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Exploitation Creep and the Unmaking of Human Trafficking Law

Published online by Cambridge University Press:  20 January 2017

Janie A. Chuang
Janie A. Chuang*
Affiliation:
American University Washington College of Law
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Over the last fifteen years, the problem of human trafficking has become a focus of government and advocacy agendas worldwide. Increasingly referred to as “modern-day slavery,” the phenomenon has prompted rapid proliferation of international, regional, and national anti-trafficking laws, and inspired states to devote enormous financial and bureaucratic resources to its eradication. It has also spawned an industry of nonprofits that have elevated the “abolition” of trafficking into a pressing moral campaign, which anyone can join with the click of a mouse. Scholars have also jumped into the fray, calling on states to marshal human rights law, tax law, trade law, tort law, public health law, labor law, and even military might to combat this apparently growing international crime and human rights violation.

Type
Research Article
Information
American Journal of International Law , Volume 108 , Issue 4 , October 2014 , pp. 609 - 649
Copyright
Copyright © American Society of International Law 2014

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References

1 See, e.g., Walk Free, A World Without Slavery: I Believe in a World Where Everyone Can Walk Free, at http://www.walkfree.org/en/actions/commit (readers sign a pledge committing to the abolition of slavery); Not for Sale, Donate: Give Freedom to Re-abolish Slavery, at http://www.notforsalecampaign.org/donate/ (readers can make a donation and “give freedom”).

2 See, e.g., McGregor, Lorna, Applying the Definition of Torture to the Acts of Non-state Actors: the Case of Trafficking in Human Beings, 36 Hum. Rts. Q. 210 (2014)CrossRefGoogle Scholar.

3 See, e.g., Fahey, Diane L., Can Tax Policy Stop Human Trafficking?, 40 Geo. J. Int’l L. 345 (2009)Google Scholar.

4 See, e.g., Bravo, Karen E., Free Labor: A Labor Liberalization Solution to Modern Trafficking in Humans, 18 Transnat’l L. & Contemp. Probs. 545 (2009)Google Scholar.

5 See, e.g., Note, Remedying the Injustices of Human Trafficking Through Tort Law, 119 Harv. L. Rev. 2574 (2006).

6 See, e.g., Todres, Jonathan, Moving Upstream: the Merits of a Public Health Law Approach to Human Trafficking, 89 N.C. L. Rev. 447 (2011)Google Scholar.

7 See, e.g., Pope, James Gray, A Free Labor Approach to Human Trafficking, 158 U. Pa. L. Rev. 1849 (2010)Google Scholar; Shamir, Hila, A Labor Paradigm for Human Trafficking, 60 Ucla L. Rev. 76 (2012)Google Scholar.

8 See, e.g., Ethan B. Kapstein, The New Global Slave Trade, Foreign Aff., Nov.-Dec. 2006, at 103.

9 Luis CdeBaca, Ambassador-at-Large, Office to Monitor and Combat Trafficking in Persons, Freedom Here & Now: Ending Modern Slavery, Remarks before the Women’s Foundation of Minnesota and the Center for Integrative Leadership (May 8, 2012), at http://www.state.gov/j/tip/rls/rm/2012/189611.htm.

10 See Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime, Art. 3, opened for signature Nov. 15, 2000, 2237 UNTS 319 [hereinafter UN Trafficking Protocol] (emphasis added).

11 See id. ; Gallagher, Anne, Human Rights and the New UN Protocols on Trafficking and Migrant Smuggling: A Preliminary Analysis, 23 Hum. Rts. Q. 975, 984–86 (2001)CrossRefGoogle Scholar (discussing the debates over vague elements of the definition, including, for example, “sexual exploitation”).

12 The official interpretative notes to the UN Trafficking Protocol clarify that its use of the terms “exploitation of the prostitution of others and other forms of sexual exploitation” is “without prejudice to how States Parties address prostitution in their respective domestic laws. “ Report of the Ad Hoc Committee on the Elaboration of a Convention Against Transnational Organized Crime on the Work of Its First to Eleventh Sessions, Addendum, Interpretative Notes for the Official Records (Travaux Préparatoires) of the Negotiation of the United Nations Convention Against Transnational Organized Crime and the Protocols Thereto, para. 64, UN Doc. A/55/383/Add.1 (Nov. 3, 2000) (emphasis added).

13 U.S. Department of State, Trafficking in Persons Report 4 (2014) (letter from Secretary of State John Kerry, introducing the report). These reports all have the same title, distinguished by the change in the year of publication. For ease of citation, the short form for citing the reports will include the title prefaced by the year— for example, 2014 Trafficking in Persons Report.

14 See generally Denise Brennan, Life Interrupted: Trafficking Into Forced Labor in the United States (2013).

15 J. J. Gould, Slavery’s Global Comeback, Atlantic (Dec. 19, 2012), at http://www.theatlantic.com/international/archive/2012/12/slaverys-global-comeback/266354/.

16 Otto, Diane, Remapping Crisis Through a Feminist Lens, in Feminist Perspectives on Contemporary International law: Between Resistance and Compliance? 75 (SariKouvo, & Pearson, Zoe eds., 2011)Google Scholar.

17 Victims of Trafficking and Violence Protection Act of 2000, 22 U.S.C. §§7101–7110 (2000) [hereinafter TVPA],amended by Trafficking Victims Protection Reauthorization Act of 2003,22 U.S.C. §§7101–7110 (Supp. III 2005), Trafficking Victims Protection Reauthorization Act of 2005, 22 U.S.C. §§7101–7110 (Supp. IV 2007), William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, 22 U.S.C. §§7101–7112 (Supp. III 2010), Trafficking Victims Protection Reauthorization Act of 2013, Pub. L. No. 113–4, 127 Stat. 136.

18 Chuang, Janie, The United States as Global Sheriff: Using Uniliateral Sanctions to Combat Human Trafficking, 27 Mich. J. Int’l L. 437, 449 (2006)Google Scholar.

19 Otto, Dianne, Lost in Translation: Re-scripting the Sex Subjects of International Human Rights Law, in International Law and Its Others 318, 324 (Orford, Anne ed., 2006)CrossRefGoogle Scholar.

20 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, opened for signature Mar. 21, 1950, 96 UNTS 271.

21 Anne T. Gallagher, the International Law of Human Trafficking 62 n.48 (2012); Gallagher, Anne T., Human Rights and Human Trafficking: Quagmire or Firm Ground? A Response to James Hathaway, 49 VA. J. Int’l L. 789, 790 –93 (2009)Google Scholar.

22 Sassen, Saskia, Women’s Burden: Counter-geographies of Globalization and the Feminization of Survival, 71 Nordic J. Int’l L. 255 (2002)CrossRefGoogle Scholar.

23 Mike Kay, the Migration-Trafficking Nexus: Combating Trafficking Through the Protection of Migrants’ Human Rights (2003).

24 UN Trafficking Protocol, supra note 10.

25 UN Convention Against Transnational Organized Crime, Nov. 15, 2000, 2225 UNTS 209 (entered into force Sept. 29, 2003).

26 Gallagher, supra note 21, at 4.

27 Id.

28 The first draft of the protocol (by Argentina) limited its coverage to women and children. The United States advocated, instead, coverage of all persons “while recognizing that women and children [were] particularly vulnerable to trafficking.” the protocol thus references “especially women and children” in its title and throughout its provisions. Ad Hoc Committee on the Elaboration of a Convention Against Transnational Organized Crime, Revised Draft Protocol to Prevent, Suppress and Punish Trafficking in Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime, at 1 n.1, UN Doc. A/AC.254/4/Add.3/Rev.1 (Feb. 22, 1999).

29 The work of the then UN Commission on Human Rights leading up to the Trafficking Protocol negotiations reveals no discussion of how human rights standards apply to human trafficking. The UN General Assembly resolution encouraging states and regional economic organizations to sign and ratify the Organized Crime Convention and its protocols was framed exclusively in terms of crime control, with no mention of human rights concerns. See GA Res. 55/25 (Jan. 8, 2001).

30 UN Trafficking Protocol, supra note 10, pmbl. (noting the need to protect the victims’ “internationally recognized human rights”).

31 Gallagher, supra note 11, at 990–91.

32 UN Trafficking Protocol, supra note 10, Arts. 6, 7; see also id., Art. 9.

33 See Chuang, Janie A., Rescuing Trafficking from Ideological Capture: Prostitution Reform and Anti-trafficking Law and Policy, 158 U. Pa. L. Rev. 1655 (2010)Google Scholar.

34 See, e.g., Farley, Melissa, Prostitution and Trafficking in Nine Countries: An Update on Violence and Posttraumatic Stress Disorder, 2 J. Trauma Practice 33 (2003)CrossRefGoogle Scholar; Kathleen Barry, the Prostitution of Sexuality (1995); Leidholdt, Dorchen, Prostitution: A Violation of Women’s Human Rights, 1 Cardozo Women’s L. J. 133 (1993)Google Scholar; MacKinnon, Catherine, Prostitution and Civil Rights, 1 Mich. J. Gender & L. 13, 28 (1993)Google Scholar. Sociologist Elizabeth Bernstein has labeled the feminist neo-abolitionist preference for punitive paradigms of justice as”carceral feminism.” Bernstein, Elizabeth, The Sexual Politics of “New Abolitionism,” 18 Differences 128 (2007)CrossRefGoogle Scholar.

