LETTING TIME SERVE YOU:  BOOT CAMPS AND ALTERNATIVE SENTENCING FOR FEMALE OFFENDERS


ECONOMIC MIGRATION GONE WRONG: 
TRAFFICKING IN PERSONS THROUGH THE LENS 

OF GENDER, LABOR, AND GLOBALIZATION 

Dr. Dana Raigrodski, University of Washington School of Law 

More often than not, “trafficking is labor migration gone horribly 
wrong in our globalized economy.”1 

 

INTRODUCTION 

The last decade brought much needed attention to the global plight of 
human trafficking, as numerous members of vulnerable populations are 
trafficked all over the world to be enslaved in a broad range of industries 
including, but far from limited to, commercial sex. Yet, the global 
community’s efforts to successfully mitigate trafficking and protect those 
most likely to fall victim to it continue to fall short. This Article argues that 
the lack of success in fighting human trafficking is to a large extent the 
result of framing the existing discourse of human trafficking as primarily a 
matter of criminal law and human rights of women and children rather than 
addressing the economic and global market conditions within which human 
trafficking thrives. It is, as Jonathan Todres puts it, a design failure rather 
than an implementation failure.2 

This Article further suggests that the almost exclusive focus on 
criminal and human rights discourse developed in response to the 
paradigmatic story of human trafficking—young women or children being 
duped and kidnapped for exploitation—in the illegal commercial sex 
industry. However, that focus continues to marginalize the impact on the 
role of women, children, and migrant workers from developing nations in 
the global economy. We will not be able to mitigate human trafficking or to 
achieve economic and social equality around the world without 
acknowledging the gendered and class underpinnings of human trafficking 
discourse. 

1 Janie Chuang, Beyond a Snapshot: Preventing Human Trafficking in the Global Economy, 
13 IND. J. GLOBAL LEGAL STUD. 137, 138 (2006) [hereinafter Preventing Human 
Trafficking]. 
2 Jonathan Todres, Widening Our Lens: Incorporating Essential Perspectives in the Fights 
Against Human Trafficking, 33 MICH. J. INT’L L. 53, 55 (2011) [hereinafter Incorporating 
Perspectives] (exploring alternative perspectives to the criminal law model of human 
trafficking, including a human rights perspective, a public health perspective, and a 
development perspective). See also Jonathan Todres, Moving Upstream: The Merits of 
Public Health Law Approach to Human Trafficking, 89 N.C. L. REV. 447 (2011) (discussing 
the limitations of the current legislative framework). 

http://dx.doi.org/10.18060/7909.0006 

 
                                                                                                                 

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80 IND. INT’L & COMP. L. REV. [Vol. 25:1 
 

Recent efforts link human trafficking to economic pull and push 
factors exacerbated by globalization and trade liberalization, but very little 
discourse frames the discussion in those terms. The current discourse on 
trafficking fails to admit that human trafficking is the “underside of 
globalization.” There is no willingness to admit that human trafficking 
greases the wheels of the global economy. Instead, this Article argues for an 
economic analysis of human trafficking which primarily looks at 
globalization, trade liberalization, and labor migration as the core areas that 
need to be explored to advance the prevention of human trafficking. 

Part I briefly examines the prevailing criminal law enforcement 
framework regarding human trafficking—both at the international level and 
in the United States—which stems out of viewing human trafficking as 
primarily a threat to global security and an underground industry of 
transnational criminal enterprises. It argues that while criminalization no 
doubt helped bring much needed attention (and resources) to human 
trafficking, the narrow criminal law focus fails to address the root causes of 
human trafficking and will not be able to prevent human trafficking. 

Part II looks at the complementary human rights framework to 
combat human trafficking. It briefly explores the early human rights 
discourse regarding trafficking and its limitations, the concerns over the 
criminal law emphasis of the trafficking protocol and Trafficking Victims 
Protection Act (TVPA), and the efforts in the past decade to re-infuse the 
human rights approach and to strengthen the protection and services 
provided to trafficking victims. It argues that the human rights framework is 
likely to remain very limited in its ability to push governments and private 
sector stakeholders to action because it continues to evoke the early 
discourse focusing on the protection of women and children and fails to 
recognize the global economic impetus of human trafficking. 

Part III examines closely the gendered nature of the current human 
trafficking discourse. It argues that the criminal enforcement efforts and the 
human rights approaches are unsuccessful in combating human trafficking 
in large part because these efforts remain focused on sex trafficking of 
women and children as the paradigm. That dominant narrative, however, 
serves as a double-edged sword. While the narrative emphasizes the plight 
of many women and children and the need to “rescue” them from the 
traffickers, it is less likely to garner the firm international and domestic 
commitment and resources needed for true preventative measures as long as 
it is viewed as a women’s issue. 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; and, 
it continues to marginalize both the impact on and the role of women, 
children, and migrant workers from developing nations in the global 
economy. 

Part IV offers a close examination of the realities of labor and 



2015] ECONOMIC MIGRATION GONE WRONG 81 
 
migration in the era of globalization. It specifically highlights the 
vulnerabilities to trafficking and exploitation brought upon by globalization, 
the feminization of labor migration, and the links between irregular 
migration and human trafficking. Consequently, in Part V, the article 
suggests the need to develop an economic analysis of human trafficking, 
one which primarily looks at globalization, trade liberalization, and labor 
migration as the core areas that need to be explored to prevent human 
trafficking. 

I. HUMAN TRAFFICKING AND CRIMINAL LAW DISCOURSE: THE ORIGINS OF 
THE CURRENT LEGAL FRAMEWORKS TO COMBAT TRAFFICKING 

“Human trafficking” was not defined in international, regional, and 
national laws3 until the late 2000s when the United Nations (U.N.) finally 
adopted the Protocol to Prevent, Suppress, and Punish Trafficking in 
Persons, Especially Women and Children,4 and the United States enacted 
the TVPA,5 in recognition of the modern-day alarming rise in the trade-in 
and enslavement of millions of people around the world. While various 
legal instruments already existed to address certain aspects of the problem, 
it was clear that various slavery-like practices including, but not limited to, 

3 Several international legal instruments have already incorporated and addressed the need to 
eliminate trafficking (at least sex trafficking of women and children), but did so without 
clearly defining what trafficking is. See e.g. International Agreement for the Suppression of 
the White Slave Traffic, opened for signature May 4, 1904, 1 L.N.T.S. 83, amended by a 
Protocol approved by the U.N. General Assembly on Dec. 3, 1948, 30 U.N.T.S. 23 (entered 
into force Jul. 18, 1905); International Convention for the Suppression of the White Slave 
Traffic, opened for signature May 4, 1910, 3 L.N.T.S. 278, amended by a Protocol approved 
by the U.N. General Assembly on Dec. 3, 1948, 30 U.N.T.S. 23 (entered into force Aug. 8, 
1912); International Convention for the Suppression of Traffic in Women and Children, 
opened for signature Sept. 30, 1921, 9 L.N.T.S. 415 (entered into force Jun. 15, 1922); 
International Convention for the Suppression of Traffic in Women of Full Age, opened for 
signature Oct. 11, 1933, 150 L.N.T.S. 431 (entered into force Aug. 24, 1934); Convention 
for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of 
Others, opened for signature Dec. 2, 1949, 96 U.N.T.S. 271 (entered into force Jul. 25, 
1951).  
4 See, e.g., Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially 
Women and Children, Supplementing the United Nations Convention Against Transnational 
Organized Crime, opened for signature Nov. 15, 2000, 2237 U.N.T.S. 319 (entered into 
force Dec. 25, 2003) [hereinafter Trafficking Protocol]. 
5 See Trafficking Victims Protection Act of 2000, Division A of Pub. L. No. 106-386, 114 
Stat. 464 (2000), reauthorized by the Trafficking Victims Protection Reauthorization Act of 
2003, Pub. L. No. 108-193, 117 Stat. 2875, reauthorized by the Trafficking Victims 
Protection Reauthorization Act of 2005, Pub. L. No. 109-164, 119 Stat. 3558 (2006), the 
William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. No. 
110-457, 122 Stat. 5054, and in Title XII of the Violence Against Women Reauthorization Act of 
2013, Pub. L. No. 113-4, 127 Stat. 54 (2013); See also 22 U.S.C. §§ 7101-7112 (codifying most of 
the human trafficking laws in the United States). 

 
                                                                                                                 



82 IND. INT’L & COMP. L. REV. [Vol. 25:1 
 
forced labor, child labor, debt bondage, and commercial sexual exploitation 
of children and adults were thriving with impunity in many parts of the 
world.6 The international framework and the U.S. framework called for the 
criminalization of all acts of human trafficking and envisioned that 
governmental response should incorporate the 3Ps: prevention, criminal 
prosecution, and victim protection.7 

While all three components have been recognized as essential, they 
have not been equal, neither in design nor in implementation.8 From the 
start, as will be demonstrated below, much of the contemporary discourse 
and resources focused on criminal enforcement and security issues posed by 
illegal human trafficking. Accordingly, the foremost obligation on nations 
and states (under the Trafficking Protocol, European Union (EU) and other 
regional instruments, TVPA, or State law) is to take legislative and other 
measures to criminalize conduct amounting to trafficking in persons, and 
prosecute traffickers. 

Historically, the limited attention to human trafficking was driven by 
moral-based and human rights concerns regarding mostly white women and 
children.9 In contrast, the prompt for the series of meetings convened by the 
U.N. in Vienna in the late 1990s, which eventually led to the adoption of 
the Trafficking Protocol, was the identified link between trafficking, 
migrant smuggling, transnational organized crime, and the threat to global 
security.10 Having viewed human trafficking as a growing enterprise of 
transnational organized crime, the Trafficking Protocol itself was developed 
as a supplement to the U.N. Convention Against Transnational Organized 
Crimes,11 helping to facilitate cooperation among states in the 
investigations and prosecutions of transnational crime including trafficking 
in persons.12 The most concrete obligation on signatory states, stated in 
Article 5, is to take legislative and other measures to criminalize conduct 

6 ANNE T. GALLAGHER, THE INTERNATIONAL LAW OF HUMAN TRAFFICKING 1-2 (2010) 
[hereinafter GALLAGHER]. 
7 Trafficking Protocol, supra note 4, art. 5. “Trafficking in Persons” under the Protocol is 
defined in art. 3. Id. art 3; See also 22 U.S.C. §§ 7102-7106. 
8 Incorporating Perspectives, supra note 2, at 56-57. 
9 See infra Part II.A. 
10 GALLAGHER, supra note 6, at 68. The international community quickly determined it 
needed to reach an agreement to facilitate the collaborative fight against transnational 
organized crime. Id. at 1, 68. Dr. Anne Gallagher, who at the time served as a U.N. Official 
representing the U.N. High Commissioner for Human Rights in those meetings, recalls a 
conversation with a very senior delegate who viewed this not as a human rights issue but as 
the need of governments to cooperate in order to catch the traffickers, whom he viewed as 
criminals. Id. at 2. 
11 United Nations Convention Against Transnational Organized Crime, opened for signature 
Nov. 15, 2000, 2225 U.N.T.S. 209, (entered into force Dec. 25, 2003) [hereinafter Organized 
Crime Convention]. 
12 Id. art. 1. 

 
                                                                                                                 



2015] ECONOMIC MIGRATION GONE WRONG 83 
 
amounting to trafficking in persons.13 Other articles in the Protocol, such as 
Article 10 (dealing with information sharing and training for law 
enforcement and immigration authorities), Article 11 (dealing with 
measures to increase border security), and Articles 12 and 13 (dealing with 
security of travel documents) again underscore the core focus of the 
Organized Crime Convention and Trafficking Protocol on global security 
and transnational criminal law enforcement.14 

The regional and national legal frameworks that developed in the 
decade that followed placed much of the same emphasis on the 
criminalization of human trafficking and the prosecution and punishment of 
traffickers. The EU 2002 Framework Decision on Combatting Trafficking 
in Human Beings15 retained and expanded the Trafficking Protocol’s 
criminal justice focus.16 The Preamble to the later Directive 2011/36/EU 
of the European Parliament and of the Council of Europe on preventing 
and combating trafficking in human beings and protecting its victims, and 
replacing Council Framework Decision 2002/629/JHA also begins by 
stating that “[t]rafficking in human beings is a serious crime, often 
committed within the framework of organized crime . . .”17 before 
delineating the law enforcement priorities for the EU. 

