Category Archives: human trafficking

Finding the right answer: modern slavery definition and typology.

The ILO Global Estimates report is without a doubt an enormous data collection effort, a quality product of international organizations working together toward a globally accepted definition on what is modern slavery, it does a fair job on the general division into two main categories -forced labor and forced marriage- because it allows a clear understanding of what the problem is, and how globalization plays a significant role in such practices; the report also accurately depicts the methodological problems for researchers and the intricacy of the phenomenon in today’s society. However, I disagree with the umbrella term “modern slavery” since it resembles more a description of situations rather than a description of the nature and scope of a problem, such ambiguity in terminology diminishes the effectiveness of justice, public policies, and victim’s protection.

When the ILO describes modern slavery as “a set of specific legal concepts including forced labor, debt bondage, forced marriage, slavery, and slavery-like practices, and human trafficking,” (ILO & et al., 2017, p. 16) the notion of exploitation is not clear enough. The new “modern slavery” differs from the original concept of slavery where the control of a person over others was explicitly coined. On this particular point, activists converge on the notion that modern slavery is about “being exploited and completely controlled by someone else, without being able to leave” (International, 2019) a domination that may “take the form of physical constraint or a more abstract” (Allain, 2012, p. 376) such as psychological control and abuse. Failing to explicitly state on the report that exploitation and control are intrinsically linked to a slavery condition, the umbrella term runs short as a definition. On this matter, Patterson and Zhou examine the need for a globally accepted definition on what involves trafficking, (modern) slavery and other forms of exploitation (Patterson & Zhuo, 2018) concluding that the term servitude would serve much better as an umbrella term due to the continuum of the condition involved.

Whereas Patterson and Zhou refer to conditions that involve temporality, exploitation, coercion and degrading forms of domination toward another person, the ILO refers to situations of exploitation that impedes a person to refuse such circumstances.

Conversely to ILO’s umbrella term, Patterson and Zhou proposed a prior definition of forced labor and adapted it to modern times. In this context, servitude is the “condition in which the work, service or relationships of another person are not freely offered or if voluntarily initiated, cannot be left or refused, and are maintained under the threat of physical or psychological coercion, violence or some other penalty.” (Patterson & Zhuo, 2018, p. 410) Servitude centers on specific forms of domination or control aimed at continuing the exploitative condition of the victim for purposes of profit. This condition fluctuates in time, is dynamic.

The ILO has a simple typology of modern slavery – forced labor and forced marriage – that it seems more focused on meeting international standards for future recommendations than finding root causes of the conditions that lead to servitude and trafficking. Although the report does include some other concepts like trafficking in persons and slave-like practices they are encompassed by generalities and situations, which makes it harder for the future.

Patterson and Zhou’s typology is broader than the ILO including traditional and modern slavery, bonded labor, international migrant forced laborers, domestic servitude, sexual servitude, child servitude, marital servitude, and state servitude. (Patterson, 2019) In the context of the ILO report, forced labor is a situation determined by “the nature of the relationship between a person and the employer” (ILO & et.al, 2017, p. 16) where the person cannot be released voluntarily from the work or service despite the legality or illegality of it and failing to do so would imply serious or even fatal consequences. Also, the report subdivides forced labor into three categories: labor exploitation in the private economy, sexual exploitation, and state-imposed. On the other hand, Patterson and Zhou determined forced labor like all the forms of servitude on which “the exploitation of labor, sexual and non-sexual, for profit is the primary motivation of the exploiter” (Patterson & Zhuo, 2018, p. 410) including abusive migration.

The ILO subgroup of labor exploitation in the private economy includes bonded labor, domestic work, and slave-like practices. Patterson and Zhuo concur with ILO’s concept of bonded labor as “the status or condition arising from a pledge by a debtor of his personal services” (ILO 2001, p.124) and they also incorporate bonded labor, domestic work and slave-like practices with two main differences 1) they take into account sexual trafficking, sexual servitude, and child servitude, and 2) they link the fluidity of servitude to seasonal recruitment and how this practice push population toward ill-designed contracts.

Regarding domestic work as forced labor, the ILO situates this kind of exploitation as the result of failed labor laws that leave unprotected the working population. Patterson and Zhou, on the other hand, associate domestic work exploitation with the condition of poverty, abusive migration, smuggling and the intimate relationship of domination between the employer-employee that resembles more traditional enslavement (Patterson & Zhuo, 2018, p. 416) and not only because of insufficient labor laws. The third subgroup of forced labor -slave-like practices- also known as state slavery consists of exploiting individuals in jail systems, re-education camps, state-run facilities for the purpose of profit and/or economic development. (Patterson, 2019) On this subgroup, there is a common understanding that the exploitation is conditioned to the economic development of the state and previous history of slavery rather than poverty or globalization alone.

