles Police Department Press Release, “Operation White Lace,” http://www. lapdonline.org/press-releases/2002/12/pr02726.html (accessed July 20, 2006). This information was obtained from interviews in 2005. Mexican drug groups move both drugs and people simultaneously, as do Balkan groups. See Arsovska and Janssens, “Policing and Human Trafficking.” But Chinese appear to be more uni-dimensional, focusing only on people. 35 Khalid Koser, “Why Migrant Smuggling Pays,” International Migration 46, no. 2 (2008): 3–26. 36 This analysis of Chinese organized crime and trafficking is based on a variety of law enforcement sources in addition to the academic sources and the materials from prosecuted cases. The evidence from actual investigations of the business side of Chinese organized crime has been made available to the researcher. These include economic analyses of the crime based on the findings of criminal investigations. In addition, information has been obtained from Interpol’s organized crime division, which analyzed the relationship among different Chinese trafficking organizations operating in Europe. Also Ko-lin Chin, Chinatown Gangs: Extortion Enterprise and Ethnicity (New York and Oxford: Oxford University Press, 1996); Willard H. Myers III, “Testimony, 21 April 1994, Willard H. Myers, III, Founder/Director, Center for the Study of Asian Organized Crime,” in Senate Foreign Relations/Terrorism, Narcotics and International Operations, US Law Enforcement and Foreign Policy, Federal Document Clearing House 1994; Peter Kwong, Forbidden Workers: Illegal Chinese Immigrants and American Labor (New York: New Press, 1997). 37 UNODC, Trafficking in Persons. 38 Chinatown buses provide a cheap form of intra-city transport between Chinatowns in the major cities of the American East coast. The buses have been cited for numerous violations but continue to function and are used by economy-minded travelers as well as smugglers. 39 “Interview with Peter Kwong,” http://usinfo.state.gov/eap/Archive_Index/Interview_ with_Peter_Kwong.html (accessed June 28, 2007). 40 But the largest expenses were the legal fees incurred in the filing of phony asylum claims for the smuggled Chinese. The lawyers received almost 25 percent of the sixty million dollars generated by the trafficking ring. Interview with the law enforcement analyst in Washington, DC, conducting a complex, computerized analysis of the seized financial records of the Chinese smugglers, 1999. 41 Ko-lin Chin, Smuggled Chinese: Clandestine Immigration to the United States (Philadelphia: Temple University Press, 1999), 42.

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42 Ibid., 42–45; Patrick Radden Keefe, The Snakehead: An Epic Tale of the Chinatown Underworld and the American Dream (New York: Doubleday, 2009), 283–85; discussions with investigators of the Asian Cruise case. 43 Keefe, Snakehead. 44 Jenny W. Hsu, “Dozens of Smugglers Captured,” Taipei Times, June 19, 2009, http://www.taipeitimes.com/News/front/archives/2009/06/19/2003446547 (accessed August 19, 2009). 45 Bertil Lintner, Blood Brothers: The Criminal Underworld of Asia (New York: Palgrave Macmillan, 2003), 222–23; discussions with US investigators of Chinese organized crime. 46 M. R. J. Soudijn, Chinese Human Smuggling in Transit (Den Haag: Boom Juridische Uitgevers, 2006); “Interview with Peter Kwong.” 47 For an understanding of different forms of underground banking see Nikos Passas, “Informal Value Transfer Systems, Money Laundering and Terrorism,” January 2005, http://www.ncjrs.gov/pdffiles1/nij/grants/208301.pdf (accessed June 29, 2007). 48 Interview with investigators of Asian Cruise case. 49 People’s Daily Online, “50,000 Illegal Chinese Immigrants Miserable in Paris.” 50 James Meek and Jonathan Watts, “Two Days Before the Disaster, Yu Phoned His Wife. ‘He said his life was terrible. I told him to leave. He said without this job I can’t eat,’” Guardian.co.uk, http://www.guardian.co.uk/world/2004/feb/20/china.ukcrime (accessed May 17, 2009). 51 John Cassidy, “UFV Link to Triad Gang; RUC Probes Attack on Chinese Immigrants,” Sunday Mirror, June 2, 2000, http://findarticles.com/p/articles/mi_qn4161/ is_20000702/ai_n14513648ehead-IRAconnection (accessed June 29, 2007). 52 Willard H. Myers III, “Testimony, 21 April 1994,” analyzes the system by which those freed from bondage pay for the transport of others. This process, according to Khalid Koser, also exists among Pakistani irregular migrants to the UK. Reported in a talk at American University, April 23, 2007. 53 See Peter Andreas, Border Crimes: Policing the US–Mexico Divide (Ithaca: Cornell University Press, 2000). Analysis of this phenomenon is also based on interviews with American and Mexican law enforcement personnel. TraCCC has had excellent access to the US border patrol because it developed training curricula for them over many years. 54 Mark Wuebbel, “Demystifying Human Smuggling Operations along the Arizona– Mexico Border,” http://www.american.edu/traccc/resources/publications/wuebbe01. pdf (accessed June 29, 2007). 55 Ibid.; and statement of Chris Swecker, US House of Representatives, Committee on Homeland Security, Subcommittee on Management, Integration and Oversight, March 8, 2006. 56 Government Accountability Office, Illegal Immigration: Border-Crossing Deaths Have Doubled Since 1995; Border Patrol’s Efforts to Prevent Deaths Have not Been Fully Evaluated (Washington, DC: Government Accountability Office, August 2006), 42, http://www.gao.gov/new.items/d06770.pdf (accessed June 11, 2007). 57 Louise Shelley, “Corruption and Organized Crime in Mexico in the Post-PRI Transition,” Journal of Contemporary Criminal Justice 17, no. 3 (August 2001): 226; Florida State University Center for the Advancement of Human Rights, Florida Responds to Human Trafficking (2003): 37–62, discusses the Cadena case, http://www.cahr. fsu.edu/H%20-%20Chapter%202.pdf (accessed November 15, 2006). 58 Interviews with US border patrol officials while doing curriculum development for the US border patrol between 2003 and 2005. 59 “For the nature of its mission, CBP [Customs and Border Patrol] is vulnerable to corruption. In most instances we found that CBP officials were involved with smugglers and drug traffickers,” said Carlton Mann, Assistant Inspector General for Inspections, in an interview conducted on July 22, 2009, cited in Carmen

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61 62

63 64 65 66 67 68

69 70 71

72

73

74

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Apaza, “The Importance of Bureaucratic Oversight Mechanisms: The Case of the Inspector General of the Department of Homeland Security (DHS),” PhD dissertation, American University, 2009, Proquest 3388617. Randal C. Archibold and Andrew Becker, “As Border Efforts Grow, Corruption Is on the Rise,” New York Times, May 27, 2008, http://www.nytimes.com/2008/05/27/us/ 27border.html?_r=1&scp=1&sq=Border%20patrol%20May%2027,%202008&st=cse (accessed January 5, 2008). See, for example, John Bowe, Nobodies: Modern American Slave Labor and the Dark Side of the New Global Economy (New York: Random House, 2008), 64–67. Stef Janssens and Jana Arsovska, “People Carriers: Human Trafficking Networks Thrive in Turkey,” Jane’s Intelligence Review (December 2008): 44–47; Xavier Raufer, “Une maffya symbiotique: traditions et évolutions du crime organisé en Turquie”, Sécurité Global 10 (Winter 2009–10): 91–119. Interview by the author in Konya, Turkey in March 2008. Mark Galeotti, “Turkish Organized Crime: Where State, Crime, and Rebellion Conspire,” Transnational Organized Crime 4, no. 1 (Spring 1998): 25–42. Stef Janssens, Patricia Le Cocq and Koen Dewulf, La Traite et Le Trafic des êtres humains: Lutter avec des personnes. Et des ressources Rapport Annuel 2008 (Brussels: Centre pour l’égalité des chances et la lutte contre racisme, 2009). KOM Report. Frank Bovenkerk and Yucel Yesilgoz, The Turkish Mafia and the Statek, in Organized Crime in Europe, eds. C. Fijnaut and L. Paoli (The Netherlands: Springer, 2004), 585–603; Janssens, Cocq and Dewulf, La Traite et Le Trafic des êtres humains. Rudolf Hilgers, “The Programmatic Approach of Trafficking in Human Beings in the Netherlands,” presentation at The Commodification of Illicit Flows: Labour Migration, Trafficking and Business, University of Toronto, Canada, October 9–10, 2009. Bowe, Nobodies: Modern American Slave Labor. See Susan Strange, who places transnational corporations and crime groups within the same intellectual framework, The Retreat of the State: The Diffusion of Power in the World Economy (New York: Cambridge University Press, 1996). “UNICEF Says Human Trafficking a $10 Billion Business,” Voice of America News, April 4, 2005, http://www.voanews.com/english/archive/2005–04/2005-04-04voa11.cfm?moddate=2005-04-04 (accessed September 11, 2009); New ILO Global Report on Forced Labor in 2005 estimated profits of $32 billion from forced labor (Geneva: ILO, 2009), http://www.ilo.org/public/english/region/afpro/addisababa/ pdf/coercionqanda.pdf (accessed September 11, 2009). Council of Europe, Select Committee of Experts on the Evaluation of Money Laundering Measures (Moneyval), “Proceeds from Trafficking in Human Beings and Illegal Migration/Human Smuggling,” Strasbourg, May 31, 2005; Johan Leman and Stef Janssens, “The Albanian and Post-Soviet Business of Trafficking Women for Prostitution: Structural Developments and Financial Modus Operandi,” European Journal of Criminology 5, no. 4 (2008): 445. It is rare that a suspicious financial transaction report from the banking system triggers a human trafficking investigation. It occurs in a limited percentage of cases in Europe and the United States. The famous case that led to the resignation of Governor Eliot Spitzer of New York was a rare example of a bank report that triggered a criminal investigation. Gerhard Mild, Moneyval, “The Work of the Council of Europe to Fight Money Laundering with a Special View to the Combat against Human Trafficking,” presented at OSCE-UNODC-CYPRUS Regional Operational Meeting on Combating Human Trafficking and Money Laundering in the Mediterranean Rim Region, Larnaca, Cyprus, September 18–19, 2008. Leman and Janssens, “The Albanian and Post-Soviet Business of Trafficking Women,” 445–48, make this point.

4

Child labour migrants or victims of labour trafficking? A segmental approach Antonela Arhin

I. CANADA was to be the principal direction of emigration because it was the nearest British colony; the journey was short and inexpensive; the weather was admirable and the demand for settlers was insatiable. II. CHARACTER: Only the “flower of the flock” would be emigrated. They should be honest, industrious and capable; taught to revere the Bible as God’s word; free from taint.1

Between 1869 and the late 1930s, the Child Migration Scheme led to the passage of over 100,000 child migrants from Great Britain to Canada. Children were assembled at Stepney Causeway, the great export emporium, to be tested and inspected for qualification for the ‘Canada List’. Similar to previous attempts to nab vagrant and orphaned children and send them to the colonies to meet the demand for labour,2 this resettlement programme migrated children from England’s overcrowded urban slums to isolated Canadian landscapes as a source of cheap farm labour and domestic help, and under the premise of providing them with a better life. Instead, scores of children’s narratives speak of hard labour and harsh environments in which they were faced with social marginalization and physical, emotional and sexual abuse.3 The global prevalence of child trafficking for labour exploitation today is astounding as the children are being matched to specific markets where their gender, age and appearance greatly influence the type of labour they perform. An estimated 1.2 million children are trafficked globally every year.4 The US Department of State’s Trafficking in Persons (TIP) Report for 2011 found the problem of child begging in 61 countries, child soldiers in 15 countries, instances of child sex tourism in 105 countries and trafficking for the purposes of domestic servitude in 110 countries.5 Children are trafficked for the purposes of illegal adoption; commercial and non-commercial sexual exploitation and labour exploitation in order to work in prostitution; sex tourism; sweatshops; for the purpose of early marriage; or as child soldiers, domestic servants and athletes. The intricate network of those involved includes recruiters, intermediaries, document providers, transporters, travel agencies, corrupt officials, employers

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and sometimes families and friends. Trafficked children suffer devastating effects: they are made to work long hours, are underfed, exposed to toxic materials and dangerous machinery, punished and abused if they disobey or attempt escape. Human trafficking is closely related to established patterns of human movement and generally responds to push–pull factors analogous to those in employment-related migration.6 Similarly, child trafficking is often discussed in relation to migration. Intrinsically easy to manipulate, children are particularly vulnerable once away from home, when they are culturally, and at times linguistically, inept to face the new environment. Whether travelling alone or with their families, children are susceptible to exploitation, mainly due to their presumed lack of agency in acting and reporting such abuse. Addressing such conditions within the discourse of child migration may lead to equating this notion with cases of child trafficking. While some propose to view child trafficking for labour opportunities as a type of child labour migration,7 it is imperative not to conflate the two. Independent child migrants in South Asia and West Africa paint a complex picture of child migration in which there are those who migrate independently without their parents or guardians, although the decision to migrate may or may not be an autonomous one.8 Such instances suggest that one needs to avoid labelling all migrant children as trafficked, as some authors have pointed out.9 On the other hand, commonalities between trafficking and labour migration, in terms of push–pull factors, may lead to the conclusion that both have the same outcome, i.e. the economic exploitation of the child, and the erroneous dismissal of the premise of child labour migration as a practice that is beneficial for children.10 Child trafficking is the recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation, regardless of whether or not force, abduction, fraud or other means are used.11 The essential difference between child trafficking and migration into child labour is the profit-oriented and exploitative purpose of moving a child away from home and into an isolated environment with no support mechanisms, further exacerbating the child’s vulnerability and proneness to manipulation.12 Consequently, child trafficking presupposes two mutually inclusive factors: movement and (the intention of) exploitation.13 The movement can occur within state borders or transnationally, with children being susceptible to exploitation at various points of the transit.

Child labour trafficking: segmental approach The existing theoretical concepts of human trafficking often limit and narrowly depict the complexities of the phenomenon. The literature and research have posited trafficking within the framework of forced labour exploitation or have perceived it as a by-product of migration. The International Labour Organization (ILO) recognizes human trafficking as a subset of forced labour and the trafficking of children as one of the worst forms of child labour.14 Yet, it would be incorrect to assume that all victims of forced labour are trafficked,

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and that all abusive work conditions, such as low-wage labour exploitation, are indicative of trafficking. It might be more accurate to describe their relationship as one that at times partially overlaps, rather than one that presumes their equivalence. On the other hand, the International Organization for Migration (IOM) views human trafficking as a subset of migration, with movement as the common denominator.15 Europol, for example, sees it as a subset of irregular immigration policy.16 Conversely, not all migrants, whether legal or illegal, become victims of trafficking. In addition, some have observed the presence of the ‘continuum of facilitation’ and have claimed that trafficking and labour migration overlap at several points in the process and fall between the two ends of the continuum.17 It has also been noted that there is a continuum of migratory experiences that reflects the varying severity of abuses such as violence, confinement, coercion, deception and exploitation, which further obscures the demarcation of what constitutes trafficking.18 Many studies have acknowledged a gap in these theoretical frameworks and have called for an interdisciplinary approach that would consider human trafficking from a range of different perspectives, including human rights, health, law and the like.19 For the clarity of the argument, human trafficking for labour exploitation is posited in this chapter to treat forced labour as its inherent or overlapping component, and as a method used to make the exploitation profitable. In addition, the chapter views labour trafficking as a concept closely related to and intertwined with labour migration, thus providing a comprehensive analytical framework that includes both forced labour and migration issues, while not addressing trafficking as an exclusive subset of either one. Irrespective of the existing categorizations, discourses on human trafficking have failed to notice that human trafficking can occur as a labour exploitation segment of a migration continuum. In the case of child labour trafficking, some discourses unambiguously imply a trafficking situation, while others are more difficult to support because of the interplay of various elements such as restricted/non-restricted movement, contradictory cultural concepts of exploitative conditions, lack of distinction between trafficking and migration in national laws, etc. Bearing in mind the notion that trafficking at times transpires as a segment, rather than solely as a free-standing phenomenon, would aid better identification and classification of those cases. Adopting such a new paradigm further elucidates the complexities of identifying trafficking cases and urges the avoidance of establishing a simplistic either/or dichotomy, which results in seemingly unclear cases of trafficking falling through the cracks. In practice, distinguishing child trafficking from child labour migration can be quite intricate because they may share the same migratory space. Cases of Bolivian teenagers who migrate to Argentina for work illustrate the complexity.20 Maria, a Bolivian teenager, was recruited to work in a textile workshop in Buenos Aires along with 12 other girls. She was promised a good wage but instead worked long hours and was not allowed to go out except on Sundays until her debt, incurred for travel and documents, was paid off. After she had

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worked unpaid for three months, her boss let her go and she found a job in another textile workshop. Maria was clearly recruited under false premises and ended up in a situation of restricted movement, with no remuneration for her long hours of work. Despite this exploitation, she was allowed to leave after three months. The case fulfils the key qualifying criteria for child labour trafficking, and yet somehow fails to substantiate the argument more firmly, leading to the conclusion that it was a case of independent child labour migration. In spite of this, and taking into account the segmental approach, it is quite evident that trafficking emerged as a segment within a larger and longer process in the child’s geographical movement, and one that occurred along the international migration continuum. Perceived in this context, it is possible for child trafficking to appear as a segment of labour exploitation within a wider labour migration. Another factor that would support such a claim is the restriction of movement as a facet of labour exploitation, which can be analysed within the framework of hours worked or of location. Children may be required to work extra long hours, leaving them with little time for any other activities. Alternatively, their mobility could be limited by the location of their workplace, such as in a factory. Another factor used to detect a case of labour trafficking is the relative freedom of the exploited person to terminate his/her employment. This dynamic is not readily employed in the case of children because they lack agency in negotiating such terms. Consequently, in the case of Maria, the precise stage of trafficking is ascertained when she is no longer able to leave her place of employment and move freely and is exploited by long hours and no pay. While possibly inconclusive, this example suggests the convergence of the two phenomena, trafficking and migration, and indicates the elusive boundaries within which trafficking appears to be a transient point, following which children continue their existence as labour migrants. Still, the evidence that supports exploitation amounting to trafficking, even as a segment, should not be entirely dismissed simply on account of the premise that it occurs within a larger migratory flow. In the case of a specific rural–rural migration route in Eastern Burkina Faso, leading children from the province of Gnagna to the more southern cotton-producing areas of Kompienga and Tapoa, children are recruited and trafficked to work in the cotton sector directly by intermediaries who promise them a bicycle, money and clothing.21 Children’s narratives in case studies imply hard work, long hours and, at times, not receiving any money. Although the conditions were exploitative, these children perceived them against the backdrop of their formation as responsible and hard-working individuals who were gaining experience in growing cotton and would be able to work much harder on their parents’ and their own fields upon their return. Juxtaposed against the previous case of a Bolivian teenager, who sought work in Argentina for distinct economic gain, this example, in contrast, spotlights labour migration that is perceived as a vehicle for acquiring adulthood or independence since much of the time children are encouraged to embark on such exploitative journeys by peer pressure and a desire for adventure. As such, this type of migration is

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enculturated in the social milieu and is a form of rite of passage for many young boys. As a case of domestic trafficking for labour exploitation, it exemplifies yet another instance in which trafficking and exploitation are perceived as a segment of a longer internal migration continuum. The same modus operandi applies in the case of inter-state trafficking, which is of growing concern in India, where mainly boys are trafficked to Bombay from rural villages in Rajasthan to work in the shoe-making industry, and were estimated to number between 2,000 and 20,000 in 1996.22 Children work for a period of 10 months, from 5 am to 11 pm every day except during the full and new moon, and receive no wages. Their parents receive a payment of 500 to 5,000 rupees when the children are taken away. The children return to their homes during the monsoon period, from June to September, at which time their contracts are renewed and their parents are again remunerated. The children then return to their masters in Bombay, thus reinforcing a vicious cycle that lasts for 10 to 15 years, until marriageable age is reached. Another industry in India that is heavily affected by child bonded labour and trafficking is the carpet industry. Of the 300,000 children producing carpets, agents have trafficked an estimated 10 to 20 per cent to the carpet-producing areas. One of the reports suggests that these migrant child labourers are maltreated, abused, underfed and forced to sleep in the loom shed or in other cold and cramped environments.23 In these cases, labour trafficking is clearly more palpable due to the children’s being actively recruited, manipulated, managed, and confined both by long working hours and by their places of employment. The time intervals indicating children’s movement cycles and exploitation in the shoe-making industry unambiguously mark the boundaries of trafficking processes. In comparison with the cases of Maria and children from Eastern Burkina Faso, which demonstrate a full spectrum of intricacies in identifying the trafficking component, the cases of children who are trafficked and bonded to work in India continue to be treated as cases of migrant child labour, despite unequivocal evidence that speaks to their exploitation. In these cases, and while following the segmental approach, the trafficking piece spans most of the migration continuum in temporal terms and needs no further argument for its validation as a case of trafficking. Whether these children are labour migrants or victims of labour trafficking remains debatable as suggested by previously addressed cases which indicated the blurred lines between the two and the inability to corroborate the perimeters of what constitutes a clear case of either condition. Adopting a new paradigm that included the segmental approach would enable analysis of such cases and help in identifying cases of labour trafficking.

History, culture, family: structures and implications Siwa-Akofa Siliadin was 15 years old when Mrs D. brought her to France from Togo in 1994.24 The arrangement reached between Mrs D. and Siliadin’s father stated that she was to work to pay off the cost of the plane ticket, while

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Mrs D. was obliged to place her in school and have her visa regularized. Instead, Mrs D. confiscated her passport and Siliadin worked as an unpaid housemaid. Later in 1994, with her father’s consent, Siliadin was ‘lent’ to Mr and Mrs B., where she continued to work as a servant and child minder seven days a week with no pay. In December 1995 she escaped to live and work for another family and received proper remuneration. At the request of her paternal uncle, she returned to Mrs B. and continued to provide unpaid domestic labour under the premise that they would regularize her immigration status, which did not come about. In 1998 Siliadin eventually disclosed her situation to a neighbour, who alerted the Comité contre l’esclavage moderne. Mr and Mrs B. were charged under Articles 225–13 and 225–14 of the French Penal Code but were later acquitted of all charges because the Court of Appeal ruled that it had not been established that Siliadin’s working or living conditions were incompatible with human dignity, or that she was in a state of vulnerability or dependence, since she had exhibited independence in being able to come and go at will and contact her family at any time. Subsequently, on referral to the Versailles Court of Appeal, in 2003 the Paris industrial tribunal awarded Siliadin €31,238 in respect of arrears of salary, €1,647 in respect of the notice period and €164 in respect of holiday leave. Before the European Court of Human Rights, and relying on Article 4 of the Convention for the Protection of Human Rights and Fundamental Freedoms, the applicant alleged that the French criminal law did not afford her sufficient and effective protection against the ‘servitude’, or at the very least the ‘forced or compulsory’ labour, that she had been required to perform. She noted that she had not come to France in order to work as a domestic servant but had been obliged to do so as a result of the trafficking to which she had been subjected by Mrs D., who had obtained her parents’ agreement through false promises. In 2005, the European Court of Human Rights held that there had been a violation of Article 4 of the Convention and that the applicant had, at the least, been subjected to forced labour and held in servitude. However, the Court held that it could not be considered that she had been held in slavery in the traditional sense of that concept because there had not been any exercise of ‘a genuine right of legal ownership’. France was obliged to pay the applicant €26,209.69 in respect of costs and expenses; however, as Siliadin had made no claim for compensation in respect of damage sustained, the Court made no award. The significance of the Siliadin v. France case is that it marks the first recognition by the European Court of Human Rights that Article 4 imposes positive obligations on states and that, although the case was not prosecuted on the basis of trafficking, the facts arising from it would have substantiated such a charge. It also highlights the need to adopt stronger laws in order to criminalize labour trafficking. Around the same time, a successful case of human trafficking was executed in 2002: United States v. Satia, in which two Maryland couples, originally from Cameroon, were convicted of trafficking offences after recruiting two girls, aged 14 and 17, from Cameroon to provide domestic service in their homes in

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return for education.25 Upon their arrival in the United States, the girls were confined to the couples’ houses, forced to work long hours without pay and threatened with violence and deportation. One of the women, Satia, frequently physically abused the younger girl, who was also subjected to repeated sexual advances by Satia’s husband.26 The younger girl finally escaped after two years of captivity, and the older victim escaped after five years.27 A federal jury convicted the couples of holding the victims in involuntary servitude, conspiracy to bring illegal aliens into the country and harbouring illegal aliens for financial gain. They received criminal sentences ranging from five to nine years and were ordered to pay their victims $105,300 in restitution. These two cases present instances of international trafficking of children as domestic workers involving forced labour and involuntary servitude, and both resulted in remuneration to the victims. Another point in common is that both cases involved strong ties to social and familial structures in home countries, which are also source countries in terms of trafficking. The social status of traffickers in source countries was paramount in the latter case. The Maryland couples enjoyed great wealth, along with economic and political influence in their home country, which can safely be assumed to have influenced the parents’ decision to send their children to live abroad.28 In addition, both cases relied on a familial arrangement that is likely to be an extension of traditional practices such as placement or fostering. Child trafficking often has historical, cultural and familial pretexts, as is illustrated by these two cases. The historical roots of child labour trafficking are at times ingrained within familial structures, causing such child labour practices to become culturally embedded forms of patronage. Child labour is defined as work that is mentally, physically, socially or morally dangerous and harmful to children and that interferes with their schooling by depriving them of the opportunity to attend school, obliging them to leave school prematurely or requiring them to attempt to combine school attendance with excessively long working hours and heavy work.29 Engaging children in adequate work is an important function in upbringing, as it helps them learn life skills.30 In povertyridden communities such work is perceived as an indispensable and important contribution to meagre household incomes, and children are viewed as economic assets. Performing household chores or helping out in a family business, so long as the work is not dangerous and does not interfere with school attendance and other normal childhood activities, is often referred to as light work, which is done on the basis of teaching children the value of money and work ethics. Consequently, it is frequently believed that child work in agriculture just means ‘helping out’ on the family farm, despite the commercialization of farming in certain areas.31 In Burkina Faso, for example, parents encourage their children to undertake both family and independent work, and children are given a small field of their own or a hen to look after.32 Individual pursuits aim to introduce children to the production processes that will secure the household’s subsistence, and a space in which children can learn about their responsibilities. Because of such complex circumstances, it is not always

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easy to detect instances of exploitation or to draw a clear line between exploitative conditions and those that produce beneficial outcomes for children. Faced by dire economic circumstances and unable to provide their children with the appropriate foundation to negotiate the adult world, some parents resort to engaging their children in potentially exploitative work. In West Africa, vestiges of pre-colonial pawnship, the practice of parents pledging their children as collateral against a loan, persist in contemporary societies.33 For years many parents have resorted to fostering or placement, a tradition whereby children are sent to better-off relatives or friends in order to alleviate the economic cost of raising them. This practice has been widely usurped nowadays by traffickers, who are acting as intermediaries in leading children to live in exploitative familial structures. Family members are often active participants in the process of trafficking, whether cognizant of potentially detrimental conditions or not, while the receiving families, under the pretence of kindness, exploit and abuse the children. Such circumstances are detectable in the above case of Siliadin. Similarly, as recently as the 1920s, selling or lending children was regarded as an acceptable survival technique for destitute families in many countries, such as China, whose boys and girls, known as mui tsai, were sold to rich families, ostensibly for adoption, but in practice to work as domestic servants.34 In today’s Haiti, children known as restavecs are sent by their parents to work as domestic help in more affluent families, where most of them end up being abused and treated as a disposable commodity.35 In the case of Roma families, although child begging has been their survival strategy, contemporary literature and research sees such begging as trafficking for forced begging.36 Although some reports ascribe child begging to traditional practices, as in the case of some castes in Pakistan,37 it is likely that acceptance of begging might make children more vulnerable to this kind of exploitation. There are also claims that child begging has evolved into a practice organized by creditors, who use children to pay off their parents’ debts by begging on the street, a practice resembling that of child pawning in West Africa.38 This interplay between cultural, traditional and historical significances provides pretexts for engaging children in the worst kinds of jobs, further exacerbating the existing difficulties of addressing the type of trafficking that involves families, and in the course of which children are recruited or sold by a family member.

The economic dimension of child labour trafficking Economic theory supports the claim that child labour trafficking is a function of supply and demand. On the one hand, the supply of children as units of labour is bolstered by parents’ economic inability to provide for their family, thus placing them in vulnerable situations conducive to labour exploitation. In such circumstances, children, perceived as substitutes for adults, are expected to contribute to the household’s income. Consequently, poverty and

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destitution are frequently cited as main determinants of child labour, implying that it should be tolerated in poor countries, at least in its non-hazardous forms.39 Aside from poverty, family size, lack of education, discrimination, homelessness, statelessness, socio-cultural norms and relations, domestic violence and crises are facets attributed to creating the supply of child labour. A recent case of child trafficking for labour exploitation in Europe underpins some of these factors. The case involves a Romanian Gypsy gang that stole 181 children from their families and sent them to the UK to pick pockets, beg, wash windshields and shoplift.40 Court documents allege that the children were physically abused and some were deliberately disfigured. The men were arrested in April 2010 when 300 armed Romanian police raided 17 heavily fortified ‘gipsy palaces’ in Tanderai, in the south of Romania, after their British counterparts had informed them about a Roma ‘crime wave’ as a result of Romania’s joining the EU. British police estimate that a single child can make as much as £100,000 a year for their master from begging.41 The alleged gang leader was accused of lending money to the families in order to win their trust and promising the children a good life and education in the UK. As the case illustrates, Roma children are often perceived as malleable and easily controllable units of labour and, in an effort to ensure the public’s monetary support for child beggars, traffickers at times resort to mutilation and abuse of the children, purposefully choosing those who are most likely to extract compassion. In addition, because of their nomadic migratory flows, some children are vulnerable to exploitation because they lack citizenship. There is also a possibility that statelessness may be a result of parents’ lack of awareness of the social and economic benefits to a child who acquires citizenship, or that parents may not be able to cover the financial and administrative costs associated with acquiring one. In the case of refugees and displaced persons, families may not be able to produce identification documents or property records, which further marginalizes their children, preventing their proper registration in order to attain citizenship.42 On the demand side, child labour trafficking is rooted in perceived labour shortages, globalization, placement practices related to the demand for domestic workers, employers, consumers and the very existence of the underground economy. Historically, industrialization and, nowadays, economic globalization, have created a substantial demand for cheap labour by creating circumstances that favour the employment of children as a malleable and easily controllable labour force. Thus, the supply of children from poor families is being matched by demand from employers who are looking for ways to produce goods with a competitive advantage for the global market. The demand generated by employers and consumers is gaining importance in the global discourse on child labour and trafficking. Most studies tend to consider the controllability, malleability or even exploitability of child labourers as the main reason for employers’ turning to this type of labour force. Contrary to this argument, some research suggests that child labour in itself is not cheap labour because the lower wages are normally proportionate to the

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children’s lower productivity.43 Child labour is only a cheaper option when the employer can keep costs down by underpaying the children and/or making them work for exceptionally long hours. Thus, it is mainly the children’s lack of assertiveness that is central to keeping costs down. The notion of children working long hours, with no benefits and in poor housing, which ultimately results in lower-than-adult production costs, may also lead to the misperception that child labour is cheap labour.

Contemporary discourse on child trafficking: multinational corporations and the commodification of child labour Within the discourse on labour trafficking, an emerging field of research and policy focuses on the correlation between human rights and business and attempts to address the question of whether they are mutually supporting concepts. This particular angle provides a good context within which to discuss the demand for child labour. Today’s global markets require consistent competition and staying current, which is at times achieved at the expense of the most vulnerable members of our society – the children. Some 65,000 multinational corporations (MNCs) employ more than 90 million people worldwide.44 Driven by an assertive consumerism, MNCs are in a constant search for viable sources that will facilitate cost-effective production and create competitive advantage. This advantage is translated into the provision of an affordable labour force that will eventually produce consumer goods that are sold at competitive prices. In order to obtain such labour force, MNCs operate complex global supply chains, outsourcing labour-intensive industries to millions of subcontractors and suppliers, thus creating a powerful network of global economic interdependence driven by technology advances and the availability of labour at very low costs.45 This holds particularly true in areas of production that are largely outsourced, such as clothing and footwear, electronic goods and food. Taking advantage of global outsourcing opportunities to produce low-cost goods can sometimes create serious problems for MNCs in terms of low wages, poor working conditions and abuse of human rights. Such intricate global networks can create opportunities for dreadful infringement of human rights and for production processes that result in the commodification of children working in supply chains under sub-standard conditions. In the 1990s a strong American anti-sweatshop movement publicly exposed several large companies and accused them of using child labour in their overseas facilities. Among them was Gap Inc., an international clothing company, which has continued to face child labour allegations despite its social audit systems introduced in 2004. In 2007, an undercover Observer investigation exposed cases of inter-state child labour trafficking found in Gap’s production chains in India.46 Men looking for children to work in the capital recruited Amitosh, a 10-year-old boy, who was sold into bonded labour by his parents. He was trafficked from Bihar to New Delhi, along with 40 other children, to work in the embroidery industry. Children worked in squalid conditions and experienced

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violence, physical abuse and punishment. Such cases are frequently discussed within the framework of child labour but with no reference to the trafficking component, which results in overlooking an entire category of children. Most importantly, in large production chains the issue of responsibility for ensuring decent working conditions is more nuanced and, as such, difficult to address.47 The disclosure of child labour trafficking cases, albeit they are treated as forced labour, usually results in policy implications in the sense that companies remove the child from the workplace and demand better supply chain management from their outsourcing factories. Such cases lead to the establishment of codes of conduct as voluntary selfregulation mechanisms and as a manifestation of the multinationals’ commitment in the areas of labour and environmental standards and of human rights.48 These commitments enhance the workers’ basic rights, including the rights of children. Although they are not devoid of some deficiencies, codes of conduct are commended for playing a crucial role in the decline of child labour numbers.49 A number of other voluntary international instruments provide guidelines and principles on business standards.50 Consumers have an integral part in efforts to eliminate any form of child labour, inclusive of trafficking, and are urged to be aware of the extent of the problem and to demand fair trade products. Talk of corporate social responsibility is becoming pervasive, engaging both companies and consumers to overthrow Milton Friedman’s notion that the one and only social responsibility of business is to increase its profits.51 Providing social labels is an attempt to initiate change by starting from the consumer and moving back, through the marketing chain, to influence modes of production and improve the lives of working children.52 Although some claim that ‘without a video camera on every loom in every home where rugs are made, there’s no way you can know if children were involved’, social labelling initiatives present opportune, non-binding instruments that businesses can use.53 Irrespective of sundry arguments, a new paradigm of corporate responsibility is arising, one that compels companies to look beyond places of production to the places where raw materials are collected, harvested or mined.54

Conclusion The growing commodification of migratory flows in the form of human trafficking has provided sophisticated circuits that enable traffickers to access both supply and demand, and has fuelled coercive labour relations. In light of such circumstances, labour migration, in lieu of economic advancements and improved livelihoods, can entail abuse and exploitation of migrant workers, loss of critical skills in home countries and a surge of informal channels for the trafficking and smuggling of migrants. Identifying cases of human trafficking is far from simple, and even more exacting vis-à-vis those involving children.

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It has been argued that, on the basis of analogous push–pull factors, some cases of independent child labour migration are mistakenly accounted as being labour trafficking. Better understanding of exploitation is needed in order not to conflate the two phenomena. Likewise, the possibility of their convergence and overlap should not be dismissed, as there are a number of case studies which support the argument that labour trafficking and exploitation do occur as a segment on a migration continuum. Adopting and implementing a new conceptual framework that included the segmental approach would allow for the analysis of not so clear-cut cases and assist in the identification of instances of trafficking. A critical examination of the dearth of existing court proceedings of child labour trafficking cases and case studies supports the large role played by historical and cultural dimensions, and highlights the different notions of child labour within familial structures. Such connotations further underscore the intricacies of the present difficulties in addressing and interpreting this type of trafficking under criminal and human rights law. An emerging contemporary discourse of child labour trafficking refers to the problems of instilling human rights agendas into global business operations. There is an urgent need to maintain the human rights dimension in migrant work experiences, and governments and MNCs have an opportunity to share the responsibility for ensuring work with dignity. In terms of child labour trafficking, one of the most egregious forms of exploitation, a global effort is needed to raise public awareness of what constitutes harmful labour and its effects on children. It is imperative to avoid resorting to short-term gain by trafficking and employing child labour, which has long-term repercussions for children’s health, education and overall well-being. In spite of recent and mounting research focusing on the trafficking of children in general, issues of child trafficking for labour exploitation require a more sophisticated analysis in terms of its relationship to labour migration, and a more nuanced understanding of its historical and cultural dimensions. It would be safe to assume that such endeavours would result in better identification of cases, interpretation of root causes and provision of services that would be in the best interests of children.

