A case for TWAIL engagement with the International Human Trafficking Regime

Neiha Lasharie, University of Wisconsin-Madison

Significant literature has been contributed towards the goal of unearthing the colonial origins and legacies of many international legal regimes. Scholars, particularly those situated within or sympathetic to Third World Approaches to International Law (TWAIL), have published widely on the racist and otherwise problematic underpinnings of international humanitarian law and international human rights law, for example, as well as the specific elements of these legal regimes. TWAIL approaches vary, but one commonality includes centering the perspective of the Global South. The international white slavery/trafficking in human beings (THB) regime* has been critiqued for similar reasons by scholars, sex workers, labor rights advocates, among many others; and rightly so, given its earliest manifestation as the so-called ‘white slavery’ myth. My own paper, ‘Beyond “Criminal” Traffic: Charting a path towards a reckoning in the international human trafficking regime’ traces the genealogy of the regime. In doing so, I argue that:

• Multilateral instruments countering THB emerged out of colonial-era gender- and race-relations;
• Ambiguity was designed into the regime such that it entrenched systemic and epistemic violence towards sex trafficking ‘victims,’ sex workers, and migrants;
• A more nuanced approach to countering THB is needed in order to decolonialize the WS/THB regime.

I conclude that a radical reimagining of international law is required that identifies when the absence of law is most useful, and that international law must actively dismantle the imperial and colonial roots of many of its regimes in order to truly foment progressive global governance. These are, explicitly, TWAIL perspectives (and TWAIL missions) applied to a regime that has had little engagement therefrom. In this blog post, I will lay out three reasons I believe that the TWAIL community should have a vested interest in critiquing the international white slavery/THB regime.

First, the concept of THB as it is operationalised within international law implicates several other phenomena that have been of interest to TWAIL scholars, such as migration, labor rights, debt slavery, sex work, conflict, and criminal law. This alone is a good reason to be interested in the vagaries of the regime. More urgently, however, these overlaps also belie a deeper conflation of concepts. That is, by virtue of implicating all the aforementioned phenomena, the very contours of what actually defines THB become muddied. Combined with the moral imperative of stopping forced migration, this conflation affords states the ability to impose ever more restrictive and harmful laws under the pretense of combatting THB (per Janie Chuang, ‘exploitation creep’). As such, extricating these different, supposedly constitutive elements from one another requires deeper research into the development of the regime, and I argue that TWAIL experts in all the aforementioned phenomena (and more) would bring valuable insight into the debate about what THB is, isn’t, and – perhaps most importantly – shouldn’t be.

Second, I argue that TWAIL scholars and advocates, in all their diversity, are particularly well-situated to critique the regime. Most ‘TWAILers’ have an avowed commitment to ameliorating at least the epistemology of international law, i.e., the imperial rhetoric and assumptions that undergird the international legal sentiment and edifice; viz. decolonialization. Ideally, TWAIL would help ameliorate – at least in part –  the lived conditions and harmful difference experienced by the Global South, bringing about  decolonization in earnest. To that point, the international white slavery/THB regime, throughout its history, has enabled disproportionate harm towards individuals from the Global South, whether as migrants fleeing conflict or pursuing economic gain, or as sex workers caught in the net of global anti-trafficking industrial complex. Even before the ‘face’ of the trafficking victim became the brown girl (the so-called ‘white slaves’ of yore were white women and girls at ‘risk’ of/actively engaged in prostitution), the ‘face’ of the trafficking perpetrator was the Black or brown man (in specific contradistinction to the white woman). Thus, people of color and others on the margin (e.g., gender and sexual minorities) have always been infantilized or demonized by the regime; sometimes even both. The aforementioned ambiguity of what constitutes THB, combined with the further marginalisation of already racialised, gendered, and hypersexualised persons, makes the modes of oppression latent in this regime insidious and ephemeral. The regime, designed as it was largely by colonial states, against colonial peoples, had differential and prejudicial assumptions baked into it. Today, it is used by even post-colonial states to harm the marginalized. As such, the regime must first be interrogated and decolonialized, in order to then clarify what must be done with the regime (e.g. reformation, dismantlement, etc).

A brief digression. I emphasize decolonialization rather than decolonization. This emphasis serves two purposes. First, we must identify the very assumptions – that is, epistemological bases – underlying the white slavery/THB regime. These assumptions desperately need interrogation and dismantlement. In Quijano’s words, ‘epistemological decolonization, as decoloniality, is needed to clear the way for new intercultural communication, for an interchange of experiences and meanings, as the basis of another rationality which may legitimately pretend to some universality’ contra Eurocentricity. Second, the language of decolonization has gained much mainstream purchase, especially in academia. This appropriation has allowed decolonization to mean anything from the radical restructuring of neoliberal institutions, to being a synonym for ‘diversity, equity, and inclusion’ initiatives. The fluidity of the word ‘decolonization’ obfuscates the reality that we live in a neocolonial world, where the struggle for material decolonization and self-determination is very real for so many. Decolonization, as such, is relegated to the past, rather than being a present concern. In our efforts to critically appraise the white slavery/THB regime, we must ensure that the concept of decolonization does not become further relegated to metaphor.

Finally – and relatedly – the international white slavery/THB regime is made even more harmful by the ostensibly liberative agenda of anti-trafficking advocates (many – though not all – of whom use market philanthropy or sex work abolitionism to guide their advocacy). But TWAIL scholars are keenly aware that liberation is not attained through ever more restrictive laws and criminalization. And in a moment where the jargon of decoloniality and decolonization is gaining purchase, the very idea and notion of liberation, as the central goal of decoloniality and decolonization, must be reclaimed from those that seek to appropriate and pervert it. TWAIL scholars and advocates, instead of allowing the language of liberation to be watered down and diluted, should push back with vigor against ‘liberation’ as used to justify oppressive policies. True liberation, within the context of human trafficking and migration more broadly, includes a world where individual patterns of movement are not criminalized – let alone certain forms of labor. Allowing states to be both the ultimate arbiters and the moral authority on how to respond to THB – and, thus, how to ‘liberate victims’ – only harms people; and people will always find a way to move – whether ‘legally’ or not.

I argue that the past and present of the international white slavery/THB regime is characterized by harm; not harm towards the state, but harm towards people, often those already most oppressed. In a world where market imperatives often bleed into state and international legal motivations, TWAIL scholars and advocates are best positioned to levy critiques from so many different perspectives. The work involved is certainly fascinating; but it is also an act of solidarity with all the individuals who continue to be harmed by this regime. And across all its permutations, solidarity has always been the one common, the one constant of TWAIL. 

*I refer to the international regime governing trafficking in human beings as the ‘international white slavery/trafficking in human beings regime’ so as to not obfuscate the fundamentally racist, sexist origins of the regime.