The TVPA reflects the central focus of the criminal law enforcement 
approach to combating trafficking in the United States.18 While the United 
States had various laws on the books addressing forced labor, involuntary 
servitude, sex trafficking of children, etc., it was clear that existing 
legislation, law enforcement, and sentencing guidelines in the United States 
were “inadequate to deter trafficking and bring traffickers to justice, failing 
to reflect the gravity of the offenses involved.”19 As noted in the 
Congressional findings, “[n]o comprehensive law exists in the United States 
that penalizes the range of offenses involved in the trafficking scheme.”20 
The TVPA included significant amendments to Chapter 77 of Title 18 to 
the United States Code, which defines various crimes of peonage, slavery, 

13 Trafficking Protocol, supra note 4, art. 5. 
14 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and 
Children, Supplementing the United Nations Convention Against Transnational Organized 
Crime, opened for signature Nov. 15, 2000, 2237 U.N.T.S. 319 (entered into force Dec. 25, 
2003) [hereinafter Trafficking Protocol] 
15 See Council Decision of 19 Jul. 2002 on Combatting Trafficking in Human Beings 
(2002/629/JHA), 2002 O.J. (L 203/1). 
16 See GALLAGHER, supra note 6, at 96-99 (providing a detailed discussion of the EU 
Framework Decision on Trafficking in Human Beings). 
17 European Parliament and Council Directive of 5 Apr. 2011 on Preventing and Combating 
Trafficking in Human Beings and Protecting its Victims, Replacing EU Council Framework 
Decision 2002/629/JHA (2011/36/EU), 2011 O.J. (L 101/1). 
18 See infra notes 20-27 and accompanying text. 
19 22 U.S.C. § 7101(b)(14-15) (2012). 
20 22 U.S.C. § 7101(b)(14-15) (2012). 

 
                                                                                                                 



84 IND. INT’L & COMP. L. REV. [Vol. 25:1 
 
and trafficking in persons,21 as well as to the sentencing guidelines.22 Since 
the passage of TVPA, all fifty states have followed with similar legislation 
criminalizing the various forms of human trafficking.23 Federal and state 
law enforcement agencies now place the investigation, prosecution, and 
sanctioning of traffickers high on their agenda, devoting significant 
resources and training opportunities to that task.24 

Particularly telling are the ways in which the law enforcement 
approach frames the United States’ globally-applicable “minimum 
standards for the elimination of trafficking” and its engagement with other 
governments on this issue.25 The “minimum standards for the elimination 
of trafficking” set out in TVPA require foreign governments to prohibit 
trafficking and punish acts of trafficking, and to make serious and sustained 
efforts to eliminate trafficking.26 The Act also sets out criteria that “should 
be considered” as indicia of “serious and sustained efforts to eliminate 
trafficking”; the first of which is whether the government vigorously 
investigates and prosecutes acts of trafficking within its territory.27 
Countries are then placed into one of the report’s three tiers based upon 
these countries’ governmental efforts to combat trafficking.28 

21 See Trafficking Victims Protection Act of 2000, Division A, Sec. 112(a) of Pub. L. No. 
106-386, 114 Stat. 464 (2000) (focusing on strengthening the prosecution and punishment of 
traffickers).  For example, Sec. 112(a) increased the maximum sentence for crimes of 
peonage, 18 U.S.C. § 1581a (2000), and enticement to slavery, 18 U.S.C. § 1583 (2000), sale 
into involuntary servitude, 18 U.S.C. § 1584 (2000) from 10 to 20 years, and possibly life. 
More importantly, it specifically added the crimes of forced labor, 18 U.S.C. § 1589 (2000), 
Trafficking with respect to peonage, slavery, involuntary servitude, or forced labor, 18 
U.S.C. § 1590 (2000), Sex trafficking of children or by force, fraud or coercion, 18 U.S.C. § 
1591 (2000), and Unlawful conduct with respect to documents in furtherance of trafficking, 
peonage, slavery, involuntary servitude, or forced labor, 18 U.S.C. § 1592 (2000). 
22 Trafficking Victims Protection Act of 2000, Division A, Sec. 112(b) of Pub. L. No. 106-
386, 114 Stat. 464 (2000), codified as 22 U.S.C. § 7109 (2000). 
23 Policy Advocacy, THE POLARIS PROJECT, http://www.polarisproject.org/what-we-do/policy-
advocacy (listing a comprehensive survey of each state’s existing and pending legislation). 
24 U.S. DEPT. STATE, TRAFFICKING IN PERSONS REPORT 381-383 (2013), http://www.state. 
gov/j/tip/rls/tiprpt/2013/index.htm. 
25 Realizing that the U.S. efforts to eliminate trafficking depend on the level of engagement 
of other governments with this issue, Congress established in TVPA a framework for the 
U.S. government to provide assistance to, measure progress of, and potentially impose 
unilateral sanctions on, the governments of a country of origin, transit, or destination for 
victims of severe forms of trafficking. See 22 U.S.C. § 7106. Congress required the 
establishment of the Department of State Office to Monitor and Combat Trafficking, 22 
U.S.C. § 7103(e) (2012), to assist the Secretary of State in issuing an annual assessment of 
other governments’ efforts to combat trafficking, known as the annual Trafficking in Persons 
Report. 22 U.S.C. § 7103(e), 7107(b) (2012). 
26 22 U.S.C. § 7106(a) (2012). 
27 22 U.S.C. § 7106(b) (2012). 
28 22 U.S.C. § 7107 (2012). Countries whose governments fully comply with the Act's 
minimum standards for the elimination of trafficking, i.e. those which criminalize and have 

 
                                                                                                                 



2015] ECONOMIC MIGRATION GONE WRONG 85 
 

There has been much critique of the United States’ unilateral 
approach in setting its own global standards, apart from the Trafficking 
Protocol, and taking the role of a global sheriff in imposing those standards 
on other countries.29 There is little doubt, however, that most governments 
around the world have ceded to the U.S. regime on anti-human trafficking 
measures, either due to the direct support of U.S. funding and institutional 
resources to aid foreign governments, combat trafficking, or the somewhat 
effective “naming and shaming” tool that the annual Trafficking In Persons 
(TIP) report has become.30 Consequently, the world allocates an 
overwhelming majority of its legal efforts and resources to the 
criminalization of human trafficking, to the training of law enforcement 
authorities, and to the prosecution of traffickers. 

Criminalization helped bring much needed attention (and funding) to 
this modern slavery. However, the number of prosecutions is dismally low 
in comparison to the scope of the problem, and the estimated numbers of 
people being trafficked is on the rise.31 The allocation of most resources 
and attention to criminal enforcement relegated the grave human rights 
dimensions of this growing crisis to a secondary place at best.32 Once 

successfully prosecuted trafficking, and have provided a wide range of protective services to 
victims as well as sponsor prevention campaigns, are placed in tier 1; countries whose 
governments do not fully comply with those standards are placed in tier 2, if they are making 
“significant efforts to bring themselves into compliance” with the standards, such as 
countries which are strong in the prosecution of traffickers, but provide little or no assistance 
to victims. Id. at (b)(1) The TIP Report also places some tier 2 counties on a watch list if: a) 
the absolute number of victims of severe forms of trafficking is very significant or is 
significantly increasing; b) there is a failure to provide evidence of increasing efforts to 
combat severe forms of trafficking in persons from the previous year; or c) the determination 
that a country is making significant efforts to bring itself into compliance with minimum 
standards was based on commitments by the country to take additional future steps over the 
next year. Id. at (b)(3)(A)(iii). Lastly, countries which are not making significant efforts to 
bring themselves into compliance are placed in tier 3, Id. at (b)(1)(c), and may be subject to 
certain sanctions by the United States. 22 U.S.C. § 7107(d) (2012). 
29 See, e.g., Janie Chuang, The United States as Global Sheriff: Using Unilateral Sanctions 
to Combat Human Trafficking, 27 MICH. J. INT’L L. 437 (2005-2006) [hereinafter Global 
Sheriff]; GALLAGHER, supra note 6, at 485. 
30 See Global Sheriff, supra note 29, at 439. Chuang focuses her critique on the unilateral 
sanctions regime set up by the United States and suggests that that sanctions regime has 
prompted many governments to develop laws and policies to combat trafficking. Id. Contra 
Karen Bravo, Follow the Money? Does the International Fight Against Money Laundering 
Provide a Model for International Anti-Human Trafficking Efforts? 6 U. ST. THOMAS L. J. 
138 (2008) (arguing that the TIP Report naming and shaming lists have had minimal impact 
compared to the FATF’s dirty lists regarding corruption). 
31 Incorporating Perspective, supra note 2, at 65-66 (comparing the low number of 
trafficking prosecutions worldwide, as of 2009, with the estimated growing numbers of 
trafficking victims). 
32 Jonathan Todres, Human Rights, Labor, and the Prevention of Human Trafficking: A 
Response to a Labor Paradigm for Human Trafficking, 60 UCLA L. REV. Discourse 142, 
151 (2013).See also Part II.B. and II.C infra. 

                                                                                                                 



86 IND. INT’L & COMP. L. REV. [Vol. 25:1 
 
framed as a criminal law and security issue, it is more likely that further 
efforts will be anchored in a criminal law approach.33 

Moreover, as will be discussed infra,34 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.  

THE HUMAN RIGHTS DISCOURSE: EVERYTHING OLD IS NEW AGAIN 

Historically, the issue of human trafficking was addressed at the 
margins of international human rights discourse. Throughout the twentieth 
century, the international community condemned human trafficking as a 
grave human rights violation through various legal instruments.35 However, 
notwithstanding such efforts to frame human trafficking as a human rights 
problem, the concern over transnational criminal organizations and border 
security motivated governments to develop a new international legal 

33 Incorporating Perspective, supra note 2, at 63-64 (discussing the “anchoring effect” of the 
criminal law approach to combat human trafficking). 
34 See Part III and IV infra. 
35 See Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III) 
(Dec. 10, 1948); International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 
171; Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and 
Practices Similar to Slavery, Apr. 30, 1956, 266 U.N.T.S. 3; Convention Against Torture and Other 
Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85; 
Convention on the Elimination for Discrimination Against Women, opened for signature Mar. 1, 
1980, 1249 U.N.T.S. 13; Convention on the Rights of Child and Its Optional Protocols (on the Sale 
of Children, Child Prostitution and Child Pornography and on the Involvement of Children in 
Armed Conflict), G.A. Res. 44/25, 44 U.N. GAOR Supp. (No. 49), U.N. Doc. A/44/49 (Nov. 20, 
1989) and G.A. Res. 54/263, Annexes I, II (May 25, 2000), S. TREATY DOC. NO. 106-37 (2000); 
ILO Convention Concerning Forced and Compulsory Labor, opened for signature Jun. 28, 1930, 
39 U.N.T.S. 55, ILO No. 29; ILO Convention Concerning the Abolition of Forced Labor, opened 
for signature Jun. 25, 1957, 320 U.N.T.S. 291, ILO No. 105; ILO Convention Concerning the 
Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labor, opened 
for signature Jun. 17, 1999, 2133 U.N.T.S. 161, ILO No. 182. 

 
                                                                                                                 



2015] ECONOMIC MIGRATION GONE WRONG 87 
 
framework.36 As Anne Gallagher notes, it is very possible that without the 
need for global collaboration on criminal enforcement, border integrity and 
security threats, the human rights dimension alone would not have sufficed 
to garner the renewed interest and agreement among the states on defining, 
criminalizing, and prioritizing human trafficking.37 

Concerns over the criminal law emphasis of the Trafficking Protocol 
and TVPA led to efforts in the past decade to revive the human rights 
approach to trafficking and to strengthen the protection and services 
provided to trafficking victims.38 There has been increasing recognition 
amongst policy makers and human trafficking advocates that providing 
protective measures for trafficking victims is as important as capturing and 
prosecuting their traffickers;39 and there is a growing consensus within the 
international community about the need to address the human rights 
violations that trafficking brings about.40 

The sections below explore the early human rights discourse 
regarding trafficking and its limitations, the concerns over the criminal law 
emphasis of the trafficking protocol and TVPA, the efforts over the past 
decade to re-infuse the human rights approach, and the efforts to strengthen 
the protection and services provided to trafficking victims. Nonetheless, this 
Article argues, The human rights framework is likely to remain very limited 
in its ability to push governments and the growing number of private sector 
stakeholders to action because it continues to evoke the early discourse 
focusing on the protection of women and children and fails to recognize the 
global economic impetus of human trafficking. 

A. Trafficking and Human Rights Discourse in the Early Twentieth Century 
– Focusing on White Women and Children Exploited in the Commercial Sex 
Industry 

While recent efforts to combat human trafficking go back only to the 
late 1990s, human trafficking is not a new phenomenon. The late-nineteenth 
and early-twentieth centuries saw the use of the term “human trafficking” in 

36 See Part I supra. 
37 GALLAGHER, supra note 6, at 4-5. 
38 See Part II.B and Part II.C infra. 
39See Youla Haddadin & Ilona Klímová-Alexander, Human Rights-Based Approach to 
Trafficking: The Work of the United Nations Office of the High Commissioner for Human 
Rights, 52 NO. 1 JUDGES’ J. 22, 22 (2013). See also forward by former Secretary of State 
Hillary Clinton to the 2012 TIP Report, U.S. DEPT. STATE, TRAFFICKING IN PERSONS REPORT 
2 (2012), http://www.state.gov/j/tip/rls/tiprpt/2012/index.htm (“We should aim not only to 
put an end to this crime, but also to ensure that survivors can move beyond their exploitation 
and live the lives they choose for themselves.”). 
40 See, e,g., Youla Haddadin & Ilona Klímová-Alexander, Human Rights-Based Approach to 
Trafficking: The Work of the United Nations Office of the High Commissioner for Human 
Rights, 52 NO. 1 JUDGES’ J. 22, 22 (2013). 

