Tackling forced labour and modern slavery in Europe

Abstract

The present dissertation begins with stating how modern slavery is nowadays considered a problem in the international community. The objective to fight those various practices has been set, but with no clear delimitations or responsibilities. By trying to understand what kind of practices can be considered part of modern slavery, the analysis will bring some clarity among different definitions and their dimensions. Accordingly, it will develop its attention on the European continent, particularly on the jurisprudence of the Council of Europe, its influence on other areas of law and the eventual role of the European Union.

1. Introduction 2. Description 2.1 Numbers and statistics 2.2 Sociological Prospective 2.3 International response 3. Legal tools 3.1 Legal definitions 3.2 International customary character of the prohibition of slavery and slavery-like practices 3.3 International criminal responsibility in front of slavery and slavery-like situations 3.4 Customary international jurisdiction 4. The European Council regional system 4.1 Article 4 ECHR – prohibition of slavery and forced labour 4.2 Article 4 jurisprudence 4.3 Latest developments 4.4 ECHR jurisprudence in domestic criminal tribunals 4.5 ECHR jurisprudence in international criminal tribunals 5. The EU role and instruments on slavery and slavery-like practices 5.1 The EU role in the international framework 5.2 The EU criminal competence 5.3 The EU human rights competence 6. Conclusion

1. Introduction

In history, one of the first right developed in the international law arena was the right not to be subjected to slavery. Officially, it was abolished over 150 years ago, but it continues to exist even in the twenty-first century Europe. Thousands of people are still held as slaves, treated as objects, humiliated ad abused. Modern slaves, like their former counterparts, are forced to work (through mental or physical threat) with no or little financial reward. They are physically constrained or have other limits placed on their freedom of movement and are treated in a degrading and inhuman manner, something that is prohibited and yet not enforced enough in the old continent.

The new era has indeed modified both the aspect and the modalities of slavery-like practices, leading to a fragmentation of the phenomenon that is reflected even into the legal instruments available.
Still, it is based on the exploitation of a fellow human being, using poverty or lack of opportunities to find a decent work, to offer exploitative conditions to a worker. Such a heinous crime shall not be permitted in democratic societies based on the rule of law. The new variations of slavery have modified its criminal profile: fewer States and more private actors commit such abuse. This means that the prevention of all forms of modern slavery should look not only at States but also to private individuals, especially multinational companies working in industries at high risk of exploitation, such as in the textile, agriculture or tourism. With the words of Nils Muižnieks, human rights commissioner of the Council of Europe: “The European Court of Human Rights has made it very clear that States have a positive obligation under Article 4 of the ECHR to prevent forced labour and trafficking, to protect the victims and to prosecute the exploiters and traffickers. Member states of the Council of Europe should therefore live up to their crucial responsibility to respect, protect and fulfill the human rights of all victims – or persons at risk of becoming victims – of forced labour and human trafficking.”[1].

The present thesis will try to focus on what has been achieved on the European continent to fight modern slavery and highlights the legal tools to better tackle the violations.

2. Descriptions

To begin with the understanding of the concept of slavery and forced labour it is firstly necessary to understand the characteristics of the phenomenon, its cause, figures and implications, in order to be able to give a better prospective to the law maker.

2.1 Numbers and statistics

Understanding how many slaves or people exploited under any servile status are nowadays present in the world is not a simple task. Other than the methodological techniques that may vary consistently[2], there might be even different definitions on what practices may be referred as slavery or slavery like. Such issues reflect the absence of a specific, updated and comprehensive international treaty [ILO, 2009] and brings difficulties in public policies planning and monitoring.

Increasing international cooperation on this issue is a necessity and an obligation under the 2030 Sustainable Agenda’s SDGs, according to target 8.7:

“Take immediate and effective measures to eradicate forced labour, end modern slavery and human trafficking and secure the prohibition and elimination of the worst forms of child labour, including recruitment and use of child soldiers, and by 2025 end child labour in all its forms.”

In this dissertation, reference will be given to the two main statistical sources, that is to say, the ILO on the institutional side and the Walk Free Foundation (WFF) on the private side. This two organization, with the help of the IOM and UN specialized bodies, have recently published the Global Estimate of Modern Slavery which was presented in the 72nd UN General Assembly.

Here they define modern slavery as an umbrella term comprehending forced labour and forced marriage (a marriage decided by a third person with no consent from the one involved). ILO’s definition of forced labour comprehends human trafficking aimed

to exploitation and is embodied in the ILO Forced Labour Convention of 1930, No. 29 (see chapter “Legal definitions”).

The 2017 global estimate speaks of about 40.3 million people that experienced slavery, of which 24.9 million experienced forced labour and 15.4 forced marriage. This means that there are 5.4 victims every thousands of people. One out of four is a minor and 73% of general victims are female. 51% of victims are trapped in debt bondage, value that raises to 70% when considering only victims of agriculture, domestic work or manufacturing.
1⁄4 of total victims are exploited outside their country of origin. The data however do not show the impact of internal migration and do not reflect on the eventual exploitation inside one’s own community. Further research on this aspect shall be put under social science’s investigation.
In general, the job sectors that mostly welcome forced labour are: domestic work (1/4 of the total), construction, manufacturing, agriculture and fishing. Males are mostly exploited in hard working jobs (with an increasing percentage: Agriculture, Forestry and fishing, Wholesale and trade, Manufacturing, Construction, Begging, Mining and quarrying). 16 million are exploited by the private economy (57.6 % women, mostly in domestic work), 4.8 by sexual industry and 4.1 by States (work for purposes of economic development, military used for various jobs, etc.). Coercion takes mostly the form of non- payment of wages, threat of violence, actual violence and threat of violence to the family. Sexual exploitation accounts for 4.8 million victims, 21% of which children, mostly in the Asian region. Africa is the region that sees the highest presence of general modern slavery situations, but when considering only forced labour, it is Asian and the Pacific region to become the most affected area. Unfortunately, the report does not truly divide the data among regions, so it is hard to provide a clear profile of the exploited victim of each region.

Before that, the available data from the ILO were from 2012, while WFF produces a global slavery index every year.
ILO estimated, in 2012, 20.9 million of people under forced labour conditions, out of which 5.5 are children. In the previous 2005 global estimation of forced labour, which was also the first world-wide estimation, the numbers of people found affected by forced labour were 12.3 million, which however is not comparable to the 2012 data due to a different methodology of research. Comparison with the 2017 estimate is difficult as well (methodologies, definitions, available data).

That number can be divided into forced labour imposed by States or rebels (10%) or by privates, either for commercial sexual exploitation (22%) or labour exploitation (68%). In general, 90% of people in forced labour are exploited in the private economy, a similar percentage to the one from the 2017 global estimate. On the total, women get more exploited (55%), especially in the sexual industry, while men are more exploited in the labour one. A 26% of the exploitation refers to children.

Regarding the dimension of the phenomenon per region, Central and South-eastern Europe and the Commonwealth of Independent States (former USSR countries) see the highest rate of number of victims over population, then Africa and in the bottom the EU and developed communities.

By contrast, the chart chances when considering absolute numbers, with Asia and the Pacific region that sees the highest numbers, followed by Africa, Latin America and Eastern Europe and CIS. The EU and developed countries category comes after and, at the bottom, the Middle East.

In the European Union, a total number of 880.000 people are affected, 30% of which are victims of sexual exploitation and 70% of forced labour. 58% of the total is female, data that will be confirmed by the findings of WFF. Most people come from within the EU, migrating to a different member State and mainly forced into domestic work, agriculture, manufacturing and construction. A specific accent is put over children forced to beg, as no data are yet available to fully understand the heinous practice.

When we look at the relationship between migration and forced labour we see that the sum of internal or external migrant forced to labour reach a 44% on the total population, with a 93% in cases of sexual exploitation and 34% in cases of labour exploitation. It is clear therefore that most of the people are exploited in their sub-region or countries. However [Unicef and IOM, 2017], among people migrating to Europe, 72% of female experience sexual exploitation and 86% of male experience forced labour. Being a child or a minor also exposes you to higher probability of being exploited (here defined by IOM and Unicef as “a form of abuse and violence from which the perpetrator benefits – either making money or securing some form of social, political or other gain”). Such findings may be easily extended to similar situations elsewhere in the world.

On the total number, the average length of time spent in forced labour varies, depending on the form and region. The ILO estimates that victims spend on average nearly 18 months in forced labour before being rescued or escaping their exploiters.

Because of no clear definitions and boundaries between the different forms of modern slavery, such estimates are used to have a general overview on the modern slavery cases: the definition of forced labour is indeed a comprehensive one (see chapter “Legal definitions”) and the UN special rapporteur on modern slavery relies on those to seek data [UN Secretary General, 2017].

Different estimations are provided by the WFF in its 2016 report: they highlight a number of 45.8 million of people in modern slavery conditions, defining it as a situation of exploitation that a person cannot refuse or leave because of threats, violence, coercion, abuse of power or deception, with treatment akin to a farm animal. Human trafficking, forced labour, debt bondage, forced marriage, chattel slavery and descent-based slavery are all comprehended.
Such definition does not reflect specifically any international instrument and reflects a practical need of the foundation, that was as such criticized [The Guardian, 2014], even in its methodology. Still, the foundation is now working within the ILO and its report shall be taken into consideration because it provides country based data and a whole series of indicators for different dimensions involved in the phenomenon.
The countries that are most affected by slavery-like situations are India, China, Pakistan, Bangladesh and Uzbekistan (having 58% of all the world victims), while the list changes when considering the numbers over the population (North Korea, Uzbekistan and Cambodia). WFF also provides a chart of the most active governments in contrasting the violations, being them The Netherlands, the US and the UK while the least are North Korea, Iran and Eritrea.
Victims are frequently drawn from minority or socially excluded groups, as is the case in many parts of South Asia, Africa and Latin America. Migrant workers (usually but not always working with an irregular status) or poor seasonal workers, who move from rural to urban areas, or between distant regions or provinces, in search of work are particularly vulnerable when considering the chances to be rescued. Who lives in poverty and have limited opportunities for decent work is more vulnerable to accept deceptive job offers that can turn exploitative. People who are discriminated against on the basis of race, caste, or gender are also more likely to be enslaved. Slavery is also more likely to occur where the rule of law is weaker and corruption is widespread.

In the European context (1.2 million slaves), the profile of the exploited victim is mainly regional (65% of identified “trafficked” victims are EU citizens, mostly from the east), but the percentage of trans-continental migration’s influxes is increasing. Non-EU victims are mostly from Nigeria, China and Brazil. Forced labour and sexual exploitation are the most reported forms of violations in the region. Being more a destination, European victims are mostly young women of 31.8 years old on average.

The WFF regional report underlines that Macedonia, Turkey and Poland have the highest number of victims, while Norway, Ireland and Luxemburg the lowest. More than half of the victims are female, with a strong presence of Romanian women on one side and Nigerian victims on the other. Attention should be given over Roma marginalized communities, which may use forced marriage or prostitution as a strategy for survival[3].

2.2 Sociological prospective

The causes under the development of similar practices are different and various. However, some common characters may be highlighted.
The WFF divides the vulnerability to which people are exposed, that ultimately leads them into a situation of exploitation, into 4 dimensions:

• Civil and political protections (access to justice, political stability, discrimination, etc.)

• Social health and economic rights (financial inclusion, social safety, water access, etc.)

• Personal security (discrimination, GINI coefficient of inequality, women security, etc.)

• Refugee population and conflicts (impact of terrorism, conflict, etc.)

However, the individual vulnerability is a consequence of a larger socio-economic system that allowed such practices to develop [UN Secretary General, 2017]. Globalization is at the root cause, since it was not used as a tool to connect people and give them a wider access to their rights, but it was left ungoverned, following a neo-liberal economic paradigm that reduced the State intervention even in sphere where it is needed. Weaker regulatory frameworks, a higher demand for cheap labour and unsustainable consumption pattern are all causes that the UN Special Rapporteur on contemporary forms of slavery is underlining in 2017. It also produced raising inequality that contributes to the spreading of slavery by reducing the available choices to the poorest. Such conditions may create a race to the bottom, both on the side of the work force and on the side of national labour regulations.