Concerning the second typology of modern slavery -forced marriage- academic, activists and researchers concur that regardless of age, anyone who has been forced to marry without their consent falls under this category on this matter, Patterson and Zhuo concur with the general definition supporting that any person under 18 years old will be considered child marriage with or without the condition of coercion. (UNICEF, 2013)

The ILO did an excellent job in the data collection effort, although a better system is needed to increase the reliability of the data, the final product showed international organizations working together toward a universal definition. However, the term “modern slavery” conveys more to political agendas and legal systems due of its ambiguity than to the effectiveness of justice, public policies and victim’s protection, the inaccuracy of the term neutralizes the impact of authorities, activists and scholars alike.

Thinking ahead

Understanding the term servitude as a condition affecting people’s life in which work or the relationship is dominated by a physical or psychological constraint that coercively impedes such person to refuse or leave the circumstances they are in, fits much better as an umbrella term in view of the fact that servitude includes all types of exploitation, not only those related to specific legal terms as in the case of the definition suggested in the ILO report.

Overall, the ILO Global Estimates is the most comprehensive report available on matters of servitude, although its vagueness of definitions, it stresses the necessity for better data collection systems to build evidence against criminals, design public policies and social protection focusing on the victims. It is a stepping stone on finding the right answer on what involves modern slavery.

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Importation of domestic workers in the U.S., a blind eye on human trafficking.

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Most of the women in the United States working as live-in domestic workers come from underdeveloped countries; the majority are escaping poverty and seeking to secure a better future for their families even if it means to work more than 8,000 miles away from home. Recruited at home under false promises, sketchy contracts, and a special visa[i] that forces them to yield to the will of their employer, domestic workers end up as victims of trafficking and living in conditions of de facto servitude.

The U.S. immigration system is outdated and does not respond to the needs and problems of modern times; with its static quotas, bans to specific nationalities, strict requirements for current residents, and the burden for immigrants to find a sponsor; the current immigration policies enable trafficking[ii], servitude and openly contradicts the 13th amendment[iii]. In simple terms domestic workers are lied to, imported, abused and bonded to an employer as slaves were brought in and sired to a master in the 1900s.

Because of the hidden nature of trafficking and servitude, and the complexity of diplomatic immunity there are very few documented cases, the numbers vary dramatically, and statistics are usually inconsistent. For example, Human Rights Watch 2001 report on domestic workers mentions over 90 reviews of exploitative relationship from 1995 to 2001 (HRW, 2001), the National Domestic Workers Alliance documented 110 cases of domestic workers identified as survivors of human trafficking in 2016 (IPS & NDWA, 2017), and the United States government reported only 611 trafficked victims from 2001 to 2006 (Friederich, 2007). None of the abovementioned cases ended in legal prosecution.

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Restrictive anti-immigration policies pave the road for traffickers and abuse, employer-based visa holders are more likely to become victims of trafficking due to recruitment fraud and debt bondage, and because of fear to lose their jobs, and their legal immigration status domestic workers end up living in conditions of de facto servitude. The evidence, or lack of evidence, stresses the need to unlink temporary visas from single employers/sponsors that leads to trafficking and servitude, and to update administrative procedures that effectively prevent fraudulent recruitment and abuse diplomatic immunity.

The Domestic Worker Sector.

The integration of world economies, the massive increase in global supply of labor and the emergence of new economies push international workers and job seekers toward new markets, often unskilled workers are exposed to human trafficking and exploitation regardless of their immigration status; the vulnerability turns higher for female migrants and specifically those in the domestic work sector[iv]in rich countries like the Arab States, Europe, and the United States who aggregate up to 80 percent of the total domestic work market  (ILO & et al., Global Estimates of Modern Slavery, 2017), these high-income countries often use recruitment agencies to provide them with workers at the lowest possible cost (Pope, 2010).

The domestic workers that come into the U. S. are often recruited at home under false promises with high recruitment fees and employer-bonded visas end up accepting inhumane working conditions from their sponsoring employers because of fear to lose their jobs, and their legal immigration status. On this matter, Patterson & Zhuo stresses that due to the workplace -private residences- there is an intimate relationship of domination that resembles traditional enslavement, although there is no clear ownership between diplomats/international executives and live-in domestic workers, the working conditions of servitude exist (Patterson & Zhuo, 2018, p. 416). Lapinig includes the element of debt bondage[v]to explain the continuum of servitude where fraudulent recruitment agencies who sponsor visa petitions often charge excessive fees for recruitment and transportation usually of unpayable nature (Lapinig, 2017).