35 Chuang, supra note 33, at 1669. For incisive analyses of these feminist moves, see Halley, Janet, Kotiswaran, Prabha, Shamir, Hila & Thomas, Chantal, From the International to the Local in Feminist Legal Responses to Rape, Prostitution/Sex Work, and Sex Trafficking: Four Studies in Contemporary Governance Feminism, 29 Harv. J. L. & Gender 335 (2010)Google Scholar.

36 See the Sex Sector: the Economic and Social Bases of Prostitution in Southeast Asia (Lin Lean Lim ed., 1998); Raymond, Janice G., Legitimating Prostitution as Sex Work: UN Labour Organization (ILO) Calls for Recognition of the Sex Industry, Coalition Against Trafficking in Women (July 12, 1999), at http://www.catwinternational.org/Home/Article/61-legitimating-prostitution-as-sex-work-un-labour-organization-ilo-calls-for-recognition-of-the-sex-industry Google Scholar.

37 The ILO submitted brief, narrowly focused written comments on the protocol but was absent from the coalition of other international organizations—including the Office of the High Commissioner for Human Rights, UN High Commissioner for Refugees, UNICEF, and the International Organization for Migration—that actively provided input during the protocol negotiations. See Ad Hoc Committee on the Elaboration of a Convention Against Transnational Organized Crime, Note by the International Labour Organization on the Additional Legal Instrument Against Trafficking in Women and Children, UN Doc.A/AC.254/CRP.14 (June 16, 1999).

38 UN Trafficking Protocol, supra note 10.

39 Id., Art. 3.

40 See, e.g., Un Office on Drugs and Crime, Model Law Against Trafficking in Persons, UNSales No. E.09.V.11 (2009), available at http://www.unodc.org/documents/human-trafficking/Model_Law_against_T IP.pdf.

41 See, e.g., UN Office on Drugs and Crime, Issue Paper: Abuse of a Position of Vulnerability and Other “Means” Within the Definition of Trafficking in Persons (2012).

42 UN Convention Against Transnational Organized Crime, supra note 25, Art. 32(1); Gallagher, supra note 21, at 460–61 (discussing the Conference of Parties’ decision to extend its monitoring, information exchange, cooperation, and other functions to the Trafficking Protocol).

43 TVPA, supra note 17.

44 22 U.S.C. §§7106–7107, supra note 17.

45 Chuang, supra note 18, at 454 –56. These sanctions are neither humanitarian-nor trade-related, and include withdrawal of both U.S. direct financial assistance and U.S. support for multilateral aid packages. 22 U.S.C. §§7106(a), 7107(d)(1). Countries receiving the lowest ranking (Tier3) in the annual TIP Report have a ninety-day grace period during which to improve their performance before the sanctions determination is made. The U.S. president can waive sanctions if necessary to protect U.S. national interests, promote the goals of the TVPA, or avoid significant adverse effects on vulnerable populations. Id., §7107(d).

46 22 U.S.C. §7106(b)(1). The four minimum standards, in summary form, are as follows:

  1. (1)

    (1) The government should prohibit and punish acts of severe forms of trafficking in persons.

  2. (2)

    (2) For sex trafficking that involves force, fraud, or coercion, or in which the victim is a child, and for trafficking that involves rape, kidnapping, or death, the government should prescribe punishment commensurate with that for grave crimes.

  3. (3)

    (3) For the knowing commission of any act of severe form of trafficking, the government should prescribe punishment that is stringent enough to deter and that reflects the heinous nature of the offense.

  4. (4)

    (4) The government should make serious and sustained efforts to eliminate severe forms of trafficking in persons.

See 22 U.S.C. §7106(a). The long list of criteria for the fourth minimum standard has been expanded and refined with each reauthorization of the TVPA. See Trafficking Victims Protection Reauthorization Act of 2003, supra note 17, §7106(b); Trafficking Victims Protection Reauthorization Act of 2005, supra note 17, §7106(b); William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, supra note 17, §7106; Trafficking Victims Protection Reauthorization Act of 2013, supra note 17, §1204.

47 Chuang, supra note 18, at 464–65; Gallagher, Anne T. & Chuang, Janie, The Use of Indicators to Measure Government Responses to Human Trafficking, in Governance by Indicators: Global Power Through Quantification and Rankings 327 (Davis, Kevin E., Fisher, Angelina, Kingsbury, Benedict & Merry, Sally Engle eds., 2012)Google Scholar. Thailand paid a reported U.S.$400,000 to a prominent lobbying firm to (unsuccessfully) persuade the United States not to downgrade Thailand to Tier 3 in the 2014 Trafficking in Persons Report, supra note 13, at 58. Felicity Lawrence & Kate Hodal, Thai Government Condemned in Annual U.S. Human Trafficking Report, Guardian (June 20, 2014), at http://www.theguardian.com/global-development/2014/jun/20/thai-government-us-human-trafficking-report.

48 See National Security Presidential Directive/NSPD-22, at 2 (Dec. 16, 2002), at http://www.combat-trafficking.army.mil/documents/policy/NSPD-22.pdf (noting that U.S. anti-trafficking policy “is based on an abolitionist approach to trafficking” and that the United States “opposes prostitution. .. as contributing to the [trafficking] phenomenon”). The “model law” distributed to states to help them comply with the “U.S. minimum standards” included a trafficking definition that explicitly encompassed noncoerced prostitution, in accurately citing the UN Trafficking Protocol for authoritative support. U.S. Department of State, Office to Monitor and Combat Trafficking in Persons, Legal Building Blocks to Combat Trafficking in Persons §§100, 206(a) (2004).

49 For in-depth discussion of these measures, see Chuang, supra note 33, at 1680–94. The “anti-prostitution pledge” was struck down as unconstitutional in the HIV/AIDS funding context. USAID v. Alliance for Open Soc’y Int’l, 133 S.Ct. 2321 (2013).

50 International Labour Office, A Global Alliance Against Forced Labour: Global Report Under the Follow-Up to the ILO Declaration on the Fundamental Principles and Rights of Work 14 (2005).

51 See, e.g., Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, opened for signature June 17, 1999, 2133 UNTS 161 (entered into force Nov. 19, 2000); Convention Concerning the Abolition of Forced Labour, opened for signature June 25, 1957, 320 UNTS 291 (entered into force Jan. 17, 1959); Convention Concerning Forced or Compulsory Labour, opened for signature June 28, 1930, 39 UNTS 55 (entered into force May 1, 1932).

52 See Chuang, supra note 18, at 455.

53 U.S. Department of State, Trafficking in Persons Report 6 (2006) (noting that the 2006 report focuses on “slave labor and sexual slavery”).

54 See, e.g., U.S. Department of State, Trafficking in Persons Report 17 (2009) (debt bondage among migrant laborers), 18 (involuntary domestic servitude), 26 (strengthening prohibitions against forced labor and fraudulent recruitment of foreign workers).

55 See, e.g., id. at 5, 13, 21, 22 (using the term “forced prostitution”); U.S. Department of State, Trafficking in Persons Report 8 (2010) (stating that “[p]rostitution by willing adults is not human trafficking regardless of whether it is legalized, decriminalized, or criminalized”).

56 U.S. Department of State, Fact Sheet: the Link Between Prostitution and Sex Trafficking (Nov. 24, 2004), at http://2001-2009.state.gov/r/pa/ei/rls/38790.htm.

57 U.S. Department of State, What Is Trafficking in Persons? (June 2014), at http://www.state.gov/documents/organization/233944.pdf.

58 See treaties cited supra note 51.

59 See International Labour Organization, Buried in Bricks: A Rapid Assessment of Bonded Labour in Afghan Brick Kilns 6 (2011), at http://www.ilo.org/wcmsp5/groups/public/@asia/@ro-bangkok/documents/publication/wcms_172672.pdf (describing intergenerational transference of debt among bonded laborers in the Afghan brick-making industry).

60 See Beate Andrees & Mariska N.J. van der Linden, Designing Trafficking Research from a Labour Market Perspective: the ILO Experience, Int’l Migration, Jan. 2005, at 55, 64 (explaining that non-trafficked forced laborers exercise more agency in exiting forced labor than trafficked ones).

61 2006 Trafficking in Persons Report, supra note 53, at 6, 10; U.S. Department of State, Trafficking in Persons Report 6 (2007); U.S. Department of State, Trafficking in Persons Report 7 (2008); 2009 Trafficking in Persons Report, supra note 54, at 8; 2010 Trafficking in Persons Report, supra note 55, at 7.

62 UN Trafficking Protocol, supra note 10, Art. 3(a).

63 See supra text accompanying note 39.

64 This position has been communicated to the author by TIP Office personnel, including Ambassador CdeBaca on multiple occasions, and confirmed by both TIP Office and Department of Labor personnel as the source of much debate within the U.S. government.

65 U.S. Department of State, Human Rights Reports, at http://www.state.gov/j/drl/rls/hrrpt/. For example, ILAB had viewed intergenerational bonded labor as within its portfolio and outside that of the TIP Office. Interview with International Labor Affairs Bureau, Department of Labor, in Washington, D.C. (Dec. 2012).