Poverty as well shows a clear correlation between itself and the number of slavery victims, being a common denominator for all possible vulnerabilities’ situations. It is particularly strong when it goes from different generations, bringing the risk to end up in debt bondage or forced marriage. It is also affected by ethnic discrimination, gender discrimination and illiteracy or general lack of education. Discrimination and illiteracy, together with the younger age, are the key factors that make African adolescent more suitable to experience exploitation when migrating to Europe [Unicef and IOM, 2017].

The conceptual alternative to such phenomena is decent work, that is to say, a work with decent income, security and freedom with the possibility of freely develop a carrier and express thoughts, as well as freedom to participate alone or in group (union). However, trends show a deficit in decent work, because raising unemployment (ILO estimates that in 2017 201.1 million people will be unemployed, increasing in 2018) and precarious jobs.

On the other hand, decent work is not so profitable on the economic side: ILO [2014] estimates that the use of forced labour in the private economy worldwide amounts to 150$ billion profits per year (12), of which 2/3 of it come from sexual exploitation. Other main sectors are construction, manufacturing, mining and utilities, domestic works and agriculture (including fishing and forestry). 51.8 are generated in Asia, while the highest gain for the perpetrator happens in the developed world. It is shown how low skilled jobs are most suitable for such practices, together with poor working conditions and high fluctuation on the market. In this same report the ILO, following the interpretation of the UN special rapporteur, highlights how individual or families accept to be exploited when under the food poverty line, entering high rate debts and accepting any job to survive. If this is combined with low literacy, people may have less options of jobs and be less keen to recognize and/or oppose exploitation.

Factors that increase the vulnerability of possible victims have indeed been pointed out, both on the side of the individual choices (to migrate, for instance) or on given characteristics (discrimination, poverty, etc.).

2.3 International response

It is not the purpose of the present dissertation to look into what and how main general bodies of international Human Rights law may enforce or control State compliance within the fight against slavery. The UN human rights committee, the ECOSOC, the different special rapporteurs are a relevant part of international law, especially when considering the development of custom. However, they do not produce legally binding judgments, as the ECtHR or the ECJ do, in which the individual sees a more direct effect. The focus of thesis will be on those hard law European bodies.

Anyhow, it is interesting to spend few words on the mechanisms that take place inside the ILO, being it the most competent international body to deal with forced labour and still usually less known by scholars.
Other than currently undertaking projects, for instance to develop fair recruitment chances in the most affected countries (which is only the beginning of a situation which, for its very nature, is in the hands of each domestic legal system) the International Labour Organization, as many other international organizations, prescribes (Art. 22 of its Constitution) the obligation to periodically report to a committee of independent experts in relation to their actions for the applications of the ratified obligations. Such committee may make request, suggestions and comments. A representation procedure may also take place and lead to dialogue with the reported failing party. The most interesting feature, though, is the possibility, embedded in Article 26, to activate a commission of inquiry on the non-compliance of a member State. Such procedure brings under examination the country at issue and may go to the ICJ when a) the country does not accept the commission of inquiry’s findings (article 29.2), b) the country does not comply with them.

In November 2001, the ILO Governing Body created the Special Action Program to Combat Forced Labour (SAP-FL) with the role to assist Governments and share knowledge.

On the other side, the response of the international community as single national States is not often adequate. It can be noted that domestic legal systems often do not have adequate legislations, both in the definitions and in the measures to fight slavery [UN Special Rapporteur on contemporary forms of slavery, 2017]. Access to justice is often problematic, especially for migrants: the Kafala system in the middle east brings migrant to a weak position in front their employers, which may take advantage of it, and the criminalization of illegal staying into a country denies protection to victims of slavery or slavery like practices.

Victims may also not be recognized by authorities or even by themselves, because of lack of information and awareness, investigations may be lacking, as well as assistance and protection. The role of the UN Special Rapporteur on contemporary forms of slavery may be used here to share best practices and advocate for the development of law frameworks.

The recommendations from the ILO and WFF underline the need of a multi-faced approach [Alliance 8.7, 2017], with some fixed based: reinforce the social protection floors, extending labour rights to the informal economy, prevent migration from evolving into exploitation, improving victim’s recognition, favor State stability (to protect from crisis that widen the exploitation changes) and strengthen data collection and cooperation among States. Anti-slavery International calls for similar aspect when it drives the attention on the assurance of rule of law and the fight against discrimination, while adding the State duty to prosecute and protect (vulnerable minorities before all) also through appropriate immigration policies, the duty to ensure freedom of association and the one to regulate supply chains of businesses, together with the recruitment agencies and the buying or selling of goods produced in situation of forced labour or modern slavery.

3. Legal tools

The present part will focus on the elements available to define what is legally considered forced labour, slavery and the slavery-like.

3.1 Legal definitions

On the 25th September 1926, Viscount Cecil, a British conservative lawyer and diplomat, founding member of the League of the Nations and negotiator into the first modern Slavery Convention called the Assembly of the League to pass the mandate over forced labour to the International Labour Organization, thus beginning a conceptual separation between forced labour and slavery [McGeehan, 2012]. History developed a two-head subjectivity for the violations at stake: on one side, the ILO was given the task to deal with forced labour, while on the other the UN had the responsibility to treat slavery and the slavery-like practices. McGeehan [2012] sees this separation related to the colonial race first, then to the cold war. Keeping separated the issues of slavery and forced labour was indeed useful to an exploitative economic system and brought the present-day confusion over legal definitions.

Forced labour is, as defined in the ILO Forced Labour Convention of 1930, No. 29, at article 2.1: 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.
There are thus three elements in this definition: the existence of a service provided by one person to another, the fact that the work is performed under a threat of a penalty, of no specific kind so it may be physical, psychological, financial or other and the fact that the work was undertaken involuntarily, meaning against his will. Moreover, “offered voluntarily” refers to the free and informed consent of a worker and his freedom to leave it at any time, in contrast to false promises and arbitrary restrictions: if conditions change he must have the right to leave in a reasonable amount of time and without unfair conditions.
Therefore, forced labour is not defined by the nature of a work, but by the relationship between the person performing the job and the person exacting it. The different means of coercion can vary from evident armed guards to less observable confiscation of identity papers, menaces or such, but it is important to separate forced labour to sub-standard or exploitative working conditions, which don’t see a reduction of workers’ freedom of movement, a withholding of wages or documents, violence, threats, intimidations or fraudulent debt from which the worker cannot leave.

The obligation to eradicate this practice within the shortest time possible is also prescribed in a progressive way, a fact that in the past allowed colonial powers to act progressively, which is no more the case according to ILO’s interpretation of Convention No. 29. McGeehan [2012] sees this possibility as a prove that in the beginning the convention was not meant to be proscriptive, but regulative in a paternalistic and racist way.

The same Convention No. 29 prescribes some exceptions when the work is extracted for military services, for legal civil obligations, as punishment after a fair trial or in an emergency situation. These exceptions are limited and further specified in other instruments, like the Convention on Abolition of forced labour of 1957, No. 105, which underlines the provision not to use forced labour as a mean of political, economic or educational punishment or under any discrimination. Again, McGeehan reports how the drafting of this last convention is embedded into historical dynamics: the US obtained much more weight over State-imposed forced labour other than underlining the connection between any kind of forced labour and slavery, which still lacks in the international law framework.

Anyhow, subsequent developments brought the concept of forced labour to include practices such as slavery, practices similar to slavery, debt bondage and serfdom. The committee of experts on the application of conventions and recommendations of the ILO [2012] has interpreted force labour also to encompass trafficking in person for the purpose of exploitation, as defined by the Palermo protocol (2000):

• An action, consisting of “recruitment, transportation, transfer, harboring or receipt of persons” (no requirement of movement to be present, both cross-border or internal)

• 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”

This definition includes exploitation aimed to prostitution, forced labour, slavery and slavery like practices. The only type of exploitation not covered also by the ILO Convention no. 29 is the trafficking for removal of organs.
ILO estimations on forced labour therefore capture virtually the full spectrum of human trafficking abuses and they may be seen as reflecting what can be called modern slavery to put the accent over the different forms of such inhuman conditions.

Yet, it must be kept in mind that trafficking does not equal forced labour or modern slavery, being only one way through which people can be enslaved. In the global picture [Directorate-General for External Policies, 2013] it accounts for 2.5 million people (reference to the WFF 2013 index, no correspondence found in the last 2016 report), even if the percentage increases when we look only at Europe. Estimates are however not clear, since the boundaries between different violations are not set or defined, but open to interpretation (the acts under trafficking for instance may see a wider or narrower approach depending on the law).

The definition of forced labour arising from the two ILO conventions described so far is therefore a very comprehensive one. Child labour is obviously included as well as debt bondage.
Known also as bounded labour, debt bondage is defined in the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery as the “status or condition arising from a pledge by a debtor of his personal services or those of a person under his control as security for a debt, if the value of those services as reasonably assessed is not applied towards the liquidation of the debt or the length and nature of those services are not respectively limited and defined”, listed as a form of “servile status”. This is nowadays the most widespread form of modern slavery, according to Anti-slavery international.

It is one of the possible degree and practice of forced labour. One of its worst form refers to children used as payments, phenomenon that sees a specific provision in the convention of 1999 for the elimination of the worst form of child labour. Debt bondage is largely present among landless people in rural areas and represents a strong connection between trafficking and forced labour.

In 2014, ILO adopted a new protocol and recommendation (No. 203) to effectively erad- icate forced labour in all its forms, keeping Convention No. 29 as the reference point. The protocol was intended to “bring ILO standards in the modern era” [ILO, 2016], establish- ing once again the obligation to prevent, protect and give access to justice (including bringing perpetrators to justice), in addition to emphasizing the link between forced la- bour and trafficking in persons.

Even if the protocol sees only 18 ratifications and has entered into force in 2016, those instruments strongly call for States to act in consultation with employers and workers’ organizations (Article 1), through specific national action plans and agencies. Accent is put on a gender and child based approach. Article 2 calls for awareness-raising activities, to groups at risk and to the general public on one side, but also towards employers on the other side. Due diligence by the private and public sector is found as a mitigating factor. Remedies, such as compensation and access to justice are fundamental to ensure actual human rights protection, no matter of the legal status of a victim.

However, forced labour does not comprehend all of the other phenomena of severe exploitation: different features between forced labour and trafficking have already been highlighted, but also slavery, or chattel-slavery, is distinct from it being it a situation characterized by a right of ownership [McGeehan, 2012]. It may indeed usually turn into the imposition of forced labour, but it is less common that all forced labour or trafficked victims may be defined as slaves (for instance, point 2 of the Palermo protocol goes indeed farther behind chattel slavery). This assumption between slavery and forced labour has however been questioned by scholars [McGeehan, 2012].

It shall now be analyzed what different instruments are present in the international arena to fight slavery, considering that often domestic internal instruments (like constitutions) present general prohibition for slavery, less often directly referring to forced labour, but sometimes with no set definition [ILO, 2012].

Slavery [OHCHR, 2002] exists since ancient times and had always been regulated in law. As far as modern international law is concerned the first international instrument to deal with it was the 1815 Declaration relative to the universal abolition of slave trade, followed by many multilateral or bilateral agreement promoted to abolish the slave trade mainly on the Atlantic route. It was legal till 1833 in the British empire, till 1848 in the French one and, as serfdom in Russia till 1861. It came back during world war two, when the Nazis used it to exploit the occupied countries on “greatest scale”, according to the Nuremberg Tribunal.

Article 22 of the statute of The League of the Nations prohibited slave trade. The same organization promoted agreements on the matter, as the UN did later. The status of customary international law may indeed be affirmed (see chapter “International customary characters of the prohibition of slavery and slavery-like practices”).

The Slavery Convention signed in Geneva in 1926, and entered into force in 1955, defines slavery as “the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised” (Article 1). It refers also to “capture, acquisition or disposal of a person with the intent to reduce him to slavery”, the selling of the same and his trade. The travaux preparatoires show [McGeehan, 2012] how both status and condition were meant to be comprehended under article 1, not stopping to a mere legal right of ownership.