Notes 1 An excerpt from Barnardo Homes’ Emigration Principles. See Gail H. Corbett, Nation Builders: Barnardo Children in Canada (Toronto: Dundurn Press, 2002), 26–28. 2 Robert C. Johnson, ‘The Transportation of Vagrant Children from London to Virginia, 1618–22’, in Early Stuart Studies, ed. H. S. Reinmuth (University of Minnesota Press, 1970), 139. 3 Corbett, Nation Builders, 81–88. 4 ILO, A Future Without Child Labour: Global Follow-up to the ILO Declaration on Fundamental Principles and Rights at Work (Geneva: ILO, 2002), 32. 5 US Department of State, Trafficking in Persons Report, 2011 (Washington, DC: US Department of State, 2011).

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6 Anti-Slavery International, The Migration–Trafficking Nexus: Combating Trafficking Through the Protection of Migrants’ Human Rights (London: Anti-Slavery International, 2003). 7 See Bridget Anderson and Julia O’Connell Davidson, Trafficking – a Demand-led Problem? Part I: Review of Evidence and Debates on “The Demand Side of Trafficking” (Stockholm: Save the Children Sweden, 2002). 8 Development Research Centre on Migration, Globalisation and Poverty, Independent Child Migration: Introducing Children’s Perspectives, Briefing No. 11, August 2008. 9 Ann Whitehead and Iman Hashim, Children and Migration. Background paper for DFID Migration Team (UK: Department for International Development, 2005). 10 Some of the push factors fuelling both labour migration and trafficking are social inequalities, unemployment, political instability and economic dislocation, limited access to legal migration opportunities, gender and other forms of discrimination. Some of the pull factors are labour market expansion and demand for cheap labour, porous borders with less-developed countries, inadequate enforcement of labour regulations/standards, myths about the West, presence of military and international organizations and businesses. 11 UNODC, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, GA Res. 55/25, UNODC, 2000. 12 ILO, UNICEF and UN.GIFT, Training Manual to Fight Trafficking in Children for Labour, Sexual and Other Forms of Exploitation (Geneva: ILO, 2009), 17. 13 According to the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Article 3(a), ‘exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.’ 14 See ILO Director-General, A Global Alliance against Forced Labour: Global Report under the Follow-up to the ILO Declaration on Fundamental Principles and Rights at Work 2005, ILO, 10; and ILO, Worst Forms of Child Labour Convention, no. 192, Art. 3(a). 15 Md. Shahidul Haque, ‘Ambiguities and Confusions in the Migration–Trafficking Nexus: A Development Challenge’, in Trafficking and the Global Sex Industry, eds Karen Beeks and Delila Amir (Lanham, MD: Lexington Books, 2006), 3–20. 16 Europol, Crime Assessment: Trafficking of Human Beings into the European Union (The Hague: Europol, 2001), 45. 17 Ronald Skeldon, ‘Trafficking: A Perspective from Asia’, in Perspectives on Trafficking of Migrants, eds Reginald Appleyard and John Salt (Geneva: IOM, 2000), 7–30. 18 Bridget Anderson and Julia O’Connell Davidson, Is Trafficking in Human Beings Demand Driven? A Multi-Country Pilot Study, IOM Migration Research Series, 15 (Geneva: IOM, 2003). 19 Frank Laczko, ‘Enhancing Data Collection and Research on Trafficking in Persons’, in Measuring Human Trafficking: Complexities and Pitfalls, eds Ernesto U. Savona and Sonia Stefanizzi (ISPAC, 2007), 42. 20 Tanja Bastia, ‘Child Trafficking or Teenage Migration? Bolivian Migrants in Argentina’, International Migration 43, no. 4 (2005): 57–88. 21 Albertine de Lange, ‘Going to Kompienga’: A Study on Child Labour Migration and Trafficking in Burkina Faso’s South-Eastern Cotton Sector (Amsterdam: IREWOC, August 2006). 22 Human Rights Watch, The Small Hands of Slavery: Bonded Child Labour in India (Human Rights Watch Children’s Rights Project, 1996), 123. 23 Ibid., 143. 24 Siliadin v. France (no. 73316/01), 2005, Eur. Ct. HR, http://www.coe.int/t/dghl/ monitoring/trafficking/docs/echr/SILIADIN_v_FR.pdf.

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25 See US Department of Justice, Civil Rights Division, Report on Activities to Combat Human Trafficking: Fiscal Years 2001–2005 (2006), 2. 26 US Department of Justice, ‘Summary of the Investigation’ from case records of US v. Satia et al., Case No. AW-00-0590, 28 November 2002, 6(A)(14). 27 Free the Slaves, D.C. and Human Rights Centre of the University of California, Berkeley, ‘Hidden Slaves: Forced Labor in the United States’, 23 Berkeley Journal of International Law 47 (2005): 47–111. 28 Ibid., 85. 29 ILO, Child Labour: A Textbook for University Students (Geneva: ILO–IPEC, 2004), 16. 30 For the purpose of argumentative clarity, it is assumed that children are those under the age of 18. 31 Terre des Hommes, Sweet Hazards. Child Labour on Sugarcane Plantations in the Philippines (The Hague: Terre de Hommes, 2005). 32 Dorte Thorsen, ‘Child Migrants in Transit. Strategies to Become Adult in Rural Burkina Faso’, paper presented at Childhoods, Oslo, 29 June–3 July 2005. 33 See Paul E. Lovejoy and Toyin Falola, eds, Pawnship, Slavery and Colonialism in Africa (New Jersey: Africa World Press, 2003). 34 Mike Dottridge, Kids as Commodities? Child Trafficking and What to Do about It (Geneva: International Federation Terre des Hommes, 2004). 35 Jean-Robert Cadet, Restavec: From Haitian Slave Child to Middle-class American (Texas: University of Texas Press, 1998). 36 Emily Delap, Begging for Change: Research Findings and Recommendations on Forced Child Begging in Albania/Greece, India and Senegal (London: Anti-Slavery International, 2009), 16. 37 ILO, A Rapid Assessment of Bonded Labour in Domestic Work and Begging in Pakistan (Geneva: ILO, 2004). 38 ‘Život na semaforu – romska djeca prosjaci’, Deutsche Welle, 2 February 2011, http://www.dw-world.de/dw/article/0,14847528,00.html. 39 Richard Anker, ‘The Economics of Child Labour: A Framework for Measurement’, International Labour Review 139, no. 3 (2000): 257–80. 40 Andy Bloxham, ‘“Fagin’s Gang” Sent 200 Gypsy Children to Steal in Britain’, The Daily Telegraph, 27 September 2010. 41 Dan Newling, ‘Romanian gang of Fagins “smuggled 200 children into UK to beg and steal”’, Daily Mail, 31 July 2010, http://www.dailymail.co.uk/news/article1298957/Gang-smuggled-200-children-Romania-UK-beg-steal-streets.html#ixzz1ZpN 34di5. 42 Antonela Arhin, “Statelessness and Human Trafficking: The Case of Roma Children in Montenegro”, paper presented at the 2011 International Studies Association (ISA) Convention, Montreal, Quebec, 16 March 2011. 43 ILO-IPEC, Trafficking of Children: the Problem and Responsibilities Worldwide (Geneva: ILO, 2001). 44 ‘Better Business: Multinationals and Decent Work’, World of Work: The Magazine of the ILO 62, April 2008, 5. 45 Mary Ross Hendriks, ‘Modern Slavery and the Production of Consumer Goods in a Global Economy: Consumer Choice – not Law – Will Trigger the Next Diaspora’, T. M. Cooley Law Review (2003): 433. 46 Dan McDougall, ‘Child Sweatshop Shame Threatens Gap’s Ethical Image’, Observer, 28 October 2007. 47 The Confederation of German Employers’ Associations (BDA) strongly opposes the involvement of MNCs in implementing and enforcing human rights, claiming that companies do not and should not have such a mandate that is assigned to sovereign states as actual signatories of human rights conventions. See Confederation of German Employers’ Associations (BDA), Human Rights and Multinational

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Antonela Arhin Enterprises: Possibilities and Limits of What Business Can Do (May 2008), 24, http://www.bda-online.de. Rhys Jenkins, ‘Corporate Codes of Conduct: Self-regulation in a Global Economy, Technology, Business and Society Programme’, Paper Number 2, United Nations Research Institute for Social Development (April 2001), 1–8. Some of the limitations are the ownership of overseas factories, which is not always within the realm of MNCs; certain companies do not go beyond including a clause on child labour, expecting others to implement it; MNCs are reluctant to screen out their suppliers and, if necessary, terminate contracts. See United Nations, Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, E/CN.4/Sub.2/2003/ 12/Rev.2.; United Nations Global Compact, The Ten Principles, available at: http:// www.unglobalcompact.org/aboutthegc/thetenprinciples/index.html. Milton Friedman, ‘The Social Responsibility of Business Is to Increase Its Profits’, New York Times, 13 September 1970. Janet Hilowitz, ‘Social Labelling to Combat Child Labour: Some Considerations’, International Labour Review 136, no. 2 (1997): 215–32. Elliott Schrage of Columbia University’s business school claims that affixing labels may not be the best way to help exploited children. See Julie V. Iovine, ‘Must-Have Label’, New York Times, 16 October 1997. US Department of State, Trafficking in Persons Report, 2010 (Washington, DC: US Department of State, 2010).

5

Displacing childhood Labour exploitation and child trafficking in sport Darragh McGee

Human trafficking has emerged as one of the most significant humanitarian issues of the present era, constituting a highly exploitative form of transnational organized crime and operating through a complex weaving of illicit and illegal global networks.1 While academic interest in human trafficking has long been concentrated on forced prostitution and the predicament of women and young girls, there is also a growing, if still relatively modest, recognition of trafficking for other purposes, opening the door to a more expansive approach that touches upon a diverse array of highly exploitative labour practices. Despite its being virtually absent from academic and political discourse, this chapter will seek to explore the nexus between the phenomenon of trafficking, child labour and the realm of sport, wherein the quest to unearth inexpensive and talented reservoirs of child athletes has fuelled the crystallization of a global trading network in adolescent bodies. In continuity with most forms of child trafficking, the rapid expansion of the ‘global village’ has proved the catalyst behind the emergence of insidious flows of children through expansive transnational networks, with alarming numbers of young athletes being trafficked into the epicentral economies of Western Europe and North America. Perhaps, inevitably, this recruitment, sale and trafficking of children in sport occurs predominantly through a dynamic of economic exploitation, as powerful sports franchises scour the less affluent regions of South America, Africa and Asia in search of untapped resources of athletic talent. Indeed, as success in professional sport is increasingly measured in economic terms, the most powerful franchises and clubs are driven to seek more economical sources of labour in order to remain competitive – a trend that Paulo David argues has been the catalyst for the recent emergence of such a pernicious trade in child athletes.2 Perhaps, surprisingly, this exploitative procurement of child athletes has not been subject to the kind of strict regulation one might expect, McArdle and Giulianotti arguing that sport remains one of the few domains – if not the only domain – that has been seemingly impermeable to the legal and moral obligation to regulate and safeguard the welfare of its stakeholders, especially that of minors.3 However, as this chapter will explore in greater detail, one could conceivably argue that child trafficking is prevalent across the sporting continuum,

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inasmuch as large numbers of talented young athletes are subject to the trauma of displacement from family and friends, of being withdrawn from their educational development and subsequently being uprooted and relocated around the world. The reality of this situation bears considerable semblance to other forms of labour trafficking, wherein a clandestine network of opportunistic agents, unscrupulous intermediaries and economically powerful multinational sports franchises obtain ownership of and control over the lives of young athletes. Thus, the following discussion will attempt to map the field of child trafficking as it pertains to the world of sport, seeking to offer insight into a unique form of labour trafficking in which young boys and even men are trafficked, exploited and traded for their physical capabilities.

Defining sport’s ‘hidden’ problem Although there is no international treaty that explicitly defines the trafficking and sale of children in the context of sports, existing doctrines are nevertheless important in establishing the boundaries by which we can define such criminal activities as they pertain to the realm of sport. The UN Convention on the Rights of the Child (UNCRC) is deemed to be a most appropriate starting-point for the establishment of a framework within which to situate the trafficking of child athletes.4 While there are a number of articles that address children’s rights to health, education and the right not to be separated from their parents, it is article 35 that speaks specifically to the trafficking of adolescents, requiring that ‘State Parties shall take all appropriate national, bilateral and multinational measures to prevent the abduction of, the sale of or traffic in children for any purpose or in any form’. Furthermore, in situating sporting practices as a form of child labour, the International Labor Organization’s (ILO) Convention no. 182 on the Worst Forms of Child Labor classifies trafficking among ‘forms of slavery or practices similar to slavery’.5 Indeed, the ILO actually identifies a form of trafficking in sport, namely the illegal trafficking of child camel jockeys, alongside bonded labour, domestic servitude, commercial sexual prostitution, drug couriering and child soldiering as being ‘physically, mentally, socially or morally dangerous and harmful to children’. At present, and despite a growing awareness of trafficking in other sports such as soccer, baseball and ice hockey, a systematic research agenda on behalf of the ILO or the United Nations (UN) has not been forthcoming. The most comprehensive definition of trafficking is to be found in the Optional Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the UN Convention against Transnational Organized Crime.6 In particular, when considered in the context of sports, the definition of trafficking contained in articles 3.a and 3.c is worth quoting at length: ‘Trafficking in persons’ shall mean the recruitment, transportation, transfer, harbouring 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

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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 labour or services, slavery or practices similar to slavery, servitude or the removal of organs … The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered ‘trafficking in persons’ even if this does not involve any of the means set forth in subparagraph (a) of this article. In making the argument that the appropriation of child athletes constitutes a distinctive form of labour trafficking, it is suggested that the use of deception on behalf of unlicensed sports agents, businessmen and traffickers is particularly significant. While it is acknowledged that not all agents who work in professional sport are involved in illegal activities, the little-known occupation is nevertheless an area in which corruption, fraud and exploitation are rampant.7 Competition is high amongst the thousands of licensed and unlicensed sports agents operating around the world, and many do not hesitate to use deceit in their quest to locate and contract the most promising young athletes. Some recruiters attempt to take advantage of parents’ aspirations for their children, often exploiting parents’ ignorance or illiteracy by signing children into highly fraudulent contracts.8 The alluring dream of a professional sporting career is harboured by vast numbers of children and, perhaps more significantly, by their parents, who are often lured into believing that their child can become the next global sporting superstar. This has led to a situation in which children become symbols of hope for their families, representing a seemingly achievable means for the entire family to transcend the often oppressive, poverty-stricken conditions of life in less affluent areas of the world. Heather Kerr, a National Director for Save the Children, argues that the link between football (soccer) and the trafficking of teenagers is deeply concerning. Many parents see in their children “potential geniuses” who will help secure the family’s future but they neglect to think about the consequences of turning their children into objects of transaction.9 While these comments refer specifically to the game of soccer, they are representative of a more profound system of exploitation in which children and their families are extremely vulnerable to the enticing claims of unlicensed sports agents who often rely on the fact that young athletes and their families are desperate to secure a life-changing move. The extent of such parental vulnerability is vividly portrayed by Gasso Youa, whose son, Doho, was signed by an agent in the Côte d’Ivoire. She states that he represents all our dreams. I am told he is good enough to go to the West. He is only 14 but he can go now. He is the future of this family. We trust his coach and his agent to get the best price.10

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In effectively claiming ownership of such a young athlete through a cocktail of coercion, fraud and false pretence, the sports agents subsequently attempt to auction the child off to sports franchises and clubs around the world, in a quest to maximize the financial return on their investment. Inevitably, of the vast numbers of child athletes who are brought into the core sporting economies of Western Europe and North America, only one in thousands will realize anything resembling their sporting dreams. Rather, based on available data from a selection of high-profile sports, including soccer, baseball and camel racing, Donnelly and Petherick argue that a large majority of young athletes are left in a precarious position, devoid of educational qualifications and, at worst, abandoned in a foreign country with little means of supporting themselves.11 In keeping with the broader development of human trafficking, trafficking in sport has emerged as a highly lucrative form of criminal activity in which children are reduced to the status of ‘disposable commodities’, devoid of rights and subject to the crude economic logic of supply and demand. Because of the illegal nature of the activity and a paucity of systematic empirical research, there are no precise statistical indicators of the extent of trafficking in sport: even the recognition that the practice occurs remains largely concealed, beneath the level of widespread public consciousness. Nevertheless, as Donnelly and Petherick argue, the fact that child trafficking has escalated in and across the spectrum of professional sports is beyond any doubt. In fact, David concurs with this argument, noting that the phenomenon is most egregious in sports such as soccer and camel racing and, while less publicized, is also present in other sports such as baseball, basketball and ice hockey.12 As in most types of trafficking, immediate financial gain is the primary, if not the sole, motive underpinning this sinister trade in young athletes. While the degree of exploitation involved can be understood only on a case-by-case basis, there is continuity in the intent which accompanies the process, in the sense that sports agents are seeking to identify and recruit the most talented child athletes in the hope that they can increase their ‘investment’ a hundred or a thousand times over. However, as Paulo David suggests, ‘a law of silence’ prevails within the sporting realm, where ‘no one will denounce the fact that a child athlete was trafficked illegally if he or she becomes a sports star’.13 Such pragmatic concealment of the exploitation underpinning the recruitment and sale of adolescents presents a major obstacle in the quest for transparency in the higher echelons of professional sport. This is by no means unique to trafficking in sports, but is typical of data on human trafficking and organized crime more broadly, which remains underreported, underdetected and, therefore, under-prosecuted.14 A major factor facilitating the trafficking of adolescents in sport is that its victims are often unaware of the exploitative nature of the practice or do not know how to report the abuse, especially as they often find themselves in a foreign environment and possessing only a basic knowledge of the language. In addition, victims may be distrustful of the police and criminal justice authorities’ ability or will to assist them, should they report their circumstances. These factors, combined with a desire to avoid the shame of returning home

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unsuccessful, have forced many abandoned young athletes into an illegal existence, living on the streets of major cities. The veiled nature of child trafficking generally, and especially as it is at present in the sporting realm, presents a considerable hurdle to those who seek to counteract and monitor the safety and well-being of adolescents in professional sport.

A modern slave trade? The trafficking of children in soccer In February 2009 the president of UEFA, Michel Platini, made a plea to the European Parliament proposing a ban on all international transfers for players under the age of 18. He argued that: Paying a child to kick a ball is not that different from paying a child to work on a production line. Both amount to exploiting child labour. And when you pay a child or their parents to travel overseas, when you uproot them from their home environment, when you make them emotionally disorientated, I call that child trafficking … I am now convinced that the international transfer of players under 18 should be prohibited, fully in accordance with the FIFA statutes. Some people talk about the free movement of workers. I am talking about the protection of children. Some talk about competition law. I am talking about the right to respect human integrity; a child’s right to grow up surrounded by their friends and family.15 As the above sentiments suggest, the recruitment, traffic and sale of child soccer players is rapidly becoming an established feature of the global soccer economy. With the first serious allegations of systematic child trafficking in soccer dating as far back as the 1990s,16 the last two decades have seen an alarming number of adolescent boys, predominantly from West Africa and South America, being lured into signing dubious agreements with agents in the hope that these will facilitate their journey to the pinnacle of the soccer pyramid in Western Europe. These fraudulent contracts often involve agents exploiting the child’s desire to secure a professional contract with a club in Europe, typically securing exploitative clauses that guarantee the agent a considerable percentage of the child’s subsequent career earnings if he is successful. Furthermore, agents have also been reported as demanding up to $5,000 from parents in return for the transportation of their child into what they believe will be a more prosperous life.17 However, the reality for the overwhelming majority of these children is a far cry from the spectacle of European soccer, and McDougall argues that large numbers of children are abandoned as illegal immigrants in their host countries, often forced into the child sex trade when they are no longer deemed as ‘talent’ within soccer’s insidious trading networks.18 While acknowledging the dearth of statistical data on the extent of child trafficking in soccer, the non-governmental organization Culture Foot Solidaire argues that there are

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600 cases of abandoned African youths in the city of Paris alone, and as many as 7,000 across France.19 Such figures, drawn from data on the context of France alone, suggest that the practice of child trafficking in soccer is becoming an increasingly institutionalized and highly organized form of clandestine criminal activity. As allegations of the trafficking of child soccer players began to proliferate in media reports and amongst NGOs in the late 1990s, one of the first countries to openly denounce this illegal trade was Belgium. Indeed, as reports emerged which alleged that growing numbers of abandoned African child soccer players were being forced into child prostitution while living on the streets of Brussels, the issue of trafficking in sport became the subject of an International Office of Migration (IOM) report into the Trafficking in Unaccompanied Minors for Sexual Exploitation in the European Union. The report notes: There are known cases of [sexual] exploitation of young football players from Africa and South America in [the professional sportsmen] sector. Untrustworthy agents go to African and South American countries in search of young talent. These young men are lured to the West with the promise of playing for European football clubs. If successful, a contract is signed with a club for a minimal wage for the football player. Often, the length of the contract is not respected so that the football club can own these persons as a commodity … The issue at stake here is the future prospects of these minors. In case they do not succeed in the football world, what becomes of them?20 The scale of the trafficking problem was subsequently investigated by Belgian Senator Jean-Marie Dedecker, whose report uncovered 442 cases of illegal trading in Nigerian soccer players in Belgium alone. Subsequent events served to highlight the level of criminal intent on behalf of the trafficking network, with Dedecker stating that ‘I was warned that if I went to Nigeria to investigate this I would be killed … In Nigeria, the people bringing in football players also bring in prostitutes. I believe that many are also involved in smuggling drugs.’ Indeed, in further denouncing the complicity and perhaps even corruption of soccer clubs and those governing the game, Dedecker argues that ‘everyone is involved. Agents, clubs, even politicians don’t want to criticise football as they sit in hospitality boxes at games. Nobody is interested in tackling the problem. They all turn a blind eye.’21 The existence of such a network of silence is indicative of the hierarchical and increasingly institutionalized structure that underpins the trade in child soccer players, wherein a logic of mutual economic gain ensures that rogue agents, clubs and even those in sports governance are unwilling to expose the exploitation on which the practice is founded. The ‘opening up’ of this illicit trade in child soccer players can be traced to the landmark Bosman case in 1995, in which the European Court of Justice condemned FIFA, the world governing body of soccer, for violating the

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player’s right to freedom of movement within the European community – a decision that sparked considerable tension between the European Commission, FIFA and its European governing branch, UEFA. In 2001, after a series of fruitless discussions, the European Commission finally reached an agreement with FIFA on the amendment of the existing FIFA regulations on the international transfer of players. Given the ways in which child soccer players have fallen through the cracks of such legislation, it is worth examining the existing regulations concerning the protection of minors. While international transfers are permitted only if the player in question is over the age of 18, in 2003 FIFA introduced article 19, which addresses the following three exceptions to the rule: 1. A transfer is permitted if the player’s parents move to the country in which the new club is located for reasons not linked to football. 2. If the transfer takes place within the territory of the EU/EFTA (European Free Trade Association) and the player is between the minimum working age in the country of the new club and 18, suitable arrangements are to be guaranteed for the continued academic and sporting education by the new training club. 3. Finally, a transfer is permitted if the player in question lives no more than 50km from a national border and the club with which the player wishes to be registered with is also within 50km of that border. This means a maximum distance of 100km between the player’s domicile and the new club’s headquarters.22 As the escalating nature of child trafficking in recent years has shown, these regulations have proved largely ineffective, as both clubs and agents began to find ways in which to circumvent the FIFA ruling. One way in which clubs and agents have exploited the ruling has been by the provision of employment opportunities for parents, so as to ensure the seemingly legitimate recruitment of highly sought-after players while they are still minors. A particularly noteworthy example is the case of the young French player Gael Kakuta, who was 15 when Chelsea Football Club controversially secured his signing from French club, Lens FC, in 2007. The case resulted in widespread condemnation within the soccer community after it emerged that Chelsea had offered Kakuta’s parents numerous financial enticements to secure his signature.23 Following a trial at the Court of Arbitration for Sport (CAS) in September 2009, Chelsea was found guilty of an illegal approach and FIFA subsequently imposed a two-year transfer ban on the club, only to rescind it following a successful appeal less than a year later. Nevertheless, the debacle surrounding the transfer highlighted the willingness of powerful European clubs to flout the regulatory authority of FIFA in their quest to secure the most coveted young players. Furthermore, as McDougall has argued, the acquisition of false paperwork, including fake passports, and age fraud have been a standard practice in trafficking networks. In discussing the context of Accra, Ghana, he argues that ‘touts and agents advertise “passport services” – everything from form

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filling for the illiterate to fake birth certificates and are finding a new market for their criminal enterprise in young footballers’.24 The issue of ‘altering’ the age of young players has been a major problem in African soccer for some time, with a recent case leading to the expulsion of 15 players from the Nigerian Under-17 World Cup roster in 2009 on account of failed age tests.25 Indeed, the scale of the cheating scandal surrounding successsul African teams in recent youth championships has provoked the much maligned Confederation of African Football (CAF) to introduce mandatory MRI bone scans in an attempt to accurately assess the age of players in the 2011 African Under-17 Championship in Rwanda.26 Perhaps the most significant offshoot of the new FIFA regulations introduced in 2001 has been an apparent growth in what many have termed ‘football academies’, which have become ubiquitously dotted across the African and South American landscapes, especially in celebrated soccer nations such as Ghana, the Côte d’Ivoire, Brazil and Argentina. While the CAF, the sport’s governing body in Africa, argues that all such institutions must be registered with the local football association, the reality, according to McDougall, is that unlicensed ‘football factories’ established by unscrupulous talent speculators have become foundations of the illegal trade in child soccer players. He argues that: Thousands are spread across Ghana. Many are run by the roadside; most have no proper training facilities … Coaches, as well as European and Arab middlemen, haggle over the best players, signing some as young as seven on tightly binding pre-contracts – effectively buying them from their families – with the hope of making thousands of dollars selling the boys onto clubs in Europe.27 Given that the children recruited to these academies are not affiliated or protected by any club or federation, they fall outside any legal and administrative regulations that are aimed at safeguarding young players from entry into what is effectively an ‘underground’ soccer economy. Many argue that, as a consequence, these illegal, non-affiliated academies expose children to the risks of being trafficked by non-certified agents who are able to convince recruits to sign exploitative contracts.28 Inevitably, the systematic procurement, refinement and sale of African children has resulted in an exponential rise in African representation in the leagues of Europe. Raffaele Poli documents that between 1995 and 2005 the top European leagues have recruited players from Africa and Latin America more than from any other continent, with the number of non-Europeans plying their trade in Europe rising from 146 in 1995 to 496 in 2005.29 Of particular note is Poli’s observation that the strongest concentration (57 per cent) of African soccer players is contracted to French clubs, a pathway that has also been identified as a primary host destination for African players trafficked into Europe. Culture Foot Solidaire is a charity established by ex-Cameroonian international Jean-Claude Mbvoumin to raise awareness of, and provide assistance for,

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African children who have been victims of the trafficking trade in European soccer. Estimating the number of African children who are on the streets of France as a direct result of soccer trafficking at an alarming 7,000, Mbvoumin argues that the relatively recent growth of the ‘academy system’ in Africa has greatly exacerbated the problem. Mbvoumin’s insight is worth quoting at some length: In Africa, when an important man tells a family their son has talent, that family will do everything to raise the money to send that boy to the West, sell their house, their youngest sons, their life away … So few make it, but they all come, more and more each year, and they are getting younger all the time. These kids are as young as 14, they end up on the streets, worse off and in more danger than they could ever be at home. We are presently looking after 800 boys, aged from 10 to 18. The summer is fine, they can sleep on the streets, but now winter is here they become more desperate, they become criminals, drug users. They come here with agents’ promises ringing in their ears and all they are left with is the sound of police sirens and the smell of rotting rubbish in high rise flats.30 Despite the blatant violations of children’s rights and welfare that give rise to the above comments, the financial rewards of discovering just one successful African soccer player ensure that the risk involved is justified in the minds of agents and clubs. A most pertinent illustration of the global scale of the practice is the career trajectory of talent speculator Jean-Marc Guillou, who is the proprietor of soccer academies in African countries such as Ghana, Mali, Madagascar, Egypt and Algeria, and who in 2005 established his first academy in Thailand. While maintaining that he has a ‘clean conscience’ in regard to his business dealings with adolescents, since 1994 Guillou has established an extensive trading network between European clubs and what he terms the ‘inexhaustible potential’ of adolescent soccer players in Africa.31 In 2001 Guillou acquired a controlling stake in the Belgian club KSK Beveren. Choosing Belgium as a gateway for marketing adolescent Africans was by no means an arbitrary move on Guillou’s part, as the European country had no restrictions on foreign players and the requirements for obtaining a residence permit for a soccer player from a country outside the European Union were relatively minor.32 The career trajectory of Emmanuel Eboue is significant on a number of levels. Eboue was discovered playing an exhibition game at the Academie MimoSifcom of Abidjan, a training centre which Jean-Marc Guillou had founded in 1994. Eboue was briefly recruited by Guillou at the academy, before being transferred to KSK Beveren, the club in which Guillou had become a shareholder.33 Less than two seasons later, in 2005, Eboue was recruited by Arsene Wenger – manager of Arsenal Football Club and a former assistant to Jean-Marc Guillou – for an undisclosed fee.

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Subsequently, in June 2006, the BBC’s Newsnight made accusations that Eboue’s transfer from Beveren had involved Arsenal contravening FIFA regulations by providing unknown ‘payments’ which, in essence, put it in control of the Belgian club.34 Such a ‘conflict of interest’ was subject to a police probe in Belgium before Arsenal – having previously denied any financial involvement with Beveren – admitted to providing ‘funds of £1,077,855 by way of loan to a member of a consortium who used the money to assist in stabilising the finances of Beveren’. With FIFA remaining largely ambivalent in the matter, Arsenal remained defiant about its innocence and the English Football Association later dropped the case, citing a lack of evidence. Subsequently, in 2005, Guillou expanded his youth talent ‘market’ by establishing an academy in the region of Chonburi, Thailand, under the ‘Académie JMG’ trademark. Perhaps, unsurprisingly, it wasn’t long before Arsenal Football Club was once more confirmed as an investment partner.35 In a more disturbing illustration of the clandestine nature of youth recruitment in European soccer, the much publicized ‘tug of war’ between Manchester United and Chelsea over Nigerian teenager John Obi Mikel in 2005 exposed the illegal dealings that have become commonplace in the soccer economy. Having begun his career with Nigerian club Plateau United, and after a subsequent period with South African club Ajax Cape Town, Mikel’s transfer to Norwegian club Lyn Oslo on 22 April 2005 sparked a series of events that provide a valuable lens through which to understand the predicament of talented African children in the global soccer economy. Less than a week later, and Mikel having now turned 18, it was announced than Manchester United had secured his signature for a fee of £4 million. However, Taylor reports that in the days following the transfer Mikel was the subject of threatening phone calls before being reported to have ‘disappeared’ in Norway on 11 May 2005.36 Whilst the player was believed to have left with one of his agents, John Shittu, his disappearance nevertheless sparked massive media coverage in Norway and also provoked a police inquiry after the Lyn Oslo director, Morgan Andersen, made claims in the Norwegian media that Mikel had been ‘kidnapped’.37 It later transpired that Mikel had been transported to a hotel in London by agents claiming to be his representatives and, some nine days after disappearing, Mikel announced, surprisingly, that he had been pressured into signing the contract with Manchester United and instead claimed that Chelsea was the club he genuinely wanted to sign for.38 Following a formal complaint by Manchester United to FIFA about the unlawful conduct of both Chelsea and Mikel’s apparent representatives John Shittu and Rune Hauge, the transfer saga was partially resolved. Mikel’s registration was to be transferred from Lyn to Chelsea; Manchester United agreed to terminate its option agreement with Mikel. Under the terms of this agreement Chelsea agreed to pay Manchester United £12 million, and Lyn £4 million and, as a result, all claims in the matter were withdrawn and a confidentiality agreement was signed. On 19 July 2006, Chelsea was granted a work permit for the mid-fielder and completed the £16 million signing.

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Despite the confidentiality agreement surrounding the case, the incident nevertheless revealed much about the illegal connections underpinning soccer’s trafficking networks. Jackson reveals that Chelsea is alleged to have made illegal payments to John Obi Mikel’s father to persuade his son to sign for the club, as well as allegations that his representatives, John Shittu and Rune Hauge, were working on behalf of Chelsea.39 The case also exposes the complicity of major European clubs such as Chelsea in the illegal recruitment of young players, striking exploitative agreements with agents and less high-profile clubs in regions such as Norway – a country that, conveniently, has loose immigration laws. As in the case of Arsenal involvement with KSK Beveren of Belgium, the establishment of ‘feeder clubs’ in different European and African countries has become a standard recruitment practice for the major European soccer clubs. In 1998 the Dutch club Feyenoord Rotterdam established the ‘Feyenoord Academy’ in Fetteh, Ghana, which provides the European club with the opportunity to survey vast numbers of potential recruits from West Africa. There can be little doubt that European clubs such as Feyenoord, Arsenal and Chelsea that enter into partnerships with, or acquire controlling stakes in, African clubs and academies are, essentially, creating nurseries that allow them to reserve African talent until it can be legally transferred to Europe.40 This form of talent investment reflects the existence of institutionalized transnational pathways through which European clubs have secured the rights to the most promising young players, whether in illicit dealings with unlicensed agents or through ‘feeder clubs’ on the African and South American continents. In the case of South America, the recruitment and sale of adolescent soccer players has recently been recognized as a profitable industry – a development that has led to the involvement of sports marketing and sports media organizations in cultivating and even part owning young players.41 Given the esteemed standing of soccer in Brazil and Argentina, these multinational corporations are acutely aware that there is an unrelenting market demand for the region’s most coveted young players in the top European leagues. Alvito aptly characterizes the process, arguing that the early procurement of South America’s most talented child soccer players ‘has had a profound impact on the continued existence and operations of Brazilian clubs, since in football’s new world order, Brazil’s role is to develop the “foot soldiers” who will then be offered to the international market’.42 The most disturbing feature of this exodus is the growing recruitment of children in pre-adolescence, in which a horde of talent speculators, soccer academies and even criminal organizations are recruiting children as young as 8 years old. In a probe of the inner functioning of child trafficking in South America, a 2005 report presented by the Parliamentary Inquiry Commission in Brazil’s lower Congressional House, which initially investigated the contract between Nike and the Brazilian Football Confederation (CBF), contains a chapter entitled ‘The “Gato” Factory – Falsification of identities and the trafficking of minors to other countries’. The report reveals the involvement of organized criminal

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rings in the laundering of money through Brazilian soccer clubs, as well as the trafficking and transfer of minors to obscure soccer clubs in Belgium – identifying the falsification of passports and other documents as being commonplace in this clandestine industry.43 A parallel development has been the emergence of ‘third party ownership’, wherein interested parties, including businessmen, sports media and sports marketing corporations, essentially buy the rights to ‘own’ promising young players – an arrangement that ensures they receive a financial percentage of the child’s subsequent career earnings in soccer. Indeed, such parties have increasingly been implicated in the establishment of ‘artificial’ clubs across Brazil, whose sole intent is to maximize the talent pool from which young players may be recruited and sold to Europe. An example of this form of ownership is the Brazilian club Desportiva Brasil, which was founded in 2005 by a sports marketing firm aptly named the Traffic Group. With a business concept defined as creating ‘total financial control over assets (the players)’, the Academia Traffic de Futebol announced a link-up with Manchester United Football Club in 2008 – a relationship that is representative of the systematized and unregulated nature of the global trade in child soccer players. While FIFA President Sepp Blatter made direct allusion to what he termed ‘a new type of slavery’ in 2005, football’s world governing body has yet to convince many of its dedication to tackling the problem. As Scott suggests, the commitment of FIFA to tackling the traffic in and exploitation of adolescent soccer players has been the subject of much criticism, and the body has been accused of ‘abandoning’ a global awareness campaign that had been scheduled to take place in 2010.44 On the eve of the first World Cup to be hosted on the African continent, the aforementioned NGO Culture Foot Solidaire accused FIFA of reneging on a written agreement to support the global education programme. Culture Foot Solidaire President JeanClaude Mbvoumin stated that ‘if this campaign is not instituted we fear that after the 2010 World Cup the traffic of young minors will not only be a long term feature of the African sporting landscape but indeed it will become worse: it will be institutionalized.’45 Of equal concern was the decision of FIFA in early 2011 effectively to abandon the regulation of player agents and representatives, justified on the basis that a staggering 70 per cent of player transfers are currently conducted by unlicensed agents. As football consultant Tor-Kristian Karlsen aptly suggests, ‘the agent business is like the Wild West. It’s messy and too time consuming for FIFA to police and too bureaucratic.’46 Thus, while FIFA has announced plans for a radical overhaul of the transfer system, the extent of its commitment to tackling the traffic and exploitation of child soccer players remains the subject of considerable doubt.

