CHAPTER 2: LITERATURE REVIEW
2.2 International discourses of human trafficking
2.2.5 Human Trafficking as a Migration Problem…
Page | 41 the situation on the ground or fully appreciating regional and historical peculiarities that might affect the nature of the trafficking processes.
Significantly, the problem of transnational organised crime is perceived as a threat to state and domestic security, endangering state sovereignty and the ability of the state to protect its citizen from harm, is a dominant and undisputed theme in the international discourse.213 The argument is that Transnational organised crime, facilitated by globalisation and illicit migration, is seen to drive the process of human trafficking, corrupting officials and threatening the sanctity of the state.214 Therefore, from this perspective, the abuse of migrants becomes fully the fault of traffickers who must be stopped, not the by-product of exploitative employment practices, restrictive immigration policies, and vast economic disparities between rich and poor nations.215 The logic of this most commonly adhered and accepted to understanding of human trafficking and approach to it is that once organised crime groups and networks are disrupted and destroyed, or the costs for traffickers becomes too high, there will no longer be a market for human trafficking, and the exploitative practices that accompany it.216
Importantly, the human trafficking discourse overlaps and to some degree parallels that of organised crime. Human trafficking has often been associated with the notion of transnational organised crime, “and is defined as a criminal act which violates the rule of law”. TOC is portrayed as one of the most important mechanisms for unlawful redistribution of „national wealth, unduly influencing markets, political power and societal relations‟.
Therefore, the principal threat posed by trafficking in persons is why the trafficking issue is increasingly recognized as one of global security. Hence, it becomes apparent that the issue of human trafficking and organised crime have been galvanised together to bolster the role of state in a complex and uncertain world.
Page | 42 borders, it is essential that measures to address it are mainstreamed into …
immigration system[s].
Human trafficking has also been understood as a migration problem.217 From this approach, human trafficking is perceived “… as a subset of illegal migration; the primary concern of states is the breaching of immigration controls; trafficked persons are treated as first and foremost violators of immigration laws and regulations as they often cross borders illegally and may work without authorisation”.218 Therefore, from this perspective, illegality and irregularity of the movement of immigrants across national borders, and their exploitation by intermediaries and employers, becomes the primary focus rather than the type of work they do.219 In particular, Jahic and Finckenauer note that in the trafficking and migration approach,
“trafficking is discussed as a form of assisted illegal migration that has gone bad-resulting in abuse, exploitation, and slavery”.220
One of the more critical approach to the trafficking– migration approach focuses on the conditions that require or facilitate the motivations for men and women‟s migration, and the exploitation within different forms of legal and illegal migration.221 Scholars from different disciplines such as Sociology, Criminology and Political Science have highlighted the growth in regular, irregular and forced migratory movements in various countries and regions, which have been driven by economic crises, lack of sustainable livelihoods, political conflict, civil war, ethnic persecution, social and gender inequalities, and hierarchies around notions of racial, religious and national difference.222 In addition, in the context of forced migration caused by political turmoil or social unrest and kept out of legal channels of migration, border crossing through irregular channels has increasingly become their only means of escape.
From this perspective, trafficking becomes an unintended consequence of restrictive migration policies and of state efforts to curb illegal entry and illegal employment of migrants.
Although internal trafficking is acknowledged, it has done little to challenge the dominant understanding of trafficking as a problem of cross-border migration. The perception of trafficking as an illegal immigration problem and, by extension, the conflation of immigration