The convention also prescribed obligations to protect and fight all forms of slavery and “compulsory or forced labour from developing into conditions analogous to slavery” (Article 5), plus the obligation to set up an effective legal framework. Referring to different forms of slavery was important when considering different practices of restriction of liberty, like girl acquisitions as payment, exploitation of adopted children and forms of forced labour, which are slightly different to the classical characteristics of slavery, as seen above. Such practices were listed in reports for the Temporary Slavery Commission that the League set up in 1924 and were identified as existing examples of violations, without no attempt to define a common character among them. Much of the confusion that still nowadays surrounds slavery is due to this separation between the practical and the conceptual [Bales, Kevin, Robbins and Peter, 2001]. Such separation was the result of the diplomatic process of formulation among States and the League, designed to seek legal responses in a certain historical context, failing to provide the necessary legal clarity for future developments. Indeed, this aspect is still surrounded by legal confusion when, for example, this definition is relied by the ECtHR as only encompassing a right of ownership. Consequently, the following evolution of international law does not go towards a comprehensive interpretation of slavery and slavery-like practices, sticking to the ownership right requirement and keeping it distinct from the slavery-like practices (and forced labour, seen back then only as a possible way to develop slavery) [McGeehan, 2012].

Later in 1949 the ECOSOC appointed an ad hoc committee to examine if the 1926 convention was still effective in its definitions and it came up with the necessity to have a larger instrument, which was achieved in 1956 with the “Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery”. It added specific criminalization duties, like conveying slaves or inducing people into slavery, and established the obligations for State parties to fight also other “servile status”:

• Debt bondage, as payment of debt with personal services, or with services of people under the debtor’s control, that are not limited and defined

• Serfdom, as the “condition or status of a tenant who is by law, custom or agreement bound to live and labour on land belonging to another person and to render some determinate service to such person, whether for reward or not, and is not free to change his status”

• Any practice of owing a woman as payment, trade or inheritance

• Any practice of offering and/or exploiting minor labour

This was somehow confusing when describing practices already covered by the 1926 Convention, without referring to forced labour and creating the new concept of “servile status”. As Bales and Robbins underline [Bales, Kevin, Robbins and Peter, 2001] this confusion will remain over the various international definitions, never comprehending all the same concepts. It is indeed still nowadays missing a legal definition that is dynamic and universal to cover all slavery-like violations.
The listing of practices seems to be necessary when considering that all of those could not have been in the mind of the drafters back in 1926 [McGehaan, 2012]. The new convention did not acknowledge a wide interpretation of article 1 of the 1926 convention, as it could have following the travaux preparatoires, choosing to strengthen a separation between slavery and slavery-like practices (or servile statues). The listing envisaged, however, an approach not suitable for a progressive interpretation from Human Rights Law.

The Bellagio-Harvard guidelines published in 2011 crystalize the separation between slavery, as encompassing the right of ownership, and all other situations where this element is absent. It must be said that the guidelines deny a requirement of mere legal ownership and underline a de facto analysis of the circumstances: where the powers attached to the right of ownership, as tantamount to possession, are present, then all situations at stake may be classified as slavery, otherwise they should keep a separate, less heinous, legal characterization (such as forced labour, debt bondage or servitude).

Arguably nowadays the classical chattel slavery sees small existence (few tribal lands, ISIS territories) and the degree of control over the possibility to move, over personal belongings and over the true nature of a private-to-private relationship is subject to a more complicated nature [OHCHR, 2002], [Bales, Kevin, Robbins and Peter, 2001].

The Policy Department of the EU Directorate-General for External Policies [2013] sees debt bondage and contract slavery (meaning slavery evolving from a fair employment) as the most common forms of violations.

Anti-Slavery International, the oldest NGO in the world based in London, works with all

cases of modern slavery-like practices and they define slavery situations when people are[4]:

• Forced to work, through any coercion, mental or physical threat

• Owned or control by an employer, through mental or physical abuse or threat to

  abuse

• Dehumanized, treated as commodity or bought and old as property

• Physically constrained or restricted in their freedom of movement

This definition brings together chattel slavery (owned) and modern slavery (controlled), with the theory of a minimum level of severity in the exploitation (dehumanized). The interpretation of restriction of movements may also bring difficulties in the interpretation, being not clear what is the limit. However, it is evident that such a practical definition is easier for analyzing the whole set of violation that are nowadays taking place in the world: forced labour, debt bondage, human trafficking, descent-based slavery, child slavery and forced marriage. This also brings advantages when considering different forms together at the same time (trafficked person that works bounded to the debt through which he paid the journey).

Trying to find a minimum common denominator among the whole definitions, Bales and Robbins [Bales, Kevin, Robbins and Peter, 2001] speak of the concept of ownership and control (“any or all the powers attaching to the right of ownership”), bringing the loss of freedom, movement and the ability to make decisions, without being able to specify the degree of such deprivations. Confusion arises also when considering what kind of threats may give rise to slavery-like situations: in cases of prostitution some may argue women choose to practice it lacking any alternative mean to survive; in cases of bounded labour, workers are not constricted in their movement, but lack awareness over rights and alternatives. Socio-economic considerations are therefore important: “A free laborer can enter or withdraw from the labor market at any time, but a slave cannot; he or she cannot sell his or her own labor power and thereby commodify it. This is true whether the period of enslavement is of a fixed or temporary duration or indefinite” [Bales, Kevin, Robbins and Peter, 2001]. The authors refer also to the “social death” cultural theory, that states how a victim of modern-slavery practices sees the end of his own culture and history, no matter if the situation is permanent or temporary (this aspect may however be questioned in the degree perceived by the victim of slavery, servitude -higher degree- or forced labour -lower degree). It may reflect a territorialization of the victim, which sees his life bound to that place of work [Stoyanova, 2012].

After all, it is a social and economic relationship between two people, recognized by both and characterized by extreme imbalance of power. The proposed definition is: a state marked by the loss of free will where a person is forced through violence or the threat of violence to give up the ability to sell freely his or her own labor power [Bales, Kevin, Robbins and Peter, 2001. It is indeed a sum of control by another person, appropriation of labour power and threat to violence that covers all different slavery-like practices and it is close to the definition proposed by Anti-Slavery International.

3.2 International customary characters of the prohibition of slavery and slavery-like practices

The two ILO conventions on forced labour and the Slavery conventions as well, enjoy almost universal ratification in the international law arena. In addition to them, it shall be considered a whole set of more general instruments (both hard and soft law) that reinforce the prohibitions at stake (one for all, the UN Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, article 11), as well as a numerous set of regional instruments for the protection on human rights (like the ECHR and the Interamerican Convention on human rights).

The first international instrument is, in 1948, the Universal Declaration of Human Rights, which nowadays is even regarded as a sort of Constitution of the international community [Cassese, 2005]: article 4 states “No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms”. It introduced the new concept of servitude, clearly reflecting the absence of a will to expand the slavery definition of 1926 [McGeehan, 2012]. It embraced all the non-western slavery-like practices (still slightly unknown) but was not referred from the Supplementary Convention of 1957, which speaks of servile statues, as seen above. Nowadays, the two concepts are considered equivalent, but this added a bit more confusion over the definitions.

Later the ICCPR stated in article 8 the same provision enriched with forced or compulsory labour, with a list of exceptions (lawful sanctions, military service, in case of calamity and normal civil obligations). Actually, all instruments defined as part of the International Bill of Human Rights have set provisions against the slavery-like practices, for example the right to freely choose your work set up by the ICESCR in Article 6.1. The reason behind such a wide scale of general instruments is that such an offence brings, by defini- tion, the denial of any other right or liberty. It has the character of a sum of fundamental human rights violations and therefore can be considered a fundamental and primary right. However, it shall be born in mind that there is a difference development between slavery (and the slavery-like, mostly referred together with chattel slavery) and forced labour provisions, with the first ones being much stronger.

All of the above cited agreements and conventions enjoy a very large consensus in the international community [Boschiero, 2001], being it the number of ratifications, the var- ious declarations made by States and the absence of significant reservations. The same Supplementary convention even prescribes no possibility of reservation. Therefore, the customary nature of the prohibition of slavery shall be set and all States are responsible for its violation, no importance if they are parties to specific conventions or not. Follow- ing the interpretation of the ICJ in the Barcelona Traction case, this norm is of such great importance that all States have interest in its protection, making the protection of that right an obligation erga omnes. The Court goes even farther in saying that the right not to be hold slave is part of jus cogens, because it does not accept any derogation at any time. The same does the European Convention of Human Rights in Article 15. It is therefore an offence towards all the international community and all of its members are entitled to claim its respect.

This recognition entails the duty to prosecute or extradite, the prohibition to derogate and universality of jurisdiction over it, regardless of where is committed, by whom and against who. All those options however are not enough: States are not keen to exercise universal jurisdiction and thus they need to be pushed and controlled by the international commu- nity as a whole.

If all of this is true for slavery, it is less easy to estimate which forms are comprehended in the modern slavery umbrella term, considering that the different instruments prescribe different list of slavery-like practices and forced labour may be out of those. The Supple- mentary convention for example does not refer to forced labour.

Undoubtedly, a hierarchy [UN Special Rapporteur on contemporary forms of slavery, 2017] in international law exists among slavery and other forms of exploitation, with slavery being the most severe type of exploitation. The element of control of the person or his/her labour is present in the various forms of exploitation to different degrees, and the most extreme form of control is manifested when it exhibits powers attached to own- ership. This accounts for a distinction between slavery and other lesser exploitive prac- tices, such as forced labour, servitude and the institutions and practices similar to slavery. However, at least in theory, such practices may also constitute “slavery” in law and can be prosecuted as such if they manifest any or all of the powers relating to the right of ownership or if the control exercised over the person subjected to the practices is equiv- alent to possession of the person.

Thus, the principle of State responsibility arises for all practices [UN Special Rapporteur on contemporary forms of slavery, 2017], entailing not only the prohibition to directly enslave, but also the positive obligation to protect, prosecute and provide assistance to the victims.

Back in 1996 the ILO commission of inquiry on Myanmar’s observation of the respect of the conventions against forced labour called for the prohibition of forced labour to ius cogens as well as slavery [1996]: “In international law, the prohibition of recourse to forced labour has its origin in the efforts made by the international community to eradi- cate slavery, its institutions and similar practices, since forced labour is considered to be one of these slavery-like practices. Many conventions and international treaties prohibit recourse to slavery, both in times of peace and during periods of armed conflict. Although certain instruments, and particularly those adopted at the beginning of the nineteenth century, define slavery in a restrictive manner, the prohibition of slavery must now be understood as covering all contemporary manifestations of this practice” (paragraph 198) and, after pointing at all the international instruments seen above “the Commission concludes that there exists now in international law a peremptory norm prohibiting any recourse to forced labour and that the right not to be compelled to perform forced or compulsory labour is one of the basic human right”, making the non-respect of that pro- vision a matter of international responsibility for a wrongful act. If seen as a fundamental right, when committed on a widespread scale may fall within the scope of application of the ILC draft article 19 on State responsibility.

Two years later, in 1998, the ILO adopted the Declaration on Fundamental Principles and Rights at Work, listing the fight against forced labour among the fundamental principles that must be respected by all members even if they have not ratified specific conventions, thus featuring characters of customary duties.

In 2001 the ICTY in Prosecutor v. Kunarac affirmed that forced labour was part of the contemporary forms of slavery under the enslavement definition as crime against human- ity, part of customary international law.[5]

Arguably [Rassam, 1999], the whole international community nowadays refer to slavery- like practices such as forced labour and prostitution as modern slavery, recognizing the evolution of the phenomenon which still shows the deprivation of all or part of a human juridical personality and its severe exploitation. What is found to be lacking is the con- sistent State practice in tackling the issue, while the United Nation shows a clear tendency to deal with whole violations under the slavery-like umbrella term, supported by some opinion juris [Rassam, 1999], giving to all practices the status of customary law.

