Modern Slavery - Supervision 3 essay PDF

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The development of Article 4 ECHR to tackle human trafficking and modern slavery was a positive one, but it does not go far enough in tackling these problems. Discuss. How does the UK address the issue of modern slavery? Introduction Article 4 of ECHR states that no one shall be held in slavery or servitude, or required to perform forced or compulsory labour. One needs to look at different conventions as well as case law so as to find the definition on slavery, servitude and forced labour. There is a lack of clarity as to the definitions, and as Allain suggests, the three are not that different and are often present together in cases. In 1926 Slavery Convention slavery is linked with the ownership and is suggested in following case law such as Siliadin that the person who is a victim of slavery is treated as an ‘object’ and as ‘property of another’. In Siliadin, servitude is suggested to be an obligation to provide one’s services by use of coercion and is indeed linked with slavery. Lastly, using definition of forced labour in Article 2(2) of ILO Convention No.29, the court in Van der Mussele stated that forced labour is defined as all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily. Stoyanova suggests that the difference between servitude and forced labour is that for servitude the victim would be living on another’s property without possibility of altering his/her condition. In Rantsev it was suggested that human trafficking, defined by Ant-Trafficking Convention also comes under Article 4 but it is not necessary to define under exactly which of the three concepts it falls. Indeed, in Chowdury it was suggested that force labour is one of aspect of human trafficking. Therefore, Article 4 has not just seen the expansion when in Siliadin domestic servitude was suggested to be a part of Article 4, but also when in Rantsev human trafficking was considered to be part of it as well. In addition to this, in Siliadin Article 4 was expanded so as to cover positive obligations. It can be suggested that this development is indeed welcome, as, by expanding the limits of Article 4, it increases protection of the victims and makes sure that there is no derogation from the prohibition of these activities and that the perpetrators will be punished. However, Stoyanova and Allain argue that Rantsev actually increased uncertainty in the application of these principles and muddied the waters between the concepts further. One can argue, however, that these expansions are a significant positive step in tackling prominent issues of modern slavery and human trafficking, but that they do not go far enough, as the practical application of it by the state can be questioned. Expansion A. Domestic Servitudes The court faced the issue of domestic servitude in the case of Siliadin for the first time, and it suggested that where domestic servitude meets the definition given of the servitude, it is caught by Article 4. Cullin suggests that servitude is used so as to fill in the gap in the spectrum between slavery and forced labour. In Siliadin, even though the circumstances did not meet the criteria needed for slavery, it was stated that the girl was a victim of servitude and forced labour, the distinction between the two being accepted from Van Droogenbroeck. In his article, Cullen suggests that Siliadin, not just in respect of inclusion of domestic servitude, but also the recognition of state’s positive obligation, sets on the road of strengthening legal protection of