Seeds of change? The trade in and exploitation of child camel jockeys In May 2005, the governments of Sudan, Bangladesh, Pakistan and the United Arab Emirates (UAE), together with UNICEF, agreed to commence a process

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of rehabilitation and reintegration for adolescent boys who had been forced into working as camel jockeys across the Arabian Peninsula. The signing of the agreement followed the previous implementation of legislation by countries such as the UAE and Qatar to formally prohibit the import, recruitment, abduction or involvement of children less than 18 years of age and under a minimum weight of 45kg for participation in camel racing in any form. Indeed, in heralding what appeared to be a conclusion to decades of severe exploitation of children in camel racing, McGirk revealed that the first prototypes of a robotic camel jockey had been developed in Qatar.47 However, according to the Ansar Burney Welfare Trust – a highly respected Pakistani NGO that established the first rehabilitation centre for repatriated child camel jockeys in Abu Dhabi – as many as 40,000 children across the Gulf countries have been trafficked into becoming camel jockeys in the last decade, an alleged 6,000 of them in the UAE alone.48 Camel racing is a deeply rooted traditional sport that has its origins in the desert cultures of the Arabian Peninsula, North Africa and the Middle East. However, since the oil boom of the 1970s, the sport has become a highly lucrative business enterprise, with ruling sheiks investing heavily in camels, alongside the growth of media coverage and a thriving gambling market.49 With an estimated 16,000 camels racing at 17 official racetracks in the UAE and many more in Qatar, Oman and Saudi Arabia, the demand for a cheap and disposable pool of child jockeys has grown steadily since the 1970s. With their small frames and lighter body weights, children were recognized as being suited to becoming jockeys so as to minimize stress on the camel’s spine and allow the animal to run faster. Young children aged between 5 and 10 years are regarded as ideally suited. In races of over 10 kilometres in length, pre-adolescent children were, and arguably still are, subjected to a severe risk of becoming trapped underneath the camel, being dragged along and even being trampled to death.50 With evidence of child trafficking, abduction, bonded labour and slavery-like conditions, the plight of the child camel jockeys makes this one of the worst forms of child labour, as defined by the United Nations.51 In tracing the endless supply of pre-adolescent children from nations such as Bangladesh, India, Pakistan and parts of North Africa who have been trafficked, sold and even kidnapped into becoming camel jockeys, many have argued that the exploitative practice is at the extremes of modern child slavery.52 Although many child jockeys are in fact ‘rented’ or sold by their parents for financial gain, the vast majority have been lured from their home countries with false promises of employment opportunities, only to be forced into becoming child jockeys, domestic servants, stable boys and labourers. The Lawyers Committee for Human Rights and Legal Aid of Pakistan estimated that 19,000 boys, aged 2 to 11 years, from the region had been trafficked and exploited as child jockeys in the Middle East in the 1990s alone.53 To avoid scrutiny at airports, where Pakistani children are required to carry passports, overland routes have ensured that children are trafficked through pilgrimage treks from Baluchistan, through Iran, and onwards to camel-racing countries such as UAE, Kuwait, Saudi Arabia, Oman and Qatar.

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In contrast to the case of child trafficking in soccer, the experiences of child camel jockeys can be seen as overstepping the boundaries between forms of trafficking and bonded labour and are indicative of the continuing existence of slavery in parts of North Africa and the Middle East. The case report series by Bener et al. confirms the grave risks to which child jockeys are subjected, with 275 boys hospitalized for camel-related injuries during the period of the study . Of these 17 sustained injuries that resulted in permanent disability, 5 in paralysis and another 3 in death.54 Furthermore, the 2005 US Department of the State Report on Human Trafficking documented evidence of child camel jockeys from Qatar who had suffered neurological damage and even been trampled to death as a result of being thrown from camels during races.55 Indeed, as a repatriated Mauritanian child jockey who had been held captive in the UAE testified: They would take us and attach us with a cord to the camels’ backs, then they would make them run down a little track covered in sand and bordered with large pointed iron posts and barbed wire. The camels had to run within this space, and the animals and children who fell were trampled by the other frightened animals. Those [child jockeys] who refused or were scared were beaten and forced onto the camels.56 In addition to the accounts of injuries, Caine and Caine expose the chronic under-nutrition and inadequate medical treatment of children, who were deliberately underfed to ensure they maintained a minimal weight.57 There is also grave concern surrounding the exposure of young camel jockeys to excessive heat, with many children reported as living in tin shacks that would be unbearable in the desert heat – not to mention their exposure during long training hours. While one would expect that such appalling living and working conditions would inhibit optimal camel-racing performance, the lack of basic care for these children may be indicative of their disposable status amid inexhaustible reserves of vulnerable adolescents across the Gulf region. External pressure on the camel-racing nations of the Arabian Peninsula has intensified steadily since the early 1990s, with a host of human rights and antislavery organizations leading the campaign to expose the exploitative nature of the sport and rally international support in challenging its continued existence. The agreement between UNICEF and the UAE in 2005 formally to prohibit the use of children as camel jockeys may well represent a turning-point. Subsequent efforts to repatriate and rehabilitate the adolescent victims of trafficking in camel racing have been recognized by the 2010 US Department of State Report on Human Trafficking, which has commended the government of the UAE for its continued financial assistance to and support for the rehabilitation process.58 However, since 2005, children repatriated to Pakistan from Middle Eastern countries, particularly Qatar and the UAE, have been handed over to their families with minimal financial support and no medical treatment – despite

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the fact that the majority of them required medical attention because of broken bones, serious burns, infections and mental disabilities. Virtually all also lacked basic language and social skills. In an alarming development, Fahad Burney, vice-president of the Ansar Burney Welfare Trust, argued that, due to the high costs of medical bills and an inability to reintegrate these children back into their previous households, vast numbers of children who have been repatriated to Pakistan after many years of captive slavery in the Middle East are being handed over to religious groups or ‘Madrassas’, which are funded and controlled by extremist groups in the region.59 Furthermore, as reports continue to surface indicating the use of children as camel jockeys at ‘unofficial’ races, it appears that efforts to combat and eradicate the practice will be needed for some time yet.

Living the American dream? The adolescent trade in baseball and ice hockey With its commercially lucrative model and expansive market value, the proliferation of the North American sports model in the late 20th century has redefined the ways in which sport is produced, mediated and consumed around the world. With sports such as football, ice hockey, basketball and baseball all representing distinctive facets of North American sporting expression, the search for athletic talent has been extended near and far, with multi-billion-dollar sports franchises recruiting talented adolescents both internally and from across the Atlantic Ocean. While it is acknowledged that children are vulnerable to forms of trafficking in sports such as basketball, the highly systematic procurement of adolescent baseball players from the Dominican Republic into the United States is especially noteworthy. Originating in the 1960s, the flow of adolescent baseball players from the Dominican Republic into Major League Baseball (MLB) in the United States has developed into a highly systematic, neo-colonialist process in which corruption has become commonplace.60 While Klein’s61 assertion that the trafficking of young Dominicans into the MLB resembled ‘the West African slave trade’ relied heavily on hyperbole, the current practice whereby 28 of the 30 Major League franchises have opened ‘baseball academies’ across the Dominican Republic is indicative of a growing problem.62 Perhaps more alarmingly, Zimmer argues that corruption is rife in the academy system, with allegations of false documentation and drug abuse being particularly prevalent.63 With an ongoing scandal surrounding age fraud acquiring considerable media attention, Sanchez argues that almost 60 per cent of all birth certificates presented by young baseball prospects at the head office of the MLB in San Domingo, Dominican Republic in 2000 were either false or had been altered. Furthermore, the use of performance-enhancing drugs (PEDs) continues to be a major problem, with 13 out of 40 proposed MLB recruits testing positive for banned substances in 2010.64 As foreign teenagers are not subject to the draft system, their path to the MLB is controlled by street agents or ‘buscones’, many of whom encourage the use of steroids and

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other PEDs in order to maximize the child’s physical maturity and, thus, increase the chances of securing a lucrative contract in the United States. According to Major League Rule 3(a)(1)(B), a player not subject to the Draft may be signed at age seventeen, or at age sixteen, providing he will turn seventeen prior to either the end of the baseball season in which he is signed or 1 September of the year in which he is signed. However, as Zimmer confirms, it is commonplace for teams to violate the so-called ‘seventeen-year-old rule’ and sign players who have not yet become legally eligible, many of whom are as young as 14 years.65 In addition to the signing of under-age players, teams have been known to hide prospects as young as 14 years old at remote Dominican training facilities to prevent the children from signing with another team or from finding an agent who would demand more money for them. Apart from the often abusive training schedules that children must endure at such baseball academies, the lack of educational provision leaves young prospects facing an uncertain future. Sanchez reveals that the educational levels of the Dominican baseball prospects are dire, with the only required educational commitments of the academies being an English class and a course on cultural adaptation to the United States.66 With the vast majority of young prospects unlikely to succeed in earning a contract in the United States, the result is that thousands of adolescent boys are left with few practical skills and little or no formal education, and devoid of career prospects. By employing the language and rhetoric of human rights in relation to ice hockey in North America, the writings of Donnelly and Petherick highlight the predicament of child athletes in Canadian ice hockey, tracing what they term ‘child buying’ over recent decades.67 With escalating numbers of non-North Americans plying their trade in the National Hockey League (NHL) and at a younger age, in the Canadian Hockey League (CHL), a global trading network has developed in which the most promising ice hockey talents from Eastern European nations such as Russia, the Czech Republic and Slovakia are appropriated by wealthy hockey franchises in both Canada and the United States. With each team in the CHL permitted to draft two non-North American players per year, as many as 120 young players are drafted in from around the world each year – many of whom are as young as 16 years old.68 If we consider the 2010 CHL import draft, 66 per cent of the 71 players drafted were legally categorized as children, with Russia, the Czech Republic and Slovakia providing a combined total of 40 players69 – a figure that is indicative of an increasingly established form of talent pipeline. These figures are significant on a number of levels, from highlighting the status of Eastern Europe as a ‘feeder region’ for the more prosperous North American leagues, to the problems of child welfare that accompany the uprooting of these young players from their families, friends and educational development in their home countries. While the potentially lucrative prospects are acknowledged that such a move may entail, there is evidence that such a major upheaval and transatlantic relocation can be detrimental to the social and psychological development of these children, many of whom struggle with language and

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cultural barriers. Indeed, as Allain argues, many young players suffer from forms of alienation, receive only a very basic education in English and are subject to professional and social ostracism on account of their foreign cultural practices.70 The systematic recruitment of child athletes in North American baseball and ice-hockey can also be extended to other sports, with the National Basketball Association also sending scouts to the furthest-flung corners of the globe in a search for untapped resources of young talent. Thus, while each of the case studies discussed in this chapter must be understood as being contextually specific, there has been a notable degree of continuity in the role of powerful multinational sports franchises, financially motivated sports agents and a plethora of intermediaries who seek to identify, recruit, exploit, traffic and profit from the talent of child athletes around the world.

Conclusion In a challenge to the continuing pervasiveness of clichés that espouse the inherently positive nature of sport, this chapter has sought to provide evidence to the contrary – revealing the ‘hidden’ forms of exploitation, abuse and mistreatment experienced by child athletes at the hands of a network of agents, clubs and intermediaries who comprise the global sports system. The nexus between sports labour migration, human trafficking and child labour that has developed over the last 30 years has not done so in a social vacuum, but has been symptomatic of broader developments in global politics, the consolidation and expansion of a capitalist economy and the ‘opening up’ of new markets around the world. Indeed, the gradual conversion of sports teams into economically powerful multinational corporations is a most vivid example, in which celebrated global ‘brands’ such as the New York Yankees or Manchester United have acquired a ubiquitous presence in markets around the world. However, as this chapter has shown, this encroachment of economic or market logic into sport has had a very profound impact on the most vulnerable of subjects – the child athletes whose dreams of one day reaching the pinnacle of their respective sport make them vulnerable to exploitation. From the abandonment of West African soccer players on the streets of European cities to the forced labour of child camel jockeys in the Arabian Peninsula, there is increasing awareness of the trafficking and forced labour that accompany adolescent engagement with sport. The twentieth century was characterized, in the West, by increasing concern for the protection and welfare of children’s rights. However, as noted in the opening section, this sensitivity to the social and political positioning of children has not been extended to the world of sport, which has remained largely unreceptive to external regulation and criticism. In seeking to establish the fundamental principles of a ‘child-centred sports system’, Paulo David identifies the importance of greater ‘transparency, accountability and monitoring’ in the quest to challenge the exploitation, injustice and corruption that are rife in sporting circles.71 Focusing specifically on the issue of child trafficking in

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sport, there is a need for a comprehensive research agenda that addresses the core issues underpinning the practice; including the need to establish statistical data indicating the scale of the problem in different sports and across national, regional and continental boundaries; understanding the networks, both illicit and legal, that maintain and profit from the exploitation of children in sport; to assess the relative vulnerability of certain demographics; and to bring together a body of researchers who will contribute to the growth and diversification of the literature on child trafficking in sport. It is hoped that such a research agenda can become the catalyst for a programme of sustained critical investigation into the predicament of child athletes in the global sports labour market and will highlight the importance of collaborative research by policy makers, NGOs and sports governing bodies in order to safeguard and protect the welfare of children in contemporary sport.

Notes 1 Joel Quirk, ‘Trafficked into Slavery’, Journal of Human Rights 6, no. 2 (2007): 183. 2 Paulo David, Human Rights in Youth Sport (London: Routledge, 2005), 124. 3 David McArdle and Richard Giulianotti, Sport, Civil Liberties and Human Rights (Routledge: New York, 2006), 4. 4 United Nations, Convention on the Rights of the Child, 1989, http://www2.ohchr. org/english/law/crc.htm. 5 ILO, Convention no. 182 on the Worst Forms of Child Labour, 1999, http://www.ilo. org/public/english/standards/relm/ilc/ilc87/com-chic.htm. 6 UNODC, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, GA Res. 55/25, UNODC, 2000. 7 Celia Brackenridge, ‘Children’s Rights in Football: Welfare and Work’, keynote address, Centers and Peripheries in Sport: International Conference on Sports, Malmö University, Sweden, April 8–12, 2010. 8 Peter Donnelly and Leanne Petherick, ‘Workers’ Playtime? Child Labour at the Extremes of the Sporting Spectrum’, Sport in Society 7, no. 3 (2004): 306. 9 Cited in Dan McDougall, ‘The Scandal of Africa’s Trafficked Players’, Observer Sport Monthly, January 2008, 52. 10 Cited in Dan McDougall, ‘Inside the Football Factories that Feed the Beautiful Game’, Observer, June 2007. 11 Donnelly and Petherick, ‘Workers’ Playtime?’ 308. 12 David, Human Rights in Youth Sport, 164. 13 Ibid., 162. 14 Jo Goodey, ‘Human Trafficking: Sketchy Data and Policy Responses’, Criminology and Criminal Justice 8 (2008): 421–42. 15 Michel Platini, ‘UEFA President Urges Protection of Football’s Values, 2009’, www.uefa.com/uefa. 16 David, Human Rights in Youth Sport, 163. 17 Katrin Bennhold, ‘Soccer Dreams and Reality’, July 11, 2007, http://www.playthegame. org/news/detailed/soccer-dreams-and-reality-1026.html. 18 McDougall, ‘The Scandal of Africa’s Trafficked Players’, 50–55. 19 Cited in ibid., 50–55. 20 IOM, Trafficking in Unaccompanied Minors for Sexual Exploitation in the European Union (Geneva: IOM, 2002), www.iom.int/en.news/phn200802.shtml, 41. 21 Cited in Colin Brown, ‘Football Chiefs to Tackle Hidden Trade in Africa’s Children’, Independent, July 5, 2008.

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22 FIFA, ‘Regulations on the Status and Transfer of Players’, http://www.fifa.com/ mm/document/affederation/administration/01/06/30/78/statusinhalt_en_122007.pdf. 23 Matt Barlow, ‘Chelsea Transfer Ban Lifted as Lens Accept £1m over Gael Kakuta Row’, February 5, 2010, http://www.dailymail.co.uk/sport/football/article-1248554. 24 McDougall, ‘The Scandal of Africa’s Trafficked Players’, 53. 25 Oluwashina Okeleji, ‘Nigeria Drops Players after Scans’, BBC Sport, Lagos, August 26, 2009. 26 Piers Edwards, ‘An Age of Change?’ BBC Sport, January 21, 2011. 27 McDougall, ‘The Scandal of Africa’s Trafficked Players’, 52. 28 Paul Darby, Gerard Akindes and Mathew Kirwin, ‘Football Academies and the Migration of African Football Labour to Europe’, Journal of Sport and Social Issues 31, no. 2 (May 2007): 153. 29 Raffaele Poli, ‘Understanding Globalization through Football: The New International Division of Labour, Migratory Channels and Transnational Trade Circuits’, International Review for the Sociology of Sport 45, no. 4 (July 2010): n.p. 30 Cited in McDougall, ‘The Scandal of Africa’s Trafficked Players’, 54. 31 Christoph Biermann and Maik Grossekathofer, ‘A New Slave Trade? Europe’s Thirst for Young African Footballers’, 2010, www.spiegel.de/international/world. 32 Kirstin Sparre, ‘Prevention Programme Proposed to Stop Football Trafficking’, June 28, 2007, http://www.playthegame.org/news. 33 Poli, ‘Understanding Globalization through Football’, 500. 34 Meirion Jones, ‘Arsenal Face FIFA Investigation’, BBC News, June 1, 2006. 35 Biermann and Grossekathofer, ‘A New Slave Trade?’ 3. 36 Daniel Taylor, ‘United Confident Dossier Will Persuade FIFA to Make Chelsea Back Off Mikel’, Guardian, September 30, 2005. 37 Jonathan Wilson, ‘Mikel Signing Investigated by Norwegian Police’, Guardian, March 7, 2007. 38 Matt Scott, ‘United Urge Banning of Chelsea over Mikel Saga’, Guardian, January 31, 2006. 39 Jamie Jackson, ‘Chelsea Deny Bung Claim’, Observer, May 15, 2005. 40 Darby, Akindes and Kirwin, ‘Football Academies’, 153. 41 Javier Caceres, ‘Human Trafficking in Football: The Dubious Business of Financial Investors’, August 2007, www.german-times.com. 42 Marcos Alvito, ‘Our Piece of the Pie: Brazilian Football and Globalization’, Soccer and Society 8, no. 4 (2007): 525. 43 Ibid., 535. 44 Matt Scott, ‘FIFA “Abandons” Child Trafficking Campaign’, Guardian, February 4, 2010. 45 Cited in ibid. 46 John Sinnott, ‘FIFA to “Axe” Licensed Agent Rule’, BBC Sport, October 5, 2010. 47 Jan McGirk, ‘Ban on Child Camel Jockeys Sends a Brutal Trade Underground’, Independent, April 2005. 48 Lucy Williamson, ‘Child Camel Jockeys Find Hope’, BBC News, Dubai, February 4, 2005. 49 Peter Conradi, ‘Kidnapped Children Starve as Camel Jockey Slaves’, Times Online, March 27, 2005. 50 David, Human Rights in Youth Sport, 176. 51 Esmaeil Ibrahim, ‘First Arab Regional Workshop on Combating Child Trafficking’, March 1, 2006, www.unicef.org/protection. 52 Frank Gardner, ‘Gulf Police Rescue Child Jockeys’, BBC News, November 5, 2000. 53 Karen Tumlin, ‘Trafficking in Children and Women: a Regional Overview’, Institute of Asian Studies, Chulalongkorn University (Jakarta), March 8–10, 2005.

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54 Abdulbari Bener, Fatima Al-Mulla, Suhail Al-Humoud, and Abdulazziz Azhar, ‘Camel Racing Injuries among Children’, Clinical Journal of Sport Medicine 15, no. 5 (2005): 290–93. 55 US Department of State, Trafficking in Persons Report 2005 (Washington, DC: US Department of State), http://www.state.gov/documents/organization/47255.pdf. 56 Cited in David, Human Rights in Youth Sport, 176. 57 Dennis Caine and Caroline Caine, ‘Child Camel Jockeys: a Present-Day Tragedy Involving Children and Sport’, Clinical Journal of Sport Medicine 15, no. 5 (2005): 287–89. 58 US Department of State, Trafficking in Persons Report 2010 (Washington, DC: U.S Department of State), http://www.state.gov/g/tip/rls/tiprpt/2010/. 59 Fahad Burney, ‘Rescued Child Jockeys Handed Over to Extremist Groups’, http:// www.ansarburney.org/news. 60 Dave Zirin, ‘Say It Ain’t So, Big Leagues’, The Nation, November 14, 2005. 61 Alan Klein, Sugarball: The American Game, the Dominican Dream (New Haven: Yale University Press, 1991), 1. 62 Jesse Sanchez, ‘Creating Complete, Healthy Players: MLB’s Academies Teach Skills on and off the Field’, Major League Baseball, http://mlb.mlb.com/news/article. 63 Vanessa Zimmer, ‘Dragging Their Devotion: The Role of International Law Major League Baseball’s Dominican Affairs’, Northwestern Journal of International Human Rights 4, no. 2 (2005): 418–35. 64 Michael Schmidt, ‘Less Demand for Dominicans as M.L.B. Scrutiny Increases’, New York Times, October 10, 2010. 65 Zimmer, ‘Dragging Their Devotion’, 420. 66 Sanchez, ‘Creating Complete, Healthy Players’, 1. 67 Donnelly and Petherick, ‘Workers’ Playtime?’ 310. 68 Steve Lansky, ‘World Hockey Summit Tackles Problem of European Teens Jumping to CHL’, www.thehockeywriters.com. 69 Canadian Hockey League, ‘Canadian Hockey League Import Draft Results’, June 29, 2010, http://www.chl.ca/index.php/article/2010-canadian-hockey-league-importdraft-results/56720. 70 Kristy Allain, ‘In Other Words: An Examination into the Experiences of nonNorth Americans in the Canadian Hockey League’, unpublished Master’s thesis, Queens University, Kingston, Ont., 2005. 71 David, Human Rights in Youth Sport, 237.

6

Labor migration, human trafficking and multinational corporations within the ECOWAS region Challenges and opportunities Ndioro Ndiaye

Introduction West Africa is the most mobile part of Africa;1 it has historically been a region of continuous population movements and it continues to attract migrants from across the region. The people of West Africa share a socio-cultural and economic link, which contributes to these movements across national borders. The socio-cultural link is evident through the agglomerations of people by arbitrarily drawing the colonial map. The economic link is facilitated by trading across borders, due to close proximity, and also by socio-cultural and language commonalities. All these factors along, with a shared colonial legacy, influence movement options, whether country of transit or of destination. Human trafficking remains an intractable global problem,2 which has re-emerged in recent times as a modernized form of slavery. Trafficking involves the movement of people from their country of origin to other destinations by any means of forced labor or services. This illicit business in persons, mostly children and women, affects almost all countries and reaps enormous profits for traffickers and their criminal intermediaries. Human trafficking is considered one of the largest sources of profits for organized crime, generating an estimated seven to ten billion dollars annually, according to the United Nations estimate.3 The globalization of the world economy has increased the movement of people across borders, legally and illegally; especially from the poorer to the wealthier countries. The international organized trafficking network has taken advantage of the free flow of people to extend its own global reach. The trafficking process involves source, transit and destination countries, with some countries combining all these characteristics simultaneously. Since trafficking is an underground criminal enterprise, there are no precise statistics on the extent of the problem. Nevertheless, the estimates of the US Department of State’s 2007 Trafficking in Persons Report (TIP Report) vary from 4 to 27 million. The United Nations estimates that about two million women are trapped each year in the worldwide sex industry, while countless children and other women are forced into low-waged jobs. Below, we focus on labor migration, human trafficking and multinational corporations within the ECOWAS region. This paper examines the patterns

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and challenges of labor migration in West Africa. To understand the dynamic of labor migration, under the heading of patterns we focus on the causes of labor migration. The challenges to labor migration that are discussed are incoherent policies on migration management. Furthermore, we examine the trafficking of women, girls and children, the root causes of trafficking, ECOWAS involvement in signing and ratifying the ‘human trafficking protocol’ and recommendations to the ECOWAS states for better response to victims of human trafficking. We conclude with recommendations for ECOWAS to formulate and adopt effective policies for migration management in the region.

Labor migration patterns and challenges within ECOWAS Patterns Migration patterns are influenced by the political and economic climate of countries. In the late 1950s and 1960s, the economies of Ghana and Côte d’Ivoire created a wave of movements from countries such as Togo and Nigeria (mainly to Ghana), Burkina Faso and Guinea (mainly to Côte d’Ivoire), Niger and Mali (to both Ghana and Côte d’Ivoire).4 This migration pattern characterized both Ghana and Côte d’Ivoire as traditionally countries of immigration.5 Côte d’Ivoire’s strong economy and immigration policy attracted immigrants from the neighboring countries (Mali, Burkina Faso, Niger, Nigeria, Ghana, Senegal, Liberia and Chad) to seek employment in Côte d’Ivoire on account of better pay: “even in informal sector, migrants could earn three times than working in similar situation at home.”6 By 1995, there were four million migrants in Côte d’Ivoire working in menial jobs frowned upon by the locals.7 However, in 1999, the economic and job market crisis led to the expulsion of irregular migrants and the tightening of migration standards.8 As Nigeria was experiencing its oil boom in the 1970s, Ghana was confronted with increased repression, a declining economy and rising unemployment,9 thereby making Nigeria a major migration receiving country with promising opportunities for employment and a better quality of life. This spurred the recruitment of skilled and unskilled migrants to support the construction and commercialization of multinational corporations as a result of oil revenues. However, sharp decline in oil revenues, structural adjustment policies and military rule led to a rapid devaluation of the national currency, and a wage freeze and inflation led to the deterioration of living and working conditions in Nigeria. This led to governmental repatriation policies and the expulsion of foreign migrants, and also the outward migration of Nigerian nationals.10 Intra-regional migration in West Africa is an important adaptation mechanism for skilled and unskilled workers when labor markets fail to provide for their employment needs. The search for economic opportunity, including wage labor and access to markets, drives migration patterns from low-income to highincome countries on either a temporary or a permanent basis. Over time, these migration patterns evolve into established routes and social structures that not

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only perpetuate migration but also contribute to the permanent settlement of migrants.11 Feminization of migration Migration was traditionally male dominated; however, a comparison of existing migration data shows a rise in women’s migration since the 1970s. Today, females account for almost half of the regional migration stock. This trend has taken root as more women choose to leave home to work in skilled and unskilled labor markets. Consequently, a reversal of gender roles has escalated as more women work outside of the home, act as head of household and become financially independent.12 Forced labor migration and climate change Climate change is not a new phenomenon; however, the effect of climate change on migration is a more recent event. The magnitude of the impact of climate change on migration is unknown; nevertheless, it is speculated that about 200 million people will be affected by heavy rainfalls (monsoon), increased droughts, desertification, sea-level rise, coastal flooding and disruption of seasonal weather patterns.13 ‘Environmental migrants’14 refers to groups of people whose livelihoods will be or are disrupted by changes in the environment; this group will contribute to the increase in migration. West Africa’s location will increase its vulnerability to the effects of climate change, especially in the coastal and Sahelian regions. These changes are already noticeable with the recurrent droughts in some parts of the region and their impact on labor migration. Safe and regular migration Secure or safe migration means, at a minimum, increasing opportunities for regular migration. Safe migration is about regulating the migration process and providing specific protection to vulnerable workers. A transparent and accessible system of regular labor migration means that vulnerable target groups will have less need to use illegal recruiters and to work in informal sectors where trafficking is more likely to occur. For regular and safe migration to be sustainable, it should be cost-effective, easy, transparent and protect the rights of workers. If the safe and regular migration alternatives are too costly or too time-consuming, because of bureaucratic procedures, they will be ineffective because young women or other vulnerable groups will choose to migrate in an irregular fashion. For example, countries such as Ethiopia have prohibited women deemed to be too young or to have insufficient education from migrating as domestic workers through registered agencies. Migration through a registered agency is more time-consuming, requiring approximately six to eight months to process an application, whereas illegal agents can arrange employment in a matter of

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weeks.15 Whilst prohibitions are made with the aim of protecting women, they have not been effective in curbing trafficking because many women and girls still migrate through illegal channels. Safe migration does not exclusively mean regular migration, as regular migration is not always safe. For example, countries such as Malaysia and Lebanon have policies that prohibit migrant domestic workers from changing employers. Such policies make migrants more vulnerable to trafficking, abusive or exploitative employers because they lack the ability to seek redress or to change their situation. For regular migration to be safe, it must provide protection of the basic rights of workers through information and services throughout the migration process. 1. Integration policies regarding regional migration within ECOWAS: freedom of movement, right of establishment and residence The Economic Community of West African States (ECOWAS) was founded in 1975; it is a regional group of 15 countries16 in West Africa. The ECOWAS region is about six million square kilometers in total surface area and it is estimated that over 260 million people reside in the region. The founding principle of ECOWAS is to promote and facilitate regional economic integration in all fields of economic activity in the region, free movement of persons and the rights of residence and establishment.17 This principle is based on the vision of creating a borderless West Africa. The protocol has benefited the ECOWAS community through the adoption of policies of regional socio-economic interaction and integration, making economic activity and the movement of people across national borders easier. The Protocols on the Free Movement of Persons and the Right of Residence and Establishment were to be established within 15 years from the inception of ECOWAS;18 however, only the first two have been established. In the first five years, visa and entry permits into the member states were abolished for ECOWAS citizens, so as to facilitate the free movement of nationals within ECOWAS. However, individual countries have autonomy to decide who is admissible into their territory. The Right of Residence came into force in July of 1986 but the Right of Establishment is yet to be implemented.19 Freedom of movement, the freedom of choice to move without constraints, is an essential prerequisite for the development of persons.20 The freedom of movement is embedded in several international conventions, such as article 12 of the 1966 International Covenant on Civil and Political Rights, which emphasizes the freedom of movement of persons,21 and is also a core founding principle of ECOWAS. However, the choice aspect of freedom of movement on its own can be restrictive without the rights of Residence and Establishment. The ECOWAS treaty outlines the roles and obligations of member states, whether as a country of origin or destination for migrants; however, the implementation of this treaty remains ineffective and incoherent. The effective implementation of the treaty is hindered by the lack of rule of law,

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hence, the ineffective application of the law, economic failings, competing political priorities among member states, national sovereignty and non-ratification of additional protocols formulated by ECOWAS for its member states.22 The ECOWAS Protocol is a well-formulated guideline for its member states; however, African governments are less receptive to intra-regional migration. It is perceived as a burden on their natural resources and employment. The ECOWAS Protocol on the Free Movement of Persons is an ideal framework for regularizing population movements in West Africa; however, due to a poor implementation process and non-adherence to the protocol, the treaty is failing to realize its objectives. Nevertheless, we are currently witnessing a political renewal in terms of migrations. Resorting to a structured sub-regional approach as an alternative solution to the crisis may be facilitate integration. On 18 January 2008, during the 33rd Ordinary Summit, held in Ouagadougou, ECOWAS adopted a common approach to migration. The new approach results from the combination of several factors, such as the awareness of irregular migration as of 2000; the new EU–Africa dialogue, along with the need for Europe to reduce the pressure exerted by Africans on its frontiers; and the need for Africa to reorganize the use of its human resources, including its diaspora, in order to face the global crisis. In addition to the aforementioned factors, we also find the signature of the Cotonou Agreement, as well as increasing efforts in terms of economic integration in West Africa, because the final goal of ECOWAS is to create first of all a customs union and subsequently an economic union.The approach is thus to find the ways and means to optimize the benefits of migration for development and to mitigate its potential negative impact. It identifies six key areas: the free movement of persons within the ECOWAS zone; the management of regular migration towards third countries; combating human trafficking; harmonizing policies; the protection of the rights of migrants, asylum seekers and refugees; and recognizing the gender dimension of migration. ECOWAS member states carry out their actions within the framework of the revised ECOWAS Treaty and, more particularly, Article 59: ‘Citizens of the community shall have the right of entry, residence and establishment and Member States undertake to recognize these rights of Community citizens in their territories in accordance with the provisions of the Protocols relating thereto.’ Member states also adhere to:  the United Nations General Assembly Resolution No.60/277 on International Migration and Development of 7 April 2006;  the International Convention on the Protection of the Rights of All Migrant Workers and members of their families which entered into force in July 2003;  the political dialogue between the EU and ACP countries as set out in Articles 8 and 13 of the Cotonou Agreement of June 2000;  the Rabat Action Plan and Declaration of July 2006;  the ECOWAS General Convention on Social Security;

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 the high-level dialogue on migration and development initiated in New York in September 2006;  the Tripoli Declaration of November 2006;  the 1951 Geneva Convention and its additional protocol of 1967 on the status of refugees;  the 1969 OAU Convention on the status of refugees in Africa. Mobility within the ECOWAS zone is a vital component of regional integration. ECOWAS member states recognize that it is important to give particular attention to border and cross-border areas in order to promote mobility within the ECOWAS zone. Cross-border cooperation has proved to be a powerful tool in the European context. ECOWAS member states have implemented the protocol by taking the following measures:  abolition of entry visas for citizens of all member states;  right of residence and establishment for all citizens, despite a few repeated violations by some member states;  ECOWAS passport;  ECOWAS travel document. With this common approach, a certain change of orientation is evident: the goal is no longer solely to establish the free movement of people and goods within the regional zone but to agree as well on measures related to interregional migration, especially towards Europe. Moreover, the ECOWAS member states have ratified the approach proposed by the Cotonou Agreement, which considers migration not as a factor for the development of West African countries as such but more as a fostering factor for the development of countries of origin so as to mitigate the necessity for migration. Consequently, we are witnessing numerous measures aimed at retaining populations through the promotion of development projects. On the same note, actions against “illicit” or “irregular” migration are increasingly important, while the mobility only of highly skilled migrants and investors is encouraged. Eventually, the protection of migrants’ rights will no longer be specified as a secondary objective of this regional management of migration. This becomes evident when we realize that these measures are not developed in the ECOWAS action plan, as compared to all the measures put in place within the framework of the fight against irregular migration. 2. Migration and human trafficking About half of the ECOWAS member states are among the poorest in the world, with high population growth rates, poor protection of rights and poor socio-economic rights for women and children. All of these, in addition to age, gender and low education rates, are the biggest risk factors for human

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trafficking. Human trafficking is on the rise in West Africa, expanding human rights violations, especially against women, girls and children. The high levels of trafficking in the ECOWAS region, according to the United Nations (UN), are deeply rooted in poverty,23 unemployment, human deprivation, child abuse and neglect.24 The offer of employment, higher income and better life opportunities is used to lure this already vulnerable population into trafficking.25 Women, girls and children from West Africa are trafficked within source countries (Nigeria, Benin, Togo and Ghana) and also to receiving countries such as Gabon, Cameroon, Côte d’Ivoire and Burkina Faso.26 These people are trafficked mainly into domestic work, farm laboring and commercial sexual exploitation. The impacts of trafficking on victims are immeasurable, including the human and economic costs of the untreated health problems of trafficked persons, particularly in the sex industry, and the unsanitary conditions under which trafficked persons work and live.27 The magnitude of trafficking in the West African sub-region is so alarming that it has captured the imagination of ECOWAS policy makers. The result is that the organization has put in place a concrete Plan of Action to tackle the menace. Human trafficking is the object of attention at the highest political levels, which has led to a number of countries participating in bilateral and multilateral initiatives to address the problem. Some ECOWAS states have also signed and ratified a number of relevant international instruments. These include the Universal Declaration of Human Rights, the United Nations Convention on the Rights of the Child, the UN Convention on the Elimination of All Forms of Discrimination Against Women, various International Labour Organization (ILO) conventions on the minimum age at work and forced labour and the African Charter on Human and Peoples’ Rights. C H ILD TRA FF IC K IN G