66 Close collaboration with states, NGOs, trade unions, companies, and international organizations is required to develop strategies to promote internationally recognized workers’ rights and to address the loopholes in labor frameworks that facilitate forced labor. Interview with International Labor Affairs Bureau, supra note 65.

67 DRL’s analysis of states’ anti-trafficking efforts tended to be more nuanced and targeted at structural factors. See Human Rights Reports, supra note 65; Chuang, supra note 18, at 476, 481–83 (discussing, as examples, Cuba and Venezuela).

68 Bureau of International Labor Affairs, U.S. Department of Labor, International Child Labor and Forced Labor Reports, at http://www.dol.gov/ilab/reports/child-labor/. For example, ILAB found that Brazil had made “significant advancement” (the highest level) in 2012 in eliminating the worst forms of child labor, whereas the TIP Office found that Brazil had made only a middling effort (Tier 2) in combating trafficking (including child labor). U.S. Department of State, Trafficking in Persons Report 103 (2013).

69 The ILO’s 2011 draft survey guidelines for estimating forced labor, entitled Hard to See, Harder to Count, offered both “narrow” and “broad” definitions of trafficking. Whereas the “narrow” version retained the trafficked versus non-trafficked distinction, the “broad” definition noted that “[i]rrespective of movement. . ., any adult or child worker engaged in forced labour is classified also as a victim of human trafficking.” International Labour Office, Hard to See, Harder to Count: Survey Guidelines to Estimate Forced Labour of Adults and Children 20 (2011), at http://www.ilo.org/public/libdoc/ilo/2011/111B09_351_engl.pdf. The final (2012) version of the report deletes this language. International Labour Office, Hard to See, Harder to Count: Survey Guidelines to Estimate Forced Labour of Adults and Children 19 (2012).

70 International Labour Office, ILO Global Estimate of Forced Labour 13 (2012). Tellingly, chapter 1 of a 2014 ILO report on the profits of forced labor is entitled “Measuring Forced Labour, Human Trafficking and Slavery: Why Definitions Matter.” Rather than offering an interpretation of the trafficking definition, however, the discussion notes only that, except for trafficking for organ removal, “trafficking” is covered by the ILO Forced Labour Convention. International Labour Organization, Profits and Poverty: the Economics of Forced Labour 3–4 (2014).

71 U.S. Department of State, Trafficking in Persons Report 45 (2012). Closer review reveals the ILO’s implicit adherence to the trafficked/non-trafficked distinction regarding forced labor, despite avoiding the term “trafficking.” In Hard to See, Harder to Count, supra note 69, at 19, the ILO states that while movement is not necessary to prosecute a case of human trafficking, “national policy-makers may nonetheless decide to distinguish between ‘trafficked’ and ‘non-trafficked’ (or other forms of) forced labour. .. to devise differentiated policy responses that are best adapted to the national context and specific target groups.” Applying this distinction, the 2012 Global Estimate assesses “how many people end up being trapped in forced labour following migration” (9.1 million, or 44% of the total) versus those who are “subjected to forced labour in their place of origin or residence” (11.8 million, or 56% of the total). International Labour Organization, ILO 2012 Global Estimate of Forced Labour: Executive Summary (2012), at [3]. See also Profits and Poverty: the Economics of Forced Labour, supra note 70, at 8 (offering same analysis).

72 The protocol was adopted June 11, 2014.

73 See Tripartite Meeting of Experts on Forced Labour and Trafficking for Labour Exploitation, Report for Discussion at the Tripartite Meeting of Experts Concerning the Possible Adoption of an ILO Instrument to Supplement the Forced Labour Convention, 1930 (No. 29), para. 144 (2013) (noting as discussion point number 1 whether and how to define the relationship between forced labor and trafficking); International Labour Standards Department and Programme on Promoting the Declaration on Fundamental Principles and Rights at Work, Report and Conclusions of the Tripartite Meeting of Experts on Forced Labour and Trafficking for Labour Exploitation, app., para. 2, ILO Doc. GB.317/INS/INF/3 (2013) (implying a distinction between trafficking and forced labor, but leaving its precise contours unaddressed).

74 See International Labour Conference, Protocol to Convention 29 (June 11, 2014); International Labour Conference, Text of the Recommendation on Supplementary Measures for the Effective Suppression of Forced Labour (June 11, 2014).

75 Shamir, supra note 7, at 103.

76 See generally Kolben, Kevin, Labor Rights as Human Rights, 50 VA. J. Int’l L. 449 (2010)Google Scholar (contrasting the approaches of labor rights and human rights to social change, and assessing the turn to human rights discourse by labor scholars and labor organizations).

77 See, e.g., Shamir, supra note 7, at 107. This critique echoes the trenchant internal critiques of the human rights system made by Makau Mutua and David Kennedy. See, e.g., Mutua, Makau, Savages, Victims, and Saviors: the Metaphor of Human Rights, 42 Harv. Int’l L. J. 201 Google Scholar; Kennedy, David, The International Human Rights Movement: Part of the Problem?, 15 Harv. Hum. Rts. J. 101, 118 (2002)Google Scholar. For a response to Shamir’s critique, see Todres, Jonathan, Human Rights, Labor, and the Prevention of Human Trafficking: A Response to a Labor Paradigm for Human Trafficking, 60 Ucla. L. Rev. Discourse 142, 158 (2013)Google Scholar.

78 Interview with Confidential Source no. 1 (labor advocate), in Washington, D.C. (May 28, 2013) (noting that framing projects as related to trafficking significantly increased their funding possibilities).

79 See Kolben, supra note 76. The ILO’s adoption of its 1988 Declaration on Fundamental Principles and Rights at Work has been invoked (and criticized) as an example of this turn toward a human rights approach. International Labour Conference, ILO Declaration on Fundamental Principles and Rights at Work and Its Follow-Up (June 18, 1998), at http://www.ilo.org/public/english/standards/relm/ilc/ilc86/com-dtxt.htm (the annex was revised June 15, 2010); See Alston, Phillip & Heenan, James, Shrinking the International Labor Code: An Unintended Consequence of the 1998 ILO Declaration on Fundamental Principles and Rights at Work, 34 N.Y.U. J. Int’l L. & Pol. 101 (2004)Google Scholar. The declaration was partly an attempt to revitalize an “ineffective and weak” ILO. Helfer, Laurence R., Understanding Change in International Organizations: Globalization and Innovation in the ILO, 59 V and. L. Rev. 649, 704 (2006)Google Scholar. The advent of the modern anti-trafficking regime prompted the ILO to pursue eradication of forced labor—one of the four “core” labor standards under the declaration—with renewed vigor. The ILO Governing Body created a Special Action Programme to Combat Forced Labor (SAP-FL) in 2001 to spearhead its work on forced labor and trafficking.

80 See, e.g., Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, UNDoc.A/HRC/17/31(Mar.21,2011)(adopting what has come to be known as the “Ruggie Principles”).

81 Examples include the development of the human rights–infused European regional treaty on trafficking, the mandate for a UN Special Rapporteur on Trafficking in Persons, and the development of soft law standards in the UN Recommended Principles and Guide lines on Human Rights and Human Trafficking. Council of Europe Convention on Action Against Trafficking in Human Beings, opened for signature May 16, 2005, ETS No. 197 (entered into force Sept. 3, 1953; amended June 1, 2010); Office of the High Commissioner for Human Rights, Recommended Principles and Guidelines on Human Rights and Human Trafficking, UN Doc. E/2002/68/Add.1 (May 20, 2002).

82 The International Covenant on Economic, Social and Cultural Rights, Arts. 6, 7, Dec. 16, 1966, 999 UNTS 3, includes, for example, the right of opportunity to gain a living by work one freely chooses or accepts and the right to just and favorable conditions of work. The UN Special Rapporteur on Trafficking in Persons has specifically called upon states to strengthen enforcement of labor laws and to take steps to regulate recruitment agencies. See Joy Ngozi Ezeilo (Special Rapporteur), Report on Trafficking in Persons, paras. 26–27, 56, 65, UN Doc. A/HRC/23/48 (Mar. 18, 2013).

83 See section “Embracing the Labor Trajectory” in part III.

84 See, e.g., International Trade Union Confederation, Never Work Alone: Trade Unions and NGOs Joining Forces to Combat Forced Labour and Trafficking in Europe (2011) (describing a joint project with Anti-slavery International to encourage collaboration between human rights organizations and trade unions, resulting in innovative efforts to address forced labor in Azerbaijian, Belgium, Germany, Italy, and Poland).

85 Press Release, Remarks by the President to the Clinton Global Initiative (Sept. 25, 2012), at http://www.whitehouse.gov/the-press-office/2012/09/25/remarks-president-clinton-global-initiative.

86 Release of the 2012 Trafficking in Persons Report (June 19, 2012), at http://www.state.gov/secretary/20092013clinton/rm/2012/06/193368.htm.