 
                                                                                                                 



88 IND. INT’L & COMP. L. REV. [Vol. 25:1 
 
connection with the forcible or fraudulent recruitment of white women or 
girls into commercial sex work.41 Both the 1904 White Slavery 
Convention42 and the 1910 White Slavery Convention,43 for example, were 
intended to combat the coerced criminal procurement of women and girls 
for “immoral purposes.”44 The term “white slavery” referred only to sex 
trafficking, and was specifically defined to distinguish it from the earlier 
widespread practice of (African) slave trade.45 

Although references to “white slavery” diminished,46 the focus on the 
coerced sexual exploitation of innocent young women and children across 
borders remained core to subsequent conventions, and continues to remain 
the core of the discourse to date.47 The 1921 International Convention for 
the Suppression of Traffic in Women and Children48 avoided references to 
“white slavery” and applied to boys and girls under the age of twenty-one, 
and to older women if they were coerced into “immoral” sex work. The 
1933 International Convention for the Suppression of Traffic in Women of 
Full Age49 eliminated the notion of consent and applied to the trafficking of 
women of any age across international borders for immoral purposes. The 
1949 Convention for the Suppression of the Traffic in Persons and of the 
Exploitation of the Prostitution of Others,50 which consolidated the various 
earlier instruments, applies to men and women (in title as well), but remains 
limited to trafficking for prostitution. 

The Preamble to the 1949 Convention established a direct link to the 

41 GALLAGHER, supra note 6, at 13. 
42 International Agreement for the Suppression of the White Slave Traffic, opened for 
signature May 4, 1904, 1 L.N.T.S. 83, amended by a Protocol approved by the U.N. General 
Assembly on Dec. 3, 1948, 30 U.N.T.S. 23 (entered into force Jul. 18, 1905). 
43 International Convention for the Suppression of the White Slave Traffic, opened for 
signature May 4, 1910, 3 L.N.T.S. 278, amended by a Protocol approved by the U.N. 
General Assembly on Dec. 3, 1948, 30 U.N.T.S. 23 (entered into force Aug. 8, 1912). 
44 See Art. I and Art. II of the International Agreement for the Suppression of the White 
Slave Traffic, opened for signature May 4, 1904, 1 L.N.T.S. 83, amended by a Protocol 
approved by the U.N. General Assembly on Dec. 3, 1948, 30 U.N.T.S. 23 (entered into force 
Jul. 18, 1905); Art I. and Art. II of the International Convention for the Suppression of the 
White Slave Traffic, opened for signature May 4, 1910, 3 L.N.T.S. 278, amended by a 
Protocol approved by the U.N. General Assembly on Dec. 3, 1948, 30 U.N.T.S. 23 (entered 
into force Aug. 8, 1912). 
45 GALLAGHER, supra note 6, at 55. 
46 See infra notes 48-57 and accompanying text. 
47 See infra Part III. 
48 International Convention for the Suppression of Traffic in Women and Children, opened 
for signature Sept. 30, 1921, 9 L.N.T.S. 415 (entered into force Jun. 15, 1922). 
49 International Convention for the Suppression of Traffic in Women of Full Age, opened for 
signature Oct. 11, 1933, 150 L.N.T.S. 431 (entered into force Aug. 24, 1934). 
50 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the 
Prostitution of Others, opened for signature Dec. 2, 1949, 96 U.N.T.S. 271 (entered into 
force Jul. 25, 1951). 

 
                                                                                                                 



2015] ECONOMIC MIGRATION GONE WRONG 89 
 
“dignity and worth of the human being,” which neither trafficking nor 
prostitution is compatible.51 In addition to prosecution and punishment 
measures, protection and rehabilitation of victims are key concepts, 
including fair treatment of foreign victims in the proceedings against their 
traffickers,52 the provision of certain social services,53 and care for destitute 
victims prior to repatriation.54 The 1949 Convention receives much 
criticism for denying women their agency, and for not truly taking a human 
rights approach.55  

For thirty years, the 1949 Convention served as the only international 
agreement on trafficking. It was finally supplemented in 1979 with the 
passage of the Convention on the Elimination of All Forms of 
Discrimination Against Women (CEDAW)56 and the passage of the 
Convention on the Rights of the Child (CRC) in 1989.57 Both addressed a 
broad scope of coerced and exploitative practices involving women and 
children and calling for the elimination of all forms of trafficking against 
women and children. Other international human rights instruments 
addressing abusive and exploitive work conditions for migrant workers58 

51 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the 
Prostitution of Others, at Preamble, opened for signature Dec. 2, 1949, 96 U.N.T.S. 271 
(entered into force Jul. 25, 1951). 
52 Id. at art. 14. 
53 Id. at art. 16. 
54 Id. at art. 19(1).  
55 A discussion of the debate surrounding women’s agency and choice, prostitution, and the 
abolitionist approach taken by most of the international and domestic legal instruments is 
beyond the scope of this Article. For more detailed discussion and further sources, See 
GALLAGHER, supra note 6, at 55, 61-62. 
56 Convention on the Elimination of All Forms of Discrimination Against Women, opened 
for signature Dec. 13, 1979, 1249 U.N.T.S. 13 (entered into force Sept. 3, 1981), art. 6 at 17. 
57 Convention on the Rights of the Child, opened for signature Nov. 20, 1989, 1577 
U.N.T.S. 3 (entered into force Sept. 2, 1990), art. 35, 36. 
58 See ILO Convention No. 143, Concerning Migration in Abusive Conditions and the 
Promotion of Equality of Opportunity and Treatment of Migrant Workers, opened for 
signature Jun. 24, 1975, 1120 U.N.T.S. 324 (entered into force Dec. 9, 1978). The other 
eight core ILO conventions, as well as another ILO Convention specifically protecting 
migrant workers, are also relevant in the context of trafficking. See Convention Concerning 
Forced and Compulsory Labour, opened for signature Jun. 28, 1930, 39 U.N.T.S. 55, ILO 
No. 29 (entered into force May 1, 1932); Convention Concerning Freedom of Association 
and Protection of the Rights to Organize, opened for signature Jul. 9, 1948, 68 U.N.T.S. 17, 
ILO No. 87 (entered into force Jul. 4, 1950); Convention Concerning Right to Organize and 
Collective Bargaining, opened for signature Jul. 1, 1949, 96 U.N.T.S. 257, ILO No. 98 
(entered into force Jul. 18, 1951); Convention Concerning Equal Remuneration for Men and 
Women Workers for Work of Equal Value, opened for signature Jun. 19, 1951, 165 
U.N.T.S. 303, ILO No. 100 (entered into force May 23, 1953); Convention Concerning the 
Abolition of Labour, opened for signature Jun. 25, 1957, 320 U.N.T.S. 291, ILO No. 105 
(entered into force Jan. 17, 1959); Convention Concerning Discrimination in Respect of 
Employment and Occupation, opened for signature June 25, 1958, 362 U.N.T.S. 31, ILO 
No. 11 (entered into force Jun. 15, 1960); Convention Concerning Minimum Age for 

 
                                                                                                                 



90 IND. INT’L & COMP. L. REV. [Vol. 25:1 
 
would also have potential applicability to trafficking victims, but the 
connection between trafficking and migrant labor was not directly drawn 
until recently.59 

The inherent political, legal, and structural weaknesses of the 
international human rights system resulted in few effective solutions to 
human trafficking during most of the twentieth century.60 During the 
second half of the twentieth century, the States’ reporting obligations and 
overall enforcement mechanism under the 1949 Convention proved to be 
extremely weak,61 and the concern over innocent women and girls being 
taken abroad and forced against their will into situations of (typically 
sexual) exploitation was “almost exclusively confined to the margins of the 
relatively low-profile human rights system.”62 Despite fairly 
straightforward prohibitions in two major treaties and an array of related 
standards in other human rights conventions, it was, and still is, extremely 
difficult to link trafficking to the violation of a specific provision of a 
specific convention.63 

The scope of trafficking did not disappear however; to the contrary, it 
kept growing at an alarming rate. Eventually, the chronic inability of human 
rights law and tools to deal with modern forms of exploitation and 
trafficking prompted States to look for more effective responses outside the 
human rights framework.64 

B. Human Rights Discourse and the Trafficking Protocol 

Many in the human rights community were concerned that the 
drafting of the first modern international legal instrument on trafficking was 
vested in the U.N. Crime Commission rather than the U.N. Commission on 
Human Rights.65 In trying to ensure that a human rights perspective was 
injected into the criminal law enforcement framework, efforts were taken to 
convince States that incorporating human rights protections to the victims 
was crucial to achieving the crime and border control objectives.66 

Admission to Employment, opened for signature Jun. 26, 1973, 1015 U.N.T.S. 298, ILO No. 
138 (entered into force Jun. 19, 1976); Convention Concerning the Prohibition and 
Immediate Action for the Elimination of the Worst Forms of Child Labour, opened for 
signature Jun. 17, 1999, 2133 U.N.T.S. 161, ILO No. 182 (entered into force Nov. 19, 
2000); Convention Concerning Migration for Employment (Revised), opened for signature 
Jul. 1, 1949, 20 U.N.T.S. 79, ILO No. 97 (entered into force Jan. 22, 1952). 
59 GALLAGHER, supra note 6, at 161-62. 
60 Id. at 4. 
61 Id. at 62. 
62 Id. at 16. 
63 Id. at 4. 
64 Id. at 477. 
65 Id. at 4. See also Global Sheriff, supra note 29, at 446-47. 
66 GALLAGHER, supra note 6, at 71-72. For example, it was recognized that successful 
investigation and prosecution of traffickers depended on the cooperation of the victims, 

                                                                                                                 



2015] ECONOMIC MIGRATION GONE WRONG 91 
 
Consequently, while clearly driven by concerns about global security and 
transnational criminal enterprises, the Trafficking Protocol also reflects an 
agreement amongst the international community about the severe human 
rights issues that human trafficking entails.67 Both the Preamble to the 
Protocol68 and its Statement of Purpose69 emphasize the need to respect and 
protect the victims’ human rights. Similarly, Article 6 (dealing with 
assistance and protection to trafficking victims), Article 7 (dealing with the 
status of trafficking victims in receiving states), and Article 8 (dealing with 
repatriation of trafficking victims) specify specific areas of focus for the 
states to address, from immediate medical, counseling,70 and housing 
needs,71 to long-term education,72 employment,73 and residency status 
assistance.74 

As many critics have noted, most of the requirements do not place 
“hard” detailed obligations on States.75 States do not breach their 
international obligations, if they provide no assistance whatsoever to 
trafficking victims.76 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.77 

C. Human Rights Discourse and the Call for Better Protection of 
Trafficking Victims 

There is no doubt that human trafficking presents grave human rights 
issues.78 Since the enactment of the Trafficking Protocol, there has been 
increasing recognition that protective measures for trafficking victims are as 
important, if not more so, than capturing and prosecuting their traffickers.79 

which in turn requires measures to protect their rights and provide much needed services. Id. 
at 83; See also, the U.S. Department of Homeland Security victim-centered approach under 
its Blue Campaign, available at http://www.dhs.gov/blue-campaign/about-blue-campaign. 
67 See infra notes 68-74 and accompanying text. 
68 Trafficking Protocol, supra note 4, pmbl. 
69 Id. art. 2. 
70 Id. art. 6.3(c) 
71 Id. art. 6.3(a) 
72 Id. art. 6.3(d) 
73 Id. art. 6.3(d) 
74 Id. art. 7. 
75 See GALLAGHER, supra note 6, at 81-82. 
76 Id. at 83. 
77 Id. at 2. 
78 See, e.g., 22 U.S.C. § 7101(b)(23); GALLAGHER, supra note 6, at 5 (“Trafficking goes to 
the very heart of what human rights law is trying to prevent.”). 
79 See Youla Haddadin & Ilona Klímová-Alexander, Human Rights-Based Approach to 
Trafficking: The Work of the United Nations Office of the High Commissioner for Human 
Rights, 52 NO. 1 JUDGES’ J. 22, 22 (2013). See also infra notes 80-94 and accompanying text. 