The current socio-economic situation of ECOWAS member states fuels trafficking in the region. Economic and political failures have contributed to growing numbers of unemployed youth, increased poverty and loss of hope for the future – all factors contributing to the sharp rise in child trafficking. These children are often recruited through organized crime networks posing as employment agencies that offer employment opportunities within the informal sector either as domestic workers or farm laborers working on plantations.28 Also, traffickers are taking advantage of the long-standing cultural practice of the extended family system, whereby poor family members send their children to rich family members to be cared for in hope of procuring a better future for them. Over the years, this has changed, with these children often being placed in various forms of labor or used as domestic servants.29 It is estimated that 400,000 children are coerced into work in Benin, 625,000 in Cote d’Ivoire and 12 million, the highest incidence, in Nigeria.30 According to the UNICEF report on child trafficking in Nigeria, a few states, such as Edo, Delta, Imo and Kano, are more seriously affected by child trafficking than others. In the East, the problem mostly

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affects boys, who find themselves trafficked into agricultural, domestic, trading and apprenticeship jobs.31 In Burkina Faso, studies show the increasing migration of children from rural to urban areas, and then across borders. It is estimated that about 9.5 percent (333,000) of children in rural Burkina Faso between the ages of 6 and 17 years have migrated to the urban areas in the expectation of employment, marriage and education.32 As mentioned above, poverty is the main driving force behind trafficking, and parents in need of money naively enlist their children to work for an income to sustain the family’s survival. In addition, the human rights of trafficked children are violated; they are robbed of their youth and denied access to education, physical well-being and a decent standard of living.33 WO M E N TR A FF IC K IN G

Women seek income-generating activities to support their families as a survival strategy in the face of endemic poverty, political instability and the lack of employment in traditionally male-labor-dominated fields.34 The economic situation of women is becoming worse, and they now constitute the poorest of the poor and about 51 percent of rural women live below the nationally defined poverty line, lacking access to basic services. In Nigeria, 7 out of 10 poor Nigerians are women.35 “Women gradually cluster in the informal commercial sector, which is less affected by economic crisis than the wage sector, where most male migrants work.”36 This feminization of migration has contributed to the increased trafficking of women and girls internally and across borders. In particular, women and girls are more vulnerable to cultural beliefs, power structures and lack of education and employment. There is a lack of information on trafficking of women in West Africa because most data focus solely on child trafficking.37 This is also evident in the adoption of several protocols that mainly refer to child trafficking in the region. 3. Multinational corporations Multinational corporations in ECOWAS are commonly active in the industries of oil, mining, telecommunications, construction and food processing and in trade in consumer goods. Multinational corporations attract regular and irregular migrants, not only to work within the corporation but also to work within the informal economy that is generated as a result of the multinational’s economic activity. Multinationals bring wealth, markets, infrastructure, skills training and technology to impoverished countries; but because corporations are involved in lucrative business, including oil extraction in Nigeria, gold mining in Ghana and iron-ore extraction in Liberia and Sierra Leone, they are often accused of exploiting human capital and natural resources and perpetuating government corruption. Efforts to manage corporate responsibility and oversight of multinational corporations involved in oil, gas and mining activities include the Global Sullivan Principles, Extractive Industries

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Transparency Initiative and the United Nations Global Compact and the International Labour Organization.38 Multinationals within ECOWAS must still adhere to national immigration policies, including visa requirements and temporary work permit requirements. Temporary workers migrating regularly to Nigeria and Ghana, along with other ECOWAS states, must be invited by corporations in order to obtain a work visa. The invitation and temporary work visa must be approved by national immigration services and, in most cases, proof of a return ticket is needed. Employers are not permitted to surpass a foreign worker quota, regardless of whether the worker is from another ECOWAS member state. EX AMP LE S : NI G ERI A, S E N EG AL AN D BU RK I NA FASO

Nigeria is attractive to migrants because of its economic prosperity; however, government policies strictly control migration standards in terms of visa acceptance. Oil companies, especially in Nigeria, recruit and influence migration trends. The health of the oil industry influences wages and living and working conditions within the state. If oil prices collapse, it is the migrants who are the first to suffer, and in some cases both skilled and unskilled workers leave. In the Niger Delta, multinationals have increased the influx of male workers, and thus of female prostitutes or victims of human trafficking for the purpose of sexual exploitation. The environmental externalities caused by such multinationals threaten the livelihoods of local inhabitants. Fishing, agricultural production and the utility of economically beneficial trees and shrubs are losing value as methane gases, contaminated soil and water sources take their place.39 Senegal follows guidelines set for foreign workers that conform with international and regional conventions and bilateral and multilateral agreements in the Labor Code of Senegal, Law 97–17. Since 1997, companies have been able to hire foreign nationals through their own processes; however, there is a limit enforced on how many foreign nationals can work for a given company.40 National companies are able to ban foreign workers altogether, despite the ILO non-discrimination policy. Senegalese labor law also protects the rights of foreign workers and their pay in the same way as those of national workers. Migrant workers are also entitled to family regrouping at the expense of the employer, paid vacation, housing and return travel to their country of origin upon the expiration of their contract.41 A foreign national can work in management positions after five years and if the migrant worker’s country of origin supports the advancement of Senegalese nationals in management positions. In Burkina Faso, corporations interested in hiring foreign workers are restricted unless the Ministries of Labor, Foreign Affairs and Security agree collectively.42 Once foreign workers have received their medical check-ups for employment they must still receive authorization from the Ministry of Labor in order to secure their employment contracts. Workers are able to apply for threeyear work contracts, while employers are responsible for paying progressive clearance fees corresponding to wages earned.

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In May 2010, multinational mining and steel groups in Liberia, Sierra Leone and Guinea came to agreements on future iron-ore mining projects. These projects have the potential to spur infrastructure development and attract labor migration from ECOWAS member states and beyond. These three nations remain poor, despite the enormous size of their natural resources. Further research must be done by the international community in the area of migrants working for multinational corporations and how multinationals can foster development. 4. Human trafficking protocol International treaties have paved the way in most African countries for dealing with human trafficking; this is because, at the sub-regional level, most of these countries do not have national-level legislation addressing human trafficking. The Plan of Action at the annual ECOWAS meeting held in Dakar in 2001 called for a speedy signature and ratification of the Palermo Protocol on Human Trafficking, “The Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially women and children,” adopted by the United Nations in Palermo, Italy in 2000. As of May 2010, 1243 of the 15 ECOWAS member states had ratified the protocol; Sierra Leone signed the protocol in 2001 but yet to ratify it, while Côte d’Ivoire and Gabon have yet to either sign or ratify the document. Not only are protocols enforced, but the role of a country in trafficking also prompts the nation’s response to human trafficking. Countries of origin are more likely to be aware of the situation, thus enforcing laws on trafficking; transit countries are more lax on this issue, as well as countries of destination. This is evident in the case of Nigeria, one of the main countries of trafficking. Nigeria was the first country to sign, ratify and domesticate the Trafficking Protocol and also adopted the Convention of the Rights of the Child and passed a comprehensive law [trafficking in persons (prohibition) Law Enforcement Act 2003].44 5. Challenges FE W AVE N UE S F O R R E GU LA R L A B O R M IG R AT IO N

Irregular migration, both intra-regionally and internationally, is a result of endemic poverty, failed economies, political instability, unemployment, and many other factors contribute to it. This problem is often exacerbated by migrants’ lack of documentation and knowledge concerning rules and regulations imposed on migratory movements. This remains one of the largest challenges for departure, transit and destination states, as it contributes to the loss of human capital, enlarged organized crime syndicates, and increased vulnerable populations. The people who choose to migrate clandestinely from ECOWAS to outside nations put themselves at great risk. Strict immigration policies in receiving

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countries encourage international migrants to use alternative and less reliable means to travel. This results in irregular migrants’ being smuggled or trafficked into the host country. Many of these people start their journey by migrating internally from rural areas to urban cities. If they do not find opportunities in these areas, then they are pressured to migrate north. Common migration routes in West Africa leave from coastal cities via pirogue or cross the Sahara Desert before departing towards Europe. These methods are extremely dangerous and account for tens if not hundreds of casualties each year. Other migrants may enter nations under regular status as students, tourists or temporary workers, but change classification when they overstay on their visa, acquire employment through unofficial means or reside longer than the contract period. Due to their lack of documentation, these migrants tend to work in the informal economy and are more vulnerable to exploitation and suffer from weak bargaining powers with their employers. During harsh economic times, irregular migrants become targets for social frustrations and can experience expulsion.45 To diminish these problems, ECOWAS intra-regional migration can be an alternative to clandestine migration to Europe. Intra-regional migration within ECOWAS member states is legal as long as proper documentation is acquired, including identification, and, in some cases, visas or work/residence permits. However, many migrants who cross state lines are unaware of their status because of their lack of knowledge about their right to residence and establishment within ECOWAS. Some irregular migrants choose to reside permanently in the country of destination because their lack of documentation will not allow them to re-enter the country once they leave. Unless migrants are provided with adequate information on the free movement of persons, they will continue to migrate irregularly. Furthermore, national policies often do not provide adequate protection to low-skilled temporary migrants, some of who move irregularly. This leaves populations vulnerable to exploitation, human trafficking and bonded labor. Irregular migration can be triggered if strict national migration policies fail to contract enough temporary workers to fill the employment gap. Managing migration in ECOWAS is hindered by conflict, irregular migration resulting from unemployment, poverty and regional development imbalances that lead countries to enforce strict migration laws. I NE FFI C IE NT D I A LO G UE B ET W EE N /A M O N G C O U NT R I ES

The implementation of the Plan of Action on trafficking in persons and other protocols within the sub-region has been hampered by the low level of commitment of some countries, sporadic and uncoordinated actions, lack of adequate data and technical incapacity for surveillance and tracking down of traffickers. There is also little inter-state dialogue, partly as a result of failure to grasp the trans-border nature of trafficking and the origin/transit and destination chain of the phenomenon. While some bilateral and sub-regional arrangements and conventions exist on issues relating to trafficking, such as the ECOWAS

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Convention on Extradition and the Convention on Mutual Assistance in Criminal Matters, which are very important tools for combating trafficking, the existing conventions have not been fully signed and ratified by all member states of ECOWAS. In addition, there is limited intelligence sharing among law enforcement agencies, and little cooperation on investigation, prosecution, identification of offenders and on the methods used by criminal organizations in human trafficking. There is no effective and practical framework for exchanging information between the law enforcement and criminal justice agencies of member states in the fight against trafficking. This situation is partly due to the non-ratification of the ECOWAS Convention on Mutual Assistance in Criminal Matters by all member states. Moreover, while some countries have national task forces in the fight against trafficking, some do not have such systems. Although they are signatories to various agreements and conventions on trafficking, many countries in the sub-region have not put in place national plans of action to implement these agreements. Equally important is the fact that there is no uniformity in the appointment of the focal point in charge of the fight against trafficking in member states. Thus locating traffickers is influenced by several factors and, as a result, some agencies of government are given responsibilities they cannot competently cope with because of the rather arbitrary manner in which the responsibilities are thrust upon them by their national governments. This situation has resulted in the politicization of the problem and what can be described as bureaucratic rivalry and in-fighting among the various government agencies, a development that clearly does not augur well for the effective implementation of the ECOWAS Plan of Action and, by implication, the successful fight against human trafficking. Allied to this problem is the absence of effective coordination among the agencies that are involved in the fight against trafficking in West African countries. In some of these countries several agencies and government ministries work at cross purposes, pulling in direct directions in the process. Inevitably, there is waste because of duplication of efforts, half-measures and even ineffective programs. Apart from the adverse impact which such developments have had on the fight against trafficking, they also represented a waste of scarce financial and human resources. There is also general weakness of capacity among some of the agencies that are involved in the fight against trafficking. Some of them are poorly equipped to discharge their responsibilities. In some of these countries, the Interpol units do not have modern communication gadgets that would facilitate contacts with their counterparts abroad and even within member countries. There is also the critical issue of lack of sufficient financial capacity, which puts serious constraint on their activities and effectiveness. The responsibilities vested in many of the agencies, and the roles they were expected to play in the fight against human trafficking, far outweigh the financial resources allocated to them by government. As a result, critical activities such as monitoring, counseling, rescue and rehabilitation and reintegration are adversely affected. The war against trafficking is further hampered by insufficient technical capacity and lack of expertise among the agencies responsible for

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fighting trafficking. The ECOWAS Protocol on the Free Movement of Peoples was designed to facilitate the free movement of goods and persons within the sub-region. The Protocol is supposed to stimulate efforts towards a return to the homogenous society that once existed in the sub-region. However, the Protocol, which allows free movement of West Africans across borders without visas, has been abused by fraudsters, popularly known as 419 in Nigeria. Besides that, it has also led from time to time to an influx of refugees, some of whom are involved in armed crime, a situation that has also created resentment among some citizens in the sub-region who have been affected by the negative impacts of the free movement Protocol. The abolition of visa requirements among ECOWAS states also tends to favor the activities of traffickers because they do not have to procure visas for victims taken across national frontiers within and outside the sub-region. This problem is further compounded by porous national borders and the dual “citizenship” in border regions, which makes it hard to distinguish who is a “citizen” and who is not. All these factors tend to encourage trafficking in the sub-region, while also making it difficult to curb. ECOWAS nations are also involved in other sub-regional cooperation and unions that influence their approach to the right to residence and establishment.46 Language barriers between former French and English colonies, as well as an array of local dialects, cause communication problems for regional migrants. In addition, national migration policies are influenced by various factors; some countries cannot reach agreements and settle their border disputes, while others vary in their population size, the abundance of their resources and their stage of development. Further, war, economic downturns and political instability also delay the formation of coherent policy. Some countries prioritize migration management, such as Ghana, Nigeria and Mali, while others lack the institutional capacity to address even basic migration issues. Guinea Conakry has dealt with a myriad of issues since Independence Day and has not yet begun to address migration flows. 6. Recommendations The improvement of economic conditions in ECOWAS member states is a prerequisite for successfully reducing trafficking in persons. In addition, increased surveillance, monitoring and data collection are needed to fully understand the magnitude of this problem in ECOWAS.47 Accurate data are needed in order to devise an effective strategy to tackle this issue. Re-integration programs and assisted return are important requisites to prevent the re-trafficking of victims, and it is necessary to rehabilitate victims48 so as to prevent reoccurrence of trafficking. For example, IOM found that the majority of Moldovans assisted in their return and reintegration were still in Moldova and employed 12 months after assisted return.49 The governments of West Africa do not have shelter facilities to receive returning victims of trafficking. The lack of effective re-integration policies addressing issues of housing, education, health, employment, trauma and other important problems also makes victims more prone to re-trafficking.50

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Conclusion Migration is an important tool for growth and development in West Africa; however, for this to be realized in the ECOWAS states, laws must be devised in the region that facilitate the easy movement of its citizens and provide incentives for fair labor practices. Labor migrants are an advantage to the host country, providing services that the local citizens consider less desirable to perform themselves and also filling the gaps in sectors with shortages of workers. In addition, labor migrants contribute to the economic development of their country of origin through remittances, which are often used to satisfy basic needs, from purchasing food to payment of school fees. In order for ECOWAS to counter human trafficking, it urgently needs to re-strategize its focus on addressing the problem by improving the documentation of trafficked victims, making information available to the public and increasing public awareness of the problem. Staff training, especially for first responders, on “human trafficking protocol,” prosecution of traffickers, protection of trafficked victims and the involvement of the civil society and the general population in countering trafficking are all important. Overall, the ECOWAS states must firmly enforce the existing laws and also formulate laws to protect and/or address the violation of human rights, migration policies, human trafficking and intra-regional labor mobility. The importance of cooperation among the ECOWAS states, as well as the shared responsibility among countries of origin, transit and destination to address migration issues, especially those of labor migration and human trafficking across the region, must be addressed at a high level. In addition, civil society’s involvement as a partner in development processes must not be ignored. Saartjie Baartman was a twenty-one-year- old South African Griqua woman employed on a farm near Cape Town. She was already past the traditional age of marriage among her people, and had few, if any, prospects of improving her condition. When a visiting English surgeon, Dr. William Dunlop, promised her fame, fortune, and freedom in a far away land, Baartman readily accepted his offer, and traveled with him by ship to London in 1810. What awaited her in London was neither fame, fortune nor freedom; the doctor had something quite different in mind. Fascinated by her physiology, which differed from that of Europeans at the time but was common to people of the Cape, Dunlop exhibited her to large crowds of Londoners, and later, Parisians, who paid one shilling each to gawk at the crudely-labeled “Hottentot Venus” from Africa. Whether Baartman herself received any of the profits of her exploitation is doubtful, and after her novelty had worn off in Britain and France, she was abandoned and left to fend for herself without family or friends, or the linguistic and cultural tools that she needed to survive in Europe. She died only six years after leaving Cape Town, at which point her body was dissected, her skeleton removed, and her organs preserved and displayed in the Musée de l’Homme in Paris for the next 160 years.

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Notes 1 Oliver Blackwell and Hein de Haas, “African Migrations: Continuities, Discontinuities and Recent Transformations,” in African Alternatives, eds. Patrick Chabal, Ulf Engel and Leo de Haan (Leiden: Brill, 2007), 95–118. 2 161 countries are identified as affected by human trafficking; 127 countries of origin; 98 transit countries; 137 destination countries. (Please note that countries may be counted multiple times and categories are not mutually exclusive.) UN Office on Drugs and Crime, Trafficking in Persons: Global Patterns (Vienna: UNODC, April 2006). 3 US Department of State, Trafficking in Persons Report, 2003 (Washington, DC: US Department of State, 2003). The ILO estimates at 32 billion dollars the total yearly profits generated by the human trafficking business. ILO, A Global Alliance against Forced Labor (Geneva: ILO, 2005). 4 Blackwell and de Haas, “African Migrations,” 95–118. 5 Jonathan Mafukidze, “A Discussion of Migration and Migration Patterns and Flows in Africa,” in Views on Migration in Sub-Saharan Africa: Proceedings of an African Migration Alliance Workshop, eds. Catherine Cross et al. (Cape Town: HSRC Press, 2007). 6 S.E. Findley, “Migration and Family Interactions in Africa,” in Family, Population and Development in Africa, ed. Aderanti Adepoju (London/New Jersey: Zed Books,1997). 7 M. Toure, “Country Report: Côte d’Ivoire,” paper presented at the regional meeting of experts on International Migration in Africa: Trends and Prospects for the 21st Century, UNESCO Network on Migration Research in Africa, Gaborone, 2–5 June 1998. 8 Aderanti Adepoju, Fostering Free Movement of Persons in West Africa: Achievements, Constraints, and Prospects for Intra-regional Migration (Oxford: IOM, Blackwell Publishers, 2002). 9 Blackwell and de Haas, “African Migrations,” 95–118. 10 Aderanti Adepoju, The Challenge of Labour Migration Flows between West Africa and the Maghreb (Geneva: International Labour Office, 2006). 11 Hein De Haas, Irregular Migration from West Africa to the Maghreb and the European Union: An Overview of Recent Trends (Geneva: IOM, 2008). 12 Mariama Awumbila, “Intra-regional Migration in West Africa: Changing Patterns and Dynamics,” Dev ISSues 11, no. 2 (2009), http://www.iss.nl/DevISSues/Articles/ Intra-Regional-Migration-In-West-Africa-Changing-Patterns-And-Dynamics, n.p. 13 Norman Myers, “Environmental Refugees: An Emergent Security Issue,” paper presented at 13th Economic Forum, Prague, May 2005. 14 Environmental migrants are persons or groups of persons who, for reasons of sudden or progressive changes in the environment that adversely affect their lives or living conditions, are obliged or choose to leave their homes either temporarily or permanently in order to move within their territory or abroad. 15 Elaine Pearson, Study on Trafficking in Women in East Africa (Frankfurt: Gesellschaft für Technische Zusammenarbeit (GTZ), 2003), 23. 16 Benin, Burkina Faso, Cape Verde, Côte d’Ivoire, Ghana, Guinea, Guinea-Bissau, Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone, The Gambia, Togo. 17 Article 3, paragraph 2 of the ECOWAS treaty, alludes to the termination of adversities and the free movement of persons, goods, services and capital across the region as well as the right to residence establishment. This treaty was signed in Lagos, Nigeria, on May 28, 1975 and was revised and signed on July 24, 1993 in Cotonou, Benin. 18 A. Adepoju, The Challenge of Labour Migration Flows. 19 Ibid. 20 Human Rights Committee, General Comment 27, Freedom of movement (Art. 12), UN Doc. CCPR/C/21/Rev.1/Add.9 (1999).

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21 Everyone lawfully within the territory of a State enjoys within that territory the right to move freely and to choose his or her place of residence. 22 This is the case for Additional Protocols A/SP1/6/89 and A/SP2/5/90. Nevertheless, all the protocols have come into force, as at least nine States have ratified them as stipulated in the revised treaty of 1993. See, T. Van Lidth de Jeude, La libre circulation, le droit de résidence et d’établissement dans l’espace CEDEAO: acquis communautaire effectivité en enjeux (Dakar: IOM, 2008). 23 Irena Omelanuik, “Trafficking in Human Beings,” paper presented at United Nations Expert Group Meeting on International Migration and Development, Population Division, Department of Economic and Social Affairs, United Nations Secretariat, New York, July 6–8, 2005. 24 Adeze Ojukwu, “Nigeria/West Africa: Human Trafficking,” Daily Champion, Lagos, September 21, 2006, http://www.stopdemand.com/afawcs0112878/ID=180/ newsdetails.html. 25 I. Omelanuik, “Trafficking in Human Beings.” 26 Bisi Olateru-Olagbegi, “Brief Overview of the Situational Analysis of Human Trafficking in West Africa,” paper presented at the Seventh Regional Conference on Women, NGO Forum, Addis Ababa, October 6–7, 2004. 27 US Department of State, Trafficking in Persons Report, June 2005 (Washington, DC: US Department of State, 2005). 28 Aderanti Adepoju, Changing Configurations of Migration in Africa (Washington, DC: Migration Policy Institute, 2004). 29 Olateru-Olagbegi, “Brief Overview of the Situational Analysis.” 30 Ibid. 31 Ojukwu, “Nigeria/West Africa: Human Trafficking.” 32 Anne Kielland and Ibrahim Sanogo, Burkina Faso: Child Labor Migration from Rural Areas (Geneva: Terre des Hommes/ World Bank, 2002), 8–10. 33 Olateru-Olagbegi, “Brief Overview of the Situational Analysis.” 34 Adepoju, Changing Configurations of Migration in Africa. 35 Aderanti Adepoju, “Fostering Free Movement of Persons in West Africa: Achievements, Pitfalls and Prospects for Intra-regional Migration,” International Migration 40, no. 2 (November 2008): 3–28. 36 Ibid. 37 Janice Fong, Literature Review on Trafficking in West and East Africa (Bangkok: Global Alliance against Traffic in Women, 2004). 38 Witney W. Schneidman, Multinational Corporations and Economic Development in Africa (Washington, DC: Center for Strategic and International Studies, 2008). 39 Donny Ohia, “Multinational Companies and Human Rights in Nigeria,” Hungerstrike, June 1999. 40 Hamidou Ba and Abdoulaye Fall, Legislation on Migrant Workers in West Africa (Geneva: ILO, 2006). 41 Ibid. 42 Ibid. 43 Benin, Burkina Faso, Chad, Guinea, Guinea-Bissau, Liberia, Mali, Niger, Nigeria, Senegal, The Gambia, Togo. 44 Olateru-Olagbegi, “Brief Overview of the Situational Analysis.” 45 A. Adepoju, Fostering Free Movement of Persons in West Africa. 46 Ibid. 47 Thanh-Dam Truong, Poverty, Gender and Human Trafficking in Sub-Saharan Africa: Rethinking Best Practices in Migration Management (Paris: UNESCO 2006), 18. 48 Ibid. 49 I. Omelanuik, “Trafficking in Human Beings.” 50 Ibid.; Olateru-Olagbegi, “Brief Overview of the Situational Analysis.”

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Adults or children? The case of trafficking children for purposes of exploitative labour in the fishing industry in Ghana Daniel Kweku Sam

Trafficking in persons has been an issue of concern to the international community. Child trafficking, in particular, is recognized as a serious human rights issue requiring immediate national, regional and global collaboration and action. It is not possible to distinguish trafficking of children for economic purposes from the worst forms of child labour. The Worst Forms of Child Labour Convention, 1999 (No. 182) is the most relevant to the trafficking of children. In societies where crimes are committed against vulnerable groups, children are trafficked into a range of exploitative tendencies or practices, includeing prostitution, begging and soliciting, and for work on construction and quarry sites, in small shops, in factories, in domestic servitude, forced marriages and military conscription. The etiology of trafficking of children for labour exploitation in Ghana can be attributed to cultural practices, social and economic factors. Children are trafficked to work with fishermen in Kete-Krachi, Yeji and other fishing communities along the shores of Ghana’s Lake Volta. From the perspective of the fishermen, the children’s parents are poor and so they see themselves as ‘offering’ solutions to help families out of poverty by asking poor, vulnerable parents to release their children to them to help in their fishing businesses, usually with an oral deed of agreement to pay a token amount to the parent/guardian yearly or biannually, depending on the terms of the agreement. On the demand side is the desire of the fishermen to employ children, who are viewed as cheap labour. The supply side is influenced by the impoverished condition of the parents, which influences them to hire out their children as labourers in return for financial reward. In Ghana it is often culturally acceptable to send your child/children to stay with extended family members as part of the socialization process. This, among other similar cultural practices, also has a bearing on the supply side of trafficking children for labour exploitation, because the result of such practices is that children are ‘given-out’ to people who express a desire to employ them. It needs to be reiterated that there are socio-economic and cultural factors within Ghana to justify the phenomenon of child trafficking.1 The major factors contributing to child trafficking in Ghana are poverty; irresponsible parenting; broken homes and dysfunctional families. The gradual breaking

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down of the traditional extended family system, community values and structures makes many children and families vulnerable to becoming victim to traffickers.2 Vulnerable children and their uninformed parents and families are often lured by traffickers – who are sometimes acquaintances or family members – with the promise of education, better employment or a better life far from home. Such parents and families may not understand that by cooperating with these traffickers they may be exposing their children to bonded placement or outright sale. Sometimes these vulnerable children see no alternative but to go with the traffickers. Their survival in the new location depends largely on subservience, which in turn leads to exploitation and abuse. Once these children are trafficked, they may find themselves depending solely on their exploiters or ‘masters’ for safety, food and shelter, and must endure hazardous working conditions. Most victims of trafficking are coerced into work they have not freely chosen because there is a cultural perception that ‘children are to be seen and not heard’. Often, the victims are unable to escape this exploitative labour unless they are willing to risk the threat of death. It is difficult to understand how child victims can be treated like adults. Every activity that takes place during bonded labour breaches the labour laws and the related ILO Conventions. It is very difficult to understand this heinous crime against children and to find effective solutions for its mitigation. In-depth research is needed to create a better understanding of the push–pull and the demand–supply factors that fuel the practice. This chapter is addressed to relevant and interested actors at the local, national, regional and international levels in the field of research, child rights activism and the development of cooperation and partnerships to combat trafficking in persons. Its aim is to contribute to knowledge and international efforts and debate on how most effectively to prevent and combat trafficking in human beings, specifically in children who are trafficked for exploitative labour. The definition for trafficking, as well as the concept who is a child, will be discussed, with relevant theoretical examples. A review of the relevant literature is presented, together with relevant sections of the Ghana’s 1992 Constitution, the Children’s Act and the national labour law. Some policy responses to human trafficking in Ghana are also outlined, as well as the international conventions on labour and the engagement of children in labour. Institutional frameworks and capacity in the areas of prevention, victim support, prosecution and partnerships, which are considered necessary pillars for combating the phenomenon of trafficking, are discussed. Some organizations whose roles complement the government of Ghana’s efforts in combating human trafficking are also considered. The chapter focuses on the trafficking of children for exploitative labour in the fishing industry on Ghana’s Lake Volta to see whether vulnerable groups of children are engaging in adult roles. Recommendations of necessary actions and interventions are made.

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A global overview of child trafficking The trafficking of children is one of the gravest violations of human rights in the world today. Children and their families are ensnared by the empty promises of the trafficking networks – promises of a better life, of an escape route from poverty – and every year hundreds of thousands of children are smuggled across borders and sold as mere commodities.3 Trafficking always violates the child’s right to grow up in a family environment. In addition, children who have been trafficked face a range of dangers, including violence and sexual abuse.4 Exact numbers of trafficked children are hard to pinpoint, since child trafficking is mostly hidden and victims are often fearful of coming forward. Central to the phenomenon of trafficking in Africa is abuse of the tradition of placing children with extended families or other care-takers when they cannot be cared for by their parents. As is common in other countries of West Africa, a significant minority of children in Ghana are cared for primarily by guardians other than their biological parents, under arrangements of fosterage. While in some cases these arrangements provide for better educational opportunities than would be available in the biological parents’ home, in many others the fostered children are at a notable disadvantage where access to education is concerned.5 A high degree of exploitation has been introduced and exploitation of children now permeates domestic units. Research in West Africa has shown that boys migrate to fishing areas in three ways: with their fathers, as servants given by parents to a relative or as trafficked labourers whose parents have been paid by an intermediary.6 Girls are usually less preferred when it comes to working on the lake. Usually they are put to work helping within the domestic units and in fish preservation. The data available on the occurrence of child trafficking vary considerably across countries, and it is difficult even to estimate the scale of the phenomenon in the sub-Saharan region of Africa. Available figures are usually based on the government and non-governmental records of intercepted cases and thus do not include cases that have not been stopped or intercepted during the trafficking process (ILO-IPEC, 2001).7 According to the International Organization for Migration (IOM) mission in Ghana, since the inception of the Yeji Trafficked Children’s Project (YTCP) in October 2002 a total of 731 children have been rescued from exploitative labour in the Lake Volta fishing industry, rehabilitated and reunited and reintegrated with their families in their communities of origin.8

The context of who is a child The term ‘child’ or ‘children’ refers to individuals from birth to the age of 18 and this is reflected in Ghana’s 1992 Constitution. International instruments accord the rights and protection of a child to people under the age of 18. These rights and protections are enshrined in the United Nations Convention on the Rights of the Child (UNCRC) 1989.9 The UNCRC incorporates children’s civil and political rights (like their treatment under the law); social, economic

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and cultural rights (like an adequate standard of living); and protection rights (from abuse and exploitation). A child is defined in the UNCRC as a person under the age of 18 years. The Convention is legally binding and its fundamental principles are non-negotiable. Ghana’s Children’s Act (560, 1998) also defines a child as a person below the age of 18 years. By the time they reach 18 years, young people are expected to have developed sufficient intellectual, emotional and physical skills and resources to fend for themselves and make a successful transition to adulthood. Until then, children need care, support, guidance and protection from adults; this has been the traditional norm in Ghana.10

The definition of trafficking in international law In the definitions adopted by the UN in 2000, a distinction was made between the criteria for determining whether an adult had been trafficked and those for assessing the cases of children, who were defined by international law to include both adolescents and younger children. Regarding persons under the age of 18 years, the Trafficking Protocol (also known as the Palermo Protocol) asserts that any forms of recruitment amount to trafficking if the children or young people are subsequently subjected to various forms of exploitation judged to be abusive, whether the child involved is a helpless 5-year-old or a mature teenager.11 The Palermo Protocol defines trafficking as: (a) The recruitment, transportation, transfer, harbouring 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 labour or services, slavery or practices similar to slavery, servitude or the removal of organs. (b) The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used.12 Child trafficking and child labour are not necessarily synonymous. When the phrase ‘child trafficking’ is used it places emphasis on how children are moved from their original communities or environments. To understand what is involved it is necessary to look at the forms of exploitation experienced by children. The definition of trafficking emphasizes the three core elements of trafficking: the movement or harbouring of a person; use of deception or coercion; and placement into situations of exploitation. These elements occur in combination and not isolation. The Protocol makes trafficking in persons for all forms of exploitation, whether for labour or for sexual purposes, an international criminal offence.13

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Towards finding a common definition of child trafficking, in 1994, the United Nations General Assembly defined child trafficking as the illicit and clandestine movement of persons across national and international borders, largely from developing countries and some countries in transition with the end goal of forcing women, girls and children into sexually or economically oppressive and exploitative situations for the profit of recruiters, traffickers, crime syndicates, as well as other illegal activities related to trafficking, such as forced domestic labour.14 The Palermo Protocol regards child victims of trafficking as special cases – they are regarded as victims of trafficking whether or not there is evidence of their having been coerced or deceived into their situation. It is suggested that it is impossible for children to give informed consent – they may simply be submitting to the authority of their parents, even if they understand what is taking place, as otherwise they may feel that they are being disloyal.

Problem analysis: child trafficking in a Ghanaian context From a cultural and historical perspective, forms of child labour exist within the traditional Ghanaian setting. It has been a ‘normal’ practice to use children as domestic help and farm hands. They carry out menial domestic and farm work, which is not injurious to their health and does not affect their education. These practices provide informal training, helping children to acquire basic life skills. The phenomenon of trafficking of children has evolved from these cultural practices. Middlemen and intermediaries are involved, who facilitate the transaction by giving monies and other ‘goodies’ to the families and parents in order to entice them. Once the children have been sent to different locations they are engaged in forced labour. Trafficking of children for exploitative labour has both a demand and a supply side. The demand side is influenced by the desire of fishermen to cut costs by employing children, who are viewed as cheap, flexible and malleable labour and very easy control. On the other hand, parents and traffickers influence the supply side by giving their children out as a result of poverty and lack of access to basic needs.

Forms and trends of trafficking in Ghana Internally, trafficking takes the form of the recruitment and transportation of children from rural to urban centres or from one rural area to another for different forms of labour under exploitative conditions; external trafficking across Ghana’s borders is mostly exploitative and in slavery-like conditions. According to the 2010 Trafficking in Persons Report, Ghana is a country of origin, transit and destination for women and children subjected to trafficking,

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specifically for forced labour and forced prostitution. The report15 further states that the non-consensual exploitation of Ghanaian citizens, particularly of children, is more common than the trafficking of foreign migrants. Ghanaian boys and girls are subjected to forced labour within the country in fishing, domestic servitude, street hawking, begging, portering and agriculture. Internal labour traffickers are commonly freelance operators and may be known to members of the source community. Trafficking of children for labour exploitation is one of the Worst Forms of Child Labour16 according to the ILO Convention of 1999. Practices include debt bondage; work that is likely to jeopardize the health, safety, or morals of children; work that exposes children to physical and psychological abuse; children working under water, or in an unhealthy environment; work under particularly difficult conditions, such as for long hours or during the night or where the child is unreasonably confined to the employer’s (master’s) premises.17 Some Ghanaian children are smuggled across international borders. Once they get to their destinations they are often given out like commodities and suffer brutal assaults on their dignity and safety. Victims are usually disoriented, which makes it highly impossible for them to return to their homes of origin.

How victims are acquired Internal child trafficking in Ghana typically begins with the deceitful negotiation of a private arrangement between a trafficker or a middle-person who brokers the deal and a family member or parents, driven by the family’s economic plight and the trafficker’s desire for profit and cheap labour. The middle-person comes along with someone who promises to provide a job for the child or to put the child into vocational training, and the parents believe this. Most parents, either ignorantly or with good intentions for their children, think that by letting their children go they are doing something good for them; but then the person puts them into servitude or gives the child to someone else to work with.

The engagement of children in hazardous work Trafficking is a means to exploitation, and thus trafficking in children is usually associated with labour that jeopardizes the child’s health and well-being. There has thus been a resurgence of international attention on the engagement of children in hazardous work, with growing public concern about the use of children’s time and energy, particularly in activities that may be injurious to their health, education and development. Sections 12 and 87 of the Children’s Act prohibit engaging a child in exploitative labour, which is defined as labour depriving the child of its health, education or development. Section 91 of the Children’s Act (560, 1998) further defines hazardous work, setting the minimum age for hazardous employment at 18 years. In light of this, it is clear that children involved in hazardous work such as going to sea or fishing are being exploited in the extreme.