victims of these actions, especially children. It can be seen in C.N that domestic servitude is considered to be within Article 4, as in this case the absence of a specific offence of domestic servitude in the UK constituted failure by the state to afford practical and effective protection against the treatment falling within Article 4. In this case, it was also recognized that coercion does not necessarily need to be overt, but can rather take subtler forms to force compliance, and that the state is obliged to undertake thorough investigation into complaints of such conduct. Therefore, the court in both Siliadin and C.N used interpretation to give Article 4 broader scope and include domestic servitudes as well as recognize that subtle forms of coercion would suffice to satisfy the requirements of Article 4. B. Human trafficking This expansion of Article 4 in Rantsev was faced with numerous critics. Both Stoyanova and Allain criticize the reasoning of the Court, not the judgment itself, suggesting that it unnecessarily expanded Article 4 to include human trafficking without making any proper distinctions between modern slavery and human trafficking. Stoyanova suggests that actually the expansion of the Article 4 is welcome, but it should have been done by ‘dancing on the borders’ of Article 4, not going completely outside those borders and implying human trafficking in it. In Rantsev, the court recognized that the convention is a living instrument to be interpreted in light of present-day conditions, and human trafficking has been on the increase and is thus bound to fall within this Article, as defined by Palermo Protocol and then Anti-Trafficking Convention. These suggest that there are three elements of human trafficking- act, means and exploitation. It can be suggested, as Allain does, that human trafficking in itself is not exploitation, but usually leads to it, and thus the expansion of Article 4 to cover human trafficking expands the natural reading of Article 4 which is to prevent human exploitation (Allain). Human trafficking indeed threatens human dignity and fundamental freedoms, thus expanding significantly the scope of this article. The court declined to determine within which of the three concepts human trafficking falls under. Its expansive approach might actually suggest, as Chowdury does, that these concepts rather fall under the notion of human trafficking, which according to the court in Rantsev is based on slavery. Allain convincingly argues that there is a conflicting pronouncement in this case, as the human trafficking is equated with slavery, and on the other hand it broadens Article 4 beyond the textual boundaries of slavery, servitude and forced labour. Stoyanova persuasively argues against the approach the court undertook, and suggests that expanding Article 4 could and should have been done by stating that it covers lesser forms of abuses than potentially high threshold currently needed for it. She suggests that the court marginalized the concepts originally falling under this article and ‘rose’ uncertain and problematic concept of human trafficking. She concludes that, without involvement of human trafficking, Rantsev falls within Article 4 even in the present form as the bank requirements and living on the premises would be sufficient to suggest that the victim was treated as an object and was subject to servitude and deprived of liberty. Regardless of academic disapproval of the court’s reasoning in this case, as well as the increase in uncertainty in the definition of these terms and their relation, the expansion of the court is to be applied, as seen in Chowdury. In her case note, Stoyanova suggests that this case has also not provided an explanation as to when and why human trafficking is to be chosen over the concepts of modern slavery, and that the source of confusion stems from insertion of human trafficking within Article 4 limits without explaining how it refers or differs from modern slavery concepts. In addition to this, Chowdury also reduces the element of consent to an assessment of the excessiveness of the ‘employment’ conditions looking at all the circumstances of the present

case, making it easier to satisfy the requirement for forced labour. This expansion can be said to go too far indeed, and instead of keeping modern slavery and human trafficking distinct and trying to clarify the concepts and increase the certainty of law in this area, the court has muddied the waters further. As Stoyanova argues, the expansion of Article 4 would indeed be welcomed if it broadened already existing borders of it by lowering the threshold of abuse for the three concepts of modern slavery instead of introducing another unclear concept into the Article. C. Positive obligations In Siliadin, it was stated that the State has positive obligations under Article 4. In Rantsev the positive obligations were also expanded to cover not only criminalization of perpetrators but also the need to take protective measures defined as systems, protection and procedural duty. System duty is to have appropriate legislative and administrative framework put in place, whereas protection duty looks at operational measures and procedural duty at investigative obligations. Lavrysen suggests that this expansion is necessary to encourage proactive State role in prevention of Convention rights. In her case comment on L.E., Stoyanova suggests that there are two positive obligations: one protective operational measure protecting specific people and second, adopting effective regulatory framework to afford general protection. In Rantsev, artist visa suggested that the legal framework of the country was flawed and that Cyprus failed to protect everyone, whereas in L.E. it was suggested that Greece failed to protect specific individual due to its procedural measures. The human rights obligation to undertake protective operational measures was established with the Osman test, which is comprised of two elements: knowledge element (authorities knew/ought to have known at the time of the existence of a real and imminent risk to the life of an identified individual) and due diligence element (doing what reasonably could be expected to avoid real and immediate risk). In Rantsev this test was modified making the knowledge element less demanding- as it is sufficient to establish that authorities knew/ ought to have known of ‘circumstances giving rise to a credible suspicion of a real and immediate risk’. The proximity requirement suggested in Rantsev and modified in Rabone- need for real (substantial, not remote) and immediate (present and continuing) risk, is argued by Stoyanova to be absent in L.E. where the delay period was seen to be unreasonable and there was a breach of positive obligation. In addition to operational protective measures, there also needs to be thorough and effective investigation, as seen in Chowdury and Ranstev. In addition to these, there is also a duty for the states to cooperate when necessary ( Rantsev) even though there is no universal jurisdiction over offences abroad (J). It is important to note that there is a trend towards increased proactive role of the state, which can be seen in expanding positive obligation so as to involve protection of individuals who are at real risk of trafficking and re-trafficking, but with very high burden on the victim to prove that the real risk exists (VF and M). Indeed, it is stated that the positive obligations generated by Article 4 must in principle be interpreted in light of Anti-Trafficking Convention. Cullen suggests that this trend in the growth of positive obligation actually started as the courts recognized the need to compensate for the lack of social and economic rights in the Convention. McBride suggests that there is a need to recognize deeper concept of human rights and this can be done by encouraging a more active State role. Stoyanova can be said to believe that this expansion does not go far enough, and that the role of the State needs to be even more proactive as the need for official awareness of the

