New project, published by the Virginia Journal of International Law, and available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1720789.
Introduction excerpted below:
Sized at 32 billion dollars,[1] the human-trafficking industry is the second largest and fastest growing criminal industry in the world, exploiting upwards of 12.3 million people at any given time.[2] Direct profits and reported abuses, however, represent only the tip of the iceberg,[3] as these figures do not capture the expansive and destructive economic, political, and societal consequences that permeate national economies, global business, transnational borders, private homes, human relationships, and world culture. Human trafficking, or trafficking in persons, is a form of modern-day slavery.[4] Such trafficking is internationally defined as the recruitment, transport, transfer, harboring, or receipt of persons through means of threat, force, fraud, coercion, deception, payment, or abuses of power or vulnerabilities for the purpose of exploitation.[5]
Omnipresent, human trafficking takes numerous forms. Persons may be trafficked into sex exploitation, prostitution, forced labor, slavery, practices similar to slavery, forced combat, child begging, servitude, or organ removal.[6] Sex exploitation is the most common form of trafficking, constituting 79 percent of reported cases and often resulting in pornography, bride-enslavement, and the sexual abuse of children, among other types of exploitation.[7] For this reason, it is not surprising that trafficked persons are disproportionately female (79 percent total; 66 percent are women and 13 percent are girls).[8] Forced labor is the second-most common form of trafficking, constituting 18 percent of cases.[9]
Veiled behind the widely celebrated and sanctified institution of marriage and behind protections of liberty and privacy,[10] one segment of the human-trafficking industry continues to be overlooked, tolerated, and often excluded from criminalization: the trafficking of foreign brides. By analyzing two seemingly disparate foreign-bride markets — the Chinese market for North Korean brides and the United States market for foreign brides — this Note argues that the foreign-bride industry constitutes human trafficking under international law and calls for both immediate legal reforms and the ultimate criminalization and prosecution of foreign-bride trafficking. This Note also examines conceptions of consent, exploitation, and marriage under U.S. and international trafficking laws and how those concepts may be used to hinder or advance efforts to regulate the trafficking of foreign brides.
Part I of this Note will present the two leading definitions of human trafficking as advanced by the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (commonly known as the “Palermo Protocol”)[11] and the United States’ Trafficking Victims Protection Act (TVPA).[12] Part I will highlight the differences between the “means element” and “purpose(s) of exploitation element” in the Palermo Protocol and the TVPA. Both elements can limit or expand the activities and relationships that constitute trafficking.[13] This Part will argue that the United States’ definition of trafficking is incomplete because it focuses on “severe forms of trafficking,” requiring a level of physical force, fraud, or coercion that fails to recognize the power dynamics and realities of human trafficking.[14] Advocating for the Palermo Protocol’s definition of trafficking, Part I will argue that the international definition is more complete, inclusive, and realistic because it recognizes that traffickers exploit the vulnerabilities of trafficked persons in order to force submission and it focuses on the exploitation of trafficked persons rather than the severity of physical force or coercion exerted by traffickers.
Part II will examine two seemingly disparate foreign-bride markets: the North Korean bride market in China and the foreign-bride market in the United States. In particular, this Part will discuss the transfer of North Korean refugee women to men in China and the “brokering” of foreign brides via “international marriage brokers (IMBs)” or “international marriage broker-traffickers (IMB-Ts)” (used interchangeably)[15] to men in the United States. Part II will also discuss the endemic exploitation, violence, and abuse that foreign brides within these marriages often experience.
Part III will highlight the striking commonalities across the foreign-bride industry, namely, similarities in the abuse of power and vulnerability as the means of trafficking and similarities in violence and exploitation in marriage as the purposes of foreign-bride trafficking. This Part will advance four arguments. First, the transfer of North Korean refugee women as brides to men in China and the brokering of foreign women as brides to men in the United States through IMB-Ts constitute trafficking under the Palermo Protocol. Second, foreign-bride enslavement, conducted under the guise of marriage, often results in domestic violence, abuse, and exploitation in marriage, and it is facilitated by the abuse of power differentials that exist between foreign brides and receiving grooms and between sending and receiving countries.[16] Thus, Part III will argue that the foreign-bride industry constitutes trafficking under international law and should therefore be criminalized and prosecuted. To believe otherwise is to buy into the constructed spectrum of force and consent discussed in this Part, to believe that force, fraud, or coercion are necessary to establish the means of trafficking, and to trivialize the exploitation in marriage that foreign brides experience. Third, U.S. law follows a longstanding practice of prioritizing physical force as the keystone to crimes of violence against women, creating a spectrum of force and consent that protects the virility of the bride trafficking industry by ignoring the power differentials that drive bride trafficking. Fourth, the institution of marriage creates a legal fiction of consent and obscures exploitation in trafficked marriages, marginalizing bride trafficking as a legally non-cognizable harm.