                                                                                                                 



92 IND. INT’L & COMP. L. REV. [Vol. 25:1 
 
Both the European approach to human trafficking80 and the slowly-
changing focus in the implementation of the U.S. TVPA demonstrate the 
growing consensus of the need to address the human rights violations that 
trafficking brings about.81   

The current European approach to human trafficking focuses more 
directly on the human rights issues than does the Trafficking Protocol. The 
2005 Council of Europe Convention on Action against Trafficking in 
Human Beings82 (Convention) set out to be, in contrast to the Trafficking 
Protocol, a human rights instrument with a core focus on victim 
protection.83 It is a comprehensive treaty focusing mainly on the protection 
of victims of trafficking and the safeguarding of their rights.84 In designing, 
implementing, and assessing policies and programs to prevent trafficking, 
the Convention required member countries to promote a human rights-
based approach and to use a gender mainstreaming and child-sensitive 
approach.85 Accordingly, Chapter III of the European Trafficking 
Convention sets up specific measures to protect and promote the rights of 
victims and to guarantee gender equality.86 

80 See infra notes 82-86 and accompanying text. 
81 As former Secretary of State Hillary Clinton pointed out in the 2012 TIP Report: 

Trafficking in persons deprives victims of their most basic freedom: to 
determine their own future. Our work in fulfilling the promise of freedom 
should be not only the pursuit of justice, but also a restoring of what was taken 
away. We should aim not only to put an end to this crime, but also to ensure 
that survivors can move beyond their exploitation and live the lives they 
choose for themselves. 

U.S. DEPT. STATE, TRAFFICKING IN PERSONS REPORT 2 (2012), http://www.state. 
gov/j/tip/rls/tiprpt/2012/index.htm. 
82 Council of Europe Convention on Action Against Trafficking in Human Beings and its 
Explanatory Report, CETS 197, 16.V.2005, opened for signature May 16, 2005, entered into 
force Feb. 1, 2008 [hereinafter European Trafficking Convention]. See also GALLAGHER, 
supra note 6, at 110-27 (offering a detailed discussion of the drafting process and scope of 
the Council of Europe Convention Against Trafficking). 
83 GALLAGHER, supra note 6, at 114. 
84 As stated in the Preamble, the European Trafficking Convention is based on recognition of 
the principle that trafficking in human beings is first and foremost a violation of human 
rights and an offence to the dignity and integrity of the human being. European Trafficking 
Convention, supra note 82, at pmbl. It therefore aims to protect the human rights of 
trafficking victims, design a comprehensive framework for the protection and assistance of 
victims and witnesses, while guaranteeing gender equality, and to ensure effective 
investigation and prosecution. European Trafficking Convention, supra note 82, at art. 
1(1)((b). 
85 European Trafficking Convention, supra note 82, at art. 5(3). 
86 Such measures include, for example, correct identification of victims and postponement of 
any removal proceedings; identity and privacy protection; assistance to victims in their 
physical, psychological and social recovery including housing, medical services, translation 
services, counsel and assistance in the criminal proceedings against the traffickers, education 
for child victims, and so forth; residence permit if necessary based on the victims’ personal 
situation or to ensure cooperation with law enforcement authorities; access to legal aid and 

 
                                                                                                                 



2015] ECONOMIC MIGRATION GONE WRONG 93 
 

The U.S. TVPA also creates hard obligations87 with regard to 
victims’ protections and assistance, both for victims outside the United 
States and for victims within the United States.88  Alien trafficking victims 
within the United States, for example, may be eligible for federal public 
benefits and assistance,89 protection of their safety, and access to medical 
care.90  The Trafficking Victims Protection Reauthorization Act of 2003 
also created a private cause of action for trafficking victims.91 Trafficking 
victims may even be eligible for temporary or permanent residency status in 
the United States.92 

Within the TVPA statutory framework, prevention comes first, then 
protection, and finally prosecution. As noted earlier, at the implementation 
stage, much of the focus and resources early on has been on the criminal 
enforcement aspect.93 Most TIP reports clearly put more emphasis in their 
assessment of efforts in other countries on legislative action to criminalize 
trafficking and on efforts by law enforcement agencies and the criminal 

compensation; and repatriation with due regard for the victim’s rights, safety and dignity. 
European Trafficking Convention, supra note 82, at art. 10-16. 

The anchoring of the European approach in human rights law received a further boost in a 
2010 landmark decision of the European Court of Human Rights. In the case of Rantsev v. Cyprus 
and Russia, the Court found that Cyprus and Russia were legally responsible and liable in damages 
for the death, in Cyprus, of a Russian woman who was most likely a trafficking victim. Eur. Ct. H. 
R. App. No. 25965/04 (2010), (ECHR Jan. 7, 2010), available at http://hudoc.echr.coe.int/ 
sites/eng/pages/search.aspx?i=001-96549#{"itemid":["001-96549"]}. The Court specifically ruled 
that trafficking in human beings fell within the scope of Article 4 of the European Convention for 
the Protection of Human Rights and Fundamental Freedoms. Id. at ¶ 293, 309. The Court 
emphasized that, accordingly, States had a positive human rights obligation to put in place an 
appropriate legal and administrative framework against trafficking, to take measures to protect 
victims and to investigate acts of trafficking, including through effective co-operation with other 
States concerned on criminal matters. Id. at  290-309. 
87 Applicable only to victims of “a severe form of trafficking in persons.” The term “severe 
forms of trafficking in persons” is defined in 22 U.S.C. § 7102(8) (2012) as: 

(A) sex trafficking in which a commercial sex act is induced by force, fraud, 
or coercion, or in which the person induced to perform such act has not 
attained 18 years of age; or  
(B) the recruitment, harboring, transportation, provision, or obtaining of a 
person for labor or services, through the use of force, fraud, or coercion for the 
purpose of subjection to involuntary servitude, peonage, debt bondage, or 
slavery.  

88 See 22 U.S.C. § 7105(a) (2012) and 22 U.S.C. § 7105(b) (2012). 
89 22 U.S.C. § 7105(b)(1) (2012). 
90 22 U.S.C. § 7105(c)(1)(B) (2012). 
91 TVPRA of 2003, Pub. L. No. 108-193, 117 Stat. 2875, §4(a)(4)(A) (providing a private 
cause of action for victims to sue their individual traffickers); See also 18 U.S.C. § 1595(a) 
(2012) (offering an additional cause of action for trafficking victims to sue their traffickers in 
order to recover damages and attorneys fees). 
92 See 22 U.S.C. § 7105(c)(3)(i) (2012). Immigration status, however, is contingent upon 
cooperation with law enforcement in prosecution efforts. See 22 U.S.C. § 7105(c)(3)(iii) 
(2012). 
93 See Part I supra. 

                                                                                                                 



94 IND. INT’L & COMP. L. REV. [Vol. 25:1 
 
justice system as a whole to capture and punish traffickers.94 It was not 
until the 2012 TIP Report that protection of trafficking survivors took a 
more central role in shaping U.S. policy on trafficking.95  The 2014 TIP 
report underscores the U.S. commitment to support trafficking victims in 
their journey to becoming trafficking survivors.96 

The emphasis on trafficking as a human rights issue helped shift the 

94 See, e.g., U.S. DEPT. OF STATE, TRAFFICKING IN PERSONS REPORT 14 (2003), available at 
http://www.state.gov/documents/organization/21555.pdf (discussing in the following order: 
prevention, prosecution, and protection). In 2004, the order became prosecution, protection, 
prevention, and the analysis continued in that order in 2005, 2006, 2007, 2008, 2009, 2010, 
and 2011. See Trafficking in Persons Report, U.S. DEPT. OF STATE, http://www.state.gov/j 
/tip/rls/tiprpt/index.htm (last visited Jun. 20, 2014). 

As recently as the 2009 and 2010 TIP reports, prosecution and punishment were at the 
top of the U.S. policy priorities. See U.S. DEPT. OF STATE, TRAFFICKING IN PERSONS REPORT 
25-32 (2009), available at http://www.state.gov/documents/organization/123357.pdf; See 
also U.S. DEPT. OF STATE, TRAFFICKING IN PERSONS REPORT 12 (2010), available at 
http://www.state.gov/documents/organization/142979.pdf. The 2009 TIP Report included an 
explanatory section on the ”3Ps,” Punishment, Protection and Prevention, See U.S. DEPT. OF 
STATE, TRAFFICKING IN PERSONS REPORT 25-32 (2009), available at http://www.state.gov/ 
documents/organization/123357.pdf (discussing the “3P”), and the 2010 TIP Report section on 
Policy Priorities stated: “Since the issuance of President Bill Clinton’s Executive 
Memorandum on the Trafficking of Women and Children in March 1998, the U.S. 
government has advocated a policy structured by the “3P” paradigm: prosecution, protection, 
and prevention.” See also U.S. DEPT. OF STATE, TRAFFICKING IN PERSONS REPORT 12 (2010), 
available at http://www.state.gov/documents/organization/ 142979.pdf.  

Current policy communications from the Office to Monitor and Combat Trafficking in 
Persons and from the President's Interagency Task Force To Monitor and Combat 
Trafficking in Persons suggest that a shift in focus back to prevention, protection, 
prosecution, and the newly added 4P (“partnership”) is slowly taking place. See, e.g., Office 
to Monitor and Combat Trafficking in Persons, U.S. DEPT. OF STATE, http://www.state.gov 
/j/tip/index.htm. The fourth ‘P’–Partnerships–has been included in recent TIP reports, 
starting with the 2010 TIP Report.  The most recent reauthorization of the TVPA specifically 
added a section promoting collaboration and cooperation between the U.S. government, 
foreign governments, civil society actors, and private sector entities. See Violence Against 
Women Reauthorization Act of 2013, Pub. L. No. 113-4, § 1202, 127 Stat. 54 (2013) 
(codified as amended at 22 U.S.C. § 7103a(a) (2013)). 
95See U.S. DEPT. OF STATE, TRAFFICKING IN PERSONS REPORT (2012), available at 
http://www.state.gov/j/tip/rls/tiprpt/2012/index.htm (focusing on how to make victim 
protection more effective for helping survivors restore their lives and for providing them 
with meaningful choices to move forward). The 2013 TIP report continues on this path, by 
not only focusing on effective victim identification, but most importantly by focusing on 
listening to survivors’ experiences and incorporating their perspectives and giving survivors 
a true voice in the process. See U.S. DEPT. OF STATE, TRAFFICKING IN PERSONS REPORT 
(2013), available at http://www.state.gov/j/tip/rls/tiprpt/2013/index.htm.  
96 See U.S. DEPT. OF STATE, TRAFFICKING IN PERSONS Report (2014) available at 
http://www.state.gov/j/tip/rls/tiprpt/2014/index.htm. The 2014 TIP report makes it clear that 
“a major element of the recovery process is helping victims regain their agency, their 
dignity, and the confidence to make choices about how to move forward with their lives.” Id. 
at 8. 

 
                                                                                                                 

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2015] ECONOMIC MIGRATION GONE WRONG 95 
 
perception of trafficking victims from being considered criminals 
themselves, subject to deportation and prosecution to being viewed as 
victims.97 The human rights discourse also put pressure on governments’ to 
incorporate the Protection aspect of the “3P” paradigm;98 it now drives 
many public awareness campaigns and educational programs under the 
Prevention component of the “3P” paradigm.99 Moreover, a human rights 
approach continues to remind us “trafficking is woven deeply and 
inextricably into the fabric of an inequitable, unjust, and hypocritical 
world.”100 

At the same time, the human rights discourse remains mostly 
aspirational and limited in its ability to obligate nations and businesses to 
take affirmative steps to address the social and economic conditions that 
perpetuate trafficking. There is no shortage of international human rights 
standards that address trafficking, but very little takes the form of concrete 
obligations and true engagement with the underlying issues.  