predicament of individuals is unjustifiably demanding, especially the need for explicit statement by migrants that they are the victims of human trafficking.

Modern Slavery Act In 2015 the UK introduced Modern Slavery Act (MSA) which was supposed to consolidate and simplify existing offences into a single act. Both Haynes and Weatherburn argue that this was a very significant positive step by the UK to tackle issues such as human trafficking and modern slavery, by focusing on 3Ps: prevention, prosecution and protection. There are numerous positive developments by this Act, such as introduction of new offences in s1, or the development of defences for the victims for crimes they committed as a consequence of being a victim of human trafficking or modern slavery (s45). There are some issues which were not covered by the act, such as the protection of victims in overseas supply chains. However, the biggest difficulty is in application and practical implementation of the rules. There is a problem with training as well as ineffective victim identification through NRM system which could potentially lead to secondary victimization (R v HTB). The failures of the system can be seen in cases such as C.N and TDT where it is obvious that ineffective legal framework and protective measures respectively led to the UK being in breach of Article 4. Rijken suggests that integrated approach is needed and that all actors concerned with prevention of human trafficking and modern slavery need to be involved in policy making. Indeed, the issues discussed above regarding the definition of the terms as well as the relationship between different types of modern slavery, as well as the one between modern slavery and human trafficking still exists in the UK, and needs to be addressed by the Strasbourg court as soon as possible. Conclusion It can be said that the development of Article 4 is more than welcome as it makes it a bit easier for the victims to prove they were subject to modern slavery or human trafficking. However, it can be argued that while trying to develop the Convention as a living instrument and introduce the issues of present day into it, the Court did not really think about the certainty and clarity the Article is supposed to provide. Indeed, the broad development of moving towards a more victimoriented Article is beneficial, but the way in which it was achieved is arguably not so great. Stoyanova and Allain suggest that introducing human trafficking into the modern slavery act just increased uncertainty in definition of these terms as well as the difference or similarities in these terms. Stoyanova thus suggests that much more positive development would have been lowering the abuse needed to satisfy modern slavery requirements rather than implying human trafficking into the Act. This can suggest that potentially in this regard the act goes in the right direction, but too far. However, there are indeed areas where the development is positive and in the right direction. The expansion of servitude to involve domestic servitude as well as subtle coercion is more than welcome, as it recognizes the real-life situation in which psychological coercion is very present. In addition to this the development of positive obligations state has and the relaxation of the requirements for protective measures under Osman test is very much a positive step encouraging a more proactive state role. However, as Stoyanova argues it does not go far enough, as it still required knowledge of the state and express identification of the migrants who are victimized making it still unjustly difficult to prove State obligation in some

instances. Thus, further development in this area is needed in the direction previously established, as well as the adjustment to the newly emerging concepts such as happy trafficking....