87 The 2008 TVPA reauthorization was named the William Wilberforce Trafficking Victims Protection Reauthorization Act to coincide with the two hundredth anniversary of the British Parliament’s anti–slave trade legislation and named in honor of the famed British abolitionist. William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, supra note 17. The quoted remarks by President Obama and then Secretary Clinton were intended to marshal support for the 2013 reauthorization of the TVPA, timed to coincide with the one hundred-fiftieth anniversary of the Emancipation Proclamation. Trafficking Victims Protection Reauthorization Act of 2013, supra note 17.

88 Kevin Bales, Disposable People: New Slavery Inthe Global Economy 8–9 (1999). In 2006 and 2007, Bales repeatedly sought codification of his own made-up definition of “modern-day slavery”:

the status or condition of a person over whom any power attaching to the right of ownership or control is exercised by means of exploitation through involuntary servitude, forced labor, child labor, debt bondage or bonded labor, serfdom, peonage, trafficking in persons for forced labor or for sexual exploitation (including child sex tourism and child pornography), forced marriage, or other similar means.

Congressional Commission on the Abolition of Modern-Day Slavery Act, H.R. 6328, 109th Cong. (2006); See S. 3787, 109th Cong. (2006); S. 3787, 109th Cong. (2006); H.R. 2522, 110th Cong. (2007); H.R. 2522, 110th Cong. (2007).

89 Convention to Suppress the Slave Trade and Slavery, Sept. 25, 1926, 60 LNTS 253 (entered into force Mar. 9, 1927). Later, the United Nations elaborated a new legal instrument to address certain institutions and practices similar to slavery—in particular, debt bondage, serfdom, servile forms of marriage, and exploitation of children. Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, Sept. 7, 1956, 266 UNTS 40 (entered into force Apr. 30, 1957). That treaty retained the 1926 definition of slavery and created a new concept of “servile status” as attaching to a victim of slavery-like practices (as opposed to slavery).

90 See U.S. Government Accountability Office, GAO 06-825, Human Trafficking, Better Data, Strategy, and Reporting Needed to Enhance U.S. Antitrafficking Efforts Abroad 2–3 (2006), at http://www.gao.gov/products/GAO-06-825 (concluding that the “accuracy of [trafficking] estimates is in doubt because of methodological weaknesses, gaps in data, and numerical discrepancies”); Weitzer, Ronald, The Social Construction of Sex Trafficking: Ideology and Institutionalization of a Moral Crusade, 35 Pol. & Soc’y 447, 455–56 (2007)Google Scholar; Feingold, David A., Trafficking in Numbers: the Social Construction of Human Trafficking Data, in Sex, Drugs, and Body Counts: the Politics of Numbers in Global Crime and Conflict 46 (Andreas, Peter & Greenhill, Kelly eds., 2010)Google Scholar; 2006 Trafficking in Persons Report, supra note 53, at 6 (noting that “estimates range from 4 million to 27 million); 2007 Trafficking in Persons Report, supra note 61, at 6 (same); 2008 Trafficking in Persons Report, supra note 61, at 7 (same); 2009 Trafficking in Persons Report, supra note 54, at 8 (reporting the ILO’s 12.3 million statistic); 2010 Trafficking in Persons Report, supra note 55, at 7 (same); U.S. Department of State, Trafficking in Persons Report 1–2 (2011) (reporting that the trafficked/enslaved population is in the “millions”).

91 2012 Trafficking in Persons Report, supra note 71, at 7; 2013 Trafficking in Persons Report, supra note 68, at 7 (same). The 2014 edition references the “more than 20 million” trafficking victims who have not been identified in the past year. 2014 Trafficking in Persons Report, supra note 13, at 1.

92 2012 Trafficking in Persons Report, supra note 71, at 7 (emphasis added).

93 Id. at 44 (emphasis added).

94 As if preemptively defending the equivalence to transatlantic slavery, the 2012 Trafficking in Persons Report, supra note 71, at 19, features two sets of advertisements side by side in a graphic entitled “Then and Now: Fleeing Slavery”: nineteenth-century ads offering rewards for runaway slaves and a contemporary ad offering a reward for information regarding the whereabouts of an escaped Indonesian fisherman.

95 Slavery Footprint, http://slaveryfootprint.org (claiming that millions of people from two hundred countries have visited the website to discover their connection to modern-day slavery).

96 The effort’s website is Challenge Slavery, http://www.challengeslavery.org.

97 See Jason Mraz in Myanmar, at http://mtvexit.org/worldstage/; Behrmann, Elisabeth, Gates Helps Australia’s Richest Man in Bid to End Slavery, Bloomberg (Apr. 14, 2013), at http://www.bloomberg.com/news/2013-04-10/gates-helps-australia-s-richest-man-in-bid-to-end-slavery.html Google Scholar.

98 Buffett, Peter, The Charitable-Industrial Complex, N.Y. Times, July 26, 2013, at A19 Google Scholar. Buffett, the son of Warren Buffett, chairs the NoVo Foundation, which itself has been an active funder of anti-trafficking programs.

99 See Haynes, Dina, The Celebritization of Human Trafficking, 25 Annals Am. Acad. Pol. & Soc. Sci. 653 (2013)Google Scholar.

100 Buffet, supra note 98. Buffett defines “conscience laundering” as feeling better about accumulating vast amounts of wealth by “sprinkling a little around as an act of charity.”

101 “Venture philanthropists” include grant makers who make fewer grants, take an active interest in the enterprises being funded, supply additional nonfinancial help (for example, consultants), and rely upon clear goals and metrics to define and gauge a grantee’s progress. Shulman, James, The Funder as Founder: Ethical Considerations of the Philanthropic Creation of Nonprofit Organizations, in Giving Well: the Ethics of Philanthropy (Illingsworth, Patricia, Pogge, Thomas & Wenar, Leif eds., 2011)CrossRefGoogle Scholar.

102 See generally Spiro, Peter, NGOs and Human Rights: Channels of Power, in Research Handbook on International Human Rights Law (Joseph, S. & McBeth, A. eds., 2010)CrossRefGoogle Scholar; Spiro, Peter, Nongovernmental Organizations in International Relations (Theory), in Interdisciplinary Perspectives on International Law and International Relations (Dunoff, & Pollack, eds., 2010)Google Scholar; Anderson, Kenneth, “Accountability” as “Legitimacy:” Global Governance, Global Civil Society and the United Nations, 36 Brook. J. Int’l L. 841 (2011)Google Scholar.

103 See Walk Free, at http://www.walkfree.org. The website claims that “29.8 million people are forced to live in slavery around the world today.” Website visitors can “act now” and become a “member” by signing a pledge committing to the belief that “our generation can build a world without slavery” and committing to “mobilize governments, businesses and communities to end modern slavery.” at http://www.walkfree.org/a-world-without-slavery/.

104 Walk Free, Global Slavery Index (2013), at http://www.globalslaveryindex.org. Notably, this role has positioned Bales to accomplish— but from an international perspective and with far greater influence and resources— the aims of Free the Slaves’ failed proposal for a U.S. slavery commission. See supra note 88 and accompanying text.

105 Walk Free received substantial criticism for the methodology employed but nevertheless released a final version with the problems largely unaddressed. See infra note 168 and accompanying text; Guth, Andrew, Anderson, Robyn, Kinnard, Kasey & Tran, Hang, Proper Methodology and Methods of Collecting and Analyzing Slavery Data: An Examination of the Global Slavery Index, 2 Social Inclusion 14 (2014)CrossRefGoogle Scholar (exposing the index’s “significant and critical weaknesses” and raising questions concerning replicability and validity of data used). Cf. Datta, Monti Narayan & Bales, Kevin, Slavery in Europe: Part 2, Testing a Predictive Model, 36 Hum. Rts. Q. 277 (2014)CrossRefGoogle Scholar (defending the methodology used).

106 The Freedom Fund was started with $30 million in seed money from three donors: Walk Free, Humanity United, and Legatum. The organization’s goal is to raise and deploy $100 million on anti-slavery projects. See Freedom Fund, at http://www.freedomfund.org/what-we-do/#gallery.

107 See Global Freedom Network, at http://www.gfn2020.org/about/ (stating that “[g]lobal faith leaders, by their words and deeds, may form the faith-inspired will and effort by men and women to overcome the manmade evil of modern slavery and free its victims from suffering, oppression and degradation”).

108 See, e.g., Modern-Day Slavery, Guardian, at http://www.guardian.co.uk/global-development/series/modern-day-slavery-in-focus (with Humanity United); MTV EXIT: End Exploitation and Trafficking, at http://mtvexit.org (including videos of music events organized by the organization); Trust Women: Putting the Rule of Law Behind Women’s Rights, at http://www.trustwomenconf.com (sponsored by International Herald Tribune/Thomson Reuters).

109 See Humanity United, Advancing Freedom, at http://www.humanityunited.org/advancing-freedom/; ATEST: Alliance to End Slavery & Trafficking, at http://www.endslaveryandtrafficking.org.