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.101 Those emerging voices primarily take a 

97 See e.g. U.S. DEPT. OF STATE, TRAFFICKING IN PERSONS REPORT (2010), available at 
http://www.state.gov/documents/organization/142980.pdf at p.13-16 (setting a victim-centered 
approach as a policy priority for the U.S. anti-trafficking efforts and identifying the detentions and 
criminalization of victims as harmful to victims and as counterproductive.). See also U.S. DEPT. OF 
STATE, TRAFFICKING IN PERSONS REPORT (2013), available at http://www.state.gov/documents/ 
organization/210737.pdf at p.36 (discussing non-criminalization of victims). 
98 See e.g. See U.S. DEPT. OF STATE, TRAFFICKING IN PERSONS REPORT (2011), available at 
http://www.state.gov/documents/organization/164452.pdf at p.40-42 (delineating governments’ 
responsibility to offer comprehensive protection measures to trafficking victims). See also U.S. 
DEPT. OF STATE, TRAFFICKING IN PERSONS REPORT (2012), available at http://www.state.gov/ 
documents/organization/192587.pdf at 9-14. 
99 See e.g. the mission statement of the U.N. Global Initiative to Fight Human Trafficking 
(UN.GIFT), available at http://www.ungift.org/knowledgehub/en/about/index.html (“UN.GIFT 
aims to mobilize state and non-state actors to eradicate human trafficking by reducing both the 
vulnerability of potential victims and the demand for exploitation in all its forms; ensuring adequate 
protection…while respecting the fundamental human rights of all persons…UN.GIFT will increase 
the knowledge and awareness on human trafficking; promote effective rights-based responses…). 
High profile media campaigns, for example, include the CNN Freedom Project, 
http://thecnnfreedomproject.blogs.cnn.com/. 
100 GALLAGHER, supra note 6, at 4. 
101 See e.g., Sarah Richelson, Trafficking and Trade: How Regional Trade Agreements Can 
Combat the Trafficking of Persons in Brazil, 25 ARIZ. J. INT’L & COMP. L. 857 
(2008)(suggesting the integration of labor and other human rights into free trade agreements 
as a new approach to combat human trafficking); Karen E. Bravo, Free Labor! A Labor 
Liberalization Solution to Modern Trafficking in Humans, 18 TRANSNAT’L L. & CONTEMP. 
PROBS. 545, 562 (2009) (arguing that human capital and labor should be able to move freely 
in the global economy, similar to other goods and services, thus undermining the incentives 
for underground mu=migration and human trafficking) [hereinafter Free Labor]; James Gray 

 
                                                                                                                 



96 IND. INT’L & COMP. L. REV. [Vol. 25:1 
 
labor approach or, to a lesser extent, a development approach and a public 
health approach.102 Common to all these approaches, as well as to this 
Article, 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.103 

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. 

 

III. A PROBLEMATIC GENDERED DISCOURSE: THE FOCUS ON WOMEN AND 
CHILDREN 

Part I and II supra argued that the discourse on human trafficking has 
been too narrow, and consequently ineffective, due to its focus on criminal 
law enforcement and on human rights. This part asserts that the current 
discourse has also been narrow in its primary focus on women and children, 
and, up until recently, on sex trafficking. It is largely due to that focus that 
we have not been able to truly address and hopefully prevent human 

Pope, A Free Labor Approach to Human Trafficking, 158 U. PA. L. REV. 1849 (2010) 
(focusing on the empowerment of workers to claim their rights); Jonathan Todres, Widening 
Our Lens: Incorporating Essential Perspectives in the Fights Against Human Trafficking, 33 
MICH. J. INT’L L. 53, 55 (2011) (exploring alternative perspectives to the criminal law model 
of human trafficking including a human rights perspective, a public health perspective, and a 
development perspective); Jonathan Todres, Moving Upstream: The Merits of Public Health 
Law Approach to Human Trafficking, 89 N.C. L. REV. 447 (2011)(further exploring a public 
health approach to human trafficking); Hila Shamir, A Labor Paradigm for Human 
Trafficking, 60 UCLA L. REV. 76 (2012) (examining human trafficking through a labor lens 
and suggesting workplace measures to empower employees)[hereinafter A Labor Paradigm]; 
Jonathan Todres, Human Rights, Labor, and the Prevention of Human Trafficking: A 
Response to a Labor Paradigm for Human Trafficking, 60 UCLA L. REV. Discourse 142 
(2013)(supporting a combined human rights and labor approach to combat human 
trafficking). 
102 See infra Part V. 
103 Id. 

                                                                                                                 



2015] ECONOMIC MIGRATION GONE WRONG 97 
 
trafficking. 

The historical legacy of initially excluding people of color from the 
early trafficking protections and of conceptualizing trafficking as only 
relating to sex trafficking of women and children is reflected in the current 
legal framework and discourse regarding trafficking.104 Whether directly 
reflected in their names, or indirectly underlying the legal framework, much 
of the current approaches to human trafficking developed in response to the 
paradigmatic horror story of human trafficking—the young (white) woman 
or child being duped and kidnapped for exploitation in the illegal 
commercial sex industry.105 The Protocol to Prevent, Suppress, and Punish 
Trafficking in Persons, Especially Women and Children (emphasis added) 
was initially intended to deal only with trafficking in women and children. 
However, a proposal to expand the scope to all persons was made early on, 
and almost all the States agreed, with the understanding that particular 
attention should be given to the protection of women and children.106 The 
question of whether to move beyond the traditional focus on sex trafficking 
to include forced labor, debt bondage, and forced marriage garnered much 
more opposition.107 Much of the discourse in Europe and in Asia in the 
1990s and to some extent today, shows a clear preference to define 
trafficking as restricted to the sexual exploitation of women and children.108 
The TVPA, which in 2000 was part of a legislative package addressing 
violence against women, similarly elevates trafficking in the form of sexual 
exploitation of women and children.109 Today as well, portrayals of human 
trafficking in the media (including in documentary and fiction movies), 
advocacy campaigns by NGOs, and on social networks, demonstrate that 
the history of the human trafficking discourse—especially the narrative 
envisioning the rescue of innocent women and girls from life of 
enslavement in immoral sexual activities—continue to shape the current 
human trafficking discourse.110 

104 See supra Part II.A.  
105 See infra notes 106-110 and accompanying text. 
106 GALLAGHER, supra note 6, at 26. 
107 GALLAGHER, supra note 6, at 26-29. 
108 Id. at 19-22. 
109 TVPA separately identifies “sex trafficking” as a severe form of trafficking if procured by 
fraud or coercion, or if involving minors. 22 U.S.C. § 7102 (2012). Of the twenty-four 
Congressional findings that frame TVPA, five findings reference sex trafficking and the 
commercial sex industry and five findings refer specifically to women and children as 
victims of trafficking, primarily in sexual exploitation. 22 U.S.C. § 7101 (2012). The 2013 
reauthorization of TVPA was again as part of the reauthorization of VAWA. See Title XII of 
the Violence Against Women Reauthorization Act of 2013, Pub. L. No. 113-4, 127 Stat. 54 
(2013). 
110 UN.GIFT maintains a list of many documentary and fiction films on human trafficking 
(http://www.ungift.org/knowledgehub/media/films.html, archived at PERMA). Of the better 
known ones are the three Taken Hollywood movies (2008, 2012, 2014), Sex Traffic (2004), 

 
                                                                                                                 



98 IND. INT’L & COMP. L. REV. [Vol. 25:1 
 

That dominant narrative, however, serves as a double-edged sword. 
While the narrative emphasizes the plight of many women and children and 
the need to ‘rescue’ them from the traffickers, as long as it is viewed as a 
women’s issue it is less likely, as we have unfortunately seen in many other 
areas, to garner the firm international and domestic commitment and 
resources needed for true preventative measures. Since many trafficked 
women and men are often also poor migrant individuals of color from the 
Global South, their marginalization and invisibility goes beyond gender 
issues and is compounded by the intersection of multiple characteristics that 
are devalued, historically, and within the current global power structures. 

Jonathan Todres’ analysis of “otherness” and “othering” in the 
context of trafficking is particularly insightful. In his article Law, Otherness 
and Human Trafficking,111 Todres suggests that “otherness,” which 
inherently devalues and dehumanizes the “Other,” facilitates the abuse and 
exploitation of certain individuals and explains, at a regulatory level, both 
the current selective responses to exploitation and trafficking and complete 
inaction in various regards.112 The intersections of race, gender, ethnicity, 
class, culture, and geography leads members of dominant backgrounds 
(either as individuals or as groups or even countries) to devalue and “other” 
certain individuals, communities and entire nations.113 Poor women of 
color in developing countries are persistently subject to “othering” on 
multiple dimensions, and tend to be the most marginalized and devalued 
within the global community.114 The more marginalized they are, the more 
they are at risk of exploitation.115 The more limited their choices are 
because of their race, gender, ethnicity, class, culture, or geography, the 
more they may opt to engage in risky work or risk dangerous paths.116  

“Othering” also allows the global community, especially the Global 

Trafficked (2005), Human Trafficking (2005), Daryl Hannah's human trafficking 
documentary (2006), Not for Sale (2007), Redlight (2009), and Not My Life (2010). With 
the exception of Not My Life, these movies focus on sex trafficking of women and children 
and the efforts to rescue them. 

NGO examples include: THORN, formerly the DNA Foundation founded by Demi and 
Ashton Kutcher, which focuses on combating the digital/online sexual exploitation of 
women and children (http://www.demiandashton.com/aboutus/, archived at PERMA); the 
Coalition Against Trafficking in Women, http://www.catwinternational.org/, which is a 
multi-regional international network fighting sexual exploitation and prostitution 
(http://www.catwinternational.org/, archived  at PERMA); End Child Prostitution, Child 
Pornography and Trafficking of Children for Sexual Purposes (ECPAT), which is another 
NGO and a global network of civil society organizations exclusively dedicated to ending the 
commercial sexual exploitation of children, (http://www.ecpat.net/, archived at PERMA). 
111 Jonathan Todres, Law, Otherness, and Human Trafficking, 49 SANTA CLARA L. REV. 605 
(2009). 
112 Id. at 607. 
113 Id. at 609. 
114 Id. at 619-20. 
115 Id. at 621-22.  
116 Id. at 622. 

                                                                                                                 



2015] ECONOMIC MIGRATION GONE WRONG 99 
 
North, to, on the one hand, view itself as the altruistic savior of the “Other,” 
and, on the other hand, to rationalize and turn a blind eye to its own 
exploitation and benefit at the expense of the “Other.”117 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.118 It continues to marginalize both the impact on and the 
role of women, children, and migrant workers, primarily from developing 
nations, in the global economy. As may often be the case, “trafficked 
women may be . . . migrant women attempting to meet their own needs or 
responding to labor demand in the West.”119 But, the dominant trafficking 
narrative ignores the complex structural, social, and economic aspects of 
women’s labor migration.120 

As long as the focus remains on “saving” women and children from 
the hands of criminals, instead of acknowledging the global economic 
realities that feed and perpetuate the business of human trafficking, our 
efforts will continue to be a drop in the sea. I join Jonathan Todres in 
suggesting that it is precisely because those most vulnerable to—and 
directly harmed by—human trafficking are impoverished migrant women, 
children and men of color—i.e. “The Other”—that the discourse has been 
allowed to remain in the marginalized and weaker international law domain 
of human rights and labor rights rather than at the core of economic growth 
and trade policies. 

 

IV. THE REALITIES OF ECONOMIC MIGRATION AND HUMAN TRAFFICKING 
IN THE ERA OF GLOBALIZATION 

In an increasingly interdependent world, human migration is just another 
element of the global market-place.121 

117 Id. at 623-35. See also Shamir, A Labor Paradigm, supra note 101, at 80-81 (“[T]he 
prevailing human rights approach to anti-trafficking is not merely acutely limited in its reach 
but in fact may also be harmful in that it has created the illusion that the international 
community is taking action against severe forms of exploitation, when in reality, little is 
being done to address the underlying causes.”). 
118 As Todres demonstrates, “othering” also allows the dominant group, the “Self,” to 
exempt its own behavior and exploitation of those it views as “Other.” Todres, supra note 
111, at 616-17, 623-35.  
119 Janie Chuang, Rescuing Trafficking from Ideological Capture: Prostitution Reform and 
Anti-Trafficking Law and Policy, 158 U. PA. L. REV. 1655, 1702 (2010) [hereinafter: 
Rescuing Trafficking]. 
120 Id. See infra Part V. 
121 Jennifer Chaćon, Misery and Myopia: Understanding the Failures of U.S. Efforts to Stop 
Human Trafficking, 74 FORDHAM L. REV. 2977, 2977 (2006) [hereinafter Misery and 
Myopia]. 

 
                                                                                                                 



100 IND. INT’L & COMP. L. REV. [Vol. 25:1 
 

 
As migrant workers, particularly migrant women, are playing an 

increasingly critical role in the global economy, trafficking victims are 
often poor unskilled migrant workers. The dominant trafficking narrative 
continues to marginalize the impact on, and the role of, women, children, 
and migrant workers, primarily from and within developing nations, in the 
global economy. 

Many trafficked workers are enslaved in their own countries and are 
not necessarily cross-border migrant workers. Many may be “domestic” 
migrant workers from rural, less-developed areas to urban or industrial 
areas. Others are simply relegated to exploitive and dangerous jobs in the 
name of global economic development, open markets, and competitive 
production and supply chains. All, especially trafficked cross-border 
migrant workers, increasingly serve a critical role in sustaining the global 
economy all over the world. 

A. Vulnerability and Globalization 

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: 

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.122 

Trafficking exploits the vulnerability of certain individuals and 
populations, especially those seeking better economic opportunities at home 
or abroad.123 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.124 These “push” factors are intensified 

122 Preventing Human Trafficking, supra note 1, at 140. 
123 Incorporating Perspectives, supra note 2, at 58-59. 
124 GALLAGHER, supra note 6, at 415. 