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Contract of employment Children who are engaged in hazardous work on the lake do not have any contract of employment. The contract between the trafficker and the victim is often a matter of a mere oral agreement between the victim’s family and the trafficker. The fishermen, recruiters and other people involved in the trafficking syndicate just enter into an oral agreement with the children’s parents and guardians, who are lured into believing that their children will receive the best of care and have better lives than what is possible in their communities of origin. The fisherman or ‘master’ usually promises to work with the child or children for between two years and four years. Section 12 of the Labour Act requires a written contract of employment for work for a period of 6 months or for a number of working days equivalent to six months or more during the course of a year. Under Ghana’s Children’s Act (560, 1998), the minimum age for the engagement of a person in hazardous work is 18 years. Hazardous work is work that poses a danger to the health, safety or morals of a person, and it includes going to sea.18 If it is asserted that children under 18 years of age cannot be employed in hazardous work, then we can conclude that these children are being exploited.

Employment of children It is very common to see children who have been trafficked to work in the Lake Volta fishing industry, both early in the mornings and late in the evenings, in canoes on the lake, either transporting people or fishing. Some of the children who fish or work on the lake can be as young as 4 years. They are mostly boys, although girls are also involved, mainly helping with processing and selling the fish. The boys are engaged to mend fishing nets and also, because of their nimble fingers, they are forced to dive underwater to disentangle nets.19 All the activities performed by the children expose them to hazardous conditions. Some children are drowned when boats are capsized by bad windy conditions or tidal waves; they are pricked by hooks and become infected with water-borne disease because of parasites in the water; and above all they suffer some maltreatment by their employers. The children work day and night at the expense of going to school. They neither receive good clothes to wear nor get enough food to eat. They do not get enough rest and receive no medical attention. Article 3 of ILO Convention 182 allows countries considerable discretion in how they define worst forms of child labour. A worst form of child labour can include any ‘work that is likely to endanger the health, safety, or morals of children’. The accompanying recommendation (190) draws attention to cases where children are exposed to abuse, work in an unhealthy environment, work long hours (including during the night) or face confinement to the employer’s premises. It is against this backdrop that the author poses the question whether these children who work on the lake are adults or children. Do they make decisions on matters that affect them? Obviously not, because they are children and usually not part of decision making that affects their well-being.

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Sections 33 to 39 of the Labour Act cover hours of work. The maximum is set at 8 hours a day or 40 hours a week, except in cases expressly noted in the Act. The Act has a provision for payment for overtime and it permits unpaid overtime only in certain exceptional circumstances, ‘including an accident threatening human lives or the very existence of the undertaking’.20 Under Section 40, workers engaged in continuous work are entitled to a rest period of at least 30 minutes, to be counted as normal working hours, but where the normal hours of work are split into two, the break should be of not less than one hour’s duration and is not counted as part of normal working hours. Workers have the right to a continuous daily rest period of at least 12 hours between two consecutive work days, and a weekly rest period of 48 consecutive hours in every seven days of normal working hours. Section 44 excludes task workers and domestic workers from the 8 hours a day or 40 hours a week maximum. Contrary to what is spelled out in the Labour Act, the children who are engaged in fishing are exploited and abused. They work long hours and have no rest. The taking of rest is at the ‘master’s’ or the employer’s discretion, once the children are confined to the employer’s premises. In summary, all the provisions in Sections 87, 88, 89 and 90 of Part 5 of the Children’s Act are violated. Children who are engaged in exploitative labour are not protected, but they are treated like adults when it comes to what they are expected to offer in terms of labour services.

Response analysis International response framework Ghana has yet to ratify the United Nations (UN) Trafficking Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, which supplements the UN convention against transnational organized crime;21 it has, however, initiated the process to criminalize trafficking and address the rights of victims of trafficking to rescue, reintegration and rehabilitation, in accordance with international standards. According to the 2010 TIP Report, these provisions did not meet international standards to combat modern trends in trafficking.22 With respect to children’s rights, Ghana ratified the Convention on the Rights of the Child in 1990. Its adoption of constitutional provision on the rights of the child and child protection, and ratification of the ILO Convention No. 18223 on the elimination of the worst forms of child labour in June 2002 are worthy of mention as steps taken to provide social protection for children. Ghana has also been seeking collaboration at bilateral and subregional levels, and participating in international fora that provide a platform for the exchange of information on good practices and lessons learned. Regional response framework While child trafficking is a global phenomenon, the African Union’s (AU) Migration Policy Framework for Africa (MPFA) states that child trafficking

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presents particular challenges in Africa because of the socio-economic situation, the reduced agency of children and women and harmful cultural and traditional practices present on the continent.24 According to the AU.COMMIT Campaign, the eradication of human trafficking requires collaborative efforts by AU Commission departments/directorates, EU member states, regional economic communities and the private sector (including faith-based organizations), development partners such as the United Nations agencies, bilateral donors, the media, academic institutions and children, young people and women themselves. Ghana has signed bilateral and multilateral agreements with neighbouring West African countries to cooperate on anti-trafficking measures.25 In 2001, in Dakar, an action plan and a declaration to fight trafficking in human beings across West Africa was adopted by ECOWAS26 Ministers of Foreign Affairs. The declaration and action plan commit the West African countries to undertake urgent actions against trafficking in human beings. The ECOWAS countries were urged to share information among themselves and with the UN, to create new special police units to combat trafficking and task forces to report to the ECOWAS Secretariat, and to train customs, immigration and judicial officers on how to combat human trafficking. In 2005, Ghana joined the ECOWAS member states in signing the Abidjan Multilateral Agreement, and in July 2006 signed the ECOWAS and ECCAS27 Agreement in Abuja. Interpol Ghana has actively collaborated with countries within Africa and in other areas of the world on issues related to child trafficking. Ghana is also one of the nine West African countries participating in an ILO/IPEC project to prevent trafficking in children and provide rescue and rehabilitation services to victims of child trafficking. National response framework According to the Ministry of Manpower, Youth and Employment’s Hazardous Child Labour Activity framework for the cocoa sector (June 2008),28 policy makers in Ghana attach primary importance to the formation of the nation’s human capital from childhood to adulthood, and is thus drawing up a comprehensive legislative framework to address child protection issues, including the 1992 Constitution of Ghana; the Children’s Act (560, 1998), which is the most comprehensive law on children, defines a child as a person below the age of 18 years29 and states that no person shall engage a child in exploitative labour. Labour is exploitative of a child if it deprives the child of its health, education or development;30 the Human Trafficking Act (694, 2005); the Criminal Code (Amendment Act) 1998; the Domestic Violence Act, 2007; and the Whistleblower’s Act, 2007. The Constitution of Ghana, 1992, came into force on 7 January 1993 and was amended on 16 December 1996. Chapter 5 covers ‘Fundamental Human Rights and Freedoms’, whilst Section 12(2) states that ‘every person in Ghana, whatever their race, place of origin, political opinion, colour, creed or gender shall be entitled to the fundamental human rights and freedoms of the

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individual contained in this Chapter but subject to respect for the rights and freedoms of others and for the public interest’. Section 14 covers protection of the right to personal liberty, and Section 16 protects against slavery and forced labour. Based on the requirements of the nation’s constitution and observed difficulties faced by children in gaining access to formal education, the government of Ghana has institutionalized a programme of free compulsory universal basic education (fCUBE), supported by a national school feeding programme. Under its current educational reforms, the government requires that all children receive two years of pre-school education, starting from the age of 4 years; and to receive basic education from primary 1 through Junior High School (JHS).31 More significantly, the nation has gone beyond the legislation and established institutions to facilitate the actualization of child rights and development. Nevertheless, the practice of child labour and its worst forms persist in Ghana. Not too long ago, there was no specific law against trafficking in Ghana. However, in December 2005 a Human Trafficking Act (694) was passed after receiving presidential assent. Before then, the closest legislation on trafficking was to be found in the Criminal Code (Act 29), which does not make specific reference to the term ‘trafficking’, although it does contain provisions that create offences related to the topic, such as adoption and slave dealings. Even though Ghana has not ratified the UN Trafficking Protocol (2000), the Human Trafficking Act takes its cue from the core elements of the UN Trafficking Protocol’s definition. The Human Trafficking Act (694, 2005) covers the recruitment, transportation, transfer, harbouring, trading or receipt of persons within and across borders by means of threat, fraud and exploitation of vulnerability or by paying to gain consent, as well as induced prostitution and other forms of sexual exploitation, forced labour, slavery or the removal of organs. This important development is a major and significant step towards the elimination of child trafficking in the country. However, the implementation and enforcement of the legislation suffers from a number of serious weaknesses and setbacks, including laxity in law enforcement to effect the prosecution and conviction of traffickers; lack of clarity about mandates for social welfare services; low staff capacity in the ministries, departments and agencies involved in the fight against human trafficking in general; weak coordination for prevention, protection, prosecution and partnership; as well as limited or inadequate funding.

Government and institutional responses Institutional framework Taking into consideration the nature of the vulnerability and risks affecting children with their socio-cultural linkages, it is imperative that we take a

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multi-sectoral and multi-dimensional view of the need for different types of social protection programmes, including preventative and responsive social welfare services, and a strong legal and regulatory framework. Even before the passage of the Human Trafficking Act, the then Ghana National Commission on Children (now Department of Children under the Ministry of Women and Children’s Affairs), UNICEF, the ILO, IOM and local NGOs had initiated interventions designed to prevent further trafficking of children. One result of these collaborative efforts was the repatriation from Gambia in 2003 of 12 trafficked children and the resettlement of 28 children with their migrant parents living in Guinea.32 Since the inception of the IOM Ghana’s Child Trafficking Project in 2002, over 700 children have been rescued from trafficking and reintegrated into their communities of origin. Other NGOs have been working to complement the government’s efforts to combat child trafficking in Ghana. Section 29 of the Human Trafficking Law (Act 694, 2005) relates to institutions that are combating human trafficking in Ghana. The Ministry of Women and Children’s Affairs (MOWAC) has oversight responsibility for coordinating human trafficking activities in Ghana. The Attorney-General’s Department prosecutes suspected traffickers, whilst the Anti-Human Trafficking Unit (AHTU) of the Criminal Investigations Department and the Domestic Violence Victims Support Unit (DOVVSU), both under the Ghana Police Service, support investigations and other victim-support and protection interventions. The Department of Social Welfare (DSW) of the Ministry of Employment and Social Welfare addresses issues related to rehabilitation and reintegration activities. The NGOs, community-based organizations and civil society organizations collaborate with relevant government agencies and development partners on technical, financial and other support services, especially within victim support and protection interventions.

Conclusion: the need to act The phenomenon of human trafficking, and specifically the trafficking of children for exploitative labour, is regarded as a scourge that must be eliminated, not only because it is a criminal offence and a gross violation of human rights, but also because of the offensive and unacceptable conditions and treatment that children suffer in all the phases of trafficking. Why is action needed to combat trafficking of children? Trafficking of children for exploitative labour reinforces the cycle of poverty.33 In addition to the immediate danger of working in hazardous conditions and environments, children are not sufficiently mature or strong to handle some of the tools or machinery. Children, by their disposition, are more susceptible than adults to long-term health problems from exposure to the vagaries of the weather, and some of these health problems may show up in adulthood. When children are placed in work situations early in life, this tends to interfere with and interrupt their growth and development, and denies them opportunities for future development.

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While governments are ratifying agreements and passing laws aimed at eradicating the practice, it is a well-known fact that more is needed to address the problem, which has some socio-cultural dimensions. At present, awareness raising is the dominant prevention strategy, and also a key strategy. Socioeconomic development and poverty reduction, creation of employment for vulnerable groups and raising awareness about the rights of children in both the sending and the receiving communities are needed to ensure effective prevention of child trafficking. Specific commitments and promises have been made by the state to uphold the rights of the child and to protect children from all forms of exploitation. Whilst progress can be noted with the passage of the Human Trafficking Act, Children’s Act, Domestic Violence Act, the Whistleblower’s Act and the ratification of the Convention on the Rights of the Child, significant efforts are still urgently required to secure a safe environment and guarantee protection for children. There can be no major impact without a solid foundation of structural measures, such as education programmes or income-generating activities. In addition, collaboration among relevant organizations and government bodies, as well as with civil society, is necessary if any progress is to be made towards creating a society in which children are not sold into servitude.

Notes 1 African Centre for Human Development, The Little Ghanaian Slaves: A Cry for Help: A Report on Child Trafficking in Ghana (Accra: African Centre for Human Development, February 2002), xiv. 2 Ibid. 3 UNICEF Innocenti Research Centre and UNICEF Regional Office for West and Central Africa, Child Trafficking in West Africa: Policy Responses (Florence: UNICEF, 2002). 4 UNICEF, ‘Child Protection from Violence, Exploitation and Abuse’, http://www. unicef.org/protection/index_exploitation.html. 5 Consortium for Research on Educational Access, Transitions and Equity (CREATE), Fosterage and Educational Access among the Dagomba of Savelugu-Nanton, Ghana, CREATE Ghana Policy Brief 4, September 2010, http://www.create-rpc.org/ pdf_documents/Ghana_Policy_Brief_4.pdf (accessed 10 February 2011). 6 Kari Hauge Riisøen, Anne Hatløy and Lise Bjerkan, Travel to Uncertainty: A Study of Child Relocation in Burkina Faso, Ghana and Mali, FAFO Research Program on Trafficking and Child Labour (Oslo: Allkopi AS, 2004). 7 ILO-IPEC, Combating Trafficking in Children for Labour Exploitation in West and Central Africa, Synthesis Report Based on Studies of Benin, Burkina Faso, Cameroun, Côte d’Ivoire, Gabon, Ghana, Mali, Nigeria and Togo (Geneva: ILO, 2001). 8 IOM, Yeji Trafficked Children Project Report, Ghana (Geneva: IOM, 2011). 9 The United Nations Convention on the Rights of the Child (UNCRC) is a comprehensive, internationally binding agreement on the rights of children, adopted by the UN General Assembly in 1989. It incorporates children’s civil and political rights (like their treatment under the law); social, economic and cultural rights (like an adequate standard of living); and protection rights (from abuse and exploitation). A child is defined in the UNCRC as a person under the age of 18 years. Available at

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11 12

13 14 15 16 17

18 19 20 21

22 23

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http://www.childrensrights.ie/index.php?q=childrens-rights-ireland/un-conventionrights-child. Children in Ghana (2009, p xvii), an advocacy resource book for the government and its partners in the interests of the development of children in Ghana, offers an overview of the situation of children in contemporary Ghana. It was commissioned by the Ministry of Women and Children’s Affairs (MOWAC) and the United Nations Children’s Fund (UNICEF) Country Office in Ghana in 2009; it also offers an overview of the situation of children in contemporary Ghana. Michael Dottridge, The Kids as Commodities? Child Trafficking and What to Do about It (Switzerland: Terres des Hommes, 2004), 19. UNODC, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, GA Res. 55/25, UNODC, 2000. The purposes of this Protocol supplementing the United Nations Convention Against Transnational Organized Crime are (a) To prevent and combat trafficking in persons, paying particular attention to women and children; (b) To protect and assist the victims of such trafficking, with full respect for their human rights; and (c) To promote cooperation among States Parties in order to meet those objectives. Samantha Dowling, Karen Moreton and Leila Wright, Trafficking for the Purposes of Labour Exploitation: A Literature Review (United Kingdom: Home Office Online Report October 2007). Rima Salah, ‘Child Trafficking in West and Central Africa: An Overview’, paper presented at the first Pan-African Conference on Human Trafficking organized by WOTCLEF at the International Conference Centre, Abuja, 19–23 February 2001. US Department of State, Trafficking in Persons Report, 2010 (Washington, DC: US Department of State, 2010), http://www.state.gov/g/tip/rls/tiprpt/2010/142760. html (accessed 16 June 2010). ILO, Convention no. 182 on the Worst Forms of Child Labour, 1999 (Art. 3 and 7), http://www.ilo.org/public/english/standards/relm/ilc/ilc87/com-chic.htm. Dela Afenyadu, ‘Child Labour in Fisheries and Aquaculture, a Ghanaian Perspective’, presentation, FAO Workshop on Child Labour in Fisheries and Aquaculture in Cooperation with ILO FAO Headquarters, Rome, Italy, 14–16 April 2010. Ghana’s Children’s Act (560,1998), part V: Employment of Children; section 91: Minimum Age for Hazardous Employment. From the author’s account from the field, on witnessing the children’s activities. ILO, ‘National Labour Law Profile: Ghana, Hours of Work’, http://www.ilo.org/ public/english/dialogue/ifpdial/info/national/ghana.html. Janice G. Raymond, ‘Guide to the New UN Trafficking Protocol: The UN Trafficking Protocol’, Coalition against Trafficking in Women, 2001, http://action.web. ca/home/catw/readingroom.shtml?x=33647&AA_EX_Session=333b289ebf62de649 00c43acdc8f5580. The purposes of this Protocol supplementing the United Nations Convention Against Transnational Organized Crime are: (a) To prevent and combat trafficking in persons, paying particular attention to women and children; (b) To protect and assist the victims of such trafficking, with full respect for their human rights; and (c) To promote cooperation among States Parties in order to meet those objectives. US Department of State, Trafficking in Persons Report, 2010. ILO Convention No. 182, concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour was adopted on 17 June 1999 in Geneva and came into force on 19 November 2000, http://www.ilo.org/ilolex/cgi-lex/ convde.pl?C182. African Union Department of Social Affairs, ‘AU.COMMIT Campaign Strategy Document 2009–12’, http://www.africa-union.org/root/ua/Conferences/2009/juin/ SA/16juin/sa/aicomite.html.

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25 UN Committee on the Rights of the Child, ‘Concluding Observations: Ghana’, CRC/C/C/GHA/CO/2.2006. 26 Economic Community of West African States, comprising fifteen countries. 27 Economic Community of Central African States. 28 This is a comprehensive, acceptable and contextually relevant hazardous child labour framework for Ghana’s cocoa sector to drive research, interventions, monitoring and enforcement. It also provides the best options for intervention and evaluation to safeguard the health, safety and education of the children. 29 Ghana’s Children’s Act (560,1998) section 1: Definition of a child. 30 Ghana’s Children’s Act (560,1998) section 87;1& 2: Prohibition of exploitative labour. 31 Afenyadu, ‘Child Labour in Fisheries and Aquaculture’. 32 Children in Ghana, 2009, p. 133. 33 SARD and Child Labour, Sustainable Agriculture and Rural Development (SARD) Policy Brief Series 2, 2007, FAO, ILO, IFAD, Norwegian Ministry of Foreign Affairs.

8

Doing Canada’s dirty work A critical analysis of law and policy to address labour exploitation trafficking Bethany Hastie

Introduction Since the inception of the Palermo Protocol in 2000, trafficking in persons has become a hot topic of legal debate. Most Western countries have enacted domestic legislation aimed at tackling human trafficking. In Canada, most of the debate and legislative measures have been aimed at tackling trafficking for sexual exploitation. However, labour exploitation is a serious and potentially growing problem that also deserves serious attention. Migrant labourers are particularly vulnerable to exploitation in Canada, and because migrant labour is regulated through government programmes, exploitation often goes undetected. However, many aspects of the temporary foreign worker programmes are exploitative in nature, and serve to make this class of workers more vulnerable. A UN study undertaken in 2002 approximated that migrant workers account for roughly 11 per cent of the population in Canada.1 Every year, over 90,000 migrants enter Canada under the various temporary foreign worker programmes;2 this is a significant population that is being exposed to vulnerability under our laws and policies. Labour exploitation victims can be found in a broad range of employment sectors, including agriculture, construction, cleaning, nursing, domestic work, and hospitality.3 These industries tend to be characterized by ‘3D work’: dirty, dangerous, and difficult.4 They typically involve low pay and low skill levels, and require large numbers of flexible, seasonal workers. ‘Trafficking tends to occur in sectors with labour shortages that use sub-contracting chains and are dominated by migrant workers.’5 This paper critically examines the scope of protection available for victims of labour exploitation, both internationally and domestically. The key questions that must be answered are: (1) when and how does labour exploitation occur; (2) how is labour exploitation dealt with through international instruments, particularly through the Palermo Protocol; (3) how does the Criminal Code offence match up to, or fall short of, the requirements of the Palermo Protocol; and (4) what can be done to ensure that labour exploitation is better covered under Canadian law?

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Understanding the problem In a survey conducted by the OSCE [Organization for Security and Co-operation in Europe] Special Representative on Trafficking in Human Beings, participating states were asked if they considered trafficking in human beings to be primarily a problem of irregular migration, human rights violations, prostitution, forced labour, organized crime, poverty, exploitation or other. Trafficking as a problem of forced labour was the least frequent response. Additionally, only 27 respondents indicated that they recognized trafficking for labour exploitation as a main form of trafficking in their jurisdiction. In general, few cases of trafficking for labour exploitation are detected, few victims are identified and protected, and few perpetrators are actually prosecuted and convicted.6 Exploitation is defined as to ‘make use of unfairly; benefit unjustly from the work of ’.7 Labour exploitation is rarely defined in literature and legislation relating to trafficking; it is assumed that there is a consistent idea of what exploitation means and constitutes. However, the above statistics illustrate the confusion and inconsistency around defining and recognizing labour exploitation. The continuum presented in Figure 8.1 illustrates the spectrum of labour exploitation that can exist in a given jurisdiction. It attempts to encompass both the types of exploitative situations that can be identified and the risks and vulnerability contributing to labour exploitation through different situations. The continuum also illustrates the international and domestic legislation that properly applies to each situation, where it exists, in an effort to visually depict the gaps that exist, primarily focusing on gaps in Canadian legislation.8 The purpose of this continuum is to provide a visual aid to better understand the issue of labour exploitation and the legal obstacles that must be remedied to effectively combat labour exploitation. Finally, a delineation of the spectrum of labour exploitation may promote consistency and clarity in understanding the issue both domestically and internationally. Slavery is defined as: the status or condition of a person over whom any or all of the powers attaching the right of ownership are exercised’ and includes ‘all acts involved in the capture, acquisition or disposal of a person with intent to reduce him to slavery; all acts involved in the acquisition of a slave with a view to selling or exchanging him; all acts of disposal by sale or exchange of a slave acquired with a view to being sold or exchanged, and, in general, every act of trade or transport in slaves.9 Slavery presupposes the legal ownership of an individual. Although slavery, as defined above, has been abolished, it is important to anchor the continuum at the most extreme form of labour exploitation. Slavery is the most extreme identified form of labour exploitation, as it is able to encompass all of the exploitative factors present in forced labour (as

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Figure 8.1 Continuum of Labour Exploitation.

explained below) and, in addition, creates a situation of legal ownership, restricting totally the freedom and rights of the victim. Forced labour is defined as ‘all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily’.10 Forced labour is often referred to as the ‘new slavery’ or ‘modern day slavery’, as it postulates the exercise of coercion and denial of freedom, without legal ownership.11 In interpreting the definition of forced labour, it should be noted that ‘penalty’ can include ‘a loss of rights or privileges’, not just penal sanctions.12 Some common coercive elements that may indicate a forced labour situation include:13    

physical or sexual violence and/or threats; restriction of movement of the worker; debt bondage/bonded labour; withholding wages or refusing to pay wages, excessive wage reductions, or a violation of a previously made agreement;14  retention of passports and identity documents;  threats of denunciation to authorities. While ‘forced labour’ can be identified as a separate situation of labour exploitation from debt bondage, illegal migrant workers, and temporary foreign workers, the elements identified above will be applicable to indicating labour

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exploitation in these situations as well. Put in a more specific context for the purpose of the continuum, ‘forced labour’ will refer to situations where the worker has not provided true consent and where there is extreme control over the movements of the worker, such as in cases of domestic servitude. Debt bondage is classically defined as a situation where a person provides a loan to another and uses her or her labour or services to repay the debt; when the value of the work, as reasonably assessed, is not applied towards the liquidation of the debt, the situation becomes one of debt bondage.15 Although debt bondage is normally referred to as a means, rather than a type, of exploitation,16 it is important to separate it in this continuum in order to illustrate the gap that exists under the Criminal Code definition of trafficking, as will be discussed below. In this specific context, then, debt bondage would occur as described above without any additional coercive elements such as physical violence or threats. Generally, the term ‘migrant worker’ refers to ‘a person who is to be engaged, is engaged or has been engaged in a remunerated activity in a State of which he or she is not a national’.17 Migrant workers are particularly vulnerable to exploitation because of their immigration status and the economic sectors they often work in. It is easy for exploitation of these workers to go undetected, and government and law enforcement have yet to recognize and understand the true nature of labour exploitation, particularly with respect to this group. Illegal migrant workers, also commonly referred to as undocumented workers, are individuals who are brought into a country illegally to work, or whose legal status in the country has lapsed. Illegal migrant workers can be voluntarily smuggled, or unwillingly trafficked, into the destination country. Further, workers who were voluntarily smuggled into a country may find themselves subject to traffickers once they have been successfully brought into the destination country. Because they are not in the destination country legally, these workers, if found, are usually detained and deported by immigration officials, and their legal rights in the country are uncertain. Although there are international instruments dealing with the act of smuggling or trafficking into the destination country, these are not relevant to the analysis at hand;18 this analysis is concerned with the exploitation that can occur after the act of smuggling in the destination country because of the uncertain legal status of undocumented migrants. The key factor contributing to this group’s vulnerability to and risk of exploitation for labour is their uncertain legal status once in the destination country, and it could be defined as, for example, ‘the abuse of the particular vulnerability of an alien due to that person’s illegal or precarious administrative status’.19 This group is vulnerable to exploitation through threats or coercion due to their status; the fact of their illegal entry into the country is not relevant when looking at the issue of trafficking. Temporary foreign worker programmes, also known as guest worker programmes in some countries, are government-run programmes supplying

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foreign migrant workers for specific industries and specific lengths of time. The purpose of such programmes is to fill gaps in the domestic labour market. Exploitation of migrant workers is a growing problem. A rise in the incidence of unpaid wages, confiscated passports, confinement, lack of job training, and violence against workers has been documented.20 These workers are often vulnerable precisely because they have migrated legally under a work permit that ties them to a certain employer.21 Particular issue trends with respect to migrant workers include isolation, and dependency on the employer for accommodation, food, and other support.22 One of the primary issues with respect to these programmes’ creating a risk of exploitation is the fact that work permits are designated on a single-employer basis. If the worker cannot work or refuses to continue to work for the designated employer, the worker will be deported back to their home country. This gives the employer significant control over the worker and creates an extreme power imbalance in the employer–worker relationship. This creates an increased risk of vulnerability and potential for exploitation of these workers because, like with illegal migrant workers, employers can use their precarious immigration status to sufficiently threaten workers into submission. Thus, even without an escalation of violence, these programmes present a high risk of labour exploitation because of the economic vulnerability of the workers and extreme control in the hands of the employer. Canada currently uses the single-employer work permit designation model, and while Canada has proposed new regulations to the temporary foreign worker programmes, no changes to this model are planned. Other countries have moved in the opposite direction in an effort to minimize exploitation: ‘the sector-specific work permit was introduced in the United Kingdom in 1998 in order to improve conditions for domestic workers and prevent physical, psychological and financial abuses similar to those reported … in Canada.’23 Permanent migrant workers comprise the group of migrants brought to Canada on a long-term work visa, or where sponsored by an employer for permanent immigration status. The defining feature that separates permanent migrant workers from temporary migrant workers is the possibility of permanent immigration status. Permanent migrant workers also typically fill high-skill and professional-level jobs. While the risk of exploitation will not be nearly as high, because of the immigration status and economic sectors in which these workers are employed, the risk is still present, on account of the fact that the workers may not be aware of all their legal rights and their immigration status may, at least temporarily, be tied to their sponsoring employer. Low-skill and service jobs refer to jobs that require little to no education or training, where workers can be easily replaced, and a pool of labour is readily available. Exploitation would typically occur through work-related abuses by non-compliance with domestic employment legislation on issues such as wages and overtime pay, and working conditions.

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The continuum of labour exploitation provides a framework within which to critically examine international and domestic legislation relating to trafficking in persons and exploitation of labour. The continuum having been set out and the terms contained therein defined, the next step of the analysis is to set out, explain, and examine the international and domestic legal instruments aimed at tackling this issue.

International law The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children24 was drafted as a supplement to the UN Convention Against Transnational Organized Crime,25 in response to the growing problem of international human trafficking. The Palermo Protocol defines trafficking in persons under Article 3(a). There are three primary elements that must be met: (1) the act of trafficking (recruitment or transportation or harbouring or receipt of persons); (2) the means used to involve the individual (threat or use of force or forms of coercion or abduction or fraud or deception or abuse of power or abuse of a position of vulnerability or the giving and receiving of payments or benefits to achieve the consent of a person who has control over another person); and (3) the purpose of trafficking (forced labour or slavery or similar practices). All three conditions must be satisfied to fit the definition. While little interpretive guidance is given on the definition, the ‘abuse of a position of vulnerability’ is explained as ‘refer[ring] to any situation in which the person involved has no real and acceptable alternative but to submit to the abuse involved’.26 Article 3(b) states that ‘the consent of a victim of trafficking in persons to the intended exploitation … shall be irrelevant where any of the means of coercion … have been used’.27 Where the victim was put in a situation of labour exploitation through any of the means listed above (i.e., coercion, deception, fraud, abuse of power, or position of vulnerability), consent is irrelevant, even if the victim apparently volunteered to enter or stay in that situation. In the labour context, the Protocol limits trafficking to ‘forced labour’ as defined in the ILO Convention concerning Forced or Compulsory Labour:28 ‘all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily’.29 However, this idea of voluntariness is inconsistent with Article 3(b), which states that consent of the victim is irrelevant where one of the listed means is used. This definition of ‘forced labour’ was explained earlier in the paper, and interpretive guidance from the ILO would suggest that the ‘voluntary’ requirement should not be given much weight; several of the identified indicators of a forced labour situation could be present with the consent of the victim. Further, as the Palermo Protocol is an international treaty with a specific focus on trafficking in persons, general principles of interpretation would dictate that definitions and references pulled from other sources should be

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interpreted in a way consistent with this treaty; thus, the ‘forced labour’ definition, for our purposes, can be re-interpreted in light of the caveat regarding consent in the Palermo Protocol, so that voluntariness is not relevant provided that one or more of the listed means in Article 3(a) of the Palermo Protocol were used to obtain the labour or services of the individual. In the travaux préparatoires for the Palermo Protocol, a definition for forced labour specific to the Protocol was proposed30 which would have expanded the scope of protection for labour exploitation: first, by expanding the means of exploitation to include ‘any scheme or artifice to defraud’; second, by making reference to a specific debt-bondage situation without the requirement of violence or coercion; and third, by expanding the definition to include ‘fraudulent pretenses and misrepresentations, such that the person reasonably believes that he or she has no alternative but to perform the service’. A definition such as this would add both clarity and breadth to the meaning of ‘forced labour’, adding clarity also to the purpose and applicability of the Protocol. This definition could also have the effect of providing more protection in some migrant worker situations, primarily through the second and third identified expansions. A further optional definition not adopted in the final text of the Protocol expanded the concept of voluntariness to mean ‘without the freedom to change his or her condition’,31 which has a much broader meaning than ‘to which the victim has not voluntarily consented’. The proposed, but not adopted, definition seems to be more in line with an understanding of the psychological impact of trafficking situations, where victims may readily consent, seeing no alternative in their life or no freedom to change their condition. The psychological impacts on trafficking victims are extremely varied and must take into account gender, culture, economic dependency, and many other factors. The proposed definition would have allowed a more holistic approach and understanding to victim mentality, an issue which, as will be examined below, is a serious concern under the Criminal Code definition. Finally, there was some debate about specifically extending the Protocol to illegal, or undocumented, migrant workers;32 however, this was not adopted in the final text. When looking at the purpose and context of the Protocol, it can be observed that the rationale behind limiting labour exploitation to defined circumstances of slavery and forced labour (although the Protocol lists ‘minimum’ forms of exploitation, allowing states to adopt more expansive lists) is that these two forms of labour exploitation are widely and historically accepted as illegal and involuntary in the present-day international community, thus clearly falling within trafficking in persons. The travaux préparatoires for the Palermo Protocol indicated concerns about expanding the definition of trafficking and exploitation, with some delegations wishing to ensure that all forms of exploitation were covered under the Protocol, while another delegation expressed concern that a broad definition might hamper implementation of the Protocol.33 This is likely the reason why none of the optional proposals

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discussed above was accepted, and also indicates that minimal wording was chosen to ensure consensus among states and the international community. By imposing broader standards, and by potentially interfering with a state’s domestic immigration policy, there would have been a greater risk of losing consensus and support for the Protocol. Applying the above analysis to the continuum, the Palermo Protocol has a wide berth in application. It would clearly apply to slavery, forced labour, and debt bondage situations, as the definition recognizes several different means of exploitation outside of traditional violence, and because consent is not an issue in this instrument. The first element of the crime, the act, includes harbouring a person, and therefore anyone kept under the control of an employer, slaveholder, or trafficker, meets this criterion. The ‘act’ component of the crime is perhaps the easiest element to meet in considering whether a given situation fits within the definition. Second, the list of means is expansive and non-exhaustive. In the labour context, the inclusion of an ‘abuse of position of vulnerability’ may be the most important listed ‘means’, as it has the ability to encompass a wide variety of situations outside of physical violence or threats of physical violence; therefore it is highly likely that slavery, forced labour, and debt bondage situations would almost always be able to fit within one of the listed means. With respect to the third element, the type of exploitation, because the issues with respect to defining ‘forced labour’ have been resolved, slavery, forced labour, and debt bondage clearly fit within the scope of this definition. The Palermo Protocol definition could also apply to illegal or temporary migrant worker situations, depending on the specific facts of each case. With respect to the first element of the crime, the act, any restriction of movement over the worker could be considered ‘harbouring’; therefore, where an employer institutes house rules or withholds immigration and other important documents, this could constitute harbouring for the purposes of the Palermo definition. However, unlike with slavery, forced labour and debt bondage, the simple fact of the worker’s being under the ‘control’ of the employer will not be sufficient because the relationship is legal and regulated, unlike the relationships present in slavery, forced labour or debt bondage situations. Second, the means, as examined above, provides for a wide variety of circumstances. Again, the ‘abuse of a position of vulnerability’ may be the most important when examining an illegal or temporary foreign worker situation, because it has the ability to encompass control mechanisms like threats to economic livelihood or threats of deportation or denunciation to the authorities. Third, with respect to the definition of ‘forced labour’, because the consent issue has been resolved, the fact that workers voluntarily enter or remain in the employment relationship will not be a barrier under the Palermo Protocol. Further, the definition of forced labour appropriately narrows the issue to situations where workers are not doing work contracted for, or are forced to do additional work not contracted for, or work in conditions not contracted for or not acceptable. The definition is therefore not over broad so as to encompass all employment

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relationships, but may sufficiently capture the common exploitative features of employment relationships with migrant workers. The Palermo Protocol, considering the context and restraints in its development, is sufficient to capture most forms of labour exploitation, and is necessarily worded in a minimal and broad way. As we will see below, the UN has encouraged states to adopt expansive definitions of trafficking, having recognized the limitations of the Palermo wording.