110 Interview with Confidential Source no. 1, supra note 78; Anne Gallagher, The Global Slavery Index Is Based on Flawed Data—Why Does No One Say So?, Guardian (Nov.29, 2014), at http://www.theguardian.com/global-development/poverty-matters/2014/nov/28/global-slavery-index-walk-free-human-trafficking-anne-gallagher. Although Anti-slavery International has privately criticized the Global Slavery Index for its questionable methodology and potentially harmful consequences for anti-slavery efforts, the organization, whose work on slavery and exploitation dates back to 1839, has publicly supported the index. Compare infra notes 200–01 (sources cited), with Amar Toor, Breadth of Modern Slavery Exposed by Sobering New Report, Verge (Oct. 17, 2013), at http://www.theverge.com/2013/10/17/4847620/global-slavery-index-walk-free-foundation-shows-30-million-slaves-worldwide (quoting Anti-slavery International executive director describing the Global Slavery Index as “a good starting point of conversation and engaging decision makers to tackle [slavery]”). Former TIP Office staff have indicated to the author concerns that the index, with its competing findings, potentially detracts from the TIP Reports.

111 Gould, supra note 15.

112 Id.

113 Id.

114 Buffett, supra note 98 (critiquing “the world of philanthropy as practiced by the very wealthy”).

115 See infra note 142 (sources cited).

116 UN Trafficking Protocol, supra note 10, Art. 3(a) (emphasis added); See Oxford English Dictionary (2000) (noting that the term “harbour” is “now mostly dyslogistic. .. to give secret or clandestine entertainment to noxious persons or offenders against the laws”); Black’s Law Dictionary (9th ed. 2009) (defining “harbor” as the “act of affording lodging, shelter, or refuge to a person, esp. a criminal or illegal alien”).

117 Vienna Convention on the Law of Treaties, Art. 31, opened for signature May 23, 1969, 1155 UNTS 331 (entered into force Jan. 27, 1980) (emphasis added).

118 Gallagher, supra note 21, at 30–31.

119 States took great pains to distinguish smuggled from trafficked migrants. Whereas the former are considered complicit in the crime of illegal border crossing and thus unworthy of victim protection, the latter are deemed worthy by virtue of the additional exploitation element. Compare UN Trafficking Protocol, supra note 10, and Protocol Against Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention Against Transnational Organized Crime, GARes.55/25(Nov.15,2000). See also Anne T. Gallagher & Fionadavid, the International Law of Migrant Smuggling (2014).

120 UN Trafficking Protocol, supra note 10, pmbl. (emphasis added).

121 Id., Art. 7.

122 Id., Art. 8.

123 Ad Hoc Committee on the Elaboration of a Convention Against Transnational Organized Crime, Revised Draft Protocol to Prevent, Suppress and Punish Trafficking in Women and Children, Art. 2 n.19, UN Doc. A/AC.254/4/Add.3/Rev.5 (Jan. 1, 2000) (emphasis added).

124 See Position Paper on the Draft Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, at 4–6, UN Doc. A/AC.254/CRP.13 (May 20, 1999) (submitted to the Ad Hoc Committee on the Elaboration of a Convention Against Transnational Organized Crime); Informal Note by the UN High Commissioner for Human Rights, para. 16, UN Doc. A/AC.254/16 (June 1, 1999) (submitted to same); Note by the International Labour Organization on the Additional Legal Instrument Against Trafficking in Women and Children, supra note 37; Ali Miller & Stewart, Alison N., Report from the Round-table on the Meaning of “Trafficking in Persons:” A Human Rights Perspective, 20 Women’s Rts. L. Rep. 11, 14–15 (1998)Google Scholar.

125 See Ad Hoc Committee on the Elaboration of a Convention Against Transnational Organized Crime, Revised Draft Protocol to Prevent, Suppress and Punish Trafficking in Women and Children, Art. 2, option 1, UN Doc. A/AC.254/4/Add.3/Rev.1 (Feb. 22, 1999).

126 Telephone Interview with Anne Gallagher, Legal Adviser to the United Nations and Association of South East Asian Nations (July 31, 2013). Gallagher participated in the negotiations as the representative of the UN High Commissioner for Human Rights.

127 This interpretation has been confirmed by subsequent interviews of delegates to the protocol negotiations; the interviews were conducted from 2012 to 2014 in the context of studies by the UN Office on Drugs and Crime concerning the definition of trafficking. See id. See also several issue papers by the UN Office on Drugs and Crime: Abuse of a Position of Vulnerability and Other “Means” Within the Definition of Trafficking in Persons, supra note 41; the Role of Consent Within the International Legal Definition of Trafficking in Persons (2014); and the Concept of Exploitation Within the Trafficking in Persons Protocol (draft;forthcoming 2015).

128 The review of cases in the UN Office on Drugs and Crime’s trafficking case law database shows that states are prosecuting as trafficking many cases of exploitation that do not involve movement (yet overwhelmingly involve migrants as victims). See UN Office on Drugs and Crime, UNODC Human Trafficking Case Law Database, at https://www.unodc.org/cld/index.jspx.

129 See, e.g., 2014 Trafficking in Persons Report, supra note 13, at 9 (noting that a trafficking victim need not be physically transported from one location to another).

130 Conference of the Parties to the United Nations Convention Against Transnational Organized Crime, Activities of the Working Group on Trafficking in Persons, para. 55, UN Doc. CTOC/COP/2010/6 (Aug. 10, 2010).

131 That the official legislative guide for the protocol advises that the “obligation is to criminalize trafficking as a combination of constituent elements and not the elements themselves” arguably implies adherence to the trafficking definition’s three-part structure. Un Office on Drugs and Crime, Legislative Guide for the Implementation of the United Nations Convention Against Transnational Organized Crime and the Protocol Thereto, para. 33, UN Sales No. E.0000000 (2004) (emphasis added).

132 Conference of the Parties to the United Nations Convention on Transnational Organized Crime, Working Group on Trafficking in Persons, Forms of Exploitation Not Specifically Mentioned in the Protocol, UN Doc. CTOC/COP/WG.4/2013/4 (Aug. 23, 2013) (showing the many ways in which the open-ended list is being expanded); see also the Concept of Exploitation Within the Trafficking in Persons Protocol, supra note 127.

133 Vienna Convention on the Law of Treaties, supra note 117, Art. 53. A jus cogens norm is defined as “a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” Id.

134 See, e.g., International Agreement for the Suppression of the White Slave Traffic, May 4, 1904, 1 LNTS 83 (entered into force July 18, 1905); International Convention for the Suppression of the White Slave Traffic, May 4, 1910, 3 LNTS 278 (entered into force Aug 8, 1912).

135 See Report Presented by the Advisory Committee of Experts on Slavery 24–25, League of Nations Doc. C.189(I).M.145 1936 VI (1936) (“[O]ne should realize quite clearly that [debt slavery]. .. is not ‘slavery’ within the definition set forth in. .. The 1926 Convention, unless any or all the powers attaching to the right of ownership are exercised by the master.”). For a thorough examination of the international legal definition of slavery, see Gallagher, supra note 21, at 799–810.

136 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, supra note 89, Arts. 1, 7 (obligating states to abolish these practices “where they still exist and whether or not they are covered by the [1926 Convention’s] definition of slavery” (emphasis added)).

137 International Covenant on Civil and Political Rights, Art. 8, Dec. 16, 1966, 999 UNTS 171; M. J. Bossuyt, Guide to the “Travaux Préparatoires” of the International Covenant on Civil and Political Rights 165, 167 (1987) (analyzing genesis of the Article 8 prohibition of slavery, slave trade, and servitude).

138 Gallagher, supra note 21, at 189 –91; see, e.g., Siliadin v. France, 2005-VII Eur. Ct. H.R. 333 (2005) (limiting the concept of slavery to situations with a de jure right of ownership over a person); Rantsev v. Cyprus, 51 Eur. Ct. H.R. 1 (2010) (noting that trafficking, by its very nature and aim of exploitation, is based on the exercise of powers attaching to the right of ownership, but finding it unnecessary to identify whether the trafficking involved in the case would be considered slavery, servitude, or forced labor).

139 Rome Statute of the International Criminal Court, Art. 7(1), (2), July 17, 1998, 2187 UNTS 3 (defining “enslavement” and “sexual slavery”).

140 Violating the prohibition on slavery involves international legal responsibility of the state, whereas the crime of enslavement, developed in the war context, carries individual criminal responsibility. International human rights law has traditionally drawn distinctions between various types and degrees of exploitation, while also implying a hierarchy of severity: slavery, servitude, forced labor. International criminal law, by contrast, has sought to subsume all within the grander definition of “enslavement” and thus offers a stronger basis for expansive reading of “enslavement” than that which is available for an expansive reading of “slavery.” the availability of lesser alternatives to slavery in international human rights law suggests the possibility of a higher threshold for slavery as a human rights violation than for the international crime of enslavement. Gallagher, supra note 21, at 184 (citing Jean Allain, Mobilization of International Law to Address Trafficking and Slavery, paper presented at the eleventh Joint Stanford–University of California Symposium on Law and Colonialismin Africa, Stanford, CA(Mar.19–21, 2009)).