 
                                                                                                                 



2015] ECONOMIC MIGRATION GONE WRONG 101 
 
by “pull” factors including ongoing and increasing demand, mostly in 
wealthier developed regions, for cheap goods and services.125 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.126 At the 
same time, employers who seek to increase profits at the expense of 
vulnerable workers, “create” demand for forced labor.127 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.128 

These push and pull factors are not new. However, they have taken 
center stage in the era of contemporary globalization.129 Globalization and 
trade liberalization led not only to greater international exchange of capital 
and goods, but also to increasing labor migration.130 Alongside general 
economic benefits,131 globalization increases the wealth gap between 
countries and between rich and poor within countries.132 Such wealth 
disparities feed increased survival labor migration as economic 
opportunities disappear in less wealthy countries and communities.133 
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 

125 Incorporating Perspectives, supra note 2, at 60 (“Ultimately, as with the drug trade, 
traffickers are feeding a demand driven by consumers. In the human trafficking context, the 
demand is driven by both the desire for commercial sex and the desire for cheap goods and 
services.”). 
126 Preventing Human Trafficking, supra note 1, at 145. 
127 Id. See also A Labor Paradigm, supra note 101, at 83 (“[T]here are rent-Seeking interests 
that benefit from flexible, deregulated labor markets. Such interests may be served by 
worker migration, but need labor to remain informal, thereby reducing the cost of labor and 
weakening workers’ protections and bargaining power while increasing their vulnerability to 
exploitation.”). 
128 A Labor Paradigm, supra note 101, at 146. 
129 Globalization is a loosely defined set of complex economic and financial processes that 
have made our world economies increasingly interdependent on each other, including trade 
liberalization and rise “in international trade, global movement of capital, transnational 
commerce and investment and labor flows. . . .” IRFAN UL HAQUE, GLOBALIZATION, 
NEOLIBERALISM AND LABOUR 1 (Jul. 2004), available at http://unctad.org/en/Docs/osgdp 
20047_en.pdf. 
130 Preventing Human Trafficking, supra, note 1, at 140. Traditional sex roles and division of 
labor typically means that women participate in the labor market, primarily for survival, in 
unpaid or underpaid traditional female jobs. Id. Discriminatory gender practices often 
deprives women from access to both basic or higher education, which further limits their 
prospects for better paying jobs covered by labor protections. Id. 
131 See generally IRFAN UL HAQUE, supra note 129, 3-5. 
132 Preventing Human Trafficking, supra, note 1, at 140. 
133 Id. at 141. 

 
                                                                                                                 



102 IND. INT’L & COMP. L. REV. [Vol. 25:1 
 
workers), which in turn exacerbates their vulnerability to trafficking.134 

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 adverse 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 
relationships are now considered to be almost as vulnerable but for different 
reasons.”135 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.136 

B. The Feminization of Labor and Migration 

Women comprise most of those emigrating for survival (due to both 
economic hardship and gender-based repression), and relatedly, the 
overwhelming majority among those who are exploited in the process and 
subject to labor trafficking.137 Women, as well as many men and children, 
faced with lack of jobs in their domestic markets, may opt to migrate in 
order to access developed markets within their region or abroad. 
Importantly, aside from fulfilling their own survival needs, migrant women, 
as well as men and children, are playing an increasingly critical role in 
sustaining the global economy as they fill the demand for workers 
particularly in informal low-wage earning economic sectors in destination 
countries.138 

Human trafficking is very much a manifestation of the feminization of 
both poverty and migration.139 Poverty and unemployment increase 

134 Id. at 138. 
135 GALLAGHER, supra note 6, at 415 note 2 
136 Id.  
137 Preventing Human Trafficking, supra, note 1, at 141.  
138 Id. at 143. Saskia Sassen argues that “exploited and undervalued women are active factors 
in the making of alternative political economies for survival, not only for their households 
but also for a range of economic sectors and for governments,” even if they themselves do 
not necessarily gain anything or become empowered. Saskia Sassen, Strategic Gendering As 
Capability: One Lens into the Complexity of Powerlessness, 19 COLUM. J. GENDER & L. 179, 
180 (2010) [hereinafter Complexity of Powerlessness]. 
139 See generally Alyson Dimmitt Gnam, Mexico’s Missed Opportunities to Protect Irregular 
Women Transmigrants: Applying a Gender Lens to Migration Law Reform, 22 PAC. RIM L. 
& POL’Y. J. 713 (2013) (focusing on the Mexico-U.S. migration corridor to demonstrate the 
global phenomenon of increasing numbers of job-Seeking migrant women). 

 
                                                                                                                 



2015] ECONOMIC MIGRATION GONE WRONG 103 
 
opportunities for trafficking in women.140 Women are especially vulnerable 
due to entrenched discriminatory and gender-based violence practices that 
relegate them to unregulated low-wage employment in informal sectors and 
limited opportunities for legal migration.141 Women particularly are being 
pushed out of developing countries due to economic, familial, and societal 
pressures and comprise at least fifty-six percent of the world’s trafficking 
victims.142 In enacting TVPA in 2000, Congress was in fact cognizant of 
many of these aspects.143 Amongst its key findings, Congress recognized 
that traffickers primarily target women and girls who are disproportionately 
affected by poverty, lack of access to education, chronic unemployment, 
low status and discrimination, and the lack of economic opportunities in 
countries of origin.144 Consequently, traffickers lure women and girls into 
their networks through false promises of decent working conditions at 
relatively good pay and buy children from poor families and sell them into 
various types of forced or bonded labor.145  

Globalization has had a particularly harsh impact on women in the 
“Global South,” and it is critical that we recognize the “systemic link 
between the growing presence of women from developing economies in a 
variety of global migration and trafficking circuits on one hand and the rise 
in unemployment and debt in those same economies on the other.”146 
Women in developing countries who may have been able to participate in 
the formal economy through small locally owned businesses and farms may 
no longer have those opportunities and lose out to cheaper imported 
goods.147 They are consequently pushed into the informal sector, or into 
low-skilled manufacturing and service jobs generated by the entrance of 
transnational corporations into developing economies.148 Quite often those 
corporations are allowed to get away with adverse working conditions and 
low wages in their “global assembly line.”149 Such employers may even 
prefer female workers from disadvantaged backgrounds as they take 
advantage of deeply imbedded gender subordination in traditional societies, 

140 U.N. Secretary-General, Traffic in Women and Girls: Rep. of the Secretary-General, ¶ 22, 
UN Doc. A/50/369 (Aug. 24, 1995) (citing the Committee on the Elimination of 
Discrimination Against Women 1992 General Recommendation 19, para. 14). 
141 Preventing Human Trafficking, supra note 1, at 141-44. 
142 See 2009 ILO Global Report of Forced Labour, The Cost of Coercion, at p.1, available at 
http://www.ilo.org/global/topics/forced-labour/publications/WCMS_106268/lang--en/index. 
htm. See also U.S. DEPT. OF STATE, TRAFFICKING IN PERSONS REPORT 34 (2010), available at 
http://www.state.gov/documents/organization/142979.pdf  
143 See 22 U.S.C. § 7101 (2012). 
144 Id. 
145 22 U.S.C. § 7101(b)(4) (2012). 
146 Complexity of Powerlessness, supra note 138, at 193; See also Gnam, supra note 139. 
147 Preventing Human Trafficking, supra note 1, at 142-43. 
148 Id., at 142-43. 
149 Id. at 143. 

 
                                                                                                                 



104 IND. INT’L & COMP. L. REV. [Vol. 25:1 
 
and assume that these workers are likely to be more submissive and less 
likely to resist exploitive work conditions.150 

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;151 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.152 However, 
rather than acknowledge their dependency on migrant labor in many 
economic sectors, destination countries respond with strict migration laws 
and border control, especially with regards to working-class and so-called 
unskilled migrant labor, thus incentivizing trafficking.153 

C. (Irregular) Labor Migration and Human Trafficking 

It is increasingly acknowledged that the risk of trafficking increases when 
the demand for labor is undermined by migration policies that limit 
working-class migration.154 

 
The dynamics of cross-border migration within the era of 

globalization compound and present additional catalysts for human 
trafficking. In the era of globalization, the logic of trade and finance may be 

150 Id. These dynamics are also very much at play when employers in destination countries 
take tacit advantage of subordination factors of migrant workers, due to gender, racial and 
language vulnerabilities, socioeconomic background and immigration status. Id. at 145-46. 
Saskia Sassen similarly offers an analytical framework of the strategic gendering in the 
global division of labor, discussing both the feminization of offshore workers, as a way to 
weaken unions and ensure a submissive and disempowered workforce, and the parallel use 
of migrant women for domestic work to facilitated professional ‘no-wife’ households in the 
global cities. Complexity of Powerlessness, supra note 138, at 179, 188-91. 
151 See generally Alyson Dimmitt Gnam, Mexico’s Missed Opportunities to Protect Irregular 
Women Transmigrants: Applying a Gender Lens to Migration Law Reform, 22 PAC. RIM L. 
& POL. J. 713 (2013). 
152 U.N. Secretary General, Traffic in Women and Girls: Rep. of the Secretary General, ¶ 6, 
U.N. Doc. A/51/306 (August 27, 1996). 
153 See also Misery and Myopia, supra note 121, at 2977 (arguing that the U.S. is not a 
passive recipient of trafficked human beings and must acknowledge its role in generating a 
market for trafficking); Free Labor, supra note 101, at 568 (“In denying legal transborder 
mobility to the majority of human labor providers, nation states Seek to have it both ways. 
They employ both the rhetoric of globalization and integration, as well as the contradictory 
rhetoric of exclusion. At the same time, their migration policies are policies of exclusion 
characterized by incomplete trade liberalization and draconian immigration laws.”). 
154 JULIE HAM, MOVING BEYOND ‘SUPPLY AND DEMAND’ CATCHPHRASES: ASSESSING THE 
USES AND LIMITATIONS OF DEMAND-BASED APPROACHES IN ANTI-TRAFFICKING, 56 (2011).  

 
                                                                                                                 



2015] ECONOMIC MIGRATION GONE WRONG 105 
 
one of openness but “the logic of migration is one of closure.”155 With trade 
and investment, the wealthier Global North advocates openness whereas 
countries in the Global South have been more critical, at least initially. With 
migration, the dynamics are opposite: wealthier states try to keep migrant 
labor out whereas underdeveloped and developing states want to export 
workers and capitalize on their remittances.156 

Traffickers can become one of the only avenues left to meet the 
demands of both employers and workers within such restrictive migration 
systems.157 In the face of tightening border controls and limited options for 
legal migration at the destination countries, those desperate to migrate for 
survival opt for risky underground migration channels, which puts them at 
much higher risks of becoming victims of human trafficking.158 
Nonetheless, the international community has been reluctant to fully 
investigate and act upon the linkage between trafficking and migrant 
labor.159 In fact, within the current legal framework dealing with 
trafficking, there is a clear effort to distinguish “trafficking” from “illegal 
migration” and “migrant smuggling.”160 The former crime involves 
helpless virtuous victims, whereas the latter two involve those who are 
complicit in their own misfortune, ignoring the realities of migration flows 
and human trafficking.161 

As discussed earlier, the renewed interest in human trafficking in the 
late 1990s arose partially as this phenomenon became associated with other 
global criminal trends, including criminal organizations engaging in the 
illegal movement of migrants across borders for profit.162 The discourse 
began to expand and to address these issues from the perspective of 
migration control, border security, and organized crime.163 Although the 
analytical and empirical links between trafficking and migration flows 
started to surface, the legal discourse remained insistent on treating them as 
separate issues.164 The prevailing view continues to distinguish between 

155 James F. Hollifield, Migration, Trade, and the Nation-State: The Myth of Globalization, 3 
UCLA J. INT’L. L. & FOREIGN AFF. 595, 597 (1998-99). 
156 Id. 
157 HAM, supra note 154, at 56. 
158 Id. See also Jennifer Chaćon, Misery and Myopia, supra note 121, at 2977 (2006). 
159 See infra Notes 163-170 and accompanying text. 
160 See infra Notes 163-170 and accompanying text. 
161 See infra Notes 163-170 and accompanying text. 
162 GALLAGHER, supra note 6, at 17. 
163 See supra notes 10-12 and accompanying text. 
164 For example, a report by the U.N. Secretary General elaborated on the connection 
between trafficking and illegal migration, but was careful to differentiate the two: 
Trafficking across international borders is by definition illegal . . . The question must be 
asked however, whether trafficking is the same as illegal migration. It would seem that the 
two are related but different. Migration across frontiers without documentation does not have 
to be coercive or exploitive. At the same time persons can be trafficked with their consent. A 

 
                                                                                                                 



106 IND. INT’L & COMP. L. REV. [Vol. 25:1 
 
trafficking, as the coerced and fraudulent movement for the end purpose of 
for-profit exploitation, and smuggling, as the facilitation of illegal 
movement across borders.165 The notion that smuggling is consensual and 

distinction could be made I terms of the purpose for which the borders are crossed and 
whether movement occurs through the instrumentality of another person. Under this 
distinction, trafficking of women and girls would be defined in terms of the ‘end goal of 
forcing . . . into economically and exploitive situations . . . for profit . . . . 
U.N. Secretary-General, Traffic in Women and Girls: Rep. of the Secretary-General, ¶17, 
U.N. Doc. A/50/369 (Aug. 25, 1995).  
165 One clear manifestation of that view is the way in which trafficking and migrant 
smuggling are treated separately under the Organized Crime Convention. In addition to the 
adoption of the Trafficking Protocol, the Organized Crime Convention was supplemented by 
two additional protocols on migrant smuggling and on trade in small arms. See Protocol 
against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations 
Convention Against Transnational Organized Crime, opened for signature Nov. 15, 2000, 
2241 U.N.T.S. 507 (entered into force Jan. 28, 2004), as amended Oct. 24, 2009 [hereinafter 
Migrant Smuggling Protocol]; See also Protocol against the Illicit Manufacturing of and 
Trafficking in Firearms, Their Parts and Components and Ammunition, Supplementing the 
United Nations Convention Against Transnational Organized Crime, opened for signature 
May 31, 2001, 2326 U.N.T.S. 208 (entered into force Jul. 3, 2005). With many European 
States as well as Australia and the United States experiencing a significant increase in the 
number of illegal migrants starting in the 1990s, the Migrant Smuggling Protocol intended to 
prevent and combat migrant smuggling by defining migrant smuggling as an international 
crime, by promoting international cooperation, and by protecting the rights of smuggled 
migrants. Migrant Smuggling Protocol, Id. 

