Chapter 6 - Obstacles to the Legal Clarification of Labour Exploitation

Summary

From the analysis of labour exploitation in international and regional law, three obstacles to achieving a legal clarification of labour exploitation in law have emerged. The existence of these moral, legal and political obstacles continues to exacerbate contemporary efforts to tackle exploitative working practices, thus further emphasising that exploitation still needs to be addressed in both academia and practice. The first obstacle is the focus on the prohibition of human trafficking in criminal law. This is a legal obstacle that has seen the international community's efforts be dominated by an emphasis on anti-trafficking initiatives that strongly advocate a criminal justice approach, whereby criminalisation and prosecution are prioritised. The second obstacle is the neo-abolitionist influence on law and policy developments. This is a moral obstacle that has not only strongly influenced the anti-trafficking legal regime, particularly with an emphasis on the criminalisation of human trafficking for sexual exploitation but is also present in more recent discussions on modern slavery. The third obstacle is the marginalisation of labour exploitation through political inertia and a tolerance of exploitation. This is a political obstacle that explores the side-lining of labour exploitation in law and policy and the impact that this has on a tolerance of exploitative labour practices.

THE FOCUS ON CRIMINAL LAW RESPONSES FOR HUMAN TRAFFICKING: A LEGAL OBSTACLE

Despite the legacy of the prohibition of slavery, servitude and practices similar to slavery, the judicial adherence to a very traditional understanding of these forms of exploitation can be attributed to the international legal regime's advancement of a global movement against human trafficking. The Palermo Protocol is hailed as a leading global anti-trafficking standard that for Gallagher demonstrates ‘an increased acceptance on the part of States that severe exploitation, even that which takes place within the private sphere, is indeed a matter for public concern and international regulation.’ To this end, it can be said to have had a chilling effect on further efforts to tackle exploitation in the absence of trafficking. Indeed, anti-trafficking academic and policy discourse has flourished on an unprecedented scale since the 2000 Palermo Protocol. We consider that one limitation of the emphasis on human trafficking by the international community has led to governments defining exploitative situations as either human trafficking or not.