The Subjectivity of Consent: A Comparison of the Trafficking Protocol and Slavery Convention
Abstract: The aim of this research paper is to evaluate the extent to which the definition of slavery, exemplified through the 1926 Slavery Convention, offers a viable alternative to the definition of human trafficking under the 2000 Trafficking Protocol. The focus of the comparison centres on the role of consent on behalf of trafficked or enslaved persons, embedded in the respective definitions, and the function of these constructions in the constitution of subjectivity. The role of consent, and the powers that influence it, are examined through a Foucauldian perspective of the subject and related to a critical view of human rights subjectivity. Through examining the legal formulation of the trafficking definition, its broader legal context, and the discourse in which it is embedded, the human trafficking framework is found to present a problematic construction of consent from the view of the analytical tools provided. Under the slavery framework, the definition (based on the exercise of powers of ownership) is developed on an abstract level that indicates both its efficacy and its preferable accommodation of consent and subjectivity. Two cases are selected from Sweden (B-982-05 / B-626-06) and Australia (R v. Tang) to give examples of the trafficking and slavery frameworks respectively. In conclusion, the research finds the Slavery Convention definition to provide a viable alternative to the trafficking framework, in packaging a favourable accommodation of consent, a broader understanding of power and culpability and the opportunity for a critical constitution of subjectivity that permits an on-going critique on the boundaries of freedom and exploitation.
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