217 Lee, M (2011), op. cit.
218 Lee, M (2011), op. cit, p. 29.
219 Jahic, G and Finckenauer, J. O., (2005), op. cit.
220 Jahic, G and Finckenauer, J. O., (2005), op. cit.
221 Lee, M (2011), op. cit.
222 Lee, M (2011), op. cit.
Page | 43 and trafficking control measures, is most apparent in the stepping up of border controls, interception measures, greater document verification, carrier sanctions, readmission and repatriation agreements, migrant detention, and other exclusionary measures. To add on, Emser notes that the migration-trafficking approach is complex, as issues of human smuggling and human trafficking overlap – and are often confused, and played upon by states to suit their own particular agendas.223 Of note, the distinctions between trafficking and migration, and trafficking and sex work, are indistinct resulting in the formulation of legal strategies that do not address migration or sex work.224
This is attributed to the language, overly broad and vague definitions and lack of coherency of the UN Convention and the two protocols on smuggling and trafficking supplementing it.225 Both protocols overlook to a great extent this overlap, and have thus resulted in the creation of the concept of „smuggled criminals‟ and „trafficked victims‟.226 In this sense, those who are classified as illicit or irregular migrants are categorised as criminals in so far as they consent to be being smuggled, therefore, any exploitation that may occur during or after their journey is seen to be part and parcel of this criminal partnership to illegally enter another state.227 On the other hand, according to this definition, a person is coerced into being trafficked, and the victim is automatically rendered innocent and powerless.228 Moreover, Emser emphasises that both protocols are overly broad and are ultimately incapable of describing and differentiating trafficking and smuggling more precisely.229
According to Buckland both trafficked and smuggled people most often choose to leave their homes, whether as refugees, economic migrants or asylum seekers, yet, the image of the trafficked person, kidnapped and powerless is a powerful and influential one, however, it only captures a small minority of trafficking cases.230 Rather, migrants also expose themselves to different forms of victimisation and exploitation when they use illicit
223 Emser, M (2013), op. cit.
224 Lee, M (2011), op. cit.
225 Emser, M (2013), op. cit.
226 Emser, M (2013), op. cit.
227 Emser, M (2013), op. cit
228 Victoria E. Kalu, „Issues in Human Trafficking and Migrant Smuggling in the Context of Migration‟, International Legal Studies Program Law Journal, Volume 1, Issue 1, (2008): 26 – 33.
229 Buckland, B., S (2009) „Human Trafficking & Smuggling: Crossover and Overlap‟, in Cornelius Friesendorf (Ed.), Strategies Against Human Trafficking: The Role of the Security Sector, Study Group Information, National Defence Academy and Austrian Ministry of Defence and Sports.
230 Buckland, B., S (2009), op. cit.
Page | 44 channels.231 This has resulted in „lower-level exploitation on the margins of legality‟ to be overlooked, yet, much of this “low-level exploitation involves people often regarded as smuggled, or those at the trafficking/smuggling boundary”.232 Furthermore, Lee asserts that there exist number of economic, cultural, social and legal factors that contribute to the exploitation and abuse of migrant workers, especially irregular migrants in unprotected, informal and/or illegal labour markets.233 This in turn highlights the difficulties, in some cases, to distinguish between a person who has been trafficked and an irregular migrant working under varying degrees of exploitative conditions and/or debt bondage.234 In sum, Sanghera concludes that equating human trafficking with migration has resulted in simplistic and unrealistic solutions within the mainstream anti-trafficking paradigm.235
For Emser, human trafficking often occurs within the context of migration and globalisation.236 Globalisation creates and exacerbates inequalities which create push and pull factors that largely lead people to migrate. International and internal migration are factors which contribute to the proliferation of human trafficking, people smuggling, and the vulnerability of victims before, during and after transit.237 Compared to migration during times of relative peace, conflict-induced migration streams are large, sudden, and migrants are arguably less prepared for life at their destinations. The precarious situation migrants often find themselves in during the migratory process often renders them vulnerable to traffickers and other forms of abuse and exploitation. Abuse, discrimination and exploitation prior to deciding to migrate are key factors that influence individual vulnerability. Women and increasingly unaccompanied children seek to escape lives of poverty, deprivation, abuse, familial, cultural or political violence, discrimination and a lack of opportunities in their home communities or countries. „This understanding has led to two connected, though different strategies: on the one hand, a human rights approach that would see “trafficked
231 Skeldon, R (2000) „Trafficking: A Perspective from Asia‟, International Migration, Volume 38, Issue 3, Special Issue.
232 Emser, M (2013), op. cit.
233 Lee, M (2007) (Ed.), Human Trafficking, Devon: Willan Publishing.
234 Emser, M (2013), op. cit.
235 Sanghera, J (2005) „Unpacking the Trafficking Discourse‟, in Kamala Kempadoo, Jyoti Sanghera and Bandana Pattanaik (Eds.), Trafficking and Prostitution Reconsidered: New Perspectives on Migration, Sex Work, and Human Rights, Boulder: Paradigm Publishers.
236 Emser, M (2013), op. cit.
237 Emser, M (2013), op. cit.
Page | 45 women” as an exception to the “normal” illegal migrants; on the other hand, an approach that shows trafficking to be a direct result of migration policies‟.238