3.3 International criminal responsibility in front of slavery and slavery-like situations

The international criminal responsibility always adds to an eventual State responsibility under Human Rights Law and represents a farther level of protection from such offences. It refers only to violations committed in a widespread and systematic manner by an organization which displays State-like features.

The crime of slavery was present since the beginning in the Nuremberg Charter, as a crime against humanity, and so it remained in the following practices. Such category exists in time of war and peace. Also, the prohibition of slavery and deportation for forced labour is a war crime (first under the Nuremberg charter; it refers to situations arising during and because an armed conflict). Here, it is considered only the category of crimes against humanity, which, among the violations of international criminal law, is the only one not having a specific international convention specifically drafted on its subject. It is, however, widely considered ius cogens [Akhavan, 2003].

The Statute of the International Criminal Tribunal for the Former Yugoslavia from 1993 prescribes enslavement as a crime against humanity without defining it. To do so, it refers to Article 18 of the draft codes of crimes against the peace and security of mankind, published by the ILC in 1996 [ILO, 2009]: it refers to offences committed “in a systematic manner or on a large scale and instigated or directed by a Government or by an organization or group”, with a specific reference to two slavery conventions, ILO convention no. 29 and the Palermo protocol. Forced labour was seen as a consistent part of the crime of enslavement (Prosecutor v. Kunarac, 2001; Prosecutor v. Kmojelac, 2002)[6].

The first of this two cases is worth particular attention because it represents a wide interpretation of the definition of enslavement, also taken into account by the EctHR (Rantsev v. Cyprus and Russia)[7]. Kunarac and Kovac were accused of repeatedly abuse Muslim women hold in slavery. The tribunal indeed interpreted enslavement, as a crime against humanity, to be broader than the traditional definitions of slavery or forced or compulsory labour found in other areas of international law. This assumption may indeed reflect only international criminal law. The factors found to be central in the analysis of the crime were: control, physical or psychological, over somebody’s movements, the presence of any form of coercion or force (as the two most relevant element), plus the duration and nature of the treatment and any kind of control over sexuality and forced labour. It excluded the necessity of a lack of free consent, focusing on the quality of the relationship[8]. Trafficking, as a violation of human dignity, was kept separated from enslavement, though strictly connected (when aimed at exploitation or when simply evolves into it). The Court hold that contemporary forms of slavery bring a destruction of the juridical personality, greater in case of chattel slavery but with only a difference of degree. This approach was criticized in literature [Van Der Wilt, 2014] because of a lack of legal certainty.

Thus, the most relevant innovation was the recognition of the ownership not to be interpreted in a legal sense, with the main focus on the de facto destruction of judicial personality arising from the violation at stake [Van Der Wilt, 2016].
In Prosecutor v. Krnojelac, the ICTY found that the presence of a “climate of fear”, notion coming from American courts, may negate the possibility to have free consent from the workers to perform a job, thus entailing the presence of forced labour. The existence of such environment must be objectively proven and the presence of subjective feelings is not regarded as sufficient from the Court. The analysis must be based on the factual circumstances of the case [ILO, 2009].

The ICC defines slavery, called again enslavement, as a crime against humanity: “the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children” (Article 7.2c). Sexual slavery, as well as “enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity” enjoys the same status as slavery, but there is no reference to forced labour. This is essentially the same definition entailed in the Slavery Convention of 1926, with a specific reference to trafficking [Bales, Kevin, Robbins and Peter, 2001]. However, the Elements of Crime intend to widen the interpretation of it speaking of “any or all” the powers attached to the right of ownership “or by imposing on them a similar deprivation of liberty” which in some circumstances (as clarified in footnote 11) may “include exacting forced labour or” reducing them to practices listed in the Supplementary Convention of 1956. It is meaningful to cite Human Rights Watch comment over this clarification [ILO, 2009]: “By restricting the examples of enslavement to traditional forms of slavery involving commercial transaction, and other ‘similar’ forms of deprivation of liberty, the text fails to embrace slavery-like practices in the modern world. If the Court’s jurisdiction over this crime is to be meaningful, it must encompass practices such as debt bondage and forced labor”. So, it is and the interpretation was linked to the ILC draft articles quoted above. Concretely, the Court in Katanga associated the right of ownership over the victim to its deprivation of liberty, with particular attention to the subjective feelings of being violated. In Ntganda[9], the ICC referred to ICTY criteria to establish the most relevant factors to be taken into consideration when considering such violations. Trafficking is included in the provision when considered to amount to crimes against humanity, thus maintaining a separate nature [Triffer and Ambos, 2016].

The same offence of enslavement is listed in article 8 as war crime.

The system of international criminal law is generally distinct from the whole national domestic frameworks and the statutes of the various Courts do not impose any specific duty, being the general international law to oblige them to prosecute international recognized crimes [Bergsmo, Harlem and Hayashi, 2010].

Still, statutes may exercise an influence over the various legal systems and, through them, it is possible to imagine a wider influence over international legal frameworks sensible to States’ practice (the European Council, for instance). If this happens, slavery may be regarded as entailing all kind of slavery-like practices, thus bringing forced labour to the status of non-derogable norm and embracing all modern violations under the umbrella term of slavery, highering the recognition that the ECtHR could give to its victims, for example.

However, ways and means of compliance with ICTs (when the Security Council does not rule their supremacy over a certain domestic system, obviously) is in States’ hands. They are not required to comply with defined provisions or to ensure some kind of positive obligations. Arguably, in the case of the ICC, if they fail to genuinely prosecute a violation on which it has competence, the complementary principle applies (as embedded in article 17) and the Court gets jurisdiction. In general, it is up to single countries to decide and verify their conformity to international criminal law. Nowadays, a State has to ratify the Rome statute and then must decide to go further and adopt a domestic provision to seek harmonization between that statute and its internal law: the example of Germany (German Code of Crimes against international law, 2002) is one of the few at stake.

It must be noted, for the application of the complementary principle, that there is no obligation for the crimes to be exactly mirrored in national criminal codes nor that domestic prosecution has to be in precise accord with the ICC statute. This would give rise to a fight over the jurisdiction of the Court in cases were enslavement is not seen as encompassing the whole interpretation given by the ICC: it is a case-by-case analysis. When considering the customary international criminal law, the provision must be fully respected, and the ICTY has already referred to forced labour as custom (see the Kunarac case above). Thus, it was suggested an indirect influence [Bergsmo, Harlem and Hayashi, 2010], as the statutes and interpretations may also reflect international custom. However, the specificity of the ICC makes it hard not to imagine a strong deference over national systems.

To this account, Hankins [Bergsmo, Harlem and Hayashi, 2010] finds different modalities through which states may define international crimes in their jurisdictions: they may apply their existing criminal provisions (risking to lose jurisdiction when not appropriate as seen above) or adopt some kind of specific incrimination (as an increasing number of State is doing) by:

• Referring generally to treaties to which a state is a party (creating problems for legal certainty)

• Expressly criminalize each international crime (coping the wording from the treaties, re-phrasing it entirely or partially). This last option may bring a fragmentation over general norms, if not governed.

Moreover [Bergsmo, Harlem and Hayashi, 2010], when considering the process of influence on a national law, the whole spectrum of international obligations must be taken into account, thus referring also to specific conventions (genocide, etc.). Unfortunately, the category of crimes against humanity does not see any specific international convention.

Still, it remains open the issue of whether states should assert their jurisdiction on the basis of universality or on a more limited one, as territoriality or nationality. Different States decided on the matter in different ways.
Germany adopted a universal jurisdiction with the Code of Crimes under international law (CCUIL) of 2002, within a stand-alone legal approach of incorporating the crimes, not limited to the ICC provisions, thus requiring a specific rephrasing of the same. Whether common features among States and how many of them actually express recognition over the extended definition of slavery, is over the porpoise of the present paper.

3.4 Customary universal jurisdiction

Much literature [Hall, 2003] on this form of international protection starts with article 8 of the Universal Declaration of Human Right. Here it is embedded the right of everybody to an effective remedy in his own national state for the fundamental rights given him by law. Literally, the law mentioned is only national laws and constitutions, however, the interpretations of such article have been evolving. Before looking into what is now universal jurisdiction and where it can be applied as far as modern slavery, it shall be analyzed the definition and the evolution of it.

Universal jurisdiction [Hall, 2003] is the ability of States to investigate and prosecute conducts happened abroad that are not linked to the forum State, neither by nationality of the victim or of the perpetrator or by harm to any kind of national interest. Courts act over crimes of international law to enforce it, thus setting aside national restrictions (immunities). The issue appears indeed to be very problematic in the relationship with domestic laws. Another characteristic that shall be taken into consideration is its voluntary or mandatory nature, in other words, the requirement for courts to have a trial or the mere possibility to do it.

The first examples in modern history relate to war crimes and piracy, aiming to ensure justice (in presence of legal black-holes) against any hostis humani, according to the most widely recognized international law. In the 19th century, States exercised universal jurisdiction against the slave trade, comparing it to piracy[10] and enforcing its prohibition in the high seas. From back then, the international community has developed a peremptory norm against slavery (see chapter “International criminal responsibility in front of slavery and slavery-like situations”) but no specific convention over universal jurisdiction as a mean to enforce it. Furthermore, it is true that international customary recognition does not imply universal jurisdiction, but it may be argued that such a recognition has brought today the possibility for any State to claim universal jurisdiction as far as slavery is concerned, but no obligation has developed [Kraytman, 2005]: various countries did claim it without any objection in the international community. Yet, practice is only related to chattel slavery and not to modern forms.

It was the Nuremberg Tribunal first, then the ICTY and the ICTR to push further the practice of universal jurisdiction with a halt when the ICC saw the principle put on the side to favor the improbable ratification by the USA. Nonetheless the preamble of the Rome statute speaks of “the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes”[11]. On the other hand, national Courts saw an important input with the arrest of Chile’s former dictator Augusto Pinochet by the UK, following an extradition request of Spain based over the crimes of genocide, torture, murder and hostage-taking.

Hall quotes Amnesty International’s 2001 memorandum over universal jurisdiction[12] and distinguishes different ways in which States have exercised this possibility:

– Express authorization over international law most heinous crimes, such as genocide, crimes against humanity, torture

– Express authorization over certain national crimes (murder or rape, for instance) – Express authorization over crimes defined in specific treaties or in customary law,

like hijacking, taking hostages or attack any diplomat
– Direct incorporation of international law into domestic law

As a crime against humanity, enslavement is generally accepted to be under the possibility to bring universal jurisdiction and it is widely recognized the duty not to harbor any suspect, on the contrary, to prosecute him. There is no obligation because, contrary to what happens in case of genocide, there is no specific treaty that strongly binds States to act.

However, national legislations may still put in place limitations to their jurisdiction (such as the requirement for the suspect to be present or to have exhausted local remedies) and hold respect for immunities even in case where it could be argued not to exist under international law. States show indeed a very fragmented practice. It may also be very difficult to apply considering a whole series of practical obstacles, going from a lack of legislation, reluctance, refusal to extradite and to share, or even obtain, information. Moreover, it must not be forgotten that enslavement as a crime against humanity must show precise features and so cannot cover the wide range of violations under the modern slavery umbrella term. Slavery itself may be regarded as an international crime that however shows problematic aspects in the definition of what it covers. Even more, this uncertainty is present in different national definitions.

4. The European Council regional system

The main instrument and focus under the European Council framework is the European Convention on human rights of 1950. Article 4 is the competent article for violations of forced labour and slavery or slavery-like practices, with a few cases available to further develop the obligations embedded under it. The focus will be on how the Court developed and analyzed the violations that came under its attention.