Canadian legislation Criminal Code s.279.01,34 brought into force in November 2005, sets out the offence of trafficking in persons: 279.01 (1) Every person who recruits, transports, transfers, receives, holds, conceals or harbours a person, or exercises control, direction or influence over the movements of a person, for the purpose of exploiting them or facilitating their exploitation is guilty of an indictable offence and liable: (a) to imprisonment for life if they kidnap, commit an aggravated assault or aggravated sexual assault against, or cause death to, the victim during the commission of the offence; or (b) to imprisonment for a term of not more than fourteen years in any other case. Section 279.04 sets out the definition of exploitation: 279.04 (1) For the purposes of sections 279.01 to 279.03, a person exploits another person if they: (a) cause them to provide, or offer to provide, labour or a service by engaging in conduct that, in all the circumstances, could reasonably be expected to cause the other person to believe that their safety or the safety of a person known to them would be threatened if they failed to provide, or offer to provide, the labour or service; or [emphasis added] (b) cause them, by means of deception or the use or threat of force or of any other form of coercion, to have an organ or tissue removed. In examining the Criminal Code provision, following the elements of the crime as set out in the definition of the Palermo Protocol: the act, the means, and the forms of exploitation, will allow for the clearest comparison between the two. The Criminal Code sets out an expansive list of acts which will constitute trafficking at s.279.01, including: recruitment, transportation, transfer, receipt, holding, concealment, harbouring, or control, direction or influence over

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movement. This list is much more thorough than the Protocol list, and indicates an awareness of the extent of involvement throughout various stages of trafficking that is present in Canada. In addition to the Palermo factors, this list includes: transfer, which demonstrates an awareness of Canada’s importance as a transit country for trafficking; holding and concealment, which perhaps clarifies the idea of harbouring; and perhaps most importantly to the labour context, ‘control, direction or influence over movement’, which clearly includes a situation where house rules are instituted or documents are withheld,35 and will expand application to labour exploitation situations. This act also appears to recognize the idea that the means used to exert control over a person can be broader than use or threats of physical violence; the word ‘influence’ particularly suggests an understanding of psychological coercion. However, as will be seen below, another component of the Criminal Code provision effectively limits the defined means to use threats of physical violence, curtailing any significant impact in the act of control, direction or influence over movement could have in combating labour exploitation in Canada. The means of exploitation under the Criminal Code are provided for in s.279.04 in the definition of exploitation. There is only one identifiable means of exploitation related to labour exploitation under this section, which is ‘engaging in conduct that … could reasonably be expected to cause the other person to believe that their safety or the safety of a person known to them would be threatened … ’36 The crucial phrase in this definition is the ‘fear for safety’ requirement outlined in the latter part of the definition. Very little information as to why this requirement was included in the Criminal Code text can be gleaned from parliamentary debate transcripts; however, it is clear from the transcripts what constitutes fear for safety: ‘[b]asically, they fear for their life or physical harm to themselves, or, in the trafficking situation, threats against family members back home’.37 Therefore, this ‘fear for safety’ requirement effectively limits the means of exploitation to threats or use of physical violence. The very use of the word ‘safety’ endorses the intent of the legislature to limit the application of the provision to situations of physical violence. A different word choice, such as ‘harm’ would clearly provide for broader application, as the word ‘harm’, connotes a more expansive meaning which could include psychological and economic coercion. This choice of word was used in the United States’ trafficking legislation. The US legislation originally included the words ‘serious harm’ in the definition of means of exploitation, and in 2008 the definition was expanded to specifically include ‘any harm, whether physical or nonphysical, including psychological, financial, or reputational harm, that is sufficiently serious … ’38 An employer can exert substantial control over workers through threats to their economic livelihood, and threats of deportation, if workers do not comply with the employer’s demands. The means used by the employer to exert control over the workers will very rarely involve direct threats of physical violence.39 The Criminal Code therefore effectively excludes most labour

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exploitation situations in Canada, as most situations involve migrant workers who, as discussed above, are typically controlled through threats to their economic livelihood and immigration status. The ‘fear for safety’ requirement also creates a paradox when one looks at the situation with respect to the issue of consent – a core piece of the Palermo Protocol definition. The Palermo Protocol explicitly states that the consent of the victim is irrelevant where one of the listed means of trafficking is used. However, under the Criminal Code definition, consent implicitly becomes an issue because where an individual consents to enter into or stay in abusive conditions, or where they are trafficked through non-violent means, they cannot reasonably be said to fear for their physical safety. This requirement also does not recognize the psychological impact of control; there are many tactics traffickers use to control and coerce victims without threatening their physical safety or the physical safety of family members, and it does not appear that psychological abuse is a component of the ‘fear for safety’ requirement. By implicitly making consent an issue, the ‘fear for safety’ requirement essentially places an onus of proof on the victim. This requirement looks not to the actions of the offender, but instead shifts the focus of the situation to the impact on the victim. Thus, where there is no serious or adverse impact on the victim’s physical well-being, there is no crime of human trafficking. This is not only an unacceptable burden for a victim to shoulder, but qualifies the actions of the offender, only punishing the offender when the consequences of the act are sufficiently adverse. In the legislative guide for the implementation of the Palermo Protocol, the three basic elements of ‘trafficking in persons’ are set out as the minimum standards which must be met. The defined elements do not include a ‘fear for safety’ requirement, and nowhere in the Protocol or supporting documents is such a requirement contemplated or discussed. In fact, the legislative guide heads in the opposite direction, recommending states to review domestic legislation that broadens the Protocol definition.40 This suggests that states should favour a broad interpretation of the Protocol when implementing national legislation, as opposed to being overly cautious and narrow in their interpretation. The inclusion of a ‘fear for safety’ requirement in our Criminal Code offence has narrowed, rather than expanded, the Protocol, severely curtailing the impact this offence will have in combating trafficking and exploitation. Turning to the last element, the type of exploitation, the Criminal Code provides for ‘any labour or service’, which is extremely broad. In the transcript of the Senate Committee on Legal and Constitutional Affairs, several references were made to ‘forced labour’ as the type of labour being encompassed by the provision. In a speech during the hearing, the Minister of Justice remarked: ‘mostly women and children, they are trafficked for the sex trade and forced labour. They can also be men, usually trafficked for forced labour in factory sweatshops or the agricultural, construction, or meat-packing industries.’41 It was clearly in the intention of several drafters possibly to limit the application

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of s.279 to forced labour. However, s.279.04 does not state that a person exploits another person if they force them to provide labour or services; the language used is if they cause them to provide labour or services. This small change in wording opens the door much wider in terms of interpreting exploitation for labour purposes. Applying the above analysis to the continuum, the Criminal Code definition does not sufficiently protect any form of labour exploitation because of the ‘fear for safety’ requirement. Slavery and forced labour situations would most likely fit within the definition, as it is reasonable for any person to fear for their safety when such an extreme amount of control is exerted over them, and these two exploitation situations commonly involve physical violence or threats. However, debt bondage, as defined for the purposes of the continuum, would not be adequately protected under the Criminal Code definition because it has been defined as a classic debt bondage situation without additional physical violence. This is a very unsettling conclusion, as debt bondage has for some time now been internationally recognized as a form of slavery and a crime. The Criminal Code offence of trafficking is extremely unlikely to provide any protection to illegal or temporary migrant workers in Canada, even though this group is the critical mass vulnerable to exploitation in Canada. Exploitation among these workers will rarely include physical violence or threats to physical safety. Tremendous amounts of control can be exerted through threats to economic livelihood, including withholding of wages and threats of deportation, as well as non-violent control over movement, such as instituting ‘house rules’, and withholding workers’ documents and passports. None of these acts would fit the Criminal Code definition as it stands now; however, all of these acts are present in the ILO forced labour indicators, and would clearly fall within the scope of the Palermo Protocol. Comparing the Criminal Code definition against the Palermo Protocol, it is clear that the Criminal Code does not meet the minimum, or basic, requirements of the Protocol. The definition of labour exploitation and trafficking should have a broad scope, so that a fact-specific analysis can lead to appropriate use, not arbitrary labels. The Criminal Code should be able to cover all forms of labour exploitation. The current provision is not capable of this, and substantial revisions will be needed to reflect a law more aligned to the Palermo Protocol and to develop a law that can effectively combat exploitation for labour in Canada.

Recommendations The Criminal Code provision must be revised to more appropriately capture all types of exploitation. The ‘fear for safety’ requirement has curtailed any effective impact the provision can have, and is very much out of line with international instruments, namely, the Palermo Protocol.42 While the other

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components of the Criminal Code provision are adequate, and meet or exceed the requirements of the Palermo Protocol, the definition of exploitation is clearly too narrow. There are several options when considering revision of the Criminal Code definition of exploitation, including: (1) remove the ‘fear for safety’ requirement; (2) expand upon the ‘fear for safety’ requirement; (3) adopt the Palermo Protocol wording; and/or (4) adopt the wording of the Immigration and Refugee Protection Act. The first option to revise the Criminal Code definition is simply to remove the ‘fear for safety’ requirement. However, without inserting new text into the definition of exploitation, it becomes over broad and ambiguous. The offence would not include any listed means of exploitation, a key component in defining this crime. Therefore, the text cannot simply be removed; alternative text must be inserted. The second option to revise the Criminal Code definition is to expand upon the meaning of ‘fear for safety’ to provide for broader protection. The new definition could essentially mirror the wording of the US legislation, which captures all of the necessary forms of harm, but still provides wording similar to what the legislature clearly intended for the Criminal Code definition regarding a ‘fear for safety’ requirement. By mirroring the US text to adopt the word choice of ‘harm’ and expressly list the types of harm, which must include psychological and financial harm, the Criminal Code would be much more effective in its application to situations of labour exploitation in Canada. The Criminal Code could alternatively be revised to mirror the Palermo Protocol wording. The Criminal Code offence was created pursuant to the Palermo Protocol, and the protocol and supplemental material should guide the creation of domestic legislation on this issue. The Criminal Code text regarding the act and types of exploitation meets the minimum standards set out in the Palermo Protocol, and therefore does not require alteration. However, with respect to the listed means, if the definition of exploitation at s.279.04 is removed, it should be replaced with the listed means in the Palermo Protocol. To avoid being unduly narrow, the Criminal Code text could also include the words ‘at a minimum’, similar to the Palermo Protocol. This would allow the judicial system to interpret the offence and its application with regard to the specific facts of each case. The Palermo Protocol provides the minimum, or basic, wording, and states are encouraged to expand upon it; however, the legislature must be cautious when expanding upon the Protocol definition not to unintentionally restrict or narrow the domestic legislation so as to fall short of Canada’s international obligations. The final option is to revise the Criminal Code offence so as to align it with the Immigration and Refugee Protection Act (IRPA)43 definition of trafficking. Consistency in definitions and policies on this issue is desirable, particularly with respect to immigration issues, as the goal should be towards developing a single migration policy.44

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The Immigration and Refugee Protection Act provides for the acts and means of trafficking at s.118: (1) No person shall knowingly organize the coming into Canada of one or more persons by means of abduction, fraud, deception or use or threat of force or coercion. (2) For the purpose of subsection (1), ‘organize’, with respect to persons, includes their recruitment or transportation and, after their entry into Canada, the receipt or harbouring of those persons. The Criminal Code offence provides a more expansive list of acts, and should retain its expanded list, ensuring also that all of the acts provided for in the IRPA definition are covered. The means listed under the IRPA definition fall short of the Palermo Protocol requirements, and therefore the Criminal Code definition would need to be more expansive if adopting the IRPA text, as the listed means would not sufficiently remedy the Criminal Code deficiencies. The IRPA offence does not concern itself with the purpose or form of exploitation, as the focus for immigration officials would be the act of trafficking. However, the Criminal Code provision currently defines the forms of exploitation broadly, as ‘any labour or service’, and this wording could therefore be kept. At s.121, the IRPA offence lists aggravating factors that will be accounted for in evaluating an offence, including whether ‘a person was subjected to humiliating or degrading treatment, including with respect to work or health conditions … ’45 The Criminal Code provision should account for similar factors if the IRPA definition is to be adopted. Revision of the Criminal Code offence of trafficking is necessary, not just to encompass exploitation among illegal and temporary migrant workers, but to effect changes for a much larger class of potential trafficking victims in Canada. The current offence clearly does not meet the international obligations under the Palermo Protocol and does not accord with other domestic legislation. However, this change on its own is not sufficient to meet the needs of victims and should be coupled with other mechanisms for prevention of exploitation and the protection of victims. With respect to migrant workers in Canada, serious review of the temporary foreign worker programmes should be undertaken, and particular consideration should be given to moving towards a sector-designated work permit model.

Conclusion While the legal framework dealing with trafficking in persons is fairly new, the problem itself is not. Most of the discussions around trafficking have, to date, been centred on trafficking for sexual exploitation. However, the analysis undertaken in this paper has shown not just the breadth of exploitative labour situations but the serious issues arising out of a lack of discussion and attention to the issue of labour exploitation. The legal mechanisms are not equipped to

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deal with the labour exploitation issue, something which is likely to become a rapidly growing global phenomenon as economic disparity between developed and developing nations increases and as environmental and political factors increase migration worldwide. The major findings of this paper can be summarized as follows: (1) the developed continuum of labour exploitation enables the scope and breadth of the problem to be determined and promotes consistency through explicitly defining exploitation, forced labour, debt bondage, and other relevant terms; (2) the Palermo Protocol risks excluding some situations of labour exploitation, due to its necessarily narrow definition and use of minimum standards; (3) the Criminal Code offence for trafficking in persons does not comply with the Palermo Protocol and is certain to exclude many situations of labour exploitation, particularly where migrant workers are concerned, due to the limited means of exploitation that will fit the ‘fear for safety’ requirement; and (4) the Criminal Code definition must be revised with respect to the ‘fear for safety’ requirement, both to better encompass labour exploitation and to more generally bring the provision in line with the Palermo Protocol. It is clear from a review of the literature on this subject that few details are known about labour exploitation, both in Canada and worldwide. The scope of the problem is at best estimable, and information on recruitment and control tactics has not been investigated in detail. For any changes and improvements to be effective, a deeper investigation into the issue of trafficking for labour exploitation and temporary foreign worker programmes in Canada must be undertaken. As these two issues in Canada are brought to light, recommendations for change can carry more weight and be more effectively tailored to the specific issues highlighted. While it is clear at this stage that a problem exists in Canada, the details of what that problem looks like are still unclear, and their identification is a major step that must be taken towards resolving the issue.

Notes 1 United Nations Population Division, International Migration 2002 (New York: UN, 2002), cited in ILO-ILC, Towards a Fair Deal for Migrant Workers in the Global Economy (Geneva: ILO, 2004). 2 Citizenship and Immigration Canada, ‘Working Temporarily in Canada’, http:// www.cic.gc.ca/english/work/index.asp. 3 S. Dowling, K. Moreton and L. Wright, Trafficking for the Purposes of Labour Exploitation: A Literature Review, Home Office Research Development Statistics, http://www.homeoffice.gov.uk/rds, 7. 4 ILO-ILC, Towards a Fair Deal for Migrant Workers, 11. 5 Dowling et al., Trafficking for the Purposes of Labour Exploitation, 7. 6 Katy Thompson, ‘A Summary of Challenges Facing Legal Responses to Human Trafficking for Labour Exploitation in the OSCE Region’, background paper for the Alliance against Trafficking in Persons High-Level Conference, Vienna, Hofburg, Neuer Saal, 16–17 November 2006, 4. 7 Compact Oxford English Dictionary, s.v. ‘exploit’, www.askoxford.com. 8 The forms of labour exploitation shaded in Figure 8.1 (debt bondage, illegal migrant workers, temporary foreign workers) indicate those forms that are not

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clearly or sufficiently covered by Canada’s laws and thus present the largest problem for Canada in combating exploitation. Convention to Suppress the Slave Trade and Slavery, 25 September 1926, 60 LNTS 253 (Art.1). Slavery is not defined in the Palermo Protocol, but the Legislative Guide points States to several international instruments dealing with ‘slavery’ for definition and interpretation. UNODC, Legislative Guides for the Implementation of the United Nations Convention against Transnational Organized Crime and the Protocols thereto (New York: UN, 2004), 268, n.14. ILO, Convention Concerning Forced or Compulsory Labour, 1 May 1932, 39 UNTS [JO1]55 (Art.2). ‘Forced labour’ is not defined in the Palermo Protocol. There are, however, several international instruments in this regard, for example: the 1930 Convention Concerning Forced or Compulsory Labour (Convention No. 105) of the International Labour Organization; and the 1957 Convention Concerning the Abolition of Forced Labour (Convention No. 105) of the International Labour Organization; UNODC, Legislative Guides for the Implementation of the United Nations Convention against Transnational Organized Crime and the Protocols thereto (New York: UN, 2004), 268, n.14. ILO, Trafficking for Forced Labour: How to Monitor the Recruitment of Migrant Workers (Geneva: ILO, 2005), 5. ILO, Human Trafficking and Forced Labour Exploitation, Guidance for Legislation and Law Enforcers (Geneva: ILO, 2005), 20, in Thompson, ‘A Summary of Challenges Facing Legal Responses’, 7. Ibid. Dowling et al., Trafficking for the Purposes of Labour Exploitation, 3. OHCHR, UN Supplementary Convention on the Abolition of Slavery, Slave Trade and Institutions and Practices Similar to Slavery, ESC 608(XXI), OHCHR, 1956, (Art.1(a)). See, for example, ILO indicators: Human Trafficking and Forced Labour Exploitation, Guidance for Legislation and Law Enforcers (Geneva: ILO, 2005), 20, in Thompson, ‘A Summary of Challenges Facing Legal Responses’, 7; see also the definition of trafficking in Palermo Protocol, Article 3(a), describing the means of trafficking: ‘or of the giving or receiving of payments or benefits to achieve the consent of a person’. OHCHR, International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, GA Res. 45/158, OHCHR, 1990 (Art.2(1)). For example, the Protocol against the Smuggling of Migrants by Land, Sea and Air deals with the acts of smuggling and trafficking migrants across borders; however, the scope of this legislation does not extend to the act of trafficking or exploitation for labour after movement. As a protocol to the UN Convention Against Transnational Organized Crime, this protocol should be read harmoniously with the Convention and other protocols thereto. The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children picks up where the Smuggling Protocol leaves off in the chain of trafficking events; the scope of the Palermo Protocol will be examined below. Proposed definition by Belgium; UNODC, Travaux Préparatoires of the negotiations for the elaboration of the United Nations Convention against Transnational Organized Crime and the Protocols, UN Doc A/55/383/Add.1 UN, November 3, 2000, 354–55. Bridget Anderson and Julia O’Connell Davidson, Is Trafficking in Human Beings Demand Driven? A Multi-Country Pilot Study (Geneva: IOM, 2003), 8. Ibid. Ibid., 45. The Maytree Foundation, Policy Brief: The Live-in Caregiver Program (Toronto: The Maytree Foundation, July 2007), 4.

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24 UNODC, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, GA Res. 55/25, UNODC, 2000. 25 UNODC, UN Convention Against Transnational Organized Crime, GA Res. 55/25, UNODC, 2000. 26 UNODC, Travaux Préparatoires, 347. [emphasis added] 27 UNODC, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, article 3(b). 28 ‘Forced labour’ is not defined in the Palermo Protocol; however, the legislative guide to interpretation adopts the definition found in ILO Conventions. UNODC, Legislative Guides for the Implementation of the United Nations Convention. 29 ILO, Convention Concerning Forced or Compulsory Labour. 30 UNODC, Travaux Préparatoires, 342. 31 Ibid., 350. 32 UNODC, Travaux Préparatoires, 354; see also A/AC.254/L.57; UNODC, Travaux Préparatoires, 354–55. 33 Ibid., 352, n. 7. 34 Criminal Code, RSC 1985, c. C-46. 35 Criminal Code s.279.03 also provides for a separate offence for withholding or destroying documents. 36 Criminal Code s.279.04. 37 Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, No. 25 (24 November 2005) at 25:57 (Carole Morency). 38 William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 sec.1589 (a)(4) and (c)(2) H.R. 7311 [110th], http://www.govtrack.us/congress/billtext. xpd?bill=h110–7311. 39 See Jill E.B. Coster van Voorhout, ‘Human Trafficking for Labour Exploitation: Interpreting the Crime’, Utrecht Law Review 3, no. 2 (December 2007): 50. 40 UNODC, Legislative Guides for the Implementation of the United Nations Convention, 268. 41 Committee on Legal and Constitutional Affairs, 25:39–25:40 (Hon. Irwin Cotler), Canada. 42 ‘[G]reater efforts need to be made to criminalise the offence in national law in a manner consistent with the Palermo Protocol.’ This is an issue that seems to be a common thread among several States in their implementation of the Protocol in national legislation. Thompson, ‘A Summary of Challenges Facing Legal Responses’, 19. 43 CS 2001, c.27, ss.118, 121 (IRPA). 44 ILO, Trafficking for Forced Labour, 31. The ILO recommends developing a singledocument migration policy, with all relevant departments included in development and oversight of the policy; it is inter-agency cooperation plus the extra step of having the policies come together in one consistent document. See also Thompson, ‘A Summary of Challenges Facing Legal Responses’, 19. 45 CS 2001, c.27, ss.118, 121 (IRPA), 121.

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Minimum wage An ally in the fight against human trafficking for labour exploitation? Anne Pawletta and Philipp Schwertmann

Introduction When reading about forced labour cases, payment below minimum wage is a recurring element in the description of cases. This is not reflected in most legislation on human trafficking for labour exploitation. While the elements of human trafficking (recruitment, transport, harbouring) are described in detail in most countries’ anti-trafficking legislation, following closely (sometimes word by word) the Palermo Protocol, national legislation is largely silent on the purpose of trafficking crimes when it comes to labour exploitation. However, human trafficking is an issue that is particularly prevalent within the labour market. Therefore, strategies to combat human trafficking should include labour market mechanisms and labour market policies. Minimum wages are one such mechanism, providing an ethically justified benchmark on a minimum condition of employment. The underlying assumption of this paper is, however, that minimum wages as such are not suitable to contribute to preventing human trafficking for labour exploitation. It is more likely that minimum wages have different effects, depending on their design and their possible functions in the fight against trafficking. Therefore, the authors of this paper will look more closely at the suspected linkages between trafficking and minimum wages in the three anti-trafficking areas of prosecution, protection and prevention. For each of the three areas the authors analyse different designs of minimum wage, give examples of how the minimum wage is or can be applied and provide conclusions on the effective use of the minimum wage in the fight against human trafficking for labour exploitation.

Minimum wages: a complex mechanism The minimum wage is not a uniform and internationally standardized concept. The design of minimum wages, minimum wage fixing procedures and their coverage differ from country to country. This shows that there are different rationales behind minimum wages. It is therefore important to identify the different designs of minimum wage in order to assess what roles minimum wages can play in the fight against human trafficking. The considerations and observations detailed below have to be taken into account.

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Minimum wage is not always a minimum wage In some countries minimum wage is scaled by age. This differentiation affects mainly young employees and workers. The minimum wage in Slovakia, for example, provides for three scales in relation to employees’ and workers’ ages. Employees and workers younger than 18 years earn only 75 per cent of the Slovakian minimum wage, employees and workers younger than 16 earn only 50 per cent of the minimum wage. Only those aged 18 and above are entitled to the full minimum wage. Another example of age differentiation in minimum wage design is the Netherlands, with a minimum wage scale of nine steps. Employees and workers aged 18 years are entitled to only 45.4 per cent of the minimum wage. For employees and workers younger than 18 years the entitlement is reduced to a rate as low as 30 per cent of the legal minimum wage. The full minimum wage is paid only to employees and workers who are 23 years and older. The reasoning behind the age-scaled payment of a minimum wage can be twofold. Firstly, the higher age of employees is linked to higher productivity (wage fairness), and secondly, greater age is linked to higher living standard and living costs (margin of subsistence). The distinction of minimum wage by economic sector can be significant. Construction workers in Germany, where the minimum wage exists only in selected industries, are entitled to a minimum wage of at least €9 to €12.85, while the minimum wage for roofers is €10.40 and for cleaners it is only €6.58 in East German provinces and €8.15 in West German provinces. The wage system in Germany is characterized by collective agreements that are negotiated and concluded between trade unions and employers’ associations. These collective agreements cover an economic sector or parts of it, and apply either to specific regions of Germany or nationwide (‘Flächentarifvertrag’). The distinction by economic sector – there are collective agreements in Germany for more than 200 sub-sectors – is very detailed. The coverage of these 200 collective agreements differs substantially: collective agreements in the metal industry have wide coverage of various sectors (vehicle manufacturing, electrical industry, shipyard, aerospace industry etc.) while other collective agreements apply only to a very distinct sector or occupational group, e.g. agreements for hairdressers, champagne production, glassblowing. This differentiation reflects the sector-specific capacity and the level of qualification of employees in these sectors. Minimum wage differentiation by qualification is reflected by a reduction in the minimum wage for apprentices, for example in Spain and France, or for job starters taking up their first employment without previous job experience, for example in Ireland and Czech Republic. The reason for a reduced minimum wage for these groups of employees is the principle of wage fairness. The minimum wage regulations in some countries specify a first phase of employment during which the full minimum wage is not paid. This phase can be divided into sub-phases: new employees are entitled to the full minimum wage only after 6, 12 or 24 months. In Poland, for example, a new employee

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is entitled to only 80 per cent of the minimum wage during the first year of an employment relationship. In the second year of employment the entitlement is to 90 per cent of the minimum wage. Only in year three of the employment is an employee entitled to the full minimum wage. In Belgium the minimum wage is not reduced during the initial employment phase; rather, it is increased once an employee has worked six or twelve months, depending on the employee’s age. It can be assumed that the reason for this application of the minimum wage is also the principle of wage fairness.

Minimum wage fixing follows different principles Minimum wage design depends greatly on the political–institutional framework. There are four different principles for the fixing of a minimum wage:  The first type follows a purely political procedure. The national government decides the level of the minimum wage independently, without consulting employers’ associations or trade unions and without being guided by statutory rules for the adjustment of the minimum wage. In the European Union, Bulgaria is the only country with this type of minimum wage fixing.  Most European countries have an institutionalized procedure for consultation involving employers’ associations and trade unions in the fixing of minimum wages. Social partners provide the government with recommendations regarding the periodic adjustment of the minimum wage. This second type of minimum wage fixing can be found in Lithuania, Malta, Hungary and the United Kingdom. In the UK, for example, the so-called ‘Low Pay Commission’, composed of employers, trade unions and academics, develops annual recommendations for the adaptation of the national minimum wage, based on detailed studies on changes in the cost of living.  In the third type of minimum wage fixing, the national confederations of trade unions and employers negotiate the level of the minimum wage. The result of the negotiations is then declared legally binding by the government. This type of fixing can be found in Greece and Ireland. In Ireland minimum wage fixing takes place within the framework of national tripartite social pacts. Only if no agreement can be achieved during tripartite negotiations are minimum wage adjustments fixed by the government.  The last type of minimum wage fixing is automatic linkage of the minimum wage level to the overall development of prices and wages in the respective country, e.g. in Belgium. According to the OECD, this type of minimum wage fixing is the best way of ensuring that the minimum wage keeps up with overall economic development of a country. To conclude, three main rationales can underlie the idea of the minimum wage. These rationales considerably influence minimum wage design:

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 ‘Fair wages for fair work’ – the principle of fair wages;  Better wages through collective negotiations;  Decent work: securing the margin of existence through work by ensuring a wage that enables workers to live a decent life. Hence, the minimum wage can be a social concept as well as a labour market-oriented result of negotiations between social partners.

Minimum wages and human trafficking Which functions can the minimum wage play in the fight against human trafficking for labour exploitation? And how do these functions relate to the different rationales for the design of minimum wages described in the previous section?

Minimum wage as an indicator for human trafficking for labour exploitation Human trafficking for labour exploitation is hard to detect. This is a challenge for all actors involved in the fight against human trafficking. Therefore, many (international) organizations have developed generalized lists of indicators that can help in recognizing suspicious situations and detecting (potentially) affected persons. In many of these lists, reference is made to the level of payment, e.g. ‘low salary’. However, it is not (and cannot be) specified what that means in a specific context. Thus, if there is a minimum wage in the respective country or industry, lower pay can be an important indicator of labour exploitation. In principle, it does not matter how the minimum wage is designed. However, a differentiated minimum wage, which reflects the wage situation in a particular industry, would be even more suitable. Salaries below the minimum wage as an indicator for human trafficking for labour exploitation would help in particular those actors controlling wages and working conditions, such as labour inspectors. Can minimum wage as an indicator for human trafficking for labour exploitation also be inverted, i.e. can a wage above minimum wage be regarded as an indication that there is no human trafficking for labour exploitation? According to the definition of trafficking in the Palermo Protocol, ‘exploitation’ constitutes a necessary element of the crime of trafficking, i.e. the trafficking of a person for the purpose of exploitation. However, the Palermo Protocol remains silent on the definition of exploitation. The ILO has developed a list of indicators to clarify the terms used in the Palermo Protocol to define human trafficking for labour exploitation.1 The list provides nine indicators for labour exploitation, specified as strong, medium or weak. A strong indicator is (1) excessive working days or hours. Medium indicators are (2) bad living conditions, (3) hazardous work, (4) low or no salary, (5) no respect of labour laws or no contract signed, (6) no social protection (contract, insurance etc.), (7) very bad working conditions, (8) wage manipulation. A weak indicator is (9) no access to education. Indicator (4) ‘low or no salary’ corresponds to

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non-payment of minimum wage as per explanation of indicators prepared by the ILO.2 A situation is assessed as labour exploitation if the following combination of indicators can be found: two strong indicators; or one strong indicator and one medium or weak indicator; or three medium indicators; or two medium indicators and one weak indicator. Hence, even if a minimum wage is paid a person can in theory still be in a situation of labour exploitation if other indicators on the list can be identified. In practice, however, in cases of trafficking for labour exploitation identified in Europe, payment below minimum wage was widespread. Additionally, the mere existence of a minimum wage could also have an important preventive effect, as it can provide a clear guideline for employers on how to avoid working conditions that are regarded as exploitative. The answer probably cannot be a simple one. In low-wage sectors, wages below minimum wage would be more indicative of exploitation, as compared to, for example, in the IT industry, where generally higher wages tend to be paid.

Minimum wage as an instrument in the prosecution of human trafficking The indicative function of a minimum wage is part of a first step in the fight against trafficking: the identification of possibly trafficked people. The question is, whether minimum wages might also be of use in the prosecution of trafficking. Human trafficking has been difficult to prosecute because the components, in particular coercion, exploitation and abuse of vulnerability, are mentioned but not specified in most penal codes. This applies in particular to human trafficking for labour exploitation, where to date only very few court decisions are available. The Palermo Protocol does not provide a definition of labour exploitation. Rather, it calls on national legislatures or courts to further develop the parameters of exploitation. So far, there are no international standards in this respect. This is not surprising, since the question of what is regarded as labour exploitation depends very much on the national or regional context. This has a high potential for political conflict because it could be used to criticize low wages in a variety of contexts, without making reference to the trafficking of human beings. Some national provisions on human trafficking avoid the term ‘exploitation’ and paraphrase it with another abstract concept or term such as ‘working conditions that have a crass disparity to the working conditions of other employees performing the same or comparable tasks’,3 or ‘working conditions that are incompatible with human dignity’.4 This does not necessarily solve the problem, because terms like ‘crass disparity’ or ‘incompatible with human dignity’ also have to be interpreted by law enforcement bodies. In the case of Germany, the term ‘crass disparity’ was taken from a different legal context, namely, the German Labour Law (‘Arbeitnehmer-Entsendegesetz’– Law on the Posting of Workers). However, it is still unclear whether the interpretation of the term can remain the same in the new context, due to different characteristics

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of the offence such as features, context and sentence. The result is that provisions in national legislation regarding human trafficking for labour exploitation very often keep investigating authorities in the dark and provide no guidance how to prove the exploitation component of human trafficking. In contrast to the component of coercion, we have found no guidance for law enforcement agencies on how to operationalize exploitation. This is, among other reasons, because exploitation must, to a certain extent, be defined in a quantitative way, such as by wage, working hours or holidays. The quantities depend on local or regional circumstances, such as the cost of living or the usual or legally defined working and safety conditions. Another explanation for the lack of definitions for labour exploitation may be that the exploitation aspect plays only a secondary role for legislators, after the coercive aspect. It is therefore important to analyse national legislation and jurisdiction with regard to the underlying perception of exploitation. Is exploitation understood in an economic sense, or does it stress the human rights aspect? Does the law focus on the fact that exploited persons are treated as objects, and therefore are deprived of their rights and needs? Or is the primary concern that the exploiters are gaining excessive economic advantages and/or that the financial situation of the exploited person is worsening significantly? In order to assess whether someone is being economically exploited or the level of wages is affecting someone’s human rights, it is necessary to have a benchmark that is widely accepted in society and known to labour market actors. Our assumption is that a minimum wage can be such a benchmark and thus specifies provisions of criminal law on human trafficking for labour exploitation. A case would be simple if no wage had been paid at all. Often, however, a small amount is paid or the person affected is initially paid the agreed full wage, but later the wages are increasingly held back, and other working conditions also can deteriorate in the course of the employment. This step-by-step deterioration of working conditions is a key instrument used by traffickers to conceal their actions and/or to keep those affected dependent on them. Therefore, it is important to have and to promote a generally accepted minimum level for pay and working conditions which, if undercut, constitute the criminal offence of exploitation. Another difficulty arises when provisions on human trafficking for labour exploitation make reference not only to payment but to ‘working conditions’ in general. This means that poor wages alone do not suffice to prove exploitation, but a whole set of working conditions have to be unacceptable. Nevertheless, payment below the minimum wage may well be an important factor to feed into the definition of exploitative working conditions resulting from human trafficking. In some countries, national legislation already identifies the late payment of wages, or remuneration below the legal minimum wage, as at least one element of a forced labour situation.5 For the following brief review of the minimum wage in anti-trafficking legislation, an Organisation for Security and Co-operation in Europe assessment of anti-trafficking legislation in 33 member states has been used.6 In Italy the legislature has incorporated as a definition of exploitation a specified minimum wage, below which work is

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considered to be exploitation.7 The Criminal Code of Georgia identifies work that has to be carried out without remuneration or with inadequate remuneration ‘as an element of forced labour’.8 In Moldova, the Law on Preventing and Combating Trafficking in Human Beings defines labour exploitation as ‘exploitation of a person – abuse of a person in order to obtain profit, namely: a) compelling to perform work or services, by use of force, threats or other forms of coercion, in violation of the legal provisions connected to labour conditions, remuneration, health and security’.9 Romania provides for a similar definition of exploitation in its Law on the Prevention and Combat of Trafficking in Human Beings: the phrase ‘exploitation of a person’ means: performing forced labour or services, in violation of the legal requirements on labour conditions, pay, health and security.10 To conclude, this brief look at the role of a minimum wage in legislation against human trafficking for labour exploitation showed that in only 4 out of 33 countries did the legislation on human trafficking attempt to define labour exploitation by reference to the payment of workers as one indicator for a forced labour situation. We found that minimum wages are also an element of jurisdiction on human trafficking and labour exploitation. The two cases described below will help to illustrate the different interpretations of whether or not payment below a minimum wage is already a sufficient indicator for exploitation. The case People’s Union for Democratic Rights v. Union of India, A.I.R. 1982 S.C. 1473 (19 September 1982) came before the Supreme Court of India as a violation of labour laws and of Article 23 of the Constitution, which prohibits forced labour. The principal allegation was that the contractors (Union of India, the Delhi Development Authority and the Delhi Administration) paid wages to jamadars (crew bosses) who deducted a commission and then paid the actual workers who had been hired for work in construction projects for the Asian Games less than the legal minimum wage of 9.25 rupees per day. The issue before the Supreme Court was whether the forced labour provision of Article 23 was applicable to a situation of workers being paid less than the minimum wage. The Supreme Court of India concluded in this case that work performed for less than the minimum wage is forced labour.11 This conclusion does not reflect the general view by the ILO Committee of Experts for the ILO Forced Labour Convention. The Committee does not support the conclusion that economic constraints that pressure workers to accept low or underpaid work could, taken alone, come within the scope of the ILO Forced Labour Convention. However, if a situation of economic constraint exists and employers exploit that situation by offering very low wages, then they could ‘to some extent become answerable for a situation that it did not create’.12 The position of the ILO Committee of Experts points out that: poor working conditions alone do not amount to forced labour, because working conditions vary from country to country depending on the level of economic development. However, while not proof per se of forced labour, certain working conditions that do not comply with labour

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legislation (because wages are considerably lower than those provided by law or collective agreement, or working hours are longer than what is authorized or the working environment is too demanding) must be examined as evidence. Thus working conditions are relative to the forced labour determination but not dispositive.13 In the case IP 06–0627-C h/s Roe v. Bridgestone Corporation, Bridgestone Americas Holding Inc. the judge did not follow the arguments of the Indian Supreme Court. In the Roe v. Bridgestone case the plaintiffs were adults and children who worked on a rubber plantation in Liberia. Based on allegations of forced labour, forced child labour, poor working conditions and low wages, plaintiffs sought compensation from Japanese, American and Liberian companies and two individuals that own and control the plantation. The workers brought their case to the federal courts of the United States. The complaint asserts claims under international law pursuant to the Alien Tort Statute, 28 U.S.C. § 1350, the Thirteenth Amendment to the United States Constitution, a federal statute authorizing civil actions for criminal forced labour violations, 18 U.S.C. § 159, and Californian law. The workers described their lives on the plantation as the life of modern-day slaves. They claimed that they were forced to work by the coercion of poverty, and that complaints about their situation would have left them with only the prospect of starvation. The workers were isolated on the plantation and were completely dependent upon the company for access to food and accommodation (one-room shacks). The wage that the workers received was too little to afford transport to escape the plantation. To earn a daily wage equivalent to $3.19 (US) a tapper must tap 1,125 trees. If the tapper managed to tap only 750 trees he was paid only half of the daily wage ($1.59). According to the plaintiffs, the difference between $3.19 and $1.59 per day is the difference between subsistence and starvation, and they say that earning $3.19 is physically impossible for one adult without unpaid help from children.14 The judge’s verdict in this case states that ‘forced labour cannot be equated with only low wages and difficult working conditions, which are all too common throughout the world’. The fact that plaintiffs alleged they were afraid of losing those jobs that they claimed they were forced to perform undermined their claim of forced labour in violation of international law.15 Minimum wages can be of use in criminal proceedings even if they are not explicitly mentioned in anti-trafficking legislation. The German penal code, for example, describes as one possibility for labour exploitation someone who is employed in ‘working conditions that show a crass disparity to the working conditions of other employees performing the same or comparable tasks’.16 The nationality of the trafficked person is irrelevant. The so-called ‘crass disparity’ must be such that ‘an expert, who knows about the relevant factors, immediately recognizes that the working conditions are totally inadequate’. The ‘crass disparity’ and its interpretation stem from the criminal provision of usury (§ 291 StGB) and §15a of a law that regulates the temporary employment of foreign nationals in Germany (AÜG).