141 See Convention to Suppress the Slave Trade and Slavery, supra note 89.

142 Jean Allain, the Legal Understanding of Slavery, at v (2012). For example, this group of historians, sociologists, and property law scholars developed the 2012 Bellagio-Harvard Guidelines, suggesting that “‘powers attaching to the right of ownership’ should be understood as constituting control over a person in such a way as to significantly deprive that person of his or her individual liberty, with the intent of exploitation through the use, management, profit, transfer or disposal of that person.” 2012 Bellagio-Harvard Guidelines on the Legal Parameters of Slavery, in the Legal Understanding of Slavery, supra, at 375, 376 (“Guideline 2: the Exercise of the Powers Attaching to the Right of Ownership”); see also Kevin Bales, Slavery in Its Contemporary Manifestations, in the Legal Understanding of Slavery, supra, at 281. For insightful critique of such strained efforts to expand, yet also cabin, the legal concept of slavery, see Chantal Thomas, Immigration Controls and “Modern-Day Slavery” (Cornell Legal Studies Research Paper No. 13-86, 2013), at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2294656.

143 As Gallagher explains, the interpretive guidance on this point is thin, although a 1953 UN Secretariat report identifies six characteristics of the various “powers attaching to the right of ownership” that give rise to slavery, including (1) the individual may be made an object of purchase, (2) the master may use the individual, in particular his or her capacity to work, in an absolute manner, (3) the products of the individual’s labor become the master’s property without any compensation commensurate with the value of the labor, (4) the ownership of the individual can be transferred to another person, (5) the status/condition of the individual cannot be terminated at the will of the individual, and (6) the status/condition is inherited/inheritable. Gallagher, supra note 21, at 184 (citing UN Secretary-General, Slavery, the Slave Trade and Other Forms of Servitude, at 40, UN Doc. E/2357 (Jan. 27, 1953)).

144 Gallagher, supra note 21, at 190.

145 2014 Trafficking in Persons Report, supra note 13, at 258 (describing continuing de facto chattel slavery practices).

146 See the Concept of Exploitation Within the Trafficking in Persons Protocol, supra note 127.

147 This dynamic risks renewing past media skepticism over the actual extent of the trafficking problem—which was perceived as overinflated when the United States placed cross-border trafficking estimates at 800,000 worldwide. See, e.g., Jerry Markon, Human Trafficking Evokes Outrage, Little Evidence, Wash. Post, Sept. 23, 2007, at A1; 2007 Trafficking in Persons Report, supra note 61, at 8 (reporting the U.S. government’s trafficking statistics). See also sources cited in Chuang, supra note 33, at 1708 n.221 (citing dispute among journalists over the accuracy of the claims made in a New York Times Magazine cover story).

148 Telephone Interview with Martina Vandenberg, Founder and Executive Director, the Human Trafficking Pro Bono Legal Center (Aug. 3, 2013) (describing how defense counsel have been using the slavery analogy to avoid liability in civil cases brought under the TVPA).

149 Tanedo vs. East Baton Rouge Parish School Board, No. SA CV10-01172JAK 2012 WL 5378742(C.D.Cal. 2012) (class action lawsuit brought on behalf of Filipino teachers under the TVPA, Racketeer Influenced and Corrupt Organizations Act, and state laws regarding fraud and unfair business practices, among others); Farah Stock man, Teacher Trafficking, Boston Globe (June 12, 2013), at http://c.o0bg.com/todayspaper/2013/06/12 (detailing the teachers’ experiences); Fair Labor Recruitment, Worker Testimonies (testimony of Ingrid Cruz, on website of the International Labor Recruitment Working Group, a coalition of human rights and labor advocates, comprising the AFL-CIO, Solidarity Center, American Federation of Teachers, Centro de los Derechos del Migrante, Inc., Economic Policy Institute, Farmworker Justice, Global Workers Justice Alliance, National Guest-worker Alliance, and Southern Poverty Law Center, among others), at https://fairlaborrecruitment.wordpress.co m/worker-stories/; Stockman, supra note 149.

150 Navarro v. Cruz, 2009 WL 6058120 (Cal. Super. 2009).

151 See supra note 149 (references cited).

152 Trial Transcript at 166, Tanedo, supra note 149 (Dec. 14, 2012) (No. SA CV 10-01172 JAK).

153 See Stockman, supra note 149; Cruz, supra note 149. The jury did award $4.5 million, however, based on a finding of deceptive business practices. Tanedo, supra note 149.

154 See infra text accompanying notes 227–30.

155 See Chacón, Jennifer M., Tensions and Trade-Offs: Protecting Trafficking Victims in the Era of Immigration Enforcement, 158 U. Pa. L. Rev. 1609, 1630–31 (2010)Google Scholar (describing how the imagery used in training U.S. officials to recognize trafficking situations fuels popular perceptions of noncitizens as criminal threats).

156 See Kay, supra note 23 (describing push/pull factors driving international migration and human trafficking); see also Brennan, supra note 14 (explaining that glossing over the element of agency is fundamentally at odds with how trafficked persons view themselves); Surtees, Rebecca, Trafficked Men as Unwilling Victims, St. Anthony’s Int’l Rev. 16 (2008)Google Scholar (discussing how male trafficking victims self-identify as unlucky migrants).

157 Davidson, Julia O’Connell, New Slavery, Old Binaries: Human Trafficking and the Borders of ‘Freedom,’ 10 Global Networks 244, 256 (2010)CrossRefGoogle Scholar.

158 See, e.g., 2012 Trafficking in Persons Report, supra note 71, at 23 (describing common misperceptions of the role of consent in trafficking situations).

159 Chacón, Jennifer M., Misery and Myopia: Understanding the Failures of U.S. Efforts to Stop Human Trafficking, 74 Fordham L. Rev. 2976, 3038 (2005)Google Scholar; Haynes, Dina, (Not) Found Chained to a Bed in a Brothel: Conceptual, Legal, and Procedural Failures to Fulfill the Promise of the Trafficking Victims Protection Act, 21 Geo. Immigr. L.J. 337, 349–52 (2006)Google Scholar.

160 Bernstein, supra note 34, at 144.

161 See, e.g., 2014 Trafficking in Persons Report, supra note 13, at 16–17 (discussing the use of “victim-witness coordinators” and, to provide restitution, the seizure of trafficker assets).

162 Bernstein, supra note 34, at 141.

163 Davidson, Julia O’Connell, Absolving the State: the Trafficking-Slavery Metaphor, 14 Global Dialogue 38 (2012)Google Scholar.

164 As Nick Grono, when CEO of Walk Free, explained, “If Corporate Giants—25 of the world’s top businesses whose net worth make up US$5 trillion—prioritize the abolition of modern slavery as their next major innovation, we could quickly deal a major blow to the slavery industry in this generation.” Walk Free Calls on Big Business to End Slavery Worldwide, PR Newswire (Dec. 16, 2012), at http://www.prnewswire.com/news-releases/walk-free-calls-on-big-business-to-end-slavery-worldwide-183689831.html (listing targeted companies, including Apple, Exxon Mobil, General Electric, Google, IBM, Microsoft, Shell, and Wal-Mart, among the “corporate giants” asked to sign the pledge by March 31, 2013). Perhaps tellingly, Walk Free’s otherwise frequently updated website does not mention the results of the corporate-pledge campaign. Author inquiries yielded no response. See Walk Free, supra note 103.

165 Gould, supra note 15 (quoting Walk Free founder Andrew Forrest).

166 Myanmar President Emphasizes Benefits of Investment, Asialink (Mar. 19, 2013), at http://asialink.unimelb.edu.au/calendar/Recent_Events/Myanmar_President_emphasises_benefits_of_investment (describing speech given by Andrew Forrest). Myanmar was the first state to sign Walk Free’s anti-slavery pledge, though officials for the new government apparently were short on details as to plans for implementation. Sam Holmes & Shibani Mahtani, Concert Against Slavery Draws Big Myanmar Crowd, Wall St. J. (Dec. 17, 2012), at http://blogs.wsj.com/searealtime/2012/12/17/concert-against-slavery-draws-big-myanmar-crowd/. Myanmar has a notorious history of forced labor practices, which inspired the ILO to exercise for the first time its power to levy trade sanctions against member states. See Maupain, Francis, Is the ILO Effective in Upholding Workers’ Rights?: Reflections on the Myanmar Experience, in Labour Rights As Human Rights (Alston, Philip ed., 2005)CrossRefGoogle Scholar. The 2014 TIP Report ranked Burma Tier 3 from 2001 until 2012. See 2014 Trafficking in Persons Report, supra note 13, at 115.

167 Holmes & Mahtani, supra note 166 (describing violent state crackdown on protestors at a copper mine, with Myanmar apologizing for the injuries inflicted but not for the crackdown). For an insightful critique of “constructive engagement” with Burma, see generally John G. Dale, Free Burma: Transnational Legal Action and Corporate Accountability (2011).

168 The index is derived from amalgamating an estimate of national slavery figures with an amalgamation of “risk factors” that include indicators with no apparent bearing on forced labor (for example, the HIV prevalence rate and availability of weapons). Only one of the thirty or so indicators deals with labor rights, and most deal with general country conditions that together contain an inherent bias in favor of wealthy countries (for example, indicators of development). See Walk Free, Global Slavery Index, supra note 104, at 110 –15.

169 Davidson, supra note 163, at 31; Davidson, supra note 157; Bridget Anderson & Andrijasevic, Rutvica, Sex, Slaves and Citizens: the Politics of Anti-trafficking, 40 Soundings 135 (2008)Google Scholar.