Furthermore, like many domestic systems (see chapter “The EU role and instruments on slavery and slavery-like practices”) the European Council framework has developed ad- ditional instruments (other than the ECHR) mainly on human trafficking. The most recent instrument, entered into force in 2008, is the Convention on Action against Trafficking in Human Beings of 2005. Such convention recognizes Human Trafficking as a human right violation that offends the integrity and dignity of humans. It requires member States to criminalize and prevent trafficking, to discourage demand and to assist victims. They must do so by cooperating internationally. The GRETA group (Group of Experts on Ac- tion against Trafficking in Human Beings) checks the compliance with such duties. It builds a criminal justice framework over that specific violation and strengthens the vic- tims’ protection, starting from the definition of the Palermo protocol. It brings the obli- gation to have a proper process for victims’ identification (art. 10), for their protection and rehabilitation.

In addition, one may rely on article 1 of the European Social Charter, a treaty promoted in 1961 inside the framework of the Council of Europe, calls for the right to freely choose a job, bringing the positive obligation for State parties to protect from forced labour in both public and private sector. This convention has a specific monitoring mechanism, but presents a progressive nature as far as the results that it requires and the eventual viola- tions are subjected to reviews and recommendations of committees, not to judgments.

4.1 Article 4 ECHR – prohibition of slavery and forced labour

Article 4 does not provide positive definitions of slavery, serfdom or forced labour and so reference must be taken to the most widely ratified international instruments on the

subjects. Such instruments are usually directly referred in the case analysis and reflect the above-mentioned developments. It states:

“1. No one shall be held in slavery or servitude.
2. No one shall be required to perform forced or compulsory labour.

3. For the purpose of this article the term ‘forced or compulsory labour’ shall not include:

1. (a) any work required to be done in the ordinary course of detention imposed accord- ing to the provisions of Article 5 of [the] Convention or during conditional release

   from such detention;

2. (b) any service of a military character or, in case of conscientious objectors in coun-

   tries where they are recognized, service exacted instead of compulsory military

   service;

3. (c) any service exacted in case of an emergency or calamity threatening the life or

   well-being of the community;

4. (d) any work or service which forms part of normal civic obligations.”

Article 4, together with Articles 2 and 3 of the Convention enshrines one of the funda- mental values of democratic societies (Siliadin v. France[13]). The wording of the first par- agraph reflects indeed the same wording of article 4 of the UN Declaration of Human Rights.

As stated above, the difference between the prohibition of slavery and the prohibition of forced labour is strongly present: the European Convention in Article 15 recognizes the character of jus cogens only to the slavery prohibition, while the UN working group on modern slavery applies it also to the modern forms of it, as forced labour [Boschiero, 2001]. Specifically, chattel slavery and serfdom may not see any derogation while it can what might be considered as less grave forms of forced labour. The existence of these grave forms of slavery that can be considered not yet erga omnes or part of jus cogens may thus be shown according to the degree of the exploitation and the duration in time of the violation.

The question rises if such forms may be seen as slavery-like practices and as such enjoy higher protection from the Court. Article 31 of the Vienna convention on the law of trea- ties together with the ECtHR interpretation of the convention bring the necessity to inter- pret any provision in the way that most protect the scope of the convention itself (the respect of human rights) and always considering the evolution of the violation itself. It is undeniable that the corpus juris gentium has evolved after the adoption in 1950 of the ECHR and many new international law instruments have widen the scope of the prohibi- tion into customary law (as seen in the chapter “International customary characters of the prohibition of slavery and slavery-like practices”), but the issue remains when consider- ing which of the offence to integrate. Nerina Boschiero [2001] does not make any refer- ence to forced labour, while bringing specific evidences for sexual slavery and children’s abuses. However, Boschiero further argues, the Selmouni v. France[14] case may play an interesting role, allowing to set a higher standard of protection depending on the needs of the present time: grave forms of the same violation may be considered as grave as the main prohibition in order to follow the new social necessity. For instance, trafficking in human beings is already considered by the Court as part of article 4, whether it come as slavery or forced labour (Rantsev v. Cyprus and Russia[15]) [ECHR guide on article 4, 2014].

Slavery is indeed defined with reference to the 1926 Convention, specifically characterized by the right of ownership. The Court expressively refers to this instrument in its case law to set out its interpretation. In Siladin v. France the Court holds that the applicant, although obliged to work as a domestic servant for years, not being paid and with no day-off, was subject to forced labour and not to slavery, finding no legal owner- ship to reduce the applicant to the status of an object.
In M. and others v. Italy and Bulgaria[16], the Court looked specifically to right of owner- ship when determining the existence of a slavery situation. In that case analysis, the cir- cumstances were not clear enough and the monetary contribution paid to the husband of the applicant was not to “be considered to amount to a price attached to the transfer of ownership, which would bring into play the concept of slavery”[17], interpreting it as a cul- tural practice of Roma people.

Servitude [ECHR guide on article 4, 2014] is defined as the obligation to provide services to another person by use of coercion. As the Court put it in Van Droogenbroeck[18] “in addition to the obligation to provide another with certain services, the concept of servitude includes the obligation on the part of the “serf” to live on another’s property and the impossibility of changing this condition[19]”. It includes particularly serious form of denial of freedom, like serfdom, but is different from forced labour in the feeling of how permanent such conditions may be. The feeling that a situation is unlikely to change may indeed suffice to distinguish forced labour to servitude, as a graver form of exploi- tation (Seguin v. France[20], Siliadin v. France and C.N. and V. v. [21]). In this second case, the Court considered the applicant to be subjected to servitude because her condition was aggravated by her minor age, her dependency over the hosting family and her lack of freedom of movement and free time.

As encompassed in the ECHR, servitude refers to all the slavery-like practices enlisted in the Supplementary convention of 1956 (Art.1 and 7) [Jacobs, White and Ovey, 2010]. Indeed, the term is common in Human Rights law, while in general international law the wordings “practices similar to slavery” from the Supplementary Convention are more recognized [McGeehan, 29].

Forced labour is also not defined by the Court, which makes references to ILO instruments. However, the Court recognizes that not all of the work exacted under the threat of coercion are comprehended: the amount of work and the type of job shall also be taken into account. Here, the European Court de facto adds a further requirement to the forced labour definition[22], which according to the ILO (see chapter “Legal defini- tions”) is defined simply by the nature of the relationship between the employer and the employee. The intention of such requirement is to separate cases of helping hands needed in situation of sharing accommodation [ECHR guide on article 4, 2014]. Arguably, such requirements in concrete might not be of any impact.
In Van der Mussele v. Belgium, the Court refers to a disproportionate burden test to iden- tify if a lawyer may be subjected to forced labour when required to perform his job free of charge (see chapter “Article 4 jurisprudence”). The wording “any penalties” are re- garded as referring to physical violence or phycological threats, like denouncing to the police or to immigration authorities. Such threats may only be perceived, like in Siliadin v. France. The criterion of voluntariness is taken always into account, but the Court does not give it a decisive weight.

The Court therefore applies a case-by-case analysis [ECHR guide on article 4, 2014]: they look whether the services fall outside the normal professional ambit, if the service is re- munerated, if the obligation is founded upon social solidarity and whether the burden is disproportionate. It is not a cumulative list, but different elements may be present at dif- ferent degrees. Whenever the person is simply not paid, is transferred to a less lucrative employment, is required to accept the job offered by the social assistance[23] or is paid less in certain cases according to law is not a violation of Article 4.

The element of consent is one important concept to be taken into account. Personal liberty is something inalienable that cannot be voluntary abandoned, according to the Court [Ja- cobs, White and Ovey, 2010]. In the Vagrancy case against Belgium[24], the ECtHR re- ferred to the Supplementary Convention against slavery of 1956, where the UN clearly stated this impossibility (UN doc. A/2929, 33). The question remains though for what concerns paragraph 2 of Article 4: the element of involuntariness appears indeed to be essential. In Ivesrsen v. Norway[25] is a contested solution that brings the consent to a fun- damental requirement that, if given, may avoid the triggering of Article. However, in Van der Musselle v. Belgium, the consent played a slightly less important role, because could not be regarded as the most central element (see chapter “Article 4 jurisprudence”). Paragraph 3 lists some exceptions to forced labour. They are meant to delimit what actu- ally constitutes the violation and not to limit the protection guaranteed. It is important also to underline that such limitations refer only to it and not to practices amounting to slavery or servitude, given their degree of exploitation.

– Work during detention or conditional release: in establishing what is to be con- sidered “work required to be done in the ordinary course of detention” the Court will look at the prevailing standards in member States. An example may be the lack of consensus in including some works under the old-age pension system, therefore not having the obligation to do so as a State[26]. This exception differs and does not incorporate all cases derived from article 2.2.c of the Convention No. 29, particularly with regard to private enterprises [Schabas, 2015].

• Military service or substitute civilian service

• Services required during an emergency or calamity

• Normal civic obligations: including compulsory jury service, compulsory fire service or financial contribution payable in lieu of service, free medical examina- tions, participation in medical emergency service and obligations to companies to calculate and withhold certain taxes or contributions

Article 4 also entails positive obligations to State parties: in order not to make such pro- vision ineffective and following the specific international instruments on the subject, as stated in Siliadin v. France, parties to the convention cannot only refrain themselves from committing slavery or forced labour, but have to positively act against those violations. It reflects the ECtHR jurisprudence of articles 2 and 3, together with the essential private nature of the violations: as seen, the provision is violated mostly by private citizens, in the European framework, and less by State actors.

First of all, States have the positive obligation to put in place appropriate legislative and administrative frameworks, as well as to ensure that violations are penalized and prose- cuted, punishing the perpetrators. Safeguards must be practical and effective to protect victims, with an explicit reference made victims of human trafficking, according to their particular need of assistance. In Rantsev v. Cyprus and Russia, the Court found Russia’s legislation in compliance with such positive obligations, but not Cyprus’, because of its regime of artiste visas not giving practical protection against trafficking.

States are obliged to take operational measures in all cases in which it is proven that they knew or ought to have known that a violation was going to occur or could have occurred, with a real and credible suspicion of immediate risk for the victim. States are obliged to act through all their meaning to remove the individual from that situation. However, it cannot be imposed upon them an impossible or disproportionate burden considering the complexity of contemporary societies (Rantsev v. Cyprus and Russia, V.F. v. France[27]). Prompt investigations must occur whenever there is a credible suspicion of violation to the attention of the authorities, not needing a formal complaint by a victim. Obviously, the investigation has to be independent from those implicated and capable of actually bring to justice the perpetrators. Trans-boundary violations, like trafficking, give rise to the obligation to cooperate between States: that obligation was failed in Rantsev v. Cyprus and Russia when Russia did not investigate the possibility of international networks.

4.2 Article 4 jurisprudence

The Jurisprudence arising from Article 4 is rare and mostly negative, meaning that it de- fines what is not slavery or forced labour, more than defining it. Going in chronological order the present dissertation will try to highlight the main legal characters.

One of the first example is the Iversen v. Norway case, where a dentist was called to perform its job in the far north of Norway, because of emergency lack of such profes- sions in the area. Here the Court affirmed that to be forced labour for the purpose of the Convention, not only it must be performed against the will of a person, but also it must have an unjust or oppressive character. Also, the obligation did not constitute a violation of Article 4 because of the emergency exception in paragraph 3 c, according to part of the majority (while a minority did not consider it under this aspect).

Similarly, in the Van Droogenbroeck v. Belgium case of 1982 the applicant was obliged by Belgium law to work in a penitentiary institute. He was a recidivist convicted for thefts. Indeed, its penalty was aimed to rehabilitation under the Social Protection Act of 1964. He claimed to be subjected to forced labour, but the Court underlined the lawful character of the provision, its limit in time and reversibility, denying such violation.

Article 4 was used also against the obligation to protect indigent clients with no possibility to pay: in Van der Mussele v. Belgium (1983) the Court again rejected the request of the applicant, applying on the given obligation the so-called disproportionate burden criteria, a kind of general proportionality test specific for forced labour, which resulted in unreal exploitation.
No guidance is available in the various Council of Europe documents on the definition of forced labour, neither in the preparatory works. In the case at stake, the Commission made specific reference to the ILO convention No.29 to analyze the labour nature of the job and excluded a restrictive interpretation of labour as only manual jobs. It remained to be ascertained if it was non-voluntary and coercive.