The Migrant Smuggling Protocol criminalizes the conduct of those who procure or 
otherwise facilitate the smuggling of migrants by defining smuggling as “the procurement, in 
order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry 
of a person into a State Party of which the person is not a national or a permanent resident.” 
Migrant Smuggling Protocol, supra note 125, at art. 3(a). This definition Seems to take a 
neutral position on the conduct and complicity of the smuggled migrants themselves. 
However, the underlying core distinction between those who are trafficked and those who 
are ‘merely’ smuggled is intimately intertwined with the dichotomy of coercion v. consent. 
Article 3(a) to the Trafficking Protocol defines “trafficking in persons” to mean: 

the recruitment, transportation, transfer, harbouring or receipt of persons, by 
means of the threat or use of force or other forms of coercion, of abduction, of 
fraud, of deception, of the abuse of power or of a position of vulnerability or 
of the giving or receiving of payments or benefits to achieve the consent of a 
person having control over another person, for the purpose of exploitation. 
Exploitation shall include, at a minimum, the exploitation of the prostitution 
of others or other forms of sexual exploitation, forced labour or services, 
slavery or practices similar to slavery, servitude or the removal of organs. 
Trafficking Protocol, supra note 4, art. 3(a) (emphasis added). 

The definition goes on to deem the victim’s consent irrelevant where any of the means 
of coercion, deception, and abuse set forth in subparagraph (a) have been used, and in any 
case involving the trafficking of children. Trafficking Protocol, supra note 4, art. 3(b) and 
art. 3(c). The definition of smuggling stands in stark contrast to the definition of trafficking 
in that it leaves out any references to the means by which the procurement of the migrant to 
be smuggled occurs or any subsequent means to extort financial gain once the illegal entry 
has taken place. Compare Migrant Smuggling Protocol, Id.  at art. X, with Trafficking 
Protocol, supra note 4, at art. X. 

                                                                                                                 



2015] ECONOMIC MIGRATION GONE WRONG 107 
 
does not involve coercion has underlined much of the discussion 
surrounding trafficking.166 That dichotomized view, however, fails to 
acknowledge the extreme vulnerability of migrant workers and the 
circumstances which bring people to take inordinate risks in trying to 
pursue what they believe to be better opportunities elsewhere to sustain 
themselves and their families.167 

All over the world, adult human trafficking victims are primarily 
recruited by promises of legitimate employment opportunities, only to be 
subjected to coercion, violence, and exploitation upon arrival to their 
destination.168 Moreover, the realities of contemporary labor migration 
significantly undermine the assumption that the relations between the 
recruiter/smuggler and the migrant to be smuggled across the border are 
simply a manifestation of a business transaction in which the migrant 
purchases for money the illegal services of the smuggler.169 More often 
than not, the recruitment, transportation, transfer, harboring, or receipt of 
the migrant worker entails the abuse of a position of vulnerability and the 
desperation of those agreeing to be smuggled across borders in hope of 
better opportunities to survive.170 

This is not to suggest that every instance of migrant smuggling 
amounts to human trafficking. The line is often blurred. If one looks at the 
end-point exploitation, “[i]n fact, many victims of human trafficking look 

166 See also Free Labor, supra note 101, at 554-55. This distinction is flawed, serving to 
mask the often symbiotic relationship between the two types of transboundary movement by 
shrouding migrant smuggling and human trafficking in contrasting types of illegality and 
vilification, instead of placing them along a continuum of rational and less-to-more 
exploitative responses to the contradictory international economic and migration systems. Id. 
167 Jennifer Chaćon argues, for example, that the limited impact of the TVPA and the 
ineffectiveness of the U.S. efforts to stop human trafficking stem from the United States 
doing almost nothing to develop an immigration strategy that deals with the global forces 
that drive migration and instead putting in place immigration laws and policies that render 
migrants vulnerable to exploitation and trafficking. See Misery and Myopia, supra note 121, 
at 2977 (2006). 
168 See Sarah Richelson, Trafficking and Trade: How Regional Trade Agreements Can 
Combat the Trafficking of Persons in Brazil, 25 ARIZ. J. INT’L & COMP. L. 857, 858 (2008); 
See also Shamir, A Labor Paradigm, supra note 101, at 105-06; Jonathan Todres, Human 
Rights, Labor, and the Prevention of Human Trafficking: A Response to a Labor Paradigm 
for Human Trafficking, 60 UCLA L. REV. Discourse 142, 145-46 (2013). 
169 See e.g. U.S. DEPT. STATE, TRAFFICKING IN PERSONS REPORT 26-29 (2011), 
http://www.state.gov/documents/organization/164452.pdf.  
170 While there is no clear definition as to what amounts to abuse of a position of 
vulnerability, there is some support to a broad interpretation of the term. For example, the 
Explanatory Report to the European Convention on Action Against Trafficking, which 
reproduced the Trafficking Protocol definition, states that “the vulnerability may be of any 
kind, whether physical, psychological, emotional, family-related, social or economic . . . the 
situation can be any state of hardship in which a human being is impelled to accept being 
exploited.” Council of Europe, Explanatory Report on the Convention on Action Against 
Trafficking in Human Beings, CETS 197, 16.V.2005 para. 83.  

 
                                                                                                                 



108 IND. INT’L & COMP. L. REV. [Vol. 25:1 
 
quite like exploited agricultural laborers and factory workers, and in fact 
they are often one and the same.”171 Trafficking depends not only on the 
coercive means by which the victim is obtained or held, but also on the 
purpose of exploitation such as sexual exploitation, forced labor or services, 
slavery, or practices similar to slavery and servitude.172 The prototypical 
narrative of trafficking, for example, tells the story of young women or 
parents of children who fall prey to the traffickers’ promise of employment 
or educational opportunities abroad and consent to be illegally transported 
across borders only to find themselves in coerced sex work, domestic 
servitude, or other forms of forced labor.173 Similarly, many migrant 
workers find themselves held in debt bondage for a “debt” owed to their 
traffickers, which they supposedly incurred as a result of the cross-border, 
and previously consented to, smuggling.174 Both scenarios clearly fall 
within the definition of human trafficking, regardless of their origin as 
consensual smuggling.175 

Rather than putting most of our efforts on maintaining these 
distinctions, we should focus our efforts on understanding and addressing 
the factors and dynamics that create economic deprivations and social 
conditions that limit individual choices and make individuals vulnerable to 
exploitation and trafficking. Furthermore, receiving countries like the 
United States need to recognize that current immigration and labor policies 
drive migrant workers underground and expose them to abuse by their 
recruiters, transporters, and employers.176 

171 Dina Francesca Haynes, 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, 44-45 (2009). 
172 Trafficking Protocol, supra note 4, art. 5. “Trafficking in Persons” under the Protocol is 
defined in art. 3. Id. art 3; See also 22 U.S.C. §§ 7102-7106. 
173 The annual TIP reports highlight many such stories from all over the world. See e.g., U.S. 
DEPT. STATE, TRAFFICKING IN PERSONS REPORT 8, 11, 14, 17, 23 (2012), http://www.state. 
gov/documents/organization/192587.pdf; U.S. DEPT. STATE, TRAFFICKING IN PERSONS 
REPORT 13, 17, 24, 29, 42, 46 (2013), http://www.state.gov/documents/organization 
/210737.pdf; U.S. DEPT. STATE, TRAFFICKING IN PERSONS REPORT 15, 23, 28, 29, 40 (2014), 
http://www.state.gov/documents/organization/226844.pdf.  
174 In debt bondage or bonded labor the trafficker uses debt to keep a person under 
subjugation. Traffickers, recruiters and destination employers unlawfully exploit an initial 
debt the worker assumed as part of the terms of employment, or when workers inherit debt in 
more traditional systems of bonded labor (generations in South Asia), and use it to withhold 
wages, deduct housing and food costs, or confiscate passports and visa documents. Children 
and migrant workers are particularly vulnerable to this type of exploitation. See e.g. U.S. 
DEPT. STATE, TRAFFICKING IN PERSONS REPORT 18-19, 26 (2007), http://www.state.gov/ 
documents/organization/82902.pdf.  
175 Cf. Free Labor, supra note 101, at 575 (“The lines between labor exploitation, migrant 
smuggling, and human trafficking are not clear. However, it is clear that labor exploitation 
and migrant smuggling are the Seedbed from which human trafficking grows.”). 
176 Misery and Myopia, supra note 121, at 3039. 

 
                                                                                                                 



2015] ECONOMIC MIGRATION GONE WRONG 109 
 

In conclusion, what may initially seem like illegal migration may very 
well amount to human trafficking; what may initially seem like consent 
may very quickly turn into abuse, coercion, and exploitation. More often 
than not, as pointed out by Janie Chuang, “trafficking is labor migration 
gone horribly wrong in our globalized economy.”177  

V. REFRAMING HUMAN TRAFFICKING AS A GLOBAL ECONOMIC ISSUE 

The current discourse on trafficking fails to admit that human 
trafficking is, as the International Labor Organization (ILO) points out, the 
"underside of globalization."178 There is no real commitment to reframe 
trafficking as a global migratory response to a global market that seeks out 
cheap, unregulated, and exploitable labor and the goods and services that 
such labor can produce. 179 There is no willingness to admit that human 
trafficking greases the wheels of the global economy. Instead, this Article 
argues, we need to develop an economic analysis of human trafficking, one 
which primarily looks at globalization, trade liberalization, and labor 
migration as the core areas that need to be explored to advance the 
prevention of human trafficking. 

Although the international community has generally recognized some 
of the factors that make individuals vulnerable to trafficking, there is no real 
acknowledgment of the economics of trafficking. While the Trafficking 
Protocol, for example, requires states (in an aspirational way) to “take or 
strengthen measures . . . to alleviate the factors that make persons, 
especially women and children, vulnerable to trafficking”180 as well as 
place “exploitation” at the core of the definition of trafficking, it does not 
otherwise acknowledge the economic forces and market practices that drive 
trafficking and labor exploitation more broadly.181 Even the ILO, which is 
significantly ahead of the current discourse on human trafficking, in 
recognizing human trafficking as a labor and migration issue, doesn’t truly 
engage in a critical analysis of global markets, as if root causes of 
trafficking including “poverty, lack of employment and inefficient labour 
migration systems”182 exist in a vacuum. 

The current approaches to human trafficking view it as distinct and 
exceptional extreme forms of human exploitation. They pretend not to 
notice that our markets perpetuate the commodification of labor and that 
trafficking is merely the extreme manifestation of an “entire spectrum of 

177 Preventing Human Trafficking, supra note 1, at 138.  
178 U.S. DEPT. OF STATE, TRAFFICKING IN PERSONS REPORT, 5 (2003). 
179 Preventing Human Trafficking, supra note 1, at 139; See also GALLAGHER, supra note 6, 
at 432; Misery and Myopia, supra note 121, at 3039. 
180 Trafficking Protocol, supra note 4, art. 9(4). 
181 Cf. A Labor Paradigm, supra note 101, at 105. 
182 INT’L. LABOUR ORG, ILO ACTION AGAINST TRAFFICKING IN HUMAN BEINGS, 2 (2008). 

