Exploitation Nation: The Thin and Grey Legal Lines between Trafficked Persons and Abused Migrant Laborers

Abstract

People around the world are on the move, pushed by external events such as civil war, political upheaval, and increasingly environmental disasters and pulled by the lure of a better life, a better job, a better way to provide for their families. The United States has created an inconsistent legal framework for responding to the exploitation of immigrants. The degree to which we offer protections against exploitation depends on the degree to which we recognize victimhood, with the label of victim only frugally bestowed upon those who are also viewed as essential to sustaining the US economy. Trafficked persons are not useful to legitimate US businesspersons, and are accordingly protected, while agricultural and factory workers are very useful to businesspersons whom we regard as legitimate. This paper looks at the psychology of migration and migration theory, and the human rights framework as a protection tool designed for migrants. It explores the notion of exploitation, and in particular the extent to which people in transit, migrants, are particularly vulnerable due to the very human nature that drives them to wish to improve their circumstances. It looks at the characteristics of exploitation, from the perspective of the exploiter and the exploited, and proposes that part of the reason migrants are so vulnerable to exploitation is the private sphere nature of the movement through and into new cultures and legal systems in which the migrant lives and works on the fringes of society, not fully embraced by it. The author then identifies two specific forms of exploitation, human trafficking and the labor abuse of agricultural laborers and guestworkers, and examines the international and domestic US legal responses to exploitation in those two contexts, theorizing that Americans and countries adhering to free market economies have very mixed feelings about exploitation. On the one hand we believe that exploitation is morally and past a certain degree even legally wrong, but on the other accepting it as a necessary characteristic of doing business in the global market. The article then looks into principles of democracy and capitalism to search for answers, suggesting that legal responses to exploitation alone will never be sufficient, and that civil society, wielding human rights arguments and tools may be the most effective counterforce to exploitation. Finally, the author offers a prescription for change, recommending in part that civil society and immigration law responses be bolstered to protect against exploitation and create a culture of concern for exploitated persons.

Keywords: human trafficking, immigration, labor, labor exploitation, international law, human rights