It cannot be insert into the scope of Article 4 any sanctions on failure to perform part of the job to which a person has voluntary subscribed. Accordingly, in the case at stake the Court established the following cumulative conditions to determine if a complaint consti- tutes forced or compulsory labour (departing from the Commission’s test based solely on the “involuntariness” and “oppressiveness/ injustice” of the work in question):

(a) whether there existed a risk comparable to the menace of a penalty;
(b) whether the applicant had offered himself voluntarily for the work in question, regard being had to the true nature of any alleged “consent” and the relative weight to be ac- corded to the factor in the circumstances of the case;
(c) whether, having regard to all the circumstances of the case and in the light of the underlying objectives, namely “the general interest, social solidarity and what is in the normal or ordinary course of affairs”[28], the services required of the applicant were so excessive or disproportionate that he could not be said to have consented to them. Article 4(3)(d), i.e. work in the course of normal civil obligations, will be informative in this regard.
Letter a) was found to take place in the form of the sanctions to his career. On the contrary, letter b) showed the previous existence of well-known rules for lawyers towards indigent clients. It cannot be said that mister Van der Mussele was unware of this obligation and that he did not weight the advantages and disadvantages of such profession: he was indeed able to profit for its profession and the obligations at stake were limited both in quantity and time. However, such requirement was mandatory to perform the liberal profession of lawyer and what he truly did was to accept the general character of a legal regime. More- over, letter c) was found not to be met and the requirement, framed as the disproportionate burden criteria, was called to be central for the presence of forced labour[29]: weighting the number of hours he had to give to his non-paying clients and the hours he could use to profit, considering the positive outcomes of such activity (in terms of experience) and the fact the job was not unconnected with his profession, such activity was not seen as man- ifestly disproportionate. Therefore, without more, it cannot be stated that a violation oc- curred.

The Court did not go all the way in looking if the fact constituted a Normal Civic Obligation as defined in Article 4.3d, because it stopped when it found that the required work did not meet the disproportionate burden criterion. As stated in Iversen v. Norway, for the Court jurisprudence it is a necessary requirement: it is a case by case analysis that requires, for example, to see whether the obligations are reasonable, connected to the job or in any way pertinent to its profession. At present the Court develops it, stating that the service did not fall outside the professional ambit, that there was a compensatory factor in the form of experience and training and that the number of hours (approximately 18) were only few compared to the hundreds used for paid work, therefore not being dispro- portionate. It then concluded for no violations of Article 4.

It is interested to point out how the Commission reasoning was changed by the Court with this additional proportionality test and that the Court did not put much attention on the not-paid nature of the job. Underlining the positive effects for his career and training, the Court did not focus on what the Commission didn’t consider a practice meeting “the re- quirements of modern life”[30] even if compatible to a strict interpretation of the provision. By not following the reasoning, the Court seems to exclude that the subsequent develop- ment of State practice in Europe (Belgium itself set up a trust fund to pay this perfor- mances) might affect its standards in the future its judgement: it will apply the dispropor- tionate burden criterion anyhow.

Regarding the obligation to perform military service, the Court in W, X, Y and Z v. The United Kingdom (1997)[31], denied the application of article 4 to four minors that, giving consent through their parents, entered the army and later couldn’t to leave it. Such decision followed a tight consideration of the given consent, and was subject to critics from the opinion juris [Boschiero, 2001].

Siliadin v. France (2005), already cited above, is the case in which the Court de- scribed the positive obligation of article 4. It is the first case where the ECtHR had to deal with paragraph 1. The 15 years old Tongolese applicant was brought to France by a rela- tive who promised to regularize her administrative condition and give her education, while she could perform domestic work paying back the airfare. After arrival, she saw her passport confiscated and was “lent” to some friends as domestic worker. She was hold for 4 years as such, performing all kind of works throughout all day, with no break nor payment. She slept on the floor and used old clothes. She was finally helped by the neigh- bor and the perpetrators were convicted for a different number of crimes. The victim met the criteria of perceived actual menace, of being a worker against her will and therefore was found to be victim of servitude (thus meaning a non-real possibility to change her condition). The specific vulnerabilities of Siliadin where taken into consideration on the case analysis of the ECtHR to support this conclusion. Reference was made to the provi- sions of the 1957 Supplementary Convention. Moreover, the Court found that France did not fulfill its positive obligation in regard to the protection and to effective remedies for the victim in regard of servitude: the violations prescribed in the French code did not fully recognized the abuses in their entire degree of sufferance, thus not granting due reparation to the victim (see chapter “ECHR jurisprudence in domestic criminal tribunals”).

Another very important case entailing positive obligations of State parties is Rantsev v. Cyprus and Russia (2010). The applicant’s 20 years old daughter left Russia to Cyprus as an “artist” thanks to one of the 4.000 visas that Cyprus annually issued. The Cyprus ombudsman knew already that most of the girls taking up visas were coming from eastern Europe to prostitute. Oxana, that was her name, stayed to the night club that hired her only few nights, running away pretending to return to Russia. Unfortunately, she was found in another nightclub and her former employer took her to the police, in order to have another foreign worker. She was handed back to him by the police, saying she should be brought to the immigration office next day. While surveilled in her room, she failed to escape from the house, jumping into the void, dying. Her parents contended that both States had violated article 4, failing to protect her from being trafficked and also to un- dertake effective investigations of her job in Cyprus.
First of all, the Court states that in light of present day conditions and considering that trafficking threatens human dignity and fundamental freedoms, it is unnecessary to see what kind of violation of article 4 the victim exactly experienced to consider such an offence within the scope of the present article (reasoning repeated in M. and others v. Italy and Bulgaria and Chowdury and others v. Greece). Thus, three positive obligations arise from: to ensure the practical and effective protection (with specific reference to criminal provisions, for instance to contrast trafficking as a cover for business relations, and immigration policies in general), to protect victims or potential victims at risk (when they know or should know) and to conduct effective investigations, also by fully cooper- ating with foreign States. Cyprus indeed failed both in setting up a fair protection system and to act when they became conscious of that particular situation (when the police met Oxana), while Russia was found guilty not to investigate Oxana’s real conditions. Alastair Mowbray [2012] argues that in so ruling the Court opens the interpretation of Article 4 to all forms of modern slavery, according to the present needs.

The question on how the Court decides if a violation might be the one of traffick- ing is however still open [Stoyanova, 2012]: in fact, in the case at stake the judges did not analyze the factual elements of the violations, following the precise definitions which they called into account (namely the Palermo protocol and the European Council conven- tion against trafficking). They rather referred to public authorities’ reports or single ele- ments like the detention of passports or body injuries, but without looking into the specific elements required. Such a general approach resulted in the abolition of the entire visa regime for artist works, as wished by the Council of Europe commissioner of human rights, without any analysis on the reasons and mechanism which might still be into place (basically taking a questionable stand in domestic migration policies, [Stoyanova, 2017]). Trafficking is seen as exploitative by definition, however it might be argued that such an interpretation is more moralistic than legal [Stoyanova, 2012]: prostitution is here by de- fault always exploitative and trafficking becomes linked to the right of ownership (thus mixing with chattel slavery, erroneously) to the detriment of the actual elements of the crime as defined in the international law instruments. It might be the case that the Court intended to widen the scope of article 4 by reaching a wider spectrum of exploitative practices, focusing on the exploitative result of a practice such as the one of trafficking. It must be noted though that the exploitation must be linked to the violation listed in the article of the convention and even when considering trafficking comprehended in there, still it shall be linked to its specific elements: intent, action and means.
At last, it must be pointed out that further critics were formulated when the judgment was compared to the findings in Siliadin v. France [McGeehan, 2012]. Indeed, it seems to contradict the careful analysis that the judges undertook in this other case to decide whether the victim experienced slavery, servitude or forced labour: they treated these three violations as related, but distinct crimes, something that did not do at all in Rantsev v. Cyprus and Russia. Even if it is true that trafficking may evolve in any of those viola- tions, it is however the duty of the Court to establish which violations took place in order not to deliver a flawed judgement and not to open the possibility to drive legal uncertainty between the distinctions of the various violations, if there must be any. On the other hand, recalling the possibility of an extensive interpretation of article 1 of the Slavery conven- tion of 1926, McGeehan [2012] argues that the legal confusion is not driven from Rantsev v. Cyprus and Russia but from Siliadin v. France. In his opinion, Rantsev v. Cyprus and Russia represents the correct interpretation of the slavery crimes, seen progressively in light of present day conditions starting from the provision of the Slavery Convention of 1926 (see chapter “Legal definitions”). The ECtHR could decide whether to interpret the provisions progressively or stick to the separation between the different concepts histori- cally supported by the ILO.

In C.N. v. the United Kingdom (2012)[32] the Court finds a violation of article 4 over a woman from Uganda who was held as a domestic slave. She saw her passport confiscated and was forced to work for an elderly couple. Her salaries were used to pay an old debt. After 3 years of exploitation she collapsed in a public place and brought to the hospital.
She could not get just satisfaction from the UK: they indeed investigated on human traf- ficking without finding any evidence. In particular, the UK did not have any law provi- sions on forced labour or slavery-like practices and so the Court saw the investigation as inadequate, considering they effectively knew the factual circumstances of the case. Therefore, the government failed in its positive obligation, both procedurally and sub- stantially: “domestic servitude is a specific offence, distinct from trafficking and exploi- tation, which involves a complex set of dynamics, involving both overt and more subtle forms of coercion, to force compliance. A thorough investigation into complaints of such conduct therefore requires an understanding of the many subtle ways an individual can fall under the control of another. In the present case, the Court considers that due to the absence of a specific offence of domestic servitude, the domestic authorities were unable to give due weight to these factors.[33]” The positive obligations of article 4 were thus not met.

It appears that the Court, underling the difference between trafficking and domestic ser- vitude, chose to stick to the interpretative separation embedded into Siliadin, more than creating a unique approach to all the violations. This will reflect a specific influence over domestic criminal systems which may be regarded as positive when requiring fixed pros- ecution duties over the different countries.

The case of C.N. and V. v. France (2013) concerns two orphaned Burundi sisters of 16 and 10 years. Each of them, according to the Court’s reasoning, experienced differ- ent conditions and only the first applicant was recognized to be a victim of article 4 in its positive obligations (specifically on account of servitude). Indeed, contrary to her sister, she did not attend school and could only work all day long. The Court applied the require- ment of a disproportionate burden from Van der Mussele v. Belgium and found the exist- ence of a menace in the threat to be sent back to Burundi. Further on, they consider the existence of servitude specifically, not stopping to a general situation of trafficking: the Court “considers that, above all, the facts of the present case concern activities related to forced labour and servitude, legal concepts specifically provided for in the Convention. Indeed, the Court considers that the present case has more in common with the Siliadin case than with the Rantsev case”[34].
France was so found guilty not to have set up an effective legal framework (on the same model as in Siliadin v. France) to protect her, even if they did conduct an effective inves- tigation afterwards.

Finally, it is possible to draw links between Art. 4 and some other Articles of the Conventions.

In conjunction with Article 5 of the ECHR, establishing the right to liberty and not to be hold unlawfully, article 4 is violated in case of unlawful arrest, for its very nature of cu- mulative abuses[35]. In conjunction with article 14 (no discrimination provision) it was held in 1994[36] and in 2006[37] that when exceptions to forced labour apply (in the first case for firefighters and in the second as jury members) the acts may fall within the scope of article 14, otherwise not applicable. Lastly, with reference to article 9, in Bayatyan v. Armenia[38] no link was seen with article 4, recognizing that article 9 of the convention gives to the State the freedom of choice for conscientious objection and article 4 shall be applied con- sequently, without any delimiting effect.

4.3 Latest developments

The last case law on article 4 is Chowdury and others v. Greece[39]. Here the Court was able to find for the first time a violation of forced labour alone in case of trafficked people, precisely 42 irregularly present Bangladeshi nationals working in a strawberry field in Manolada. It is the eighth case in which the ECtHR deals with non-State actors, strength- ening the set of positive obligations arising out of the Convention.