170 Davidson, supra note 163, at 31.

171 2012 Trafficking in Persons Report, supra note 71, at 26–27.

172 See generally Graziano Battistella & Maruja M. B. Asis, Protecting Filipino Transnational Domestic Workers: Government Regulations and Their Outcomes (Philippine Institute for Development Studies, Discussion Paper Series No. 2011-12, 2011), at http://dirp3.pids.gov.ph/ris/dps/pidsdps1112.pdf (criticizing state efforts to regulate recruitment of Filipino transnational domestic workers).

173 See generally Ashwini Sukthankar, Visas, Inc: Corporate Control and Policy Incoherence in the U.S. Temporary Foreign Labor System (2012).

174 Gould, supra note 15.

175 See, e.g., Amnesty International, Abusive Labour Migration Policies (2014) (examining guest-worker programs in Hong Kong (domestic work), Italy (agriculture), Qatar (construction), and South Korea (all sectors).

176 See Stillman, Sarah, The Invisible Army, New Yorker (June 6, 2011), at http://www.newyorker.com/magazine/2011/06/06/the-invisible-army Google Scholar (describing trafficking of foreign workers into U.S. military bases in Afghanistan and Iraq); Simpson, Cam, Pipeline to Peril, Chi. Trib. (Oct 9, 2005), at http://www.chicagotribune.com/news/nationworld/chi-nepal-specialpackage-special.html Google Scholar (describing the trafficking of Nepalese men to work for U.S. army contractors in Iraq).

177 Pope, supra note 7; Shamir, supra note 7.

178 Shamir, supra note 7, at 81.

179 Jennifer Gordon, Supply Chain Approaches to Regulating Recruitment (draft) (International Labour Organization, forthcoming 2015).

180 See Kim, Kathleen, The Coercion of Trafficked Workers, 96 Iowa L. Rev. 409 (2011)Google Scholar.

181 See Surtees, supra note 156, at 25–26 (discussing impact of trafficking stereotypes on victim identification).

182 Haynes, Dina, Exploitation Nation: the Thin and Grey Legal Lines Between Trafficked Persons and Abused Migrant Laborers, 23 Notre Dame J.L. Ethics & Pub. Pol’y 1, 47 (2009)Google Scholar.

183 Shamir, supra note 7, at 99.

184 Id. at 81.

185 Pope, supra note 7, at 1862.

186 See Joy Ngozi Ezeilo (Special Rapporteur), Trafficking in Persons, Especially Women and Children, Stock taking Exercise on the Work of the Mandate on Its Tenth Anniversary, UN Doc. A/HRC/26/37/Add.2 (Mar. 27, 2014) (discussing the “collateral damage” of anti-trafficking interventions).

187 In practice, criminal procedures may provide better options for restitution than the available civil options. In the United States, for example, criminal restitution offers potentially higher (and tax-free) financial compensation. See 18 U.S.C. §1593(b)(3) (2012) (defining the term “full amount of the victim’s losses” to include “the greater of the gross income or value to the defendant of the victim’s services or labor or the value of the victim’s labor as guaranteed under the minimum wage and overtime guarantees of the Fair Labor Standards Act”); Internal Revenue Service Notice 2012-12, at http://www.irs.gov/pub/irs-drop/n-12-12.pdf (“Restitution Payments Under the Trafficking Victims Protection Act of 2000”). Pursuing criminal restitution also saves victims the hassle of discovery and affords them better options for concealing their identities. Telephone Interview with Martina Vandenberg, supra note 148.

188 See, e.g., 2014 Trafficking in Persons Report, supra note 13, at 1–66 (emphasizing victim empowerment measures).

189 UN Trafficking Protocol, supra note 10, Art. 9 (obligating states to take or strengthen measures “to alleviate the factors that make persons, especially women and children, vulnerable to trafficking, such as poverty, underdevelopment and lack of equal opportunity”).

190 For a discussion of these flaws, see supra note 90 (sources cited) and Gallagher, Anne T. and Surtees, Rebecca, Measuring the Success of Counter-trafficking Interventions in the Criminal Justice Sector: Who Decides—and How?, 1 Anti-Trafficking Rev. 10 (2012)Google Scholar.

191 2014 Trafficking in Persons Report, supra note 13, at 45.

192 The disparity between estimated and identified victims is partly due to the difficulty of detecting, investigating, and prosecuting trafficking without active victim cooperation. Yet, victims come forward at significant risk— for example, of deportation, prosecution for crimes committed during the course of the trafficking, retaliation by the traffickers, and retraumatization by the judicial process. See, e.g., Haynes, supra note 159; Haynes, supra note 182, at 91–92. In the United States, even the prospect of gaining residency status has provided little incentive for cooperation in trafficking prosecutions. of the estimated 14,500–17,500 people trafficked into the United States each year, during FY 2002 through FY 2012 only 5820 victims applied for residency status and benefits (of which, 3309 were successful). U.S. Department of Justice, Attorney General’s Annual Report to Congress and Assessment of U.S. Government Activities to Combat Trafficking in Persons: Fiscal Year 2012, at 37–38 (2014).

193 2014 Trafficking in Persons Report, supra note 13, at 45.

194 ILO 2012 Global Estimate of Forced Labour, supra note 70, at 13.

195 The UNODC-commissioned study of consent under the Trafficking Protocol includes a discussion of coercion. The Role of Consent Within the International Legal Definition of Trafficking in Persons, supra note 127.

196 Telephone Interview with Martina Vandenberg, supra note 148; Interview with Confidential Source no. 1, supra note 78; Interview with Confidential Source no. 2 (former state official), in Washington, D.C. (Jan. 25, 2013); Telephone Interview with Confidential Source no. 3 (anti-trafficking researcher and advocate) (July 31, 2013). These labor trafficking cases typically remain in “monitoring” status until the statute of limitations runs out or until they are dropped by prosecutors. For example, federal prosecutors dropped the case against Global Horizons—a labor-recruiting company accused of exploiting hundreds of farmworkers from Thailand by confiscating their passports, putting them into debt bondage, and threatening to deport them—even though three of the eight people indicted had pleaded guilty to the charges. Human Trafficking Case Against Executives Is Dismissed, N.Y Times, July 22, 2012, at A 4. The U.S. Equal Employment Opportunity Commission subsequently filed a lawsuit on behalf of the workers, winning a partial summary judgment on their claims alleging hostile work environment, disparate treatment, and retaliation against the Thai workers. EEOC v. Global Horizons, Inc, Case No. 1:11-cv-11-00257-LEK-RLP (D. Haw. Mar. 19, 2014).

197 The TVPA creates the crime of “forced labor,” defined as labor obtained or provided by means of force or physical restraint (or threats thereof), “serious harm or threats of serious harm,” or “abuse or threatened abuse of law or legal process.” 18 U.S.C. §1589(a)(2), (3) (2012). As explained by the Seventh Circuit Court of Appeals in United States v. Calimlim, 538 F.3d 706, 714 (7th Cir. 2008), “Section 1589 is not written in terms limited to overt physical coercion, and. .. [Congress] expanded the definition of involuntary servitude to include nonphysical forms of coercion.” It is sufficient that a defendant’s misconduct has created a situation in which the plaintiff’s ceasing to work would lead to serious harm. Id. at 711–14.

198 In the United States, for example, advocates handling labor trafficking cases rely on civil remedies under the TVPA and the Fair Labor Standards Act, and increasingly refer cases to the Equal Employment Opportunity Commission. See Interview with Confidential Source no. 1, supra note 78; Telephone Interview with Martina Vandenberg, supra note 148; Interview with Confidential Source no. 2, supra note 196; Telephone Interview with Confidential Source no. 3, supra note 196.

199 Gallagher & Chuang, supra note 47, at 332–33.

200 For example, commentators have criticized the high ranking of the United Kingdom; its recent visa reforms effectively prevent migrant domestic workers from switching employers, which could result in a loss of residency. Travis, Alan, New Visa Rules for Domestic Workers ‘Will Turn the Clock Back 15 Years,’ Guardian (Feb. 29, 2012), at http://www.theguardian.com/uk/2012/feb/29/new-visa-rules-domestic-workers; Aidan McQuade, Slavery Is Real—We Must Protect Its Victims, Guardian (Feb. 29, 2012), at http://www.theguardian.com/commentisfree/2012/feb/02/rethink-attitudes-to-slavery-trafficking Google Scholar.

201 Letter from Aidan McQuade, Director, Anti-slavery International, to Nick Grono and Fiona David, Walk Free, June 6, 2013 (offering a scathing critique of the draft Global Slavery Index) (on file with author).

202 See, e.g., California Transparency in Supply Chains Act of 2010, S.B. 657, 2010 Reg. Sess., 2010 Cal. Legis. Serv. Ch. 556 (West 2010) (codified at Cal. Civ. Code §1714.43). For an assessment of this law, see Todres, Jonathan, The Private Sector’s Pivotal Role in Combating Human Trafficking, 3 Cal. L. Rev. Cir. 80 (2012)Google Scholar.

