chapter  9
38 Pages

Trafficking Contracts: Myth or Reality?: Re-Examination of Consent in Human Trafficking

One issue that has continued to engage the international community is whether trafficking can be legalized by the consent of the person being trafficked. The existence of consent appears to bar the intervention of human rights advocacy since the law presumes that a person who consents to be trafficked knows what she wants and what to expect, and as such has waived any remedies she might otherwise have been entitled to. However, the major problem with this presumption is that it prevents the international community from inquiring into what happens after the contract is formed. In view of this societal attitude, this analysis pierces the veil of trafficking contracts by using true-life narratives of trafficked African and Asian women to illustrate the lopsidedness of trafficking contracts. Using theories of liberty and freedom as well as the doctrinal principles of the law of contract, the analysis explores the potential ramifications of consent in order to illustrate the absence of liberty and freedom that characterize trafficking contracts. The analysis aims to advance scholarly considerations of human rights by illustrating that a close doctrinal engagement of the law of contract can assist in closing the gap between social attitude towards victims of trafficking and the reality. In achieving this goal, the analysis supplies the normative clarity necessitated by society in order to understand what lies beneath a trafficking contract. Structurally, the chapter comprises two parts. Part I embodies the introduction, defines trafficking concepts, outlines the history of trafficking in Africa and Asia, lays down a compendium of trafficking statistics, and gives an overview of the recruitment strategies of trafficking syndicates. It also delineates the doctrine of the law of contract vis-à-vis the narratives of trafficked women. Part II examines the intersections between trafficking contracts and contracts for slavery.