The victims were recruited to work 7 hours a day for 22€, plus 3€ for every extra hour, with their free consent. They lived in makeshift shacks without proper toilets and running water, mostly working from 7.00 to 19.00 under an armed supervision and the menace not to receive their wages if they would stop to work. The situation happened between October 2012 and February 2013, when they went on strike demanding their wages, till when in April 2013 new Bangladeshi workers were recruited to replace them. This in- creased the tension, leading to a gun fire from the guards that injured 30 workers, 21 of which are applicants. In the aftermath, the police arrested the two owners of the fields and the responsible guards, charged of attempted murder and trafficking in human beings. The assize Court acquitted all of them but for one owner and the guard who opened the fire for grievous bodily harm and unlawful arm use, which lead to a mere fine plus an order of restitution of 43€ to each of the applicant. Both of them appealed, while the workers also appealed against the dismissal of the trafficking accusation, but without suc- cess.

To the European Court of Human Rights, they sook a violation under article 4.2 in its positive obligation. Firstly, the Court established its jurisdiction and then, following its reasoning in Rantsev v. Cyprus and Russia, confirmed that trafficking fits within the scope of article 4, specifying that labour exploitation is a possible consequence of it ac- cording to the Council of Europe convention against trafficking in human beings.

The Court analyzed the circumstances and could not see the applicant as subjected to servitude, because their situation was temporal as seasonal workers, and so forced labour was found more compatible with the violation at stake. The Court noted[40] how a prior consent is not sufficient to consider the labour free, since the accent must be placed on the factual circumstance and effect of a contract, as embedded in the ILO definition of forced labour. It looked to the disproportionate burden test and found the conditions met, though without specific factual references, considering their vulnerability as irregular mi- grants (see chapter “Number and statistics”). The violation was moreover the result of a trafficking process, as defined in the Palermo protocol and in the specific Convention from the Council of Europe and not as narrowly interpreted by the Greek Courts: absolute vulnerability, total absence of freedom of movement with exclusion from the external world, right of ownership, physical harassment are criteria way too strict for the interpre- tation of the Court of article 4[41].

When analyzing the positive obligations of Greece, the Court looked into three different dimensions: if there was an appropriate legislative framework (which Greece had by its own motion as well as by international ratification and European directives), if all pre- ventive and protective duties were fulfilled and if the investigations were effective (here dividing the applicants in two groups).

In regard to the operational duties, it was found that the State was clearly conscious of the situation: the Parliament, the ministers and the press knew that such a situation was in place and that all the actions attempted by the government were not producing any tangible result. When in 2008 the ombudsman’s office reported over certain measures to be adopted, the State acted on an ad hoc base, with no general intervention over the sys- temic aspects. Furthermore, the police was aware of the situation of wages, as reported to local courts. Thus, the State should have granted effective investigation and punishment of those responsible, acting on its own motions as soon as the violations became known.

Finally, the Court considered if the investigations followed the due diligence, here divid- ing the applicants in two categories, both of which were not granted such right: with ref- erence to the ones who filed a complaint later than the rest of the group, the Greek pros- ecutor refused to admit them because they acted too late, as they were not real victims, but only in search of residence permits. A decision which is not in conformity to article 13 of the Council of Europe Convention against trafficking that specifically grants at least a 30 days period of time to report to the authorities. As far as the group that took part in the proceedings before the Court, it was hold that they were not under absolute impossi- bility to protect themselves or to leave. However, that is not a mandatory condition to have a violation of article 4 – as prescribed in the definitions from international law of both trafficking and forced labour. National courts gave a narrow interpretation of traf- ficking which indeed was erroneous. Furthermore, the compensation was not enough to achieve just satisfaction (also according to article of the Council of Europe convention against trafficking). Thus, there was a denial of an effective investigation.

The State failed to prevent, protect, conduct effective investigations and punish the per- petrators. Those obligations are referred to trafficking for the purpose of labour exploita- tion.
Vladislava Stoyanova [2017] analyzed how those obligations were constructed by the Court and highlighted the role played by the European Council convention against traf- ficking in human beings: even if it was not yet in force over Greece, the interpretation of the Court extensively relied on it and on GRETA’s reading. It was used as a measure to determine how effective the acts of the Greek government were, without feeling the need, given the present circumstances, to deeply analyze the disproportionate burden test, ar- guably considering this criterion out of the test by default in cases referred to the Con- vention. Furthermore, it must be underlined that theoretically, such reasoning and level of protection is specifically referred only to trafficking but is apparently used in a wider sense for the entire spectrum of the violation.

As far as the conceptual difficulties around article 4 [Stoyanova, 2017] the Court does confirm the extension of article 4 to trafficking and goes further into the analysis of the same, seeing forced labour as a consequence of it. This reflects the findings of the present dissertation. What is unclear is the extensive use of the word “exploitation” that the Court often refers to in the judgement: indeed, there is no definition in the international law framework, because it may be unwise to fix such an evolutive concept, but its use may be questioned when related to the legal framework of slavery, servitude or forced labour: a minimum level must be established to the benefit of legal certainty. More interesting may be to develop a jurisprudence over the concept of vulnerability, which it is intrinsically connected to all violations under article 4 [Stoyanova, 2012].

Legal rigor on the apparatus of article 4 is therefore not yet definitive, according to opin- ion juris.

4.4 ECHR jurisprudence in domestic criminal tribunals

Positive obligations arising from article 4 give rise to important implications for national substantive criminal law. States are required to criminalize abuses falling under the scope of Article 4 and it is argued that many of them have not fulfilled such obligation [Stoyanova, 2014], focusing only to prevent trafficking in human beings, which may be only one form of forced labour.

The presence of a little jurisprudence on real cases, prosecutions and convictions on those matters have brought a feeling of a necessity for an expansive interpretation of the issues, as if the provisions are too strict to actually reflect such numerous violations: this call does not however consider the different mean of interpretations between human rights law and national criminal law, which bans progressive interpretations as a guarantee of legal certainty.

Vladislava Stoyanova [2014] argues that States are under the positive obligation to secure the rights under the European Convention, as envied in Siliadin v. France, C.N. and V. v. France and C.N. v. UK for Article 4. The Court has interpreted this obligation on the one hand as necessary to secure justice for the victim, but mostly to have a good deterrence instrument against future violations. Even though this argument may be subject to critics, it is a valid argumentation for all criminal law provisions.

Generally speaking, criminal law provisions require an actus reus and a mens rea, in other words, the intent to harm and the harm itself. It therefore focuses on concrete acts that constitute the violation. So, a behavior must be defined to limit the criminal act.

Differently, human rights law focuses on the deficiencies of the system, the mens rea is irrelevant as long as the violations are in place, meaning that there is not even the strict necessity of the actus, but a concrete possibility may be enough (for instance, in C.N. v. UK it was not important to see if the violation occurred but the failure of the State to investigate).

The two fields of law are indeed different answer to different questions: private violations and State failures. However, a strong link is present when human rights provisions must be made effective and precise since cannot be totally freely interpreted. The ECHR strongly delimits the material scope of the protected rights. As Stoyanova puts it “when there is a deficit in terms of interpretative guidelines, criminal law can benefit from developments in the realm of human rights law and vice-versa”.

It is in Siliadin v. France where it lies the recognition that states must criminalize abuses of Article 4 at their domestic level. Indeed, here France was guilty for the absence of specific provisions dealing with those violations, even if it criminalized the act “to obtain from an individual the performance of services without payment or in exchange for payment that is manifestly disproportionate to the amount of work carried out, by taking advantage of that person’s vulnerability or state of dependence” and “to subject an individual to working or living conditions which are incompatible with human dignity” (French criminal code, article 225-13 and 225-14). Such acts where not only considered to be too vague, but also to be quite strict in their scope of abuses. If they were interpreted in a broad way, perhaps France would not have been guilty.

A similar situation was found in C.N. v. UK, where the State argued that Article 4 did not call for a single, specific criminal act, and that the criminalization of the different aspects of slavery and forced labour was enough. They indeed had provisions on Human trafficking, kidnapping, grievous bodily harm, assault, harassment and employment- related offences. All of them were “inadequate to afford practical and effective protection against treatment falling within the scope of Article 4 of the Convention”[42], because it reduced the authorities to look for specific treatments, which may not be present in some situations of slavery or slavery-like practices.

Thus, the Court impose to the States to adopt sanctions for slavery and forced labour, recognizing their specific characters. It underlines that such offences “involve a complex set of dynamics, involving both overt and more subtle forms of coercion”[43]. The interpretation of them cannot leave space to doubts on their highly inhuman nature, in order to push the deterrence effect: applying different labels might diminish their perceived gravity.

How States shall then develop the specific definitions is left to tell. In M.C. v. Bulgaria[44], State judicial authorities elevated resistance to a necessary element to be shown in case of rape or sexual abuses. The Court observed that such interpretation did not respect the obligation to set up an effective criminal law framework for punishing such crimes. It did not go further in saying how Bulgaria should frame the offence and never it has done so. It appears that it must not be ambiguous, ineffective or insufficient. Mere transposition of international definitions may not indeed meet the standards: trafficking, for example, is defined in international law, as involving exploitation, which however in criminal law must be further defined, as clearly stated before.

4.5 ECHR jurisprudence in international criminal tribunals

The aim of the present paragraph is to find any interaction between human rights law and international criminal law. To do so, before considering the ICC statute and practice, it shall be analyzed the jurisprudence prior to the Rome statute. According to Antonio Cassese [2003] international criminal law is still a very rudimentary discipline and so many penal concepts are not defined in the relevant normative texts, but in different legal standards and case laws.

The ICTY and the former ICTR did not have a specific provision for the consideration of the different sources of law: they refer therefore to Article 38 of the ICJ statute. Describing how Courts rely on this extensive legal corpus, Cassese distinguishes a “wise” and a “wild” approach. The first one follows the rigorous pre-eminence of the international law governing the Court in question, going to different instruments only when it helps in showing the existence of rule or principle of international law or if it brings convincing interpretations. It reflects legal rigor and the principle of a fair trial for the accused.

The second approach reflects what has often happened in the practice of international tribunals. Especially judges with a common-law background will tend to favor interpretations from other international or national courts to take the actual decision (see the iJean-Bosco Barayagwisa case[45], where the ICTR looked at the practice of US tribunals to rule on a plea of legal detention). Indeed, external law is used in cases of international criminal law.

The ECHR reflects one of the most used instruments for reliance by the international criminal tribunals, both procedurally and substantially, because it is international in its nature, it aims to the protection of human rights (Article 5 and 6) and it represents “an extremely interesting sample of legal systems from the comparative law viewpoint” [Cassese, 2003] because of common and civil law State parties. It is therefore the most representative body of hard law.

Clearly, not all cases may be transported in the international criminal tribunals (ICTs) because of specificity of the matter. This is clear, for example, when the ICTY had to deal with the illegality of the arrest in Dokmanovic[46], where the tribunal referred to the relevant ECHR jurisprudence but stated that the means of cooperation between tribunals and transitional administrations are different from State to State cooperation. Further, ICTs can refer to the ECHR to clarify the meaning of particular concepts, like the one of arrest in the above mentioned Dokmanovic. Here the interpretation of article 5 of the ECHR was used to define and clarify a concept included into the Statute of the tribunal itself, “without specifying the legal value of the reference to the convention” [Cassese, 2003]. Substantial interpretations from the ECHR were also used to deeply define the crimes of outrages upon personal dignity and torture: the first one was only defined from the ECHR in international law and was used to determine the criteria of the actus reus itself. However, it seems that such definition reflects customary international law and so it is easily transportable to international criminal law. The second case, torture, was also analyzed in Furundzija[47] looking to the existence of a common customary denominator among all the converging definitions (UN convention on torture, 1975 GA declaration, Inter-American and ECHR jurisprudence), but the ECHR inclusion of rape as a form of torture was taken into great importance. The tendency is therefore to look at the whole international instruments at stake, but giving greater weight to the ECHR.