203 Free, Walk, Tell Congress to Help End Modern Slavery in Corporate Supply Chains, at http://campaigns.walk free.org/petitions/tell-congress-to-help-end-modern-slavery-in-corporate-supply-chains.Google Scholar

204 Within the U.S. context, for example, the Department of Labor has played a less visible, yet crucial role in anti-trafficking efforts. See Counteracting the Bias: the Department of Labor’s Unique Opportunity to Combat Human Trafficking, 126 Harv. L. Rev 2012 (2013). Moreover, the Equal Employment Opportunity Commission has brought lawsuits against traffickers for racial discrimination and harassment (based on national origin) and has sought a wide array of remedies, including back pay, compensatory and punitive damages, injunctive relief, monetary damages, and equitable relief such as reinstatement. See Lopez, P. David & Gouston-Madison, Stephanie, Employment Discrimination Law: A Model for Enforcing the Civil Rights of Trafficking Victims, in Human Trafficking Reconsidered: Migration and Forced Labor (Parrenas, Rachel & Hoang, Kimberly eds., 2013)Google Scholar. In EEOC v. Trans Bay Steel, the EEOC obtained a $1million settlement for forty-eight trafficked Thai welders, plus a consent decree requiring the defendant to provide claimants future work, housing, and guaranteed minimum base pay, to pay for their housing stipend and local college tuition, and to ensure the availability of sponsorships to continue working in the United States. Consent Decree, EEOC v. Trans Bay Steel Corp., No. 2: 06cv-07766-CAS-JTL (C.D. Cal. 2008).

205 Protocol to Convention 29, supra note 74 .

206 For example, the International Organization for Migration is currently developing the International Recruitment Integrity System. See IRIS: International Recruitment Integrity System, at http://iris.iom.int. Note, however, that an independent monitoring requirement is apparently lacking and that the organization’s own pilot efforts to manage labor recruitment directly are of concern to labor advocates.

207 See, e.g., Fraudulent Overseas Recruitment and Trafficking Elimination Act of 2013, H.R. 3344, 113th Cong. (2013).

208 See, e.g., Exec. Order No. 13627, 77 Fed. Reg. 60029 (Sept. 25, 2012) (ordering measures to implement a zero-tolerance policy on trafficking in persons by federal contractors and subcontractors).

209 See Fraudulent Overseas Recruitment and Trafficking Elimination Act of 2013, supra note 207. Note that these provisions had been successfully introduced in subpart F of the U.S. Senate’s 2013 comprehensive immigration reform bill, Border Security, Economic Opportunity, and Immigration Modernization Act, S. 744, 113th Cong. (2013).

210 For example, advocates working on behalf of Filipino and Indonesian migrant domestic workers in Hong Kong have called for a state-mediated, direct-hire system. Interview with representatives from the International Domestic Workers Network, the Hong Kong Confederation of Trade Unions, and Mission for Migrant Workers, in Hong Kong (Apr. 24–25, 2012).

211 See Jennifer Gordon, Towards Transnational Labor Citizenship: Restructuring Labor Migration to Reinforce Workers’ Rights: A Preliminary Report on Emerging Experiments (Fordham Law School, Jan. 2009), at https://www.law.berkeley.edu/files/Gordon_Transnatl_Labor_Final.pdf (describing emerging models of “mobile labor citizenship,” including those fostering union-union job referrals).

212 See Gordon, supra note 179 (exploring successful and potential efforts to adopt this approach in Canada and the Netherlands, Philippines, United Kingdom, and United States).

213 Schouten, Fredreka, Au Pair Groups, Others Fight Senate Immigration Rules, USA Today (June 19, 2013), at http://www.usatoday.com/story/news/politics/2013/06/19/lobbying-cultural-exchange-visas-au-pairs/2437589/ Google Scholar; Peterson, Kristina, Worker Bill Roils the au Pair World, Wall St. J., May 24, 2013, at A5 Google Scholar; Shin, Annys, Au Pair Agencies Win Fight to Keep Recruitment Fees, Wash. Post, at A7 (June 25, 2013)Google Scholar; Fair Labor Recruitment, supra note 149; Chuang, Janie A., The U.S. au Pair Program: Labor Exploitation and the Myth of Cultural Exchange, 36 Harv. J. L. & Gender 269 (2013)Google Scholar.

214 U.S. Department of State, Bureau of Educational and Cultural Affairs, J-1 Visitor Exchange Program, at http://j1visa.state.gov.

215 See, e.g., U.S. Department of State and the Broadcasting Board of Governors Office of Inspector General, Inspection of the Bureau of Educational and Cultural Affairs 24 (2012) (questioning “the appropriateness of using J Visas in Work Programs,” particularly the Summer Work Travel, aupair, and intern programs).

216 Report of the August 2011 Human Rights Delegation to Hershey, Pennsylvania (2011), at http://www.guestworkeralliance.org/wp-content/uploads/2011/09/Human-Rights-Delegation-Report-on-Hersheys-J-1-Workers.pdf (criticizing violations of workers’ rights); Preston, Julia, Foreign Students in Work Visa Program Stage Walkout at Plant, N.Y. Times, Aug. 17, 2011, at A11 Google Scholar; Editorial, Not the America They Expected, N.Y. Times, Aug. 18, 2011, at A 22.

217 The final bill imposed regulatory limits upon—rather than prohibiting—fees paid by J-1 visa-holders, reasoning that students, unlike other guest workers, were rightly paying for the privilege of “cultural exchange.” Border Security, Economic Opportunity, and Immigration Modernization Act, supra note 209.

218 Department of State, Foreign Operations, and Related Programs Appropriations Act of 2015, S.2499, 160th Cong. (2014).

219 Davidson, Julia O’Connell, Troubling Freedom: Migration, Debt, and Modern Slavery, Migration Stud. 176, 176 (2013)CrossRefGoogle Scholar.

220 Id.

221 See, e.g., Ceccagno, Antonella, Rastrelli, Renzo & Salvati, Alessandra, Exploitation of Chinese Immigrants in Italy, in Concealed Chains: Labour Exploitation and Chinese Migrants in Europe 89, 135 (Yun, Gao ed., 2010)Google Scholar (describing heavily indebted Chinese workers who, in migrating to Italy to work in the garment industry, had knowingly engaged in “self-exploitation” as a temporary means to an end).

222 The ILO has only indirectly and cautiously recognized the possibility of sex work as labor and has refrained from explicitly including sex workers within the embrace of the labor protections sought. See, e.g., International Labour Organization, the Cost of Coercion, para. 196 (2009) (noting the difficulty of labor inspection of the commercial sex sector); Protocol to Convention 29, supra note 74, pmbl. (noting that forced labor “may involve sexual exploitation”).

223 The 1956 Supplementary Slavery Convention, supra note 89, Art. 1(a), defines debt bondage as

the status or condition arising from a pledge by a debtor of his personal services or of those of a person under his control as security for a debt, if the value of those services as reasonably assessed is not applied towards the liquidation of the debt or the length and nature of those services are not respectively limited and defined[.]

Involvement of third-party recruiters as creditors challenges traditional conceptions of debt bondage, which presume the employer is also the creditor.

224 Criminal Code Act, 1995, sec. 271.8 (Austl.) (criminalizing debt bondage); id., Dictionary (defining “debt bondage”).

225 The recommendation defined “exploitation” to include “where one person obtains a benefit through the use of a second person for the purpose of exploitation” by using the means listed in the Trafficking Protocol definition of trafficking. The Committee Bill, pt. 1, para. 3(2), in House of Lords/House of Commons, Joint Committee on the Draft Modern Slavery Bill, Report, Sess. 2013–14 (Apr. 3, 2014). “Slavery” was defined as “the control by a person of a second person in such a way as a. significantly to deprive that second person of their individual liberty, and b. by which any person obtains a benefit through the use, management, profit, transfer or disposal of that second person. Id., para. 1(2)(a), (b).

226 See Abuse of a Position of Vulnerability and Other “Means” Within the Definition of Trafficking in Persons, supra note 41; the Concept of Exploitation Within the Trafficking in Persons Protocol, supra note 132; the Role of Consent Within the International Legal Definition of Trafficking in Persons, supra note 127.

227 Pope, supra note 7, at 1850 (quoting Justice Robert Jackson).

228 See, e.g., First Amended Complaint and Expert Affidavit of James Gray Pope, Jimenez v. Vanderbilt Landscaping LLC, Civ. Action No. 3:11-0276 (M.D. Tenn. Apr. 6, 2011) (citing Pollock v. Williams, 322 U.S. 4 (1944)).

229 Telephone Interview with Jennifer Rosenbaum, Legal Director, National Guestworkers Alliance (July 26, 2013).

230 See, e.g., Thomas, supra note 142 (assessing scholarly efforts to promote expansive understanding of the slavery concept); Pope, supra note 7; Goluboff, Risa L., The Thirteenth Amendment in Historical Perspective, 11 J. Const. L. 1451 (2009)Google Scholar.

231 Shulman, supra note 101, at 222. In creating ATEST, for example, Humanity United successfully (and surprisingly) moved U.S. anti-trafficking NGOs beyond counterproductive infighting over prostitution reform issues to find common ground in, and to jointly advocate for, a shared legislative reform agenda.

232 Buffett, supra note 98.