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The term exploitation, which is after all mentioned in the title of the provision in the German penal code, it is neither mentioned nor explicitly specified in the provision itself. The decisive factor, in fact, is the comparison of working conditions to those of other, comparable employees. However, commentators on the provision made clear that exploitation in the legal sense is an economic one, and not human rights oriented. The reference points for assessing exploitation are those working conditions that can be regarded as ‘normal’. However, the German penal code does not define what factors constitute the employment relationship and what the real working conditions must be in order to constitute an exploitative employment relationship. According to legal commentaries on the provision on trafficking, the actual terms of employment are crucial, not those mentioned in the contract. The relationship is determined by factors such as salary, working hours, holidays or safety at work. Although it is made clear that the working conditions have to be regarded in their entirety, the wages paid play a major role. In this case, minimum wages are likely to be helpful insofar as they serve as a benchmark for what amount at the least has to be paid for a ‘comparable task’. To fulfil this function, the design of the minimum wage does not matter but it would certainly be advantageous if, as is the case in Germany, minimum wages were established through collective bargaining. Minimum wages in Germany tend to provide a better benchmark for current wages in a certain sector than does a minimum wage that is oriented towards a minimum subsistence level. This does not replace the examination of what a ‘normal’ wage of ‘employees performing the same or comparable tasks’ is, because they may eventually exceed the minimum wage. However, ‘normal wages’ can also be less than those negotiated through collective bargaining. So far, in respect of exploitative wages, the German literature on human trafficking refers mostly to wages established through collective bargaining. According to the prevailing opinion among legal experts, wages that are 20 to 30 per cent below the standard wage can be considered to be a ‘crass disparity’. However, this decision has been made in the context of other laws than those from where the term exploitation stems. Therefore, the opinion has been expressed that, in the context of the anti-trafficking provision, the wages paid have to be even lower, since the penalty for human trafficking is much higher than for usury or a violation of AÜG. Thus, even with the existence of a minimum wage in the respective industry, the question still remains as to how much below the minimum wage the actual wage must be in order to qualify as exploitation. In this regard, a minimum wage of the German type is not considered helpful by legal experts in Germany because it reflects primarily the economic performance of a specific industry, which is reflected in specific minimum wages. Minimum wages therefore do not have any relation to the minimum subsistence level. Rather, minimum wages are seen by trade unions as the least wage a working person should receive. This is not the same as the minimum subsistence level, which a person gets no matter whether or not he or she has a job.

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At this point, a minimum wage that is oriented to the minimum subsistence levels would be more suitable. In principle, this could mean that exploitation starts where payment is below the minimum wage. Conclusion Minimum wages indicate how much a person should earn at the least. However, other benchmarks would be of greater value for law enforcement, especially those directly related to the minimum subsistence level (such as welfare entitlement). If the minimum wage is linked to the minimum subsistence level, the minimum wage itself is the margin for exploitation. In the case of German law, the minimum wage is at least suitable for determining what employees (should) earn for comparable work. It does not address the question of what wages are not acceptable according to the anti-trafficking provision. Basically, it is up to the supporters of minimum wages to promote them as a generally accepted indicator of exploitation, even beyond human trafficking.

Minimum wage and compensation This section looks at the question of whether and how a minimum wage can help claims for unpaid wages for victims of human trafficking for labour exploitation. International labour standards provide for a right to compensation in cases of forced labour and for workers and migrant workers whose rights have been abused.17 Compensation for lost wages is a crucial point for victims of labour exploitation. However, in most cases of human trafficking for labour exploitation victims do not receive adequate financial compensation for the work they were forced to carry out. The Migrant Rights Centre Ireland (MRCI) is a human rights organization supporting migrant workers and their families in situations of vulnerability and empowering migrant workers. When supporting the claims of exploited migrant workers, the MRCI always puts in a minimum wage claim to cover the whole of the employment history and arrears owed. Minimum wage legislation is the piece of legislation used the most by the MRCI to secure the greatest sums of money for exploited workers. It is used in particular to calculate the compensation for workers who were not provided with a work contract and/or for undocumented workers. In 2007–2009 the MRCI succeeded in securing settlements and awards of more than €1 million for exploited migrant workers who had turned to it for help. The exploitation of these migrant workers varied from discriminatory practices in pay to forced labour. A limitation in the legislation is that arrears can go back only three years because under Irish law employers are only obliged to keep employment records only for this length of time.18 The MRCI always takes a case to the Labour Relations Commission when it comes across extreme exploitation and forced labour. It is only since 2008 that it has been using the language of forced labour in its submissions, but it

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has taken many cases that it has identified as forced labour and trafficking. Some have received settlements, and some judgments.19 An example for the successful use of minimum wage legislation for the compensation of victims of trafficking for labour exploitation is the case of a migrant from Pakistan who was recruited in Pakistan to work in a restaurant in Ireland. He has worked for more than five years in a restaurant in Ireland. He never received a written contract. The worker was paid €150 per week, of which €100 were deducted for accommodation. He worked well in excess of 58 hours a week and he never received holidays or premium pay for working weekends. His passport was taken away by his employer and he was afraid of losing his job and accommodation if he complained. In 2007, the MRCI took the case to the Irish Labour Relations Commission. In November 2007, the Labour Relations Commission awarded the claimant a compensation of €20,808 for lost wages under the National Minimum Wage Act and additional compensation of €94,952 under the Organization of Working Time Act, the Payment of Wages Act, Unfair Dismissals Act and the Terms of Employment Act. However, as victims of trafficking for labour exploitation very often reside and work irregularly in the destination country, the use of labour law to secure compensation for non-payment of wages and payments below the minimum wage may not be possible, or may be limited. In some countries, the rights of irregular migrants who have suffered exploitation to use the labour courts to claim compensation exist in principle, but the labour courts may be required to inform immigration officials when they are contacted by an undocumented worker. This can lead to a worker’s deportation before he or she has managed to receive compensation, as has occurred in France. In other countries, e.g. Romania, Russia, Ukraine and the UK, irregular workers do not have the right to turn to the labour courts because their labour relations are not regarded as legal and hence are not enforceable in labour courts.20 Conclusion A minimum wage can be a very effective tool to support exploited workers in their compensation claims, in particular those workers who lack a written contract and/or are undocumented workers in the destination country. However, a precondition for the functioning of the minimum wage in the compensation claims of trafficking victims is the applicability of minimum wage regulations for all workers, irrespective whether or not they have a work and residence permit.

Minimum wage as a tool to prevent labour exploitation An objective of policies against human trafficking has to be to prevent this crime. It is also important to empower victims to exit the exploitative situation, as self-identification normally leaves victims more room for manoeuvre than

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detection by the police or labour inspectors. The difficulty is that many victims, in particular irregular migrants, do not consider themselves to be victims having rights. Better information about working conditions and labour rights could change this. In particular, information about the minimum wage and its role in the definition of exploitative labour relations could help to increase the number of self-identified victims. The Federal Foreign Office (FFO) of Germany has adopted a number of measures linked to minimum wages to prevent the exploitation of domestic workers employed by diplomatic staff residing in Germany. The FFO has established a minimum wage of €750 per month for the domestic workers of diplomats in Germany. Before German embassies grant an entry visa for a domestic worker, the embassy of the diplomat (and not only the diplomat employing the domestic worker) must officially guarantee that minimum standards with regard to social and labour rights will be respected and that the minimum wage will be paid. In addition, domestic workers are informed about their rights by the respective German mission before they travel to Germany. During this meeting domestic workers are asked about their monthly wage to make sure that it is in line with the new regulation on minimum wage for domestic workers employed by diplomatic staff.21 The ILO Special Action Programme to Combat Forced Labour has produced 11 migrant information guides intended to provide workers from Moldova, Ukraine and Southern Caucasus states who wish to work abroad with information on the most important aspects of working and living in destination countries. These guides give general guidance to help workers to make an informed decision by providing reliable sources of information about employment opportunities and help them to better evaluate the actual costs and benefits of working abroad. The guides also aim to help potential migrants to better understand the risks involved in labour migration, to know their rights and to be better prepared to protect themselves. These guides contain a chapter on the minimum wage for those destination countries where a minimum wage exists. According to the experience of the MRCI, most of the exploited workers it has assisted in the past do not know the rate of pay in their destination country. Having access to information about their rights allows people to try to negotiate better terms of employment or helps them to exit the situation and claim compensation for lost wages.22 However, a limitation of using information about minimum wages is that if a worker is already caught in a forced labour situation, just knowing what the minimum wage and employment rights are in a country does not necessarily help the worker to exit the forced labour situation, because he or she may face threats and coercion from the employer that prevent him or her from leaving and looking for assistance. Conclusion In order to use information on minimum wages to make potential migrants aware of what wages they are entitled to (at a minimum), it is advantageous if

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a country has a clear minimum wage, and if the scheme of minimum wages in destination countries is not too diversified. If the minimum wage structure is very complex and diversified, e.g. by sector, age, work experience etc., it will be difficult to present this information in migrant information guides in a transparent and easily understandable way. Also, the dissemination of information on minimum wages may help to prevent migrants from entering forced labour situations, but information on minimum wage alone is not sufficient to help a worker exit from an already existing forced labour situation.

Notes 1 ILO, Operational Indicators of Trafficking in Human Beings (Geneva: ILO, March 2009), http://www.ilo.org/wcmsp5/groups/public/–ed_norm/–declaration/documents/ publication/wcms_105023.pdf (accessed 30 June 2010). 2 ILO, ‘Details of Indicators for Labour Exploitation’, http://www.ilo.org/wcmsp5/ groups/public/–ed_norm/–declaration/documents/publication/wcms_105035.pdf (accessed 30 June 2010). 3 German Penal Code § 233. 4 Belgian Penal Code Article 433. 5 ILO, A Global Alliance Against Forced Labour (Geneva: ILO, 2005). 6 OSCE/ODIHR, ‘Trafficking in Human Beings’, Legislation Online, http://www. legislationline.org/topics/topic/14 (accessed 22 September 2009). 7 Czech Republic, Security Police Department, National Strategy to Combat Trafficking in Human Beings (2008–2011) (Prague: Government of the Czech Republic, 2008). 8 Criminal Code of the Republic of Georgia, Article 143.1, ‘Trafficking in human beings’. 9 Law on Preventing and Combating Trafficking in Human Beings No. 241-XVI of October 20, 2005, Art. 2 (Moldova). 10 Ibid. 11 ILO: SAP-FL, Forced Labour and Human Trafficking: Casebook of Court Decisions (Geneva: ILO, 2008). 12 REPRESENTATION (article 24) – SENEGAL – C105 – 1997 – Report of the Committee set up to examine the representation made by the Senegal Teachers’ Single and Democratic Trade Union (SUDES) under article 24 of the ILO Constitution alleging non-observance by Senegal of the Abolition of Forced Labour Convention, 1957 (No. 105), http://www.ilo.org/ilolex/cgi-lex/single.pl?query=161997SEN105@ref& chspec=16 (accessed 2 November 2010). 13 ILO: SAP-FL, Forced Labour and Human Trafficking. 14 IP 06–0627-C h/s Roe v. Bridgestone, Judge David F. Hamilton, Signed on 6/26/07, http://www.insd.uscourts.gov/Opinions/AP6270O1.pdf (accessed 2 November 2010). 15 Ibid. 16 German Penal Code § 233. 17 ILO, Forced Labour Conventions no. 29 (1930) and no. 105 (1957) including related documents; ILO, Migration for Employment Convention no. 97 (1949) and ILO, Migrant Workers (Supplementary Provisions) Convention no. 143 (1975). 18 Interview with the Migrant Rights Centre Ireland by Anne Pawletta, 31 August 2009. 19 Ibid. 20 OSCE/ODIHR, Compensation for Trafficked and Exploited Persons in the OSCE Region (Warsaw: OSCE/ODIHR, 2008), 28.

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21 Deutsche Bundesregierung Drucksache, Sechster Bericht der Bundesrepublik Deutschland zum Übereinkommen der Vereinten Nationen zur Beseitigung jeder Form von Diskriminierung der Frau (CEDAW),16/5807 (Berlin, 2008), http://www. institut-fuer-menschenrechte.de/fileadmin/user_upload/PDF-Dateien/Pakte_Konvent ionen/CEDAW/cedaw_state_report_germany_6_2007_de.pdf (accessed 2 November 2010). 22 Interview with the Migrant Rights Centre Ireland by Anne Pawletta, 31 August 2009.

10 Responding to labour trafficking Suggestions from experiences of local service providers Amy Stephens, Romesh Hettiarachchi and Sung Hyun Yun While efforts to minimize human trafficking can be categorized as prosecution of the trafficker, prevention of the crime and protection of the victim, most countries have concentrated their anti-human trafficking efforts on prosecuting the trafficker rather than crime prevention and the protection of victims. There is little literature on the effectiveness of Canadian programs to protect victims of labour trafficking. This paper examines responses to the exploitation of trafficked individuals at both national and local levels. It aims to promote a best-practice approach grounded in the principles of law and social work and uses local case studies to identify the gaps in government policies and programs that further marginalize an already victimized population. It illustrates how the community has an impact on the effectiveness of local programs to protect and respond to victims who may be at increased risk of re-exploitation because of systemic inconsistencies and barriers to social support. The paper concludes with recommendations based on experience of advocating for clients. Human trafficking, defined as coercive tactics or abuse of power by an individual to recruit, transport, transfer, harbour or receive persons for the purposes of exploitation,1 is a growing national criminal industry, estimated to affect 500,000 to nearly four million people annually2 and to generate over $40 billion worldwide each year.3 The growing prominence of the crime can be largely attributed to extreme poverty and high unemployment levels in underdeveloped countries, which traffickers proceed to exploit.4 Traffickers exploit workers by expending minimal resources on the victims, forcing them to work excessive hours, to pay for their own shelter and medical care and to find their own transportation.5 To combat the crime, the United Nations General Assembly in 2000 adopted the Protocol to Prevent, Suppress and Punish Trafficking In Persons, Especially Women and Children which aims to prevent and combat trafficking in persons, paying particular attention to women and children; protect and assist the victims of such trafficking, with full respect for their human rights; and promote cooperation among States Parties in order to meet those objectives.6

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Policies to prevent human trafficking can thus be categorized as coalescing around three important areas: prevention, protection and prosecution.7 As a signatory, Canada has agreed in principle to combat human trafficking through implementation of the Protocol. While Canada is a signatory to the Protocol, Canadian anti-human trafficking efforts have largely focused on prosecuting human traffickers rather than on the pro-active and more expensive approach of preventing the crime and protecting its victims.8 Canada has focused on prosecution of trafficking by spending time and resources on increasing the policing of borders and by adopting legislation that criminalizes the acts of trafficking.9 The literature suggests that current Canadian immigration and criminal laws exclude victims of trafficking from government protection and assistance, which is allowing traffickers to have greater control over their victims because of the victims’ fears of imprisonment or deportation.10 While it is claimed that there are programs and support services available to victims of human trafficking, accessing these services is difficult. Government support for victims of human trafficking is conditional on the possession of a Temporary Residence Permit (TRP).11 However, cases have shown that possession of a TRP does not guarantee that victims will be able to access the necessary services in order to obtain the basic necessities of life. Community service providers are being relied upon to fulfil their needs and are struggling to provide adequately for victims of trafficking. This paper evaluates Canadian efforts to identify and protect victims of human trafficking from the perspective of advocates. Using case examples, the authors outline the difficulties they have experienced in advocating for human trafficking victims and accessing community resources to help support them. They conclude by providing suggestions on how the system can best be improved to meet the needs of human trafficking victims more effectively.

Problems identifying human trafficking victims, and the Temporary Residence Permit The TRP is a document that enables victims of human trafficking to access government support for human trafficking victims. This includes: the legalization of an individual’s status, provision of extended health care and an open work permit.12 However, the process of obtaining a TRP is riddled with discretion on the part of those involved in it. When identifying a victim of trafficking, frontline workers must possess the necessary knowledge and skills to recognize the elements that lead to receiving support services. However, these workers are rarely trained to identify victims13 because few community agencies have publicly accessible tools to do so. Also, the Royal Canadian Mounted Police (RCMP) does not have a formal tool for determining if an individual has been trafficked and relies on in-house training to ensure that victims of human trafficking are identified.14 Consequently, possible victims are often detained, or deported to their home countries, without the consideration of the possibility that they have been trafficked.

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One case of a 52-year-old Filipina woman, Ms Kuan, indicates the problematic nature of the TRP process and investigation of human trafficking. Ms Kuan was identified by a local police officer when she was working as a housemaid, after a neighbor heard shouts coming from a house and called the police. The police officer noticed that Ms Kuan’s work permit had expired and arrested her. However, he also recognized that some elements of human trafficking might be involved. He had attended the RCMP training workshop on identifying the warning signs of human trafficking victims, and this was the major factor in helping him to identify the victim. Regardless of these red flags, Ms Kuan was still detained for four nights following an interview with Citizenship and Immigration Canada (CIC). Instead of receiving a TRP she was issued with an exclusionary order to help the RCMP with further investigations. The fact that Ms Kuan had to spend several nights in prison during the TRP process indicates a lack of appropriate government policy and procedures for identifying victims of human trafficking. Moreover, law enforcement agencies identify potential victims more for the purposes of enforcing immigration laws; supporting the emotional needs of victims is not their priority, and at times they unintentionally re-victimize clients. Throughout the TRP process, victims are often not only emotionally exhausted but also fearful during police and CIC interviews, which creates more problems. There is no period during the lengthy interview process when support is provided to settle the victim into a safe environment. As a consequence, the victim may not tell their full story, and this can result in the denial of their TRP application, as happened in the case of Ms Kuan. After her detention for four nights, Ms Kuan became highly distrustful of the motives of the law enforcement agencies. As a result of her fears she was unwilling to cooperate in the human trafficking investigation and decided to return to her home country. However, when she decided that she wanted to return home, she was denied permission to leave the country because she was wanted for further interviewing for prosecution purposes. Success in getting a TRP depends largely on how local CIC officers construct the problem and interpret the guidelines. When their decisions are taken in the absence of frontline service providers there is very little opportunity for outside agencies to advocate for the victim. CIC denied Ms Kuan’s application for a TRP even though law enforcement officers and other service providers believed she was a victim of human trafficking, as neither of these agencies was allowed to be in the interview room.

Social services Service providers experienc many difficulties in attempting to find financial resources for victims of trafficking. Financial assistance through government programs, such as Ontario Works, is insufficient for victims to sustain themselves for any length of time. In the case of Ms Kuan, she was not able to apply for Ontario Works because she was not a TRP holder. Her only source of

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support was the Anti-Human Trafficking Action Group, whose limited funds were quickly depleted because of the many victims it was helping, who all had similar needs. Another case, that of Ms Ramirez, illustrates several systematic barriers to proper social services and support. Ms Ramirez, a non-English-speaking, 31-year-old Mexican woman, was recruited to work on an agricultural farm in a local border city, through community advertisements for legitimate employment in Canada. Her passport and documentation were taken away upon her arrival at the farm, she was denied full pay for her labour, confined in a bunk house and was sexually exploited. After being identified as a victim of human trafficking by a member of the local Anti-Human Trafficking Action Group and having her case advocated by a legal aid clinic, she received the TRP. After leaving the farm because of exploitation by her employer Ms Ramirez was unable to pay for her basic needs, including rent, food and utilities, and was unable to send money back home to her family in Mexico. Her social worker contacted Ontario Works on her behalf and was able to obtain emergency funding to help pay her rent and bills, as she was on the point of being evicted from her apartment. However, this support lasted for only two months. The case illustrates that victims have difficulty in accessing long-term financial assistance, alongside the other difficulties they face in finding employment. Ms Ramirez was going to apply for long-term funding, but her lawyer advised her not to do so because it would affect the application for an extension of her TRP, which she needed in order to be able to stay in the country. If CIC became aware that she was unable to provide for herself while residing in Canada, it was more likely to deny her status in Canada. The social worker and the local Anti-Human Trafficking Action Group thus had the difficult task of finding financial assistance for Ms Ramirez. The local AntiHuman Trafficking Action Group supported both Ms Ramirez and her children in Mexico throughout this time, sending money to the children’s caregiver. Finding employment services for victims of human trafficking is another problem for service providers and for the victims, who are vulnerable to re-exploitation by different employers and labor contractors, have difficulty in accessing transport and do not speak the primary language. No outreach services were available in Ms Ramirez’s rural community to help her find employment. The social worker and the Anti-Human Trafficking Action Group had to provide employment services, including making resumes, job searching, providing transport, setting up interviews and ensuring that the victim was not being re-exploited. Because Ms Ramirez could not speak English, finding employment was particularly difficult. Although CIC declares that protection for victims of human trafficking has been strengthened by allowing victims to receive counseling services,15 this was not so in Ms Ramirez’s case. It is very difficult to find counselors who have worked specifically with victims of human trafficking, and a counselor was never found. Ms Ramirez had requested to see a Spanish-speaking counselor, but because a culture-specific counselor was not available locally she could not be properly supported in her emotional and psychological

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trauma. The social worker provided weekly emotional support with the help of an interpreter, traveling to and from Ms Ramirez’s rural community. This was both expensive and very difficult for the small Anti-Human Trafficking Action Group, which has a limited budget. Service providers also face difficulties with finding and paying for interpretation and translation services when helping victims of human trafficking. Many times, only one local interpreter is available who can speak an ethnic language, making service providers reliant on this one interpreter. This caused problems for the Anti-Human Trafficking Action Group and some victims of trafficking, such as Ms Wattana, as the same interpreter had to be used for several of the migrant workers in the area in interviews with law enforcement agencies and other service providers. This led to some ethical issues because individual information could not be kept confidential. The interpreter would speak to the migrant workers outside of the interviews to pass on information, and at times in groups in order to save time and money. Also, when the Anti-Human Trafficking Action Group had to meet with the victims and needed interpretation, this had to be done in a group with all of the victims who spoke the same language, in order to save money on interpretation services. It was too expensive for the Action Group to meet victims individually, and once again the appropriate confidentiality was not possible. The case of Ms Wattana, a 47-year-old Thai woman, illustrates the many barriers a victim faces in obtaining appropriate community services. Ms Wattana worked as an agricultural labourer on a rural farm. She was exploited by having her passport and documentation taken away, by not being paid for the hours worked and by the enforcement of strict rules, including not being able to leave the bunker on the farm property. Ms Wattana originally went to the police herself to report incidences of sexual abuse, which started an investigation that led to the local Anti-Human Trafficking Action Group identifying her as a victim of human trafficking. Ms Wattana wanted counseling services as well, because she was dealing with array of emotional issues. She spoke only Thai and the one interpreter who could be found in the area was male. Ms Wattana was not comfortable discussing the matter of sexual abuse by her trafficker through a male interpreter. Another ethical issue that arose for translation services was that the interpreter could be used only in an emergency and in circumstances of absolute necessity. More contact between the clients and the social worker was necessary; however, there are simply no funds available for the agencies to provide ongoing, frequent language services for victims.

Suggestions Strengthening inter-agency relationships With reference to these case examples, as well as existing literature on combating human trafficking, it is clear that collaboration between service providers is very important. As suggested by Hodge and Van Hook et al.,

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collaboration between frontline service providers, law enforcement agencies and government agencies is vital in order to increase the capacity of service provision in Canada.16 Community agencies should be notified quickly whenever a potential victim of human trafficking is identified by law enforcement and government agencies such as the RCMP and CIC. This would ensure that victims were adequately represented during their interviews with CIC, and increase both the likelihood of the full extent of the victim’s story being outlined and the chances of obtaining a TRP. Community and government agencies should collaborate far more, as well as define the roles and responsibilities shared with partner agencies. This could best be achieved by establishing local Anti-Human Trafficking Action Groups that meet regularly to evaluate the prevalence of human trafficking in the community and by establishing appropriate community protocols to help protect victims from falling between the gaps in the system or running into further barriers. Areas that these protocols should address include financial, language, employment and counseling services. Local service agencies for the support of newcomers should be heavily involved with the Anti-Human Trafficking Action Groups, educating clients about their legal rights in Canada and giving out information packages in appropriate languages about the risks and signs of exploitation. This would also help to reduce the emotional impact on victims of going through the process of identification. It is suggested that victims should be connected to a counselor prior to the TRP interview so that an assessment of their emotional and mental well-being can be completed. An advocate from a community agency should be present at every interview with law enforcement and government agencies to further protect the well-being of victims. Reducing the role of discretion Discretion plays a major role in the identification of potentially trafficked individuals. Frontline workers should have reliable assessment tools and resources geared to the specific local community that outline the signs and characteristics of human trafficking victims. In addition, frontline service providers and law enforcement agencies need to be trained in cultural sensitivity specific to victims of human trafficking so as to help them recognize cultural barriers to communication and to deal with the victims’ fears in relation to law enforcement and government agencies. Trafficking victims need to see support services working alongside law enforcement and government agencies in order to help and protect them. This could help to decrease the number of victims being deported and/or detained. Accessibility and funding for support programs Currently, Canadian funding specifically to help victims of trafficking is being directed to the RCMP, the Canada Border Services Agency (CBSA) and other law enforcement agencies to prosecute crimes and to develop and provide training for frontline officers in terms of the special needs of the victims.17

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Although the government has allocated funds for victim support services, these often fail to find their way to the local community agencies that provide the means necessary for victims to survive in Canada. Victims need to be able to access long-term financial assistance without facing the possibility of deportation. This means that victims should have access to financial aid to meet their basic needs until they can obtain regular employment, regardless of their TRP status. Better provision of interpretation services and free English classes for trafficking victims are needed. Victims should also have access to employment assistance programs that would allow them to reintegrate into the community, thus increasing their chances of finding a legitimate job and reducing the risk of being re-victimized by future employers. Ultimately, the federal and provincial governments need to allocate funds to the local service organizations that are already providing these services to victims and survivors of human trafficking.

Notes 1 UNODC, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, GA Res. 55/25, UNODC, 2000. 2 Stephanie A. Limoncelli, “Human Trafficking: Globalization, Exploitation, and Transnational Sociology,” Sociology Compass 3, no.1 (2009): 72–91. 3 Patrick Belser, “Forced Labour and Human Trafficking: Estimating the Profits,” working paper, Program of the Promotion of the ILO Declaration on Fundamental Principles and Rights at Work Organization, 2005. 4 ILO, ILO Action against Trafficking in Human Beings (Geneva: ILO, 2008). 5 M. Lusk and F. Lucas, “The Challenge of Human Trafficking and Contemporary Slavery,” Journal of Comparative Social Welfare 25, no.1 (2009): 49–57. 6 United Nations, Protocol to Prevent, Suppress and Punish Trafficking in Persons, 2. 7 US Department of State, Trafficking in Persons Report 2009 (Washington, DC: US Department of State), 27. 8 Limoncelli, “Human Trafficking.” 9 J. Oxman-Martinez and J. Hanley, A Follow-up Study of Canadian Policy on Human Trafficking: Impacts of the Immigration and Refugee Protection Act (Publication No.25) (Montreal, QC: Centre de recherche interuniversitaire de Montréal sur l’immigration, l’intégration et la dynamique urbaine, 2004). 10 Ibid. 11 Citizenship and Immigration Canada, “Protection and Assistance for Victims of Human Trafficking,” http://www.cic.gc.ca/EnGLish/information/applications/trp.asp. 12 Citizenship and Immigration Canada, “Temporary Residence Permits,” http://www. cic.gc.ca/english/resources/manuals/ip/ip01-eng.pdf (accessed August 20, 2009). 13 J. N. Sigmon, “Combating Modern-day Slavery: Issues in Identifying and Assisting Victims of Human Trafficking Worldwide,” Victims & Offenders 3 (2009): 245–57. 14 Steve Richardson, personal communication, 2009. 15 Department of Justice Canada, “Protection for Victims of Human Trafficking,” http://justice.gc.ca/eng/fs-sv/tp/p2.html. 16 D. Hodge, “Sexual Trafficking in the United States: A Domestic Problem with Transnational Dimensions,” Social Work 53, no. 1 (2008): 143–52.; M. Van Hook, E. Gjermeni and E. Haxhiymeri, “Sexual Trafficking of Women: Tragic Proportions and Attempted Solutions in Albania,” International Social Works 49, no.1 (2006): 29–40. 17 Department of Justice Canada, “Victims Fund,” http://www.justice.gc.ca/eng/pi/ pb-dgp/prog/vf-fv.html.

11 The programmatic approach to combating trafficking in human beings Ruud Hilgers

Introduction Some crimes are revealed in a direct way by their obvious consequences: a broken lock and missing property (burglary), a dead body (murder or manslaughter), a damaged building (destruction). In general, the injured parties in such cases report them immediately to the police. But there are also crimes the consequences of which – the damage – are in fact not that obvious, and in which neither the damage nor the victim reveal the crime. Take corruption, for instance: both the briber and the person who is bribed usually profit from the crime, and so neither party has any interest in reporting it to the police. The damage of corrupt actions lies in loss of integrity in business transactions, in undermining economic development and distortion of competitive conditions. As in the case of corruption in relation to public officials, this can result in loss of respect for public government and, in a material sense, a loss of public means at the expense of tax payers. With regard to money laundering, it works in the the same way. From the above examples, one can see a distinct difference in the types of crimes committed and the ways in which the police must approach them. For those more obvious crimes, in which the consequences of their outcome are revealed in a direct way, the (criminological) Dutch term ‘Breng-zaken’ (bring-cases)1 is applicable. However, for those cases in which it is difficult to discern the damage of the corrupt action, a much more pro-active approach must be taken in order to both reveal and solve the illegal actions. These crimes are referred to as ‘Haal-zaken’ (get-cases). The crime of trafficking in human beings (thb) belongs to the category of get-crimes, as victims of human trafficking may also have their reasons for not revealing the crime. Such discretion can be the result of (multiple) dependency on the trafficker, fear of violence and, in some cases, the victim may even develop a love relationship with his/her trafficker. Regardless, the living and working conditions of these victims can be so terrible that the work done by trafficked human beings, work by which their exploiters all too often make money, meets the definition of the so-called 3Ds: it is dirty, dangerous and demeaning.2 The fact that these inhumane circumstances are seldom reported

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to the police by the victims themselves is no argument for sitting idly by as these crimes occur. Instead, all possible means to combat the phenomenon of human trafficking, however contradictory or inopportune this might seem at first sight, must be pursued. That is why legislation worldwide, since the Palermo Protocol, does not require a victim statement from them for the judicial authorities’ competence, or even duty, to prosecute the crime. In fact there have been instances of judicial sentences being passed on traffickers whose victims actually denied that they had ever been exploited.3

Development of the programmatic approach Since law enforcement authorities cannot always rely on the co-operation of the victim, other approaches must be implemented in order to effectively combat thb. In the early 2000s in the Netherlands, an action model to thb was developed which became known as the Programmatic Approach (PA). This method was based on an analytical model developed by the Social Investigation Service,4 which it applied when dealing with cases of social fraud. In co-operation between officials of the National Crime Squad5 and the Public Prosecution Service,6 this so-called barrier model was adjusted to the criminal structure of thb in the sex industries in some of Holland’s largest cities. It was felt that the classic approach of predominantly independent criminal investigation and prosecution was not sufficiently effective to stop thb in the area of prostitution. The essence of the PA is as follows: by closely analysing the modus operandi of the criminals (not only the traffickers themselves, but also their facilitators), administrative–legal barriers are created by law enforcement agencies that act as preventive measures while simultaneous criminal investigations are pursued. The information generated by both the administrative procedures and the criminal procedures is exchanged whereever and whenever this proves possible and useful. The initiative was originally located within the Public Prosecution Service, which had the best preliminary information available. However, public administrative bodies were actively and more directly involved in the joint PA with respect to a few clear goals (the programme) that were agreed upon at the beginning. It is useful to look at the push and pull factors that affect the sex industry, including that part of it that can be qualified as thb; but in the PA it is also essential to look at the facilitating or enabling factors. Analysis of the enabling factors includes questions such as: what does the criminal structure look like? What are the circumstances that make it possible for traffickers to do their criminal job, gain large profits and get away with it (with both the financial gain and the ‘job’ going unpunished)? The counterpart of a barrier here is ‘facility’. Thb-gangs need to mask at least part of their activities so as to make themselves appear as legal operations. These activities included creating identity documents (IDs), housing the prostitutes, opening up bank accounts, arranging licences. By analysing these administrative procedures it is possible to detect patterns of behaviour that might lead to the identification of human trafficking.

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Before looking in detail at the concept and practical examples of the PA, I must now make a short detour in order to explain one phenomenon that gives a distinctive Dutch colour to PA in relation to the sex business. This is important in order to understand how the PA works in relation to the sex business in Holland. However, it must be noted that this unique Dutch context does not at all imply that the approach itself would not be applicable elsewhere. I will return to this point again later.

Prostitution legislation in the Netherlands In the Netherlands in 2000, the ‘Brothel Law’ was implemented, which essentially decriminalized prostitution across the country.7 It was thought that by regulating the prostitution industry through the granting of licences under certain conditions – the observance of which conditions would be checked regularly – many elements of the industry could be improved. One of the six main goals of the legislation was to combat involuntary prostitution. In the first evaluation of the new legislation in 2005 it was found that, as a result of new regulations, positive change could be seen in a number of areas, including improved hygiene and a decrease in the number of illegal workers and of minors. However, it was still proving very difficult to prevent the trafficking of women for purposes of sexual exploitation. The so-called ‘Sneep Programme’, which will be described in the next section, and other criminal investigations showed clearly that trafficking was still taking place on an organized scale in both the illicit and ‘licensed’ sectors. The conclusions from these investigations, as well as the results from the PA in this sector, led to a new draft for a Framework Law on prostitution.8 In January 2011, this draft was registered for discussion in Parliament and it is expected that it will come into force in 2012. The unique circumstances that make voluntary prostitution in the Netherlands legal and therefore more open imply that municipal authorities and the police have somewhat easier access to the brothels. This means that a PA to trafficking in the sex business will be somewhat in different nature than in situations where prostitution is illegal. The flexibility of the PA allows it to be applied (though in a different manner) in distinctive labour contexts as well when there is suspicion of human trafficking.

Practice of the programmatic approach The pilot of the PA was the aforementioned Sneep Programme,9 which lasted from October 2006 until the end of 2008.10 The project was aimed at a group of human traffickers in the sex industry (mainly window prostitution) in Amsterdam, Alkmaar and Utrecht. Table 11.1, the barrier model as applied in the ‘Sneep’ Programme, depicts the sex business structure. It is the product of an analysis performed by law-enforcement agencies on the basis of criminal intelligence.