With a different narrative, the ILO assertively states that migration “can increase vulnerability to human trafficking and exploitation” (ILO & et al., 2017, p. 30) but solely focuses its attention on irregular migration, regarding temporary workers -visa holders- ILO recognizes the challenges that the excess of low-skilled workers represent to receiving countries, but fails to acknowledge the relationship between employed-based visas and trafficking, the ILO simply mentions that inadequate labor laws and ill-design immigration policies places domestic workers amongst “the most vulnerable groups of migrant workers” (ILO & et al., 2017, p. 31).

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The Importation System.

According to the National Domestic Workers Alliance, there are over 2 million domestic workers in the country, including those working for international executives and diplomats (IPS & NDWA, 2017). The majority of live-in domestic workers in the United States enter via a valid importation system where diplomats and international executives usually offer valid labor contracts. Such contracts, typically written in English with complex labor terms impossible for the workers to comprehend; such demand is often fulfilled by recruitment agents who charge up to $40,000 to job seekers just to secure a job in diplomatic residences, the workers end up as victims of trafficking (IPS & NDWA, 2017, p. 22).

The importation of live-in domestic workers in the U.S. is a common practice for diplomats and international executives that benefits from the current immigration policies (Friederich, 2007); the Immigration and Nationality Act allows foreign officials and international executives to bring domestic workers from their own country (I.N.A.) in the spirit of good faith and to make them feel more comfortable because of culture and language, unfortunately diplomats and international executives often abuse this prerogative due to diplomatic immunity. Foreign officials who enjoy diplomatic immunity are not subject to criminal, civil, or administrative jurisdiction of U.S. courts, the Department of State can request a waiver of immunity to the sending country only if the crime perpetrated endangers foreign relations or national security, this fact alone makes almost impossible for a live-in domestic worker to leave or even report their employer.

In the unlikely case that a waiver could be requested, workers will not testify against their abusive employers because the later manipulate domestic workers to develop feelings of loyalty toward them highlighting cultural similarities while at the same time terrorizing them with tales of incarceration and deportation based on ethnicity, a psychological abuse that foster a dependency relationship similar to serfdom  (Pope, 2010).

Recommendation

U.S. immigration system should unlink temporary visas from single employers/sponsors, doing so will open the opportunity to change employers, and the threat of deportation cannot be used as leverage to exploit the worker (Avendaño & Fanning, 2013) and would help the worker to transition to better job opportunities in accordance to the thirteen amendments, thus allowing freedom of choice to move from one employer to another despite the immigration status.

Furthermore, the Department of State should redesign the vetting process of diplomats and international executives requesting special visas for live-in domestic workers making sure of their economic and moral standards, the Department should also include periodically in-person assessment program to ensure domestic worker’s human rights and working conditions, such assessment must have a direct impact on the bilateral relationship with the diplomat or international executive country of origin.

Human trafficking is a multi-faceted problem that requires a holistic approach involving civil society, bureaucracy and governments alike, it demands long-term solutions and immediate crisis response.


[i]Certain employers entering the U.S. on non-immigrant visas can bring their domestic employees in the United States. These visas include non-immigrant employers entering with a B, E, F, H, I, J, L, M, O, P, Q, R, TN, A, G, or NATO visas. A-3 visas if hired by diplomats, G-5 if the employee is an international organization official, J-1 for au pair visas.

[ii]the recruitment, transportation, transfer, harboring 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 abuse.  Abuse shall include, at a minimum, the abuse of the prostitution of others or other forms of sexual abuse, forced labor or services, slavery or practices similar to slavery, servitude or the removal of organs.

[iii]XVII Amendment, Abolition of Slavery “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction”. United States Constitution Passed by Congress January 31. Ratified December 6, 1865.

(National Archives, 2018)

 

[iv]ILO estimates over 65 million domestic workers worldwide from which approximately 10 million are migrant workers and almost 75 percent of the later are women.

[v]Debt bondage is when someone is forced to pay off a loan or fees by working for an agreed-upon or unclear period of time for little or no salary. Debt bondage is one of the most common ways of exploiting human trafficking victims, and migrants despite their legal status. (UNODC, 2015)