Moreover, as will be discussed infra, the narrow criminal law focus fails to address the root causes of human trafficking, and hence, will not be able to prevent human trafficking. Trafficking is anything but limited to the illegal activity of criminals. To the contrary, it is the demand for products and services in legitimate industries within the dynamics of global markets, which fuels the black market of trading in humans. Having realized the huge profitability of the human trafficking market, criminal enterprises and traffickers all over the world serve as the conduit connecting the never ending supply of desperate workers with the growing demand of businesses and consumers across all economic sectors for cheap products and services produced by cheap labor. The dominant narrative of trafficking as an aberrant criminal activity of “bad apples,” however, serves to mask the direct complicity and significant economic benefits gained by governments, businesses, and members of society through the facilitation and furthering of exploitation through human trafficking, primarily at the expense of poor men, women, and children.
18.Human trafficking feeds into a global market dependent on cheap and exploitable labor and the goods and services that such labor can produce. It is exacerbated by gender violence, poverty, and disparities in economic opportunities vis-a-vis unmet labor demands and strict migration laws in wealthier countries. As Janie Chuang aptly put it:
19. The problem of trafficking begins not with the traffickers themselves, but with the conditions that caused their victims to migrate under circumstances rendering them vulnerable to exploitation. Human trafficking is but “an opportunistic response” to the tension between the economic necessity to migrate, on the one hand, and the politically motivated restrictions on migration, on the other.
20. Trafficking exploits the vulnerability of certain individuals and populations, especially those seeking better economic opportunities at home or abroad. Amongst the factors that help shape individual’s or certain group’s, communities’, and societies vulnerability to trafficking are poverty and lack of employment opportunities, which are often aggravated by inequality, discrimination and gender-based violence, and the lure of better economic opportunities elsewhere. These “push” factors are intensified by “pull” factors including ongoing and increasing demand, mostly in wealthier developed regions, for cheap goods and services. Desperate for any job, poor unskilled workers are willing to fill unmet labor demands in informal sectors or in jobs that are rejected by domestic workers in wealthier countries for being too dirty, dangerous, or difficult. At the same time, employers who seek to increase profits at the expense of vulnerable workers, “create” demand for forced labor . Lastly, rather than acknowledge their dependency on migrant labor in many economic sectors, destination countries, fearing the “other,” respond with strict migration laws and border control, thus incentivizing trafficking .
21.These push and pull factors are not new. However, they have taken center stage in the era of contemporary globalization . Globalization and trade liberalization led not only to greater international exchange of capital and goods, but also to increasing labor migration . Alongside general economic benefits, globalization increases the wealth gap between countries and between rich and poor within countries . Such wealth disparities feed increased survival labor migration as economic opportunities disappear in less wealthy countries and communities. Those desperate to migrate, however, encounter tightening border controls and limited options for legal migration at the destination countries (although those countries generate a growing demand for such migrant workers), which in turn exacerbates their vulnerability to trafficking.
22. Furthermore, other aspects of globalization have also contributed to the expansion of traffickers’ reach. No longer limited to individuals who fall prey to trafficking because of dverse personal circumstances, violent environment, lack of education, and no prospects for employment, “[i]ndividuals with higher education, including university qualifications and with second and third languages, that are in employment and stable relatie ships are now considered to be almost as vulnerable but for different reasons.” Greater freedom of movement and ease of travel, lower-cost regional and international transport, and global communication and financial networks, combined with previously unavailable opportunities to work overseas and individuals’ self-confidence enable traffickers to recruit persons who would not normally be thought of as vulnerable.
23.As many critics have noted, most of the requirements do not place “hard” detailed obligations on States . States do not breach their international obligations, if they provide no assistance whatsoever to trafficking victims. The question is whether this flaw in the Trafficking Protocol can be remedied by the already existing, though underutilized, protections in general international human rights law, and by subsequent legal developments.
24.The international community has recognized the factors that feed into and facilitate human trafficking, including: (1) the increasing gaps between rich and poor both within countries and between regions, which means that many (women) have become more subject to trafficking in view of their economic circumstances and their hopes for increased income for themselves and their families; and (2) the increasing ease of international travel and the growing phenomenon of temporary migration for work, which means that opportunities for trafficking have increased.
25.The inherent limitations of the human rights and the criminal law enforcement framework to prevent human trafficking show that a new approach is needed. A few scholars have begun focusing on other possible approaches to human trafficking. Common to all these approaches, as well as to this paper, is the recognition that human trafficking thrives on the vulnerability of certain individuals and populations to exploitation and the call to investigate the relations between labor migration and human trafficking.
26.It is now time to recognize the limitations of the current approaches and address the problem as a matter of economic development and sustainability. To do so, however, we need to specifically examine the gendered nature of the current discourse. As this article argues in Part III infra, the current discourse on human trafficking is gendered in several ways. On the one hand, criminal enforcement efforts and the human rights approaches remain focused on sex trafficking of women and children as the paradigm. On the other hand, the focus on the enslavement of women and children in the illegal sex industry by criminal organizations allows us to view human trafficking as an aberration rather than acknowledge the central role it plays in supporting and maintaining the global economy. Consequently, the current discourse continues to marginalize both the impact on and the role of women, children, and migrant workers from developing nations in the global economy.