City council, local police chamber of commerce, tax inspectors of the inland revenue

Second shell of deliberate criminal accessory facilitators with limited criminal offences Taxi drivers Landlords/landladies Third shell of unaware of (noncriminal) accessory facilitators Customs Building societies, banks (mortgages), solicitors

Partners in approach Border police, city council, INS, local police, police for foreigners’ affairs

Identity

Barrier Financial flows

Tatooists

Illegal labour subcontractors

/Core members?pimps

Money changers

Underground bankers, money couriers

Core members

Extortion, exploitation, Illegal money flows, money coercion, violence, low wages, laundering, tax evasion, long working hours, hand-in asset tracing/seizure of documents

Labour

City council, INS, local Social investigation Social investigation police, police for foreigners’ service, labour inspection, tax service, labour affairs inspectors of the inspection, tax inspectors of inland revenue the inland revenue

Administrations of city Chambers of commerce, tax Banks councils, visa departments of authorities, medical insurance companies, banks embassies

Printers/printshops

Forgers

Prostitution scene, Marriage of convenience, dangerous living conditions, social security number, buying real estate employer’s certificate, passport, identity card

Housing

/Core members? pimps First shell of deliberate criminal accessory facilitators People smugglers, drivers Rack-renters

Core of criminal organization

Criminal activities Identity, document fraud, transportation, payments, residence permits

Admission

Table 11.1 The barrier model

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The five columns in the barrier model indicate main activities that contain possible barriers: admission to the country, housing, identity, labour and financial flows. These are indicated by the column headings. Horizontally, from the top down, each row represents a layer of actors: first the traffickers themselves (core of the criminal organization), then three layers of facilitators, from criminally involved to non-criminal actors, and finally the partners that participate in the programme, from law enforcement agencies and from administrative agencies. Over a period of two years before starting the PA the police gathered information about practices in the prostitution industry in Amsterdam, Den Haag and Utrecht, which appeared to include trafficking and other criminal acts. However, due to limitations in the criminal approach they could not build up enough evidence to arrest the main suspects. Still, the information was useful in illustrating what was going on. The criminal investigations and analysis thus far had worked as a thermometer11 of the sex business, and the indications received were serious enough to prompt further investigation. When the analysis, together with the barrier model, was presented to the administrative bodies by the representatives of the public prosecution service and the police it was sufficient to persuade the former to co-operate. As a result, a steering group was formed consisting of representatives of the main co-operating public stakeholders in the administrative sector: in the first place, municipal departments dealing with prostitution policy, and also other administrative agencies with responsibility for functions that the traffickers and their victims need to use in order to make their actions look as legal as possible. (See the agencies mentioned in the scheme in Table 11.1.) At this stage, each group had no special status because each of the partners had been working exclusively within the framework of its own tasks, responsibilities and powers rather than collaboratively. What was unique about the newly formed steering group was the outspoken promise to co-operate in a more systematic and programmatic approach. For the work which was conducted on a daily basis, a Programme Bureau was established, located within the National Crime Squad. The main task of the Bureau was to monitor the execution of agreed action plans and to keep all participating bodies informed of any changes and updates. To provide a sense of the scale of the Programme, it should be noted that the original effort was aimed at five cities across the Netherlands, targeting 35 pimps and 87 identified victims.12 In July 2008 the main suspects were sentenced to up to 7½ years each in prison. In the same month a criminological study of the Sneep Programme was published by the National Crime Squad.13 The study was intended to be an administrative report providing a detailed description of how the PA had actually functioned, followed by conclusions and recommendations on how to approach thb in the sex industry. Where necessary, the identities of institutions and individuals were altered for their protection. The report was not only sent to the participants in the Sneep

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Programme but was distributed on a much wider scale to all relevant persons and institutions who were interested, either in practice or in theory, in action against thb.

Scientific evaluation of the Sneep Programme The results of the Sneep Programme were published in various media outlets. Internally, there was a growing interest in the PA throughout all the main law enforcement agencies, and the Minister of Justice decided that it would be useful to have the method analysed. He ordered his own Research and Documentation Centre to make a scientific assessment of the PA on the basis of the Sneep pilot. The findings of this research were published in July 2009.14 According to the authors of the commissioned assessment, Barbra Van Gestel and Maite Verhoeven, the approach is based on four assumptions.  Assumption 1 (first step): Publishing concrete information from the criminal file on offenders, their activities and the damage caused, will lead to awareness of the seriousness of the problem, and to commitment among related agencies. Conclusion: This worked out as expected. Representatives of responsible agencies (municipalities, police forces, public prosecutors) showed more motivation for action against thb after being better informed.  Assumption 2 (second step): The awareness and involvement of related investigative agencies leads to active co-operation in information gathering and throughout the performance of subsidiary but related investigations.  Assumption 3 (third step): The performance of subsidiary investigations in the various fields by criminal-investigative partners leads to information about suspects and about the deliberate and inadvertent facilitators of the group of offenders. Concerning assumptions 2 and 3: Here the authors concluded that in Sneep the desired spin-off, in the sense that the matching of criminal intelligence with information from the various administrations would lead to further criminal investigations, turned out to be a bit disappointing, probably because of a lack of sufficient co-ordination.  Assumption 4 (fourth step): Information on illegal facilitators (derived from subsidiary investigations) leads to the exchange of information between relevant criminal-investigative partners; information on legal facilitators (derived from subsidiary investigations) leads to the exchange of information between relevant criminal-investigative partners and public administration partners (enhanced administrative process). Conclusion on this point: Sneep made a promising effort by involving the relevant administrative stakeholders much more than usual in combating thb, but there were still some notable shortcomings.15

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Here follows a summary of the findings of the mentioned study. Negative observations, bottlenecks, problems:  There was insufficient consensus on the respective goals and methods of the partners, especially with regard to vertical communication between supervisors and professionals; there was often lack of a common vision.  There were noticeable problems of information ‘management’: perceived legal and technical restrictions as well as insufficient knowledge of which information can be requested or is needed by other partners. Dutch legislation concerning information exchange between administrative institutions in the framework of action against crime is broad enough, though somewhat incoherent.16 This leads in practice to sometimes unnecessary hesitation or too much caution in the matter of supplying information and this is caused by anxieties regarding the violation of privacy regulations. I shall say more about this in the section about the Ablak Programme that follows.  Restriction of autonomy of the professionals on the police and public prosecution side led to unnecessary friction. Police officers and public prosecutors found that they had to consult more often than usual with their superiors before taking decisions, in order to fit in with the broader interests of the programme.  The character of administrative reports was more political than operational.  The timing of the publication of the administrative report was poor. Critical notes in the report on shortcomings in administrative policies were regarded as unexpected and unfair by the agencies being criticized, partly because it was considered that, by the time that the report was published, many improvements had already been efffected. The Schone Schijn administrative report17 concluded, for instance, that prostitution inspections were carried out insufficiently, that not all inspectors were certified and that they did not always apply the moral code.18 It was because of these shortcomings that signs of trafficking were not sufficiently detected, and if they were detected the reaction was not always adequate, so this important administrative barrier (of inspection activities in the prostitution areas) was hardly functioning. But during the period between the research by the writers of the administrative report and the report’s publication, which was more than a year, these inspections had been significantly improved. Also, co-operation between the police and administrative organs had been strengthened in the meantime. Figure 11.1 renders a summary of the four basic assumptions on the effects of a programmatic approach to combating trafficking in human beings.

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But there were also positive observations:  The arrest and sentencing of most of the (core) gang members.  Enlargement of networks and personal relations among stakeholders in the policy field, both within as well as between the two tracks (criminal and administrative), providing a good basis for long-term collaboration.  Greater attention to the problem of human trafficking in the prostitution industry, with the item becoming more prominent on the agenda of many cities.  Closing of window-brothels where trafficking took place.

Administrative Track

Criminal Track Information from criminal investigation about problem 1 Awareness and involvement of criminal investigation partners

Awareness and involvement of administrative partners 2 Information gathering by administrative partners

Implementation of subinvestigations by criminal investigation partners 3 Information about illegal facilitators (and other suspects)

Information about legal facilitators

Information about illegal facilitators (and other suspects)

4 Info-exchange with partners in criminal investigation

Information about legal facilitators 4

Info-exchange with administrative partners (adm. advice. administrative reports)

Criminal evidence against suspects and illegal facilitators, convictions, incl. confiscations of properties

Prevention of activities of the criminal group(s) of traffickers

Structural adjustments of policy

Durable administrative thresholds against crime (of trafficking in human beings)

Figure 11.1 Assumed steps in programmatic approach.19

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Further developments in PA-practice During and after Sneep a few other programmes against thb were started, some of which were unable to benefit from the above-discussed useful analysis by the Science and Research Institute (WODC) of the Ministry of Justice. Two other programmes that had already ended before the publication of the WODC Report were: Koolvis and Ablak.

Koolvis An interesting comparison can be made between the Koolvis and the Sneep programmes.20 Firstly, the criminal investigation Koolvis was never explicitly set up as a programme, but because of the close links with administrative trails it certainly can be seen as a good example of a PA to combating human trafficking. Secondly, there was no programme structure as in Sneep, with a Steering Committee and a Programme Bureau. This proves that, in order to be effective in combating thb, it is not the more or less standardized form (ation) of a programme that is decisive, it is the ‘way of thought’ in managing a broad, multidisciplinary approach in one way or another.21 Too many ‘overheads’ can easily become counterproductive.22 Koolvis started a little later than Sneep, and consequently arrests took place after the initial apprehension of criminals in Sneep. Victims and criminals uncovered through the Koolvis investigation came mainly from Nigeria. Unlike in Sneep, these victims were not working in the ‘window-prostitution’ areas of Holland, but in most cases were smuggled from asylum-seeker centres in Holland to other European countries, where they worked as street prostitutes or in other prostitution branches. Most of these African girls were very young, mostly under 20 years of age, with the oldest being 25, and with the help of their traffickers they applied for asylum-seeker facilities for foreign minors in Holland. They were well prepared for this procedure, their documents either were falsified or often were ‘lost’ during the journey, so it was barely possible to check their identity and age. Many of these girls succeeded in getting the status of an unaccompanied minor asylum seeker (‘AMA’). Before their departure from Nigeria the girls had been subjected to a voodoo ritual which bound them to promises to obey certain people in Europe, to whom they also owed large debts.23 The traffickers picked them up after a while from the asylum-seeker centres and transported them to other places in Europe. It was after the discovery that a relatively large number of minor asylum seekers had disappeared, ‘with unknown destinations’, from the centres where they lived that investigations were initiated. As soon as this modus operandi was confirmed by police observations, the responsible administrative bodies in countries that were demonstrably involved were notified by the Dutch authorities, after the authorities themselves had been informed by the Dutch law enforcement agencies. Subsequently, while the criminal procedures were still ongoing, administrative policies were adapted to raise the necessary barriers.24

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Thus, in the Koolvis Programme, the whole chain from source country to destination country was mapped. The Nigerian authorities took measures, including initiating awareness campaigns, providing aid to victims, implementing stricter regulations for travelling and travel documents and better inspections at the borders, including airports. Consequently, agreements were made with airlines about identification rules and demanding copies of documents from passengers, in order to prevent problems of a passenger hiding his/her documents. The Dutch Ministry of Justice adjusted the procedure for (minor) asylum seekers and instructed the Police for Foreigners’ Affairs and the Immigration and Naturalisation Service on these new measures. The authorities in destination countries were informed about all of these new methods and measures, as were supranational official organizations, in order to avoid so-called ‘waterbed-effects’, to the extent possible.25 Ablak One of the lessons that the police and public prosecution had already drawn from Sneep was that it is necessary to engage administrative partners from the start, and to do so by working much more closely. This is what was done in the PA Ablak. Ablak did not reach the scale of Sneep in the volume of criminal cases, but it was able to refine the concept of PA, especially with regard to the involvement of municipal policy makers. It invested a great deal of effort in three products that may become valuable in future programmes:  A report on the issue of information exchange between public administrative institutions in the framework of combating crime, the issue that the WODC Report had mentioned as one that should be improved.  A report on the legal and practical possibilities of administrative–legal enforcement in the sex industry in order to raise barriers against thb.  A check-list for programmatic working. This summarizes several minimum elements to be taken into account when starting a programme with multidisciplinary public stakeholders. Next to many other documents, these three Ablak documents, the content of which was based very much on the concrete experiences of the Ablak programme, have been taken as ‘tools’ in the Toolkit for Combating Trafficking in Human Beings. This ‘toolkit’ is a kind of reference book and contains documents of all kinds: legislation, policy documents, case law etc., all related to thb. It was issued in October 2009 by the National Taskforce on thb.

The National Taskforce on combating thb The Dutch National Taskforce on combating trafficking in human beings, established in February 2008, is composed of a procurator-general (president),

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the mayors of the cities Den Haag (The Hague), Utrecht and Alkmaar, high officials of a few ministries, representatives of the police (including border police), a judge and the national public prosecutor on thb. The National Rapporteur on thb and representatives of non-governmental organizations attend the meetings of the taskforce. This taskforce monitors all activities in the programmes combating thb and tries to resolve bottlenecks in the procedures. It also promotes and supports the so-called learning by doing method,26 together with the management of the police and the public prosecution. This means, for example, that some of the programmes against thb are now nominated as experimental gardens in the sense that they must produce results that are not only valuable for the case itself, but should be shared with all other relevant institutions for other instances of thb. All findings will be applied in labour-related trafficking cases and also in other sectors of crime fighting.

Conclusions Through these short descriptions of the first experiences in Holland with the PA to combating human trafficking in the sex industry, I hope to have provided an impression of the programme’s key foundational concepts. It is clear that it has not crystallized enough yet, as we have seen bottlenecks that must still be dealt with and the concept must continue to be adjusted with regard to concrete circumstances and goals. But, looking at some of the results described here, it seems that the concept can certainly have added value in combating crime, especially in aiming at its underlying structures, and not only in cases of migration-related crime. It seems reasonable to think that other criminal structures may also be suitable for the PA and analyses according to the barrier model. In Holland plans are already being worked on to apply this approach in other sectors, including in criminal activities in the real estate industry, cannabis culture and the drug trade. PA is not a standardized method but, rather, a way of thinking. It can and should be adjusted according to circumstances, but key elements include:    

an integrative and multi-sectoral perspective; an international perspective; a focus upon an intelligence-led strategy; a learning-by-doing methodology.

There is one central objective: to gain both insight into a particular type of crime and to get it under control. Future developments of PA Having stressed the importance and value of the flexibility of PA, which argues against the standardization of a model, we can observe through the

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Netherlands example a tendency towards a sort of institutionalization of the PA. Now that the value of a closer multidisciplinary approach has been recognized, we are seeing institutions and regulations coming into existence that may realize these methods in a more systematic and continuous manner. The Ministry of the Interior launched a big plan for the administrative combating of organized crime in December 2007.27 This included the formation of a nationwide network of Regional Information and Expertise Centres (RIECs), which collect and analyse information from all relevant public stakeholders (including law enforcement bodies), which can in turn be useful for either preventive or repressive action against criminal activities of all kinds. This plan focuses primarily on organized crime that might intrude into the legal upper world, for instance by buying real estate and doing business using money gained through criminal activities. On the basis of the analysis of the RIECs, it is often possible to reject applications for licences for activities that appear to risk violating the integrity of the public administration.28 A second approach that promotes continuity in the PA, specifically with regard to the sex industry, is the policy of a co-ordinated, linked direction of inspections of the (licensed) prostitution sector (‘chain approach’).29 A detailed Protocol was issued in October 2009 which is now being implemented in all cities that deal with prostitution across the Netherlands. This method is aimed at improving co-ordination between various organizations and ensuring a greater guarantee not only that possible trafficking is recognized, but also that signals of thb, when noticed, will be acted upon adequately by the most suitable stakeholder or by a more collaborative effort among various parties. Apart from co-operating with fellow parties to treaties on combating thb, the Dutch authorities have implemented some special bilateral agreements with institutions in relevant countries with which there are extra mutual activities (with Bulgaria and Nigeria, for instance). These include exchange of best practices. Also on an international level, it is interesting to note that there are now developments in the propagation of PA, as exemplified by the EU Stockholm Action Plan.30 Finally, a few remarks must be noted on the deployment of the PA for stopping thb in the future. Until now it had been usual to distinguish the two main trails of which the PA is comprised as criminal and administrative. I think, however, that a third trail might prove to be pertinent. The role of social care institutions, which are often NGOs, in sheltering, assisting and rehabilitating victims of thb is certainly recognized and appreciated by the other stakeholders, and is such a vital role that it runs the risk of being undervalued if left outside the ambit of the PA. The best mode of co-operation is still open to discussion, but in the drafting of a new programme this third segment or ‘trail’, should receive its appropriate place. Further, as a consequence of the multidisciplinary approach, we can think of still other non-governmental stakeholders in combating thb. I will mention two examples from the Netherlands. Sneep showed that some victim-prostitutes

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had been forced by the traffickers to carry out abortions. For this reason discussions were started between public prosecutors and police representatives and the professional association of abortion doctors. Proposals were worked out for raising awareness of possible indications of thb and for introducing instruction for staff working in abortion clinics. Another example related to the private sector is the role of hotels. In 2009 the association for hotels in Holland adopted31 a Protocol for its staff on how to respond when they observed possible indications of (escort-)prostitution or thb. This instruction includes eventual referral to contact points within the police. Results such as these, which can be seen as examples of self-regulation in the private sector or corporate social responsibility programmes, can be typical goals or valuable side-effects of PA.32

Notes 1 ‘Bring-cases’ is a literal translation of the Dutch ‘Breng-zaken’, a term used together with the opposite Dutch term ‘Haal-zaken’ (Hauling-cases). The terms are used in Dutch criminology and criminal policy. They express the difference between crimes that are usually reported to the police and crimes that are usually not reported, for reasons explained here. 2 With regard to sex trafficking, I prefer to use this expression rather than the version ‘dirty, dangerous and difficult’ (or demanding), which is nowadays generally used in documents regarding exploitive conditions of human trafficking. For example, you will find this expression in documents by the International Labour Organization (ILO). Even more than in labour-related trafficking, the conditions in sex trafficking have the aspect of violation of human integrity. Originally, this series of words is used in the Japanese alliteration: ‘kitanai, kiken, kitsui’ (also meaning ‘dirty, dangerous, demeaning’). See: John Connell, Kitanai, Kitsui and Kiken: The Rise of Labour Migration to Japan (Sydney: Economic and Regional Restructuring Research Unit, University of Sydney, 1993). 3 Like the example of the Sneep Case, which will be discussed below. 4 The SIOD: Sociale Inlichtingen en Opsporingsdienst. 5 The DNR: Dienst Nationale Recherche. 6 The OM: Openbaar Ministerie Department: National Public Prosecution Service (Landelijk Parket) Team combating trafficking in human beings and people smuggling. 7 Bill on the Lifting of the General Ban on Brothels, effective from 1 October 2000; Wijziging van het Wetboek van strafrecht, enige andere wetboeken en enige wetten (opheffing algemeen bordeelverbod), wet 25437, per 1 oktober 2000. 8 The full name in English is the ‘Law on the regulation of prostitution and combating abuses in the sex industry’. 9 A sneep and a koolvis, which will be mentioned later, are Dutch names for kinds of fish. When criminal investigations are opened they receive a name chosen at random from different thematic lists; these happened both to receive fish names. 10 In fact the criminal procedures have been ongoing from 2009 until 2011. 11 ‘Thermometers of society’ metaphor borrowed from Professor C.J.C.F. Fijnaut, University of Tilburg (Cyrille Fijnaut et al., ‘Veel te winnen!’ Rapport van de Visitatiecommissie Veiligheid te Eindhoven, November 2008, 32, 111). 12 Suspects were mainly of Turkish, German or Dutch nationality, while the victims were Dutch and from several other European countries. 13 M.M.J. van Hout and F.J. van der Laan, Schone schijn, de signalering van mensenhandel in de prostitutiesector (Keeping Up Appearances: The Signs of Human

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14

15 16

17 18

19 20

21 22 23 24 25 26 27

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Trafficking in the Legalized Prostitution Sector) (Driebergen, Netherlands: KLPD, 2008). B. van Gestel and M.A. Verhoeven, De praktijk van de programmatische aanpak mensenhandel. Plan-en procesevaluatie van een pilot (The Programme-based Approach to Combating Human Trafficking. Plan and Process Evaluation of a Pilot) (Hague: WODC Cahier, 2009), www.wodc.nl. The WODC is the Research and Documentation Centre of the Dutch Ministry of Justice. An earlier publication on the concept of PA by members of the Public Prosecution Service themselves is: Kiemel, J. en Kate, W. ten, De programmatische aanpak van mensenhandel en mensensmokkel: Een verkenning aan de hand van Sneep, WODC Justitiële verkenningen, 33, 2007 (The programmatic approach to human trafficking and people smuggling: A study on the basis of SNEEP). See also Figure 11.2 for a schematic view of these assumptions and how they are interrelated. C.M. Bitter and F.W. Bleichrodt, ‘Informatievoorziening in het kader van de bestuursrechtelijke aanpak van criminaliteit en terrorisme’ (Information Supply in the Framework of the Administrative Approach to Crime and Terrorism), in Bestuursrechtelijke aanpak van criminaliteit en terrorisme, eds L.J.J. Rogier, M.A.D.W. de Jong, C.M. Bitter and F.W. Bleichrodt (Hague: Jaar van uitgave, 2007), 150, 151. van Hout and van der Laan, Schone schijn. The moral code for the prostitution inspections contains stipulations such as: an inspection must be carried out by at least two officials, specially qualified (to recognize signs of trafficking), behind an open window (so not closing the curtains), keeping a certain distance from the window-owners (in order to be more easily trusted by the prostitutes); to register always the personal details of the prostitutes. Based on B. van Gestel, M.A. Verhoeven, De praktijk van de programmatische aanpak mensenhandel. Plan-en procesevaluatie van een pilot, 31; slight amendments and translation by the author of this chapter. S.J.C.M. Torremans also makes the comparison in her administrative report on Koolvis. Data about Koolvis, mentioned in this chapter, are from this report: S.J.C. M Torremans, Met onbekende bestemming, de vroegtijdige signalering van mensensmokkel en mensenhandel, (With Unknown Destination, the Early Detection of Person Smuggling and Human Trafficking) (Driebergen: KLPD – Dienst Nationale Recherch, 2009). See below: paragraph ‘Conclusions’. Paul Sinning, ‘Veiligheidshuizen in perspectief ’, (Security Homes in Perspective), het Tijdschrift voor de Politie 3, (2010), n.p., http://www.websitevoordepolitie.nl/ archief/veiligheidshuizen-in-perspectief-994.html. During the period October 2005 – October 2006, 80 Nigerian ‘AMAs’ were registered, with 51 of them turning out to be missing soon after (‘left with unknown destination’). In October 2007, 25 suspects were arrested in Nigeria, Spain, the UK, USA, France and Belgium. In January 2008, 51 more suspects were arrested in Italy. Waterbed-effect is a term used in criminological literature in Western Europe, and refers to the mechanism by which criminals move their activities to places where the pressure on them is less. This is a term commonly used among the relevant Dutch agencies. ‘Programma Bestuurlijke aanpak georganiseerde misdaad’ (Programme Administrative Approach to Organized Crime), December 2008, http://www.rijksoverheid.nl/ documenten-en-publicaties/rapporten/2008/02/18/plan-van-aanpak-programma-bes tuurlijke-aanpak-georganiseerde-misdaad.html. The legal procedure is called BIBOB, after the abbreviation of the (law) Wet Bevordering Integriteitsbeoordelingen door het Openbaar Bestuur (Law Advancement of Integrity Assessment by the Public Administration).

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29 In Dutch: ‘ketenaanpak prostitutiecontroles’; The National Expertise Centre for Combating Human Trafficking and Smuggling (EMM), hosted by the Dutch National Crime Squad, developed and issued in October 2009 the Handreiking Ketenregie en Bestuurlijk Toezicht in de Vergunde Prostitutiesector (Guide for ‘Chain’-directed Administrative Supervision of the Licensed Prostitution Sector). 30 Initially a Programme document, December 2009, amended by the European Commission into an Action Plan 2010–14, in July 2010. 31 The KHN (Koninklijke Horeca Nederland, which means the Royal Association for the Hotel, Restaurant and Café Business). 32 Companies have for example so-called ‘compliance officers’ who are responsible for the observance of regulations and integrity. They are good contact points for promoting awareness of signs of crime and commitment to preventive activities.

Index

Ablak programme (Netherlands) 168 ‘Académie JMG’ 80 African Union (AU) 114–15 Andersen, Morgan 80 Ansar Burney Welfare Trust (Pakistan) 83, 85 Anti-Human Trafficking Action Group (Canada) 155–6, 157 Apple: forced labour 31 Arsenal Football Club 79–81 “Asian Cruise” investigation 45–6 AÜG law (Germany) 145–6 barrier model (Netherlands) 161–2 baseball and child athletes 85–87 Belgium: footballer trafficking; 76, 79–80; minimum wage 140 Big Apple Oriental Tours 10 Blatter, Sepp 82 Bolivia and Argentina: child labour 58–9 bracero report (Central America and Caribbean countries) 29 Brazil: football and child labour 81–2 Brazilian Football Confederation (CBF) 81 ‘Brenz-zaken’ (bring cases) 159 ‘Brothel Law’ (Netherlands) 161 Burkino Faso: child labour 59, 62; child migration 98; migration 99–100 Burney, Fahad 85 ‘buscones’ (Dominican Republic street agents) 85–6 Camel racing 83 Canada and labour exploitation trafficking: conclusions 134–5; Criminal Code 121, 124, 127, 129–34, 135; forced labour 123–4; Immigration

and Refugee Protection Act (IRPA) 133–4; international law 126–9; labour exploitation 122–6; labour trafficking responses 152–8; legislation 129–32; ‘migrant worker’ term 124; prosecution 153; recommendations 132–4; Temporary Residence Permit (TRP) 153–5, 158 ‘Canada List’ (Child Migration Scheme) 56 Canadian Border Services Agency (CBSA) 157 Canadian Hockey League (CHL) 85 Chelsea Football Club 77, 80–1 child camel jockeys 82–5, 87 child labour/trafficking: commodification 65–6, 67; conclusions 66–7; employment 113–14; economics 63–5; Ghana context 111; global overview 109; hazardous work 112–3; history, culture, family 60–3; migration 56–57; multinational corporations 65, 67; Palermo Trafficking Protocol 111; segmental approach 57–60 Child Migration Scheme (Great Britain to Canada) 56 China: bonded labour 31; child labour 62; ‘Chinamen’ 1; iPad 31; migrant workers 5; traffickers 45–7 Chinatown (Los Angeles): buses 45; film location 1–3; Sister Ping 39 Citizenship and Immigration Canada (CIC) 154, 155 Cohen Milstein (law firm) 33 Cold War 24 commodification of human smuggling and trafficking: actors 39; child labour 65–66; Chinese traffickers 45–7;

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conclusions 49–51; regional differences 44–5; routes 39–40; supermarket model 47–8; transnational criminals 38; transport and entry 41–3; Turkey 48–9; United States-Mexico trade 39, 41, 44, 47–8, 50; victims 43–4 Confederation of African Football (CAF) 78 corporate liability and international human rights law: consumers 15; child labour 66; human rights 16; illegal/ improper business practices 9–10; judicial remedies 11–12; legal status 12–13; national legislation 10–11; self regulation 15; voluntary compliance 13–14 corporate social responsibility (CSR) codes 34, 65–66 Court of Arbitration for Sport (CAS) 77 Crash (film) 1–4 Cristóbal Colón sugar plantation 4 Culture Foot Solidaire 75–6, 78, 82 David, Paulo 71, 74, 87 Dedecker, Jean-Marie 76 ‘Delphi Method’ (trafficking indicators) 26 Desportiva, Brasil football club 82 Doe v. The Gap Inc. case 12 Dominican Republic and Major League Baseball 85–6 Dutch Public Prosecution Office 7 Eboue, Emmanuel (footballer) 79 Economic Community of West African States see ECOWAS ECOWAS region (West Africa) and labor migration: challenges 100–3; child trafficking 97–8; climate change 93; conclusions 104; dialogue between countries 101–2; feminization 93; human trafficking protocol 100; integration policies 94–7; multinational corporations 98–9; Nigeria, Senegal and Burkino Faso 99–100; patterns 92–3; recommendations 103; safe and regular migration 93–4; women trafficking 98 European Court of Human Rights 61 European Union (EU): human trafficking 115; Romania 64; SAP-FL programme 26 Ezeilo, Joy 9

Federal Foreign Office (FFO), Germany and minimum wage 149 Feyenoord, Rotterdam football club 81 FIFA (World Football Association) 76–7, 80, 82 Foreign Corrupt Practices Act (FCPA) 11 free compulsory universal basic education (fCUBE) in Ghana 116 Gangmasters Licensing Authority (GLA) 32–3, 36 Gap Inc.: child labour 9, 65; forced labour 31 Germany: minimum wage 139, 145–7, 149; trafficking for labour exploitation 25 Ghana fishing industry and child trafficking: child definition 109–10; conclusions 117–18; employment 113–14; government and institutional responses 116–17; hazardous work 112; international law 110–11; response analysis 114–16; trends 111–12; victim acquisition 112 Global Employment Trends (report) 9 Golden Venture (ship) 39 Government Accountability Office (GAO), US 47 Guardian (newspaper) 32 Guillou, Jean-Marc 79–80 ‘Haal-zaken’ (get cases) 159 Haggis, Paul 1 Haiti and child labour 62 Hartley, Father Christopher (character) 4 Hauge, Rune 80 human rights 5, 13–14, 16 human smuggling 40 ice hockey and child athletes 85–7 Immigration and Refugee Protection Act (IRPA) in Canada 133–4 Independent (newspaper) 31 India and child labour 58–9, 65–6 International Confederation of Private Employment Agencies (CIETT) 35 International Criminal Court (ICC) 13 International Finance Corporation (IFC) 11 International Labour Organization (ILO): Chinese immigrants in France 46; ECOWAS 97; employment of children 112, 113; forced labour 126,

Index 132, 144; Ghana 117; Global Employment Trends Report 2009 9; human rights 16; human trafficking 57; Pakistan 36; Palermo Trafficking Protocol 141–2; Private Employment Agencies 13; Senegal 99; Special Action Programme... 149; sport and children 72; trafficking and forced labour 23–31, 33, 34–6; Tripartite Declaration of Principles … 14 UN agency 20; US law 10, 12 International Organization for Migration (IOM) 58, 76, 109, 117 iPad production 31 Ireland: minimum wage 147–8 Israel: anti trafficking laws 26 jamadars (crew bosses in India) 144 Kakuta, Gael (footballer) 77 Karlsen, Tor-Kristian 82 Kerr, Heather 73 Koolvis programme (Netherlands) 167–8 KSK Beveren, Belgium Football Club 79–81 labour trafficking concept 23 labour trafficking responses in Canada: accessibility/funding for support programmes 157–8; discretion 157; social services 154–5; strengthening inter-agency relationships 156–7; victim identification 153–4 Lens FC, France 77 Levi Strauss Co. 15 Ludacris (rap artist) 1 Lyn Oslo Football Club 80 McDonalds “Happy Meal” toys 9 ‘Madrassas’ (religious groups in Pakistan) 85 Major League Baseball (MLB) 85–6 Manchester United Football Club 80, 82, 87 Mbvoumin, Jean–Claude 78–9, 82 Migrants Rights Centre Ireland (MRCI) 147–8, 149 Migration Policy Framework for Africa (MPFA) 114–15 Mikel, John Obi 80–1 minimum wage: compensation 147–8; fixing 140–1; Germany 145–7, 149; human trafficking 140–1, 141–2; labour exploitation 141–2, 148–50;

177

prosecution of human trafficking 142–7; rationale 138; variation 139–40 MS-13 (gang) 47 Mubarak, Suzanne 15 mui tsai (child labour in China) 62 Multilateral Investment Guarantee Agency (MIGA) 11 Multinational corporations (MNCs): child labour 65, 67; ECOWAS 98–9; international guidelines 13–15; forced labour and trafficking 21–22, 31–32 National Basketball Association, US 87 National Hockey League (NHL) 85 Netherlands, minimum wage 139 Newman, Paul 4 Newsnight 80 New York Yankees (baseball) 87 Nigeria migration 99–100 Nike: Brazilian Football Confederation 81; forced labour 31, 32 non-governmental organizations (NGOs): child camel jockeys 83; children and soccer 76, 82; children in sport 88; Ghana 117; labour exploitation 28–30, 33, 35–6; trafficking in human beings 170 North American Agreement on Labor Co-operation (NAALC) 11 North American Free Trade Agreement (NAFTA) 11 Observer (newspaper) 65 Organization for Economic Co-operation and Development (OECD) 14, 140 Organization for Security and Co-operation in Europe (OSCE) 122 Ottoman Empire trade routes 48–9 Pakistan and child camel jockeys 83–5 Palermo Trafficking Protocol: Canadian legislation 121, 126–34, 135 definition of trafficking 23, 110–11; exploitation 25–6, International Labour Organization 141–2; minimum wage 138; Netherlands 160; United Nations 20, 129 Peoples Union for Democratic Rights v. Union of India case 144 performance enhancing drugs (PEDs) 85–6 PKK (Kurdish Workers Party) 49

178

Index

Plateau United, Nigeria Football Club 80 Platini, Michael 75 Poland and minimum wage 139–40 Poli, Raffaele 78 Porges, Robert (lawyer-facilitator) 43, 46 Porges, Sherry Lu 43 Programmatic Approach (PA) to combating trafficking in human beings: Ablak programme 168; conclusions 169; development 160–1; future developments 169–71; Koolvis programme 167–8; National Taskforce on combating thb 168–9; practice 161–4; prostitution legislation in the Netherlands 161; Sneep Programme (Netherlands) 161, 163, 164–6, 167, 168, 170 Protection Project (John Hopkins University) 40 Protocol to Prevent, Suppress and Punish Trafficking in Persons 152–3 Racketeer Influenced Corrupt Organizations Act (RICO) 12, 34 Regional Information and Expertise Centres (RIECs) in Netherlands 170 restavecs (child labour in Haiti) 62 Roe v. Bridgestone Corporation case 12, 145 Romania, child labour 64 Royal Canadian Mounted Police (RCMP) 153–4, 157 Save the Children (charity) 74 Segmental approach: Bolivia and Argentina 59; Burkina Faso 59; child labour trafficking 57–60; conclusions 66–67; India and child labour 60 ‘self-exploitative’ Chinese migrant workers 5 Senegal migration 99–100 Shittu, John 80 Siliadin, Siwa-Akofa 60–1 Siliadin v. France case 61 Sister Ping 39 Sneep Programme (Netherlands) 161, 163, 164–6, 167, 168, 170 South America, football and child labour 81 Special Action to Combat Forced Labour (SAP-FL) 20–1, 26, 30 sport and child trafficking: baseball 85–7; camel jockeys 82–5; ‘hidden

problem’ 72–5; ice hockey 85–7; soccer (modern slave trade) 75–82 Supermarket Trade Model: US–Mexico trade 47 “Tara” case (Balkans) 38, 41–2 Temporary Foreign Workers Programs 4 Temporary Residence Permit (TRP) in Canada 153–4, 154–5, 158 The Cost of Coercion (report) 27 The Price of Sugar (film) 4 Toyota: forced labour 31 trafficking in human beings (thb) 159, 160, 168–9, 171 trafficking and labour exploitation: business actors 31–4: challenge 20–3; continuum 26–31; perspectives 34–6; trafficking, forced labour and slavery (concepts and definitions) 23–6 Trafficking in Persons (TIP) report 21–2, 29 Trafficking in Unaccompanied Minors for Sexual Exploitation in the EU (report) 76 Trafficking Victims Protection Reauthorisation Act, 2008 (TVPRA) 26, 28 Turkey and commodification of human smuggling/trafficking 44, 48–9 UEFA (European Football Association) 75, 77 UNICEF: child camel jockeys 82, 84; child trafficking in Nigeria 117; child trafficking in Nigeria 97 United Arab Emirates (UAE): migration management 36 United Kingdom (UK): Gangmasters Licensing Authority 36; ‘Low Pay Commission’ 140 United Nations (UN): Convention against Corruption 13; Convention against Transnational Organized Crime (UNTOC) 13, 20, 126 Convention on the Rights of the Child (UNCRC) 72, 109–10, 114; Conventions on Slavery 24–5; Global Compact 14; human rights 13–14; Office on Drugs and Crime (UNODC) 23, 27, 40; Palermo Trafficking Protocol 20, 129; slavery 24; trafficking definition 5–6, 111; Trafficking Protocol, 2000 114, 116

Index United States (US): Alien Tort Claims Act (ACTA) 11–12; business and forced labour 33; civil action cases 33; Government Accountability Office 47; ‘harm’ term and trafficking legislation 130; Immigration and Naturalization Service (INS) 42, 45; labour laws 10–11, 25–6; labour and sex trafficking statistics 27; trafficking legislation 130; Trafficking in Persons (TIP) Report 22, 56, 91 United States v. Kil Soo Lee case 12 United States v. Satia case 61–2

179

United States–Mexico trade (smuggling and traffickers) 39, 41, 44, 47–8, 50 Victoria’s Secret 9 Wenger, Arsene 79 William Wilberforce Trafficking Victims Protection Act 11 World Bank 11 Yeji Trafficked Children’s Project (YTCP), Ghana 109 Youa, Gasso 73–4