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Excerpted From: Karen E. Bravo, Black Interests in Slaveries, 53 Valparaiso University Law Review 605 (Spring, 2019) (77 Footnotes) (Full Document)

KarenEBravoThe exploration of Black interests identifies and links severe forms of contemporary exploitation with the chattel slavery inflicted on Black ancestors captured and traded away from the African continent to be enslaved. The exploration enhances knowledge of the ways in which the legacies of subordination are enshrined and perpetuated in social, cultural, and political systems, including contemporary international and domestic laws. Those legacies are experienced whether the Disapora are part of and have formed majority Black modern states, such as Jamaica and other island states of the Caribbean, or constitute minority "others" in Western or formerly colonized states, such as the United States, Canada, the United Kingdom, and Brazil.

My call for recognition, analysis, and incorporation of Black interests in today's slaveries does not mean that other peoples, races, and ethnicities have or should have no interests or responsibilities in, or concerns about, past, present, or future exploitation or enslavement. On the contrary, the enslavement and dehumanization of Africans corrupted and dehumanized both the historic and contemporary polities and cultures of the former slave and colonial societies. The emotional and psychological damage that arises from the racism used to justify the centuries-long enslavement of Africans and their descendants continues to have incalculable global effects. As a result, dehumanization is embedded in the institutions, mores, cultures, and dominant perceptions of those societies. Examples include: the subordination of and violence against women and those of non-binary gender identity; violence against racial minorities; and a nationalism that calls for the exclusion of outsiders and of "othered" insiders, such as racial minorities.

The word "slavery" is now used to describe and categorize a variety of severe forms of contemporary exploitation. A multiplicity of extreme forms of human exploitation had continued to fester and grow even after the formal abolition of slavery under international law. These were "hidden" in public view and included, for example, prison work camps in the United States, the gulags of the Soviet Union, and the sexual exploitation of women and girls worldwide, including in booming sex tourism destinations in Asia. Beginning in the 1990s with the dissolution of the Soviet Union, the world woke up to the persistence of the trade in human persons, a severe form of human exploitation. In the late 1990s and early 2000s, confronting an apparent increase in the traffic and exploitation of human beings, domestic legislators, international organizations, non-governmental organizations (NGOs), and policymakers elevated the contemporary fight against severe forms of modern human-to-human exploitation. In 2000, the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime ("UN Trafficking Protocol") was adopted and ratified as a protocol to the United Nations Convention Against Transnational Organized Crime. In the United States, also in 2000, the Trafficking Victims Protection Act (TVPA) of 2000, was adopted only a month before the UN Organized Crime Convention and UN Trafficking Protocol were opened for signature.

A crucial contribution of the UN Trafficking Protocol to global anti-exploitation efforts is the creation of the first internationally agreed definition of trafficking. The UN Trafficking Protocol defined trafficking in persons as:

[T]he recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or other services, slavery or practices similar to slavery, servitude or the removal of organs.

The U.S. domestic law definition was substantially similar but distinguished between "human trafficking" and "severe forms of human trafficking." That is, according to the TVPA, "severe forms of trafficking in persons" means:

sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age; or [] the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery .... "[S]ex trafficking" means the recruitment, harboring, transportation, provision, obtaining, patronizing, or soliciting of a person for the purpose of a commercial sex act.

The two instruments, the United Nations, and the United States have been influential in disseminating knowledge about trading in human beings as a form of contemporary exploitation and shaping perceptions about the forms of exploitation targeted by their drafters. Some examples of the types of contemporary exploitation that are categorized as "human trafficking" are: the enslavement of Asian jobseekers on Indonesian fishing boats; the exploitation of child labor on Ghanaian cocoa farms; the marriage of underage girls to adult males in a number of different countries; and the domestic servitude in exploitative conditions of immigrant maids in the homes of diplomatic families.

As knowledge of human trafficking spread, and officials and NGOs attempted to grapple with understanding its scope and nature, some influential scholars and activists advocated for a change in terminology in order to, among other things, express their horrified realization of the continued existence of severe forms of exploitation and galvanize public and policy reaction. In their view, the targeted form of exploitation--the trade in human beings--and other types of severe exploitation should be recognized as a modern form of slavery. The term is qualified by adding "contemporary" or "modern" or "contemporary forms of." The activism surrounding the discourse has been wildly successful, and "human trafficking" is now virtually synonymous and is used interchangeably with "slavery."

[. . .]

We are still trying to understand the scope of human trafficking. Estimates of the number of exploited persons vary. In the early 2000s, the estimates of men, women, and children trafficked across international borders each year ranged from 600,000 to 800,000, and some as high as 2,000,000. Approximately 80% were women and girls and up to 50% were minors. The majority of these individuals were said to be destined for commercial sexual exploitation. Around the same time, the International Labor Organization estimated that 12,300,000 people were enslaved in forced labor, bonded labor, forced child labor, sexual servitude, and involuntary servitude. According to reports, human trafficking was estimated to be the third most profitable illicit industry after the trade in drugs and arms, generating $7-12 billion per year. By 2016, Walk Free Foundation's 2016 report-- the Global Slavery Index--reported that 40 million persons were then enslaved. Walk Free Foundation's methodologies have been fiercely challenged by academics, activists, and other organizations. However, the estimates and the terminology of "slavery" have been adopted by the International Labor Organization and the International Office of Migration.

The use of "slavery" to designate the traffic in persons and other severe forms of contemporary exploitation stimulates and harnesses involuntary images of the 400-year-long traffic of Africans across the Atlantic and their enslavement in the New World. However, the voices of Diasporic Blacks are often absent from the debates regarding the use of the word and the comparisons of old and new slaveries. Instead, the implicit and explicit invocations of comparisons to the enslavement of the ancestors of Diasporic Blacks are used to further a superficial understanding of contemporary forms of exploitation and limited efforts to prevent or eradicate them.

Part II explains the terms "Black," "interests," and "slaveries" as used in this Article.

Part III explores Black interests in relationship to different temporal periods.

Part IV concludes that acknowledgement and inclusion of Black interests in slavery are essential to contemporary and future discourse about, and efforts to prevent severe forms of, exploitation today and into the future.

[. . .]

In his autobiography, Long Walk to Freedom, Nelson Mandela said: "The truth is that we are not yet free; we have merely achieved the freedom to be free, the right not to be oppressed .... I kn[o]w as well as I kn[o]w anything that the oppressor must be liberated just as surely as the oppressed."

The present is the child of the past and the parent of the future. For Diasporic Blacks, the sacred charge from the past (the ancestors) and to the future (the descendants) demands understanding and acknowledgement of the legacy of the past in the present and acknowledgement that the seeds of the future lie in our actions today.

We are all "slaves" to the past, unless we can disrupt the transmission of its legacy into the future. The acknowledgement of Black interests, inclusion of Diasporic voices and their insights into the contemporary anti-exploitation discourse and design, and implementation of structural anti-exploitation and anti-subordination policies are essential to a systemic and structured fight against severe forms of contemporary exploitation. Knowledge about slavery's past and its relationship to contemporary systems of exploitation can lead to disruption of those legacies in the future.

Vice Dean and Professor of Law, Indiana University Robert H. McKinney School of Law.

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