Finally, this Note will conclude by discussing potential interim and supplementary measures that may be taken in advance of achieving the ultimate goal of prohibiting and criminalizing the foreign-bride industry as trafficking under U.S. and international law.
[1]. U.N. Office on Drugs and Crime, UNODC Launches Global Initiative to Fight Human Trafficking, http://tinyurl.com/25d857z (last visited Sept. 23, 2010) [hereinafter UN GIFT].
[2]. The size of the human trafficking industry is tied with that of the nuclear arms market and is second only to the narcotics trade. U.S. Dep’t of Health & Human Servs., Admin. for Children & Families, About Human Trafficking, http://tinyurl.com/yg4pohc (last visited Sept. 23, 2010).
The International Labor Organization (ILO) “estimates that there are at least 12.3 million adults and children in forced labor, bonded labor, and commercial sexual servitude at any given time.” U.S. Dep’t of State, Trafficking in Persons Report 8 (2009) [hereinafter TIP Report 2009]. Moreover, given the global economic crisis, rates of trafficking are likely to further escalate with the demand for cheap labor and human capital. Id. at 37 (placing states in tiers based on their efforts toward implementing the Trafficking Victims Protection Act’s definition of trafficking).
[3]. UN GIFT, supra note 1.
[4]. U.N. Office on Drugs and Crime, Global Report on Trafficking in Persons 6 (2009), available at http://tinyurl.com/lq25x9 [hereinafter UNODC Report].
[5]. United Nations Convention Against Transnational Organized Crime, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children art. 3, opened for signature Dec. 15, 2000, T.I.A.S. No. 13127, 2225 U.N.T.S. 209 (entered into force Sept. 29, 2003) [hereinafter Palermo Protocol].
[6]. Palermo Protocol, supra note 5, art. 3; UNODC Report, supra note 4, at 6.
[7]. UNODC Report, supra note 4, at 6.
[8]. Id. at 11.
[9]. Id. at 6.
[10]. See infra notes 231–33 and accompanying text (discussing protections of liberty, privacy, and the right to marry, including consent to marriage).
[11]. Palermo Protocol, supra note 5.
[12]. Trafficking Victims Protection Act, 22 U.S.C. §§ 7101–12 (2006).
[13]. Palermo Protocol, supra note 5, art. 3; 22 U.S.C. § 7101(b)(2)–(8).
[14]. See infra notes 28–40 and accompanying text (discussing the realities of trafficking that the Palermo Protocol addresses).
[15]. The terms “international marriage broker-trafficker,” “IMB-T,” “enslaved marriage,” “bride-slave,” and “enslaving husband” are not commonly used. They are used in this Note for four purposes: first, to highlight the effect of language on perceptions of certain industries and institutions, thus combating normalization produced by the term “international marriage broker” and the positive connotations of “marriage”; second, to emphasize the exploitative purposes of such marriages, which constitute a modern form of slavery; third, to emphasize that trafficking itself constitutes modern form of slavery, thus combating the trivialization of the word and practice of “trafficking”; and fourth, to identify the roles of trafficking in the facilitation of foreign marriages. These terms are not intended to further objectify or dehumanize persons trafficked into exploitative marriages. They are employed to emphasize the severity of such forms of trafficking.
International marriage brokers (IMBs) or IMB-traffickers (IMB-Ts) (used interchangeably) are agencies that profit from connecting U.S. men to foreign women for the purposes of marriage. IMB-Ts may receive payment for dating or social referral services, including managing communications between parties and filing immigration documents. See infra Part II.B.1 (explaining how IMB-Ts operate). IMB-Ts may not be able to receive payment upon marriage, as these contracts may be found void and unenforceable as a matter of public policy. SeeUreneck v. Cui, 798 N.E.2d 305, 306 (Mass. App. Ct. 2003) (finding an international matchmaking services agreement arranged by marriage broker unenforceable as a matter of public policy because such contracts have been “condemned and declared unenforceable in [U.S.] jurisprudence without exception or equivocation”).
[16]. Under the Palermo Protocol, the “abuse of power or of a position of vulnerability” is recognized as a means of trafficking. Palermo Protocol, supra note 5, art. 3.