Commentary on James Hathaway’s Article

by David Kyle

[Professor David Kyle is Associate Professor of Sociology at University of California, Davis]

Professor James Hathaway has adeptly exposed the Janus-faced agendas of the Trafficking and Smuggling Protocols, revealing a human rights deficit as the sum effect of these transnational codes.  At the core of his argument lies an assertion that stricter border controls and legal constraints on labor migrants and refugees codified in the protocols–under the guise of security concerns–lead to more slaves, overt claims of combating trafficking notwithstanding. In this brief commentary, I want to highlight how increased state restrictions on unauthorized human mobility lead to migrant and refugee smuggling, and more importantly, how this smuggling and wider migration industry, in turn, increases trafficking levels in a more subtle, indirect way than the ones describe in his article.

Whether we rely on inductive research or deductive reasoning, it is clear that migrant smuggling is, in the first instance, the direct result of state policies prohibiting the free flow of workers–who typically have a specific job, or at least the promise of one, waiting for them at the foreign destination.  This has been demonstrated in multiple periods going back to the first widespread immigrant restrictionist policies of the U.S. in the 1920s, including the creation of the Border Patrol; this step was followed closely by the rise of smuggling services, such as “dummy-running” between Cuba and Florida.

Likewise, modern-day migrant smuggling grew exponentially by any measure following new immigration policies and enforcement strategies by developed countries starting in the late 1980s, making it physically more difficult to engage in successful self-smuggling. Migration industries supplying the financing, training, and illicit transport across borders responded accordingly as migrants—and employers—needed more organized and sophisticated strategies for overcoming border controls. Not all such migrant smugglers are “non-abusive”; in fact, levels of abuse have increased as the demand for their services and, hence, higher fees, has attracted more unscrupulous smugglers.  Yet, most migrant and refugee smugglers want repeat business within a community or region, thus keeping malfeasance in check.

What accounts for the correlation between increased migrant smuggling, triggered by state prohibitions on labor mobility, and increased trafficking? While greater levels of migrant smuggling may lead to higher levels of smuggling debt default, which within some smuggling operations does lead to a selling of the migrant to a slave syndicate, this is not the most common pathway into trafficking victimization; there is a more serious connection between state actions and trafficking.

To the extent that migrant smuggling and other ancillary licit and illicit services become normalized activities as part of a regional migration industry, this sets the conditions for the central event that hooks a migrant into slavery, namely the confidence game that lures them into a trafficking syndicate. Most trafficking operations rely on trickery and fraud—they pose as (good) migrant smugglers leading their marks across international borders before revealing their true identity as a criminal syndicate in the business of coercing unpaid labor out of the migrant, often under the guise of repaying a rolling debt. Worse still, traffickers can also rely on the very laws disciplining undocumented migrants to underscore their assertions to slaves that running to the authorities would be futile.

Without the multi-billion dollar global migrant smuggling trade, as a direct result of states’ collective migration regime policies in an era of global economic integration, those slave trafficking syndicates posing as “legitimate” smugglers would greatly diminish.

http://opiniojuris.org/2008/10/14/commentary-on-james-hathaway%e2%80%99s-article/

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