 
                                                                                                                 



110 IND. INT’L & COMP. L. REV. [Vol. 25:1 
 
forms of economic coercion and commodification.”183 As Hila Shamir 
points out, “the difference between exploitation of workers and trafficking 
is a matter of degree and not kind.”184 

Accordingly, Shamir, for example, advocates for a paradigm shift to a 
labor approach “that targets the structure of labor markets prone to severely 
exploitative labor practices.”185 She focuses on workers’ vulnerability, the 
power disparities between workers and employers, and workers’ inferior 
bargaining power in the workplace. Her labor approach calls for policies to 
empower workers vis-à-vis their employers, including protective 
employment legislation and expansion of collective action and unions.186 

Shamir’s labor approach is premised exactly on the understanding 
that “the trafficked individual is a worker who is exploited in a market 
context.”187 She is absolutely correct in arguing that we need to understand 
human trafficking as “an issue of economic labor market exploitation,”188 
and to focus on power disparities and economic and social conditions that 
exacerbate vulnerability to trafficking.189 She acknowledges that to fully 
understand how power relations in the labor market operate we need to 
investigate, amongst other things, private market rules, immigration 
regimes, and trade policies.190 With that in mind, this Article argues that a 
true confrontation of the exploitive market dynamics that perpetuate 
trafficking requires a major shift in how we structure our global economy 
and the whole spectrum of our market practices. Shamir’s efforts to 
ameliorate the power disparities between vulnerable workers and their 
employer simply do not go far enough. 

Similarly, focusing on labor flows within the global economy, Karen 
Bravo’s call to apply economic and trade liberalization principles to labor 
migration and human trafficking begins to engage in a true inquiry of our 
global market structures.191 Recognizing that “the modern traffic in human 
beings cannot be separated from the forces of globalization,”192 she argues 

183 A Labor Paradigm, supra note 101, at 110.  
184 Id.  
185 Id. at 76. 
186 Id. at 108. Shamir proposes five labor-focused anti-trafficking measures: prevent the 
criminalization and deportation of workers who report exploitation to ensure workers’ access 
to the justice system; eliminate visa arrangements binding workers to specific employers; 
regulate debt-based contracting; reduce recruitment fees and the power of middlemen; 
guarantee the right to unionize; and extend and enforce the application of labor and 
employment laws to vulnerable workers and to sectors susceptible to trafficking. Id. at 112-
19. 
187 Id. at 106. 
188 Id. at 80. 
189 Id. at 81. 
190 Id. at 81-82. 
191 Free Labor, supra note 101, at 545.  
192 Id. at 549. 

 
                                                                                                                 



2015] ECONOMIC MIGRATION GONE WRONG 111 
 
that the only way to undermine the structural foundations of human 
trafficking is to “target the economic bases of the labor and other 
exploitation.”193 Specifically, argues Bravo, we need to acknowledge the 
connection between the growing problem of human trafficking, the increase 
in trade liberalization and globalization, and the simultaneous closing of 
borders and state imposition of restrictions on labor migration.194 
Consequently, labor should receive the same “free mobility” status as that 
of other goods, capital, and services in the international trading system.195 

While the opening of markets under the contemporary trade 
liberalization global framework removed barriers to the trans-border 
movement of capital, goods, and services, labor is the only production 
factor that has not been similarly liberalized.196 On the one hand, labor is 
clearly treated as a commodity in the global production chains in the race 
for cheap and efficient production and for profit maximization.197 On the 
other hand, labor is treated as a passive immobile economic unit and 
constrained by state borders and restrictive immigration policies.198 
Moreover, the international trade regime facilitates the movement of some 
labor—that of skilled workers.199 By leaving out the movement of unskilled 
workers, whose labor is nonetheless much in demand, the international 
trade regime creates the economic incentives for human trafficking and 
increases (unskilled) labor providers’ vulnerability to exploitation.200 
Therefore, in order to successfully fight against human trafficking, argues 
Bravo, we should recognize labor’s role in the global economic system and 
give human capital (labor) analogous status to other production and 
economic inputs within the international open trade system.201 

Bravo is amongst the few who recognized early on that human 
trafficking takes place within the legitimate economic activities rather than 
just being limited to illegal and aberrational activity.202 She correctly 
observes how restrictive immigration policies perpetuate the exploitation of 
migrants and would-be migrants while allowing entire industries, both 
legitimate and illegal, to flourish financially.203 Bravo remains amongst the 

193 Id. 
194 Id. at 550, 560-61.  
195 Id. at 550-51. Bravo suggests doing so by adopting a new multilateral annex to the WTO 
Agreement – the General Agreement on Trade in Labor (GATL). Id. at 550-51, 597-607. 
196 Id. at 563-64. 
197 Id. at 562-63.  
198 Id. at 563-64. 
199 Id. at 575 (“The status quo in the transnational labor market is a system of exploitation 
that is fatal to the poor, vulnerable, and unskilled, existing alongside a more flexible and 
open regime for highly skilled labor.”). 
200 Id. at 568, 571-72. 
201 Id. at 597. 
202 Id. at 550, 561-62. 
203 Id. at 597.  

 
                                                                                                                 



112 IND. INT’L & COMP. L. REV. [Vol. 25:1 
 
few who directly confront the international trade regime in an effort to 
undermine the economic foundations of human trafficking,204 even if it 
requires radical rethinking of transnational relations.205 

Bravo’s trade and labor market analysis, however, is primarily 
focused on liberalizing and regulating the supply of workers.206 While she 
does, of course, explicitly acknowledge that the global labor market 
distortion is tied to the demand for cheap labor, she nonetheless claims that 
“it is the vulnerability of human labor providers to that demand that allows 
human trafficking to flourish.”207 Therefore, although exploitation is not 
likely to completely cease, Bravo does think that by severely decreasing the 
potential supply, human trafficking will become an aberrational practice.208 

This Article suggests that this is not likely to be the case, exactly 
because the demand for exploitable cheap labor, both domestically and 
across borders, is a structural feature of our liberalized, global economy and 
converging production chains. Labor exploitation, and with it human 
trafficking, is needed to sustain open markets, international trade, and the 
global economy. Until we are willing to admit the true costs of 
globalization and until we are willing to redistribute wealth allocation 
between nations and within nations, human trafficking will continue to 
increase. 

In a global market that seeks out cheap, unregulated, and exploitable 
labor to produce goods and services that generate GDP and propel 
economic growth, human trafficking is anything but limited to the illegal 
activity of criminals.209 Trafficking of people is not merely part of the 
shadow economy but is in fact part of the structured global economy and 
serves leading economic sectors and places worldwide.210 Countries 
compete in the global marketplace to offer other countries and multinational 

204 Id. at 616. 
205 Id. at 607. 
206 See supra notes 191-201 and accompanying text. 
207 Free Labor, supra note 101, at 608. 
208 Id. at 608. 
209 Preventing Human Trafficking, supra note 1, at 139; See also GALLAGHER, supra note 6, 
at 432; Misery and Myopia, supra note 121, at 3039. 
210 See Anne T. Gallagher, Understanding Exploitation, Vol. XXXIII, No. 3 HARV. INT’L 
REV. 4-5 (Fall 2011), available at http://works.bepress.com/cgi/viewcontent.cgi?article= 
1021&context=anne_gallagher. No country is exempt from the pandemic of human 
trafficking: The main region for forced labor is by far Asia and the Pacific, and in the 
industrialized world, the Middle East and transition economies the majority of forced 
laborers are also trafficking victims. Jens Lerche, A Global Alliance against Forced Labour? 
Unfree Labour, Neo-Liberal Globalization and the International Labour Organization, 7(4) 
J. OF AGRARIAN CHANGE 425, 427-429 (2007). For a full exploration of how the global 
economy is sustained on the back of exploited and trafficked labor See Dana Raigrodski, 
Economic Growth on the Backs of Human Trafficking Victims – The Dependency of Global 
Trade and Economic Development on Forced Labor and the Trafficking of Humans, 
(forthcoming 2015) (on file with author). 

 
                                                                                                                 

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2015] ECONOMIC MIGRATION GONE WRONG 113 
 
businesses the cheapest and exploitable labor.211 The economies of 
developing and under-developed regions benefit from exploiting and 
exporting their populations as cheap labor in various ways. Migrant wage 
remittance, including from forced and trafficked labor, accounts for a huge 
part of the GDP in many such nations, and entire communities and some 
governments are increasingly dependent on those remittances.212 The 
economic growth and global market competitiveness of countries such as 
BRICS countries, which may be exporting cheaply produced products and 
raw materials to fulfill demand in countries with much higher production 
costs, depend on their ability to continue to produce significantly cheaper 
products, quite often at the expenses of those people in these countries who 
are doing the work.213 

Similarly, some governments continue to relax labor protections in 
order to attract foreign investment and transnational corporations who 
prefer to use the cheaper labor services in those countries.214 Transit 

211 Ruben J. Garcia, Labor as Property: Guestworkers, International Trade, and the 
Democracy Deficit, 10 J. GENDER, RACE AND JUST. 27, 29 (2006). 
212 See Saskia Sassen, Strategic Gendering As Capability: One Lens into the Complexity of 
Powerlessness, 19 Colum. J. Gender & L. 179, 191 (2010) (“many governments are 
increasingly dependent on their remittance…through their work and remittances, migrants 
enhance the government revenue of deeply indebted countries.”). Of the 300 billion dollars 
generated annually by migrant worker remittance, possibly as high as 20% goes off to pay 
traffickers/recruiters commission and debt bondage. U.S. DEPT. OF STATE, TRAFFICKING IN 
PERSONS REPORT 22(2008), available at http://www.state.gov/documents/organization/ 
105501.pdf. 
213 See Ruben J. Garcia, Labor as Property: Guestworkers, International Trade, and the 
Democracy Deficit, 10 J. GENDER, RACE AND JUST. 27, 29 (2006) (“The new sources of 
comparative advantage in the global economy is cheap labor”). Whereas the concept of 
“comparative advantage” in international trade initially referred to countries trading 
commodities, natural resources and raw materials in the global marketplace, we have now 
commodified the labor of workers in poor countries. Id. at 33. See also Don Wells, “Best 
Practices” in Regulation of International Labor Standards: Lessons of the U.S.-Cambodia 
Textile Agreement, 27 COMP. LAB. L. & POL'Y J 357, 357 (2006) (“employers use lower labor 
standards as a source of comparative advantage”). 
214 Cf. Preventing Human Trafficking, supra note 1, at 143-144 (arguing that poor 
governments turn a blind eye to the exploitation of local labor by foreign companies). 

India’s development, for example, aggressively relied on cheap and exploitable labor in 
both the formal and informal employment sectors.  Government development policies, 
supported by Indian employers and accelerated since liberalization in the 1990s, encouraged 
(1) non-unionized docile workforce contributing more than 60% of the GDP; (2) 
manufacturing and services based on cheap unskilled labor, allowing for short term labor and 
unregulated employment relations; (3) absolute poverty of labor in the informal economy; 
(4) industry restructuring shifting certain sectors, such as the textile production, to the 
informal sector and outside the realm of labor laws; and (5) significant control of employers 
over the unorganized workers. Jens Lerche, A Global Alliance against Forced Labour? 
Unfree Labour, Neo-Liberal Globalization and the International Labour Organization, 7(4) 
J. OF AGRARIAN CHANGE 425, 443-444 (2007). Such policies significantly increase the 
susceptibility of workers to human trafficking. Id. at 444. 

 
                                                                                                                 

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114 IND. INT’L & COMP. L. REV. [Vol. 25:1 
 
countries benefit economically from the flows of trafficking which utilize 
available services for transportation, telecommunication, hospitality, and 
banking;  215 human trafficking directly contributes to the revenue of those 
industries, which are regularly used by traffickers in the recruitment, 
transportation, transfer, harboring or receipt of trafficking victims.216 
Lastly, with much of the economic industries of wealthier destination 
countries depending on cheap, often migrant labor, on the one hand, but 
with most countries refusing to formally recognize these economic realities 
and ease restrictions on legal migration flows for all forms of labor, on the 
other hand, most of the demand for labor is met through the underground 
economy including human trafficking.217 

Much like the cross Atlantic slave trade that sustained the economy of 
the United States and other nations prior to the abolition of slavery, so does 
our global economy continue to grow on the backs of these modern slaves, 
except now they are hidden from sight. Until and unless we acknowledge 
that the global economy thrives on the vulnerability of certain individuals 
and populations to exploitation, we will not be able to truly address human 
trafficking. 

 

215 See Saskia Sassen, Strategic Gendering As Capability: One Lens into the Complexity of 
Powerlessness, 19 Colum. J. Gender & L. 179, 180, 196 (2010). 
216 Id. 
217 See Preventing Human Trafficking, supra note 1, at 140 and Free Labor, supra note 101, 
at 597; supra notes 125-128 and 154-158 and accompanying text. See also Raigrodski, supra 
note 210.