PALERMO 20TH ANNIVERSARY SPECIAL

Twenty years ago this week the UN General Assembly adopted a new Convention against Transnational Organized Crime. Two supplementary protocols accompanied this addition to the pantheon of international law. The first sought to “to prevent, suppress and punish trafficking in persons, especially women and children” while the second targeted “the smuggling of migrants by land, sea and air”. A third focusing upon “illicit manufacturing and trafficking in firearms” was added the next year. These became known as the Palermo Protocols, with the name coming from the city where they were finalised.

It is the first of these protocols, the human trafficking protocol, with which we are chiefly concerned. For two decades now, this protocol has been the starting point for legal and political conversations regarding labour exploitation and irregular migration. It has also provided the key rationale for approaching these issues through a criminal justice lens, rather than in terms of migrant and labour rights. It is, after all, a convention on organised crime. This focus on crime may help to explain why the protocol has been rapidly endorsed by an unusually large number of states – 178 – and was recently described as “nearing universal ratification with blazing speed”. This trajectory stands in stark contrast to the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, which has only 55 ratifications (and no ratifications from states from the Global North), despite being a decade older.

This comparison helps to underscore a broader point: the human trafficking protocol exerts enormous influence in a world where human rights are under sustained attack. Unlike the more recent United Nations Global Compact on Migration, which has been mired in political controversy, it continues to command support from across the globe. Its provisions have profoundly affected domestic legislation and policy while also providing a legal and conceptual foundation for anti-trafficking campaigns worldwide.

There is thus no question that the trafficking protocol has been impactful. The more significant and difficult question is whether or not its effects have been positive or negative. Despite all the cash that has been pumped into anti-trafficking efforts, criminal prosecutions remain rare. Severe labour rights violations continue to be an everyday occurrence, with workers demonstrably no safer in the post-Palermo world. Migrants continue to be abused and deported. And, as regular readers of Beyond Trafficking and Slavery will know, anti-trafficking and ‘modern abolitionist’ interventions do not always have beneficial effects. Some are simply ineffective. Others do outright damage.

The Palermo Protocols twentieth anniversary double feature

Anniversaries are a good time to take stock. Over the last year there have been many events focusing upon Palermo and its legacies, but these have too often taken the form of uncritical celebrations, rather than meaningful reflections. In this double feature we are planning to dive deeper. And when reflecting upon the legacies and effects of the Palermo protocol, there are two vital questions that stand out.

What is exploitation?

Our first question focuses upon the political, legal, and ethical challenges of drawing moral and legal lines between ‘acceptable’ and ‘unacceptable’ forms of exploitation under capitalism, a system in which profit is the primary goal. What ‘counts’ as exploitation in contexts where the deck is heavily stacked in favour of employers and against workers? If someone consents to work for poor wages and in bad conditions, is that the end of the matter? Should only the most extreme cases of abuse concern us? Or do we need to worry about the vulnerability inherent to all market life?

The trafficking protocol does a poor job of addressing this key question. Although it establishes exploitation as integral to the definition of trafficking, it doesn’t define exploitation itself, nor does it clarify where this begins or ends. We believe that this uncertainty contributes to all kinds of problems. There is a widespread tendency among policymakers and activists to approach exploitation in much the same way as pornography, where ‘you know it when you see it’. This results in a situation where the defining features of exploitation are more often assumed than analysed.

With this in mind, the goal of the first half of our double feature is to sharpen our understanding of this core concept. We have invited leading experts on law, philosophy, economics, and sociology to reflect on what exploitation looks like, how it has been and should be defined, what kinds of political and legal effects follow from different definitions, and what kind of role it should play within political activism and mobilisation. We do not expect to resolve this question once and for all, but asking it publicly and critically is essential.

Are we better off on the inside?

Our second question focuses upon political tactics and strategic calculations. The main goal of this half of our feature is to bring to light the kinds of behind-the-scenes calculations which have influenced how, why, and whether different campaigners and organisations have taken up the cause of combating human trafficking and, now, ‘modern slavery’. We hope to capture many of the issues at stake here by focusing upon one key question: are we better off on the inside? This is a question which frequently comes up in private conversations, but rarely gets discussed in public.

Most experts with first-hand experience of anti-trafficking or anti-slavery interventions and campaigns are well aware that they can be ineffective or compromised by other agendas. However, this recognition tends to be caveated with the claim that it is better to remain on the inside, despite the problems, to be better positioned to try and move things forward more productively over time. This can sometimes result in a degree of self-censorship, since speaking out too loudly or too often can mean risking your access, influence, and funding. Rejecting or resisting dominant models can lead to being left on the outside looking in, which can make it more difficult to have your voice heard or to exert influence over key decisions.

Many of the people and organisations engaged in anti-trafficking or anti-slavery work at least partially justify their approach by appealing to these kinds of arguments. However, there remains a widespread reluctance to talk openly about the trade-offs that come with this decision, so there hasn’t been enough analysis of whether their underlying assumptions stand up to scrutiny.

Yet it is also by no means clear that alternative approaches would be more effective. Critics frequently propose policies that would undoubtedly have beneficial effects, such as separating immigration enforcement from labour inspections, but these also tend to be a tall order politically. Is it better to work towards modest gains that might actually be achievable in the short term, or to embrace more radical positions that are harder to realise?

In a sense, this question is an echo of the old reform or revolution debate. In this scenario, the reformists argue that they’ve never before had such a powerful rallying call as trafficking or modern slavery, and its value as a mobilisation tool outweighs its drawbacks. They also maintain that small and incremental improvements are all that is achievable, and that something is better than nothing.

Advocates for more revolutionary approaches don’t entirely disagree. They understand that shouting slogans from the sidelines that powerful people will ignore will not have immediate (or any) positive impact. But they are much less confident that staying on the inside is beneficial. This is because they regard trafficking as a political tool which ends up legitimating the abuse of migrants, punishing sex workers, and deflecting longstanding efforts to improve the rights and protections afforded to precarious workers. Our current global order is deeply unjust and unequal. How should we respond, they ask, if anti-trafficking and anti-slavery campaigns play a role in helping it to stay that way?

Over the coming month a series of key thinkers will weigh in on this debate from a variety of perspectives and positions. We do not expect to come to a final answer, since this question is heavily influenced by context and position. Nevertheless, we are convinced that the only way to improve current tactics and strategies is to talk about them in depth, and that frank conversation is exactly what we intend to have.

Happy reading.

This series has been financially supported by Humanity United.