Indeed, if different instruments define concepts in different ways or if one instrument sets a higher level of protection than the others (or changes it through times, see Selmouni v. France) it may be problematic to the principle of legal certainty, fundamental in criminal law to ensure the respect of the right of the accused. What might happen is the definition of a common minimum denominator for the interpretation of the concept at stake.

Of course, the ECHR may be used to reinforce the conclusion taken for the interpretation of the rights within the tribunals own means. It is never an obligation and neither a limit: in the already cited case of Furundzjia the prohibition of torture set up by the ICTY brings higher implications, for example universal jurisdiction and the absolute denial of immunities and limitations.

Cassese highlights the positive contribution of the ECHR as a source of concepts and as a mean of extending human rights protection, which is still an objective of international criminal law. As Stoyanova does, he underlines anyhow the differences between the two branches of law, specifically because of the principle of legal certainty and the need of a strict interpretation of the norms. This is not a denial of a progressive interpretation, but is still a strong procedural separation. At his most, the criminal judge may undertake “a gradual clarification of the rules of criminal liability through judicial interpretation from case to case” provided that it is consistent with the essence of the provision and could have been foreseen.

Thus, it can be stated that the ICTY and the ICTR have sometimes used a wild approach of interpretation, going further than using the European jurisprudence only to specify international custom or widely accepted interpretations. Other than using it as supplementary means, it became almost a violation of the pre-eminence of international criminal law over sectorial laws (human rights law or domestic laws). In this respect, it must be shown how reference to the ECHR stopped the tendency to look into domestic national legal systems, often common-law countries. This have also been regarded as a positive hybridization process between two legal sectors that shall be concordant on fundamental guarantees [Cassese, 2003]. It reinforces the tendency not to be sectorial in international law and to give human rights law a stronger ascendancy over the other fields.

It is a tendency that is slowing down due to the increase of proper international criminal law jurisprudence but that is still into place.

As far as the ICC is concerned [Sheppard, 2010], the jurisprudence from the ECHR is still considered one of the most authoritative source of interpretation. The role of such external sources is regulated by article 21.3, which expresses the need of an interpretation in accordance to “internationally recognized human rights”. However, the practice of incorporating a regional instrument may bring to conflicting norms.

Article 21.3 is undoubtedly considered a tool of interpretation but may be referred also as a generate power (see the Court’s reasoning over the power to stop an unfair trial in the Lubanga’s case[48]). The travoix preparatois of the ILC over a possible statute for an international criminal Court specifically avoid speaking of “international protected” human rights, favoring “international recognized” human rights, giving to the Court the possibility to consider international law of regional instruments as well as international law strictu sensu.

5. The EU role and instruments on slavery and slavery-like practices

In general, the Union does not present specific instruments on forced labour or slavery- like practices.
Its competence touches many aspects that deal in some way with modern-slavery: from specific instruments, like the directive over seasonal workers (2014/36) or against the employment if illegally staying third country nationals (2009/52), to wider provisions on social rights or on the free movements of workers. It is not the scope of the present dissertation to go over such technicalities, while it wants to analyze how the Union have dealt so far with the general protective role.

What has been achieved for now is a two-sided approach: on the criminal justice side there is a directive and a strategy focused on trafficking, while on the human rights side there is a specific provision in the Nice charter of fundamental rights of the EU. Both can be relied on only in cases where Union law applies, being that a peculiar character of the EU. Moreover, the Union plays a role in all international matters that affect its competences.

5.1 The EU role in international frameworks

The EU has signed the UN 2000 protocol against trafficking, but not the European Council specific convention. No specific treaty on slavery has been signed by the EU. As regard the ILO conventions, the EU cannot be part of the organization according to its Constitution, thus making impossible any direct link or obligation between the two international bodies (it is invited as observer to ILO’s works). Still, many issues of ILO concern fall within EU competence as shown in the Council authorization to member States to sign the specific ILO instruments [Peers, 2014]: in 2014, the Commission proposed to harmonize member States’ position regarding the ILO recommendations and protocol over Convention N. 29[49]. The EU thus showed to be conscious of the great violations still into place and tried to advance on the prevention of trafficking for labour exploitation, in the form of protection and compensation. The member States, following the reasoning of the Commission, must act according to the principle of sincere cooperation inside the Union and act jointly, to avoid any conflicting rule or amendment with Union law. States, in case of common European competences (such as those affected by the instrument at stake, namely directive 2004/38 and 2009/29 as quoted in the Council decision on the protocol) must follow the EU common policy.

The specific instance over the 2014 recommendations, where the Commission saw no conflicting norms and asked for common approval, was finally withdrawn. The proposal over the ratification of the Protocol[50] was on the contrary accepted by the end of 2015 and brought about a duty of member States to ratify such protocol (according to article 288 TFEU). UK and Ireland, having ratified the above-mentioned directives are bound by the decision, unlike Denmark. Nowadays still few countries did so and the Commission might open infringement procedures for non-compliance with such decision, having requested the States to ratify it by 2016.

Generally speaking, such procedure is not smooth and there is a series of Court cases through which the Court has been called to regulate it.

In Commission v. Greece[51] the Court ruled that, since the adoption of a specific EU regulation on the matter at stake (namely the competence over security of ships and port facilities), the Union enjoys exclusive competence over international obligations on the matter, its application and negotiation with other State parties to the competent international Conventions [Knook, 2009]. Member States cannot therefore submit their own positions to other international bodies if not expressively authorized to do so by the Court (violation of article 10, 71, 80 EC meaning the duty to fulfill EU obligations). In this specific case, the Commission incorporated international obligations of the SOLAS Convention and the act of Greece was seen as an infringement of the European legislation. More recently, the ECJ was asked to rule if the EU has to authorize third country accession to international treaties, specifically the 1980 Hague convention on child abduction. Indeed, when exclusive competence is into place, as in this case being present a regulation on the matter (No. 2201/2003), the EU must authorize such act[52].

That is to say, in every case an international agreement falls within the Union competence, the State and the EU must act accordingly[53]. This was strongly confirmed in 2014 when Germany lost an annulment request against a Council decision calling for a common European position in the international organization of vine and wine[54]. Germany was seeking to limit Union role to cases in which the EU is fully part, without success: article 218 TFEU does not limit the EU role in such a way and, falling the issue under European competence, the EU must set a common policy.

Hence, the EU reflects over its competences and plays a role, in conjunction with its member States, into the international arena. As far as human rights protection is concern, it may be possible for the EU to have an influence over the achievement of a more consistent criminalization of modern-slavery.

5.2 The EU criminal competence

The Union criminal competence arises from article 83 TFEU which reads as follow: “The European Parliament and the Council may, by means of directives adopted in accordance with the ordinary legislative procedure, establish minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis”.

A list follows specifically providing competences over trafficking in human beings and sexual exploitation of women and children. No reference is to be found on slavery. However, there is always the possibility, embedded in paragraph 3 of article 83.1, to act in agreement and identify “other area of crimes that meet the criteria specified”. Arguably [Directorate-General for External Policies, 2013], modern slavery is indeed one of such possibility: it is a heinous crime, often involving cross-border dimensions, and that requires States to cooperate, as imposed by the ILO Conventions. It may be said to be part of EU fundamental objectives, being the Nice charter now part of Union law. Further on, “if the approximation of criminal laws [..] proves essential to the effective implementation of a Union policy” (at §2 of article 83), however only if that area already saw harmonization efforts, directives may establish minimum rules of definitions of criminal offences and sanctions.

This second paragraph reflects what might be called functional criminalization, as opposed to the securitized approach of paragraph 1, and arises out of the need to be effective. The case might be that forced labour and modern slavery saw in the past enough harmonization attempts and thus may arguably fall within the scope of the provision. It remains however unclear what are the specific requirements and the ECJ did not have yet the occasion to clarify it. Thus, it falls out of the scope of the present dissertation to ascertain if this is the case for modern slavery. True is that the EU has several ways in which to deal with modern slavery.

Lastly, it shall be pointed out that paragraph 3 presents a so-called “opting out clause” and questions are still open if there are ways through which to bring about criminal law legislations outside the present article (mainly following the jurisprudence of Commission v Council[55] where a legislation is necessary for a Union’s essential objective, with no requirement of previous harmonization). At present, the proposals have all been framed under article 83.

To better analyze what the EU is doing at present, attention shall be given to the 2012 – 2016 strategy towards the eradication of trafficking in human beings, which follows the Anti-trafficking directive (2011/36). The strategy is linked to article 5.3 of the EU Charter of fundamental rights (the Nice charter) and article 79 and 83 TFEU (immigration and criminal law). It enforces cooperation between States and specialized agencies (the European Union Agency for Fundamental Rights, FRA, among those).

Here, they state that “trafficking in human beings is the slavery of our time”. Data directly refer to ILO 2012 estimation over victims of forced labour worldwide, without any attempt to separate the two different forms of violations or to understand how many are the result of trafficking in contrast to who has simply encountered forced labour or any other slavery-like situation without being victim of trafficking. Also, it is reported that 76% of victims of trafficking see sexual exploitation, 14% labour exploitation and the rest other forms of exploitation. States confirm that the wide majority of the victims are female and most of them come within the EU. According to Eurojust [2015], even if national differences are of course still into place, the indicators used from national Courts to judge over cases of force labour are connected to ECtHR jurisprudence (especially Siliadin v. France) and do reflect ILO standards, defining somewhat of a common approach: poor living conditions (reduced salaries, excessive working hours, hygiene and safety, accommodation), coercion (even partial deprivation of freedom, threats, dependence), language limitations, seizure of documents and bondage debt are among the most commonly used indicators to identify an exploitative purpose, which don’t want to be cumulative. Consent is irrelevant when the result of deceit, false promises, threats, abuses or any form of pressure. A certain degree of durability of the relationship should be shown, as well as the subordinated nature of the work relationship. The eventual illegal entry is also taken into account to show the existence of exploitation but it is irrelevant for the establishment of a violation as such.

The strategy develops over 5 main areas:

• Identification, protection and assistance of the victims

• Prevention (through understanding and raising awareness)

• Prosecution

• Coordination (even with third countries)

• Developing the knowledge on the issue

Thus, the Commission pushes to establish national referral mechanisms, to develop common guidelines for victim’s identification and to establish a European business coalition against trafficking in human beings. Concerning prosecution, even if trials are growing still much needs to be done, like the establishment of national multidisciplinary law-enforcement units specifically on human trafficking. This will allow a better coordination and understanding of the phenomenon, its evolution and practices. Trainings for those who work in the field and data collection are also central to develop a harmonization of the response. The role of the new-established EU anti-trafficking coordinator is central: he ensures anti-slavery provisions in country’s strategies and associations agreements, monitors the application and cooperation, plus collects reliable data through which to show how wide the violations are (today they are not yet comprehensive and explanatory, as seen before). Indeed, the report describes a lack of resources due to a non-full understanding of the issue.

At present, the Commission is calling to further strengthen the work on the subject by selecting new priorities based on the available reviews.

Directive 2011/36 in particular is the main legal instrument that deals with trafficking. It contains provisions over prevention and prosecution, together with a system of victim’s protection, assistance and support (further developed in directive 2012/36 on the status of victims). The directive also exercises a strong control over member States’ actions and implementation policies.

It is meant to cover exploitation of any form, including labour or sexual exploitation, slavery, servitude and others [Symeonidou-Kastanidou, 2016]. The intention is that, as far as the exploitation is included into the crime of trafficking (this being the contradictory requirement), all that can be framed under the modern-slavery umbrella term, can be prosecuted.

Penalties are at least of five years, with aggravating circumstances in certain vulnerable cases or within the framework of an organized criminal activity (art. 4). Article 7 also prescribes confiscations of instruments and proceeds. Aiding and abetting is also considered part of the offence (art. 3) and all legal persons are subjected to the provisions (art. 5).

Prosecution is dealt with in article 9, protecting the trail from eventual withdraws of the victims and ensuring the effectiveness of investigating tools.
Article 10 gives to member States the possibility to extend jurisdiction over cases outside their territory, putting aside limitations such as the requirement to be a criminal act in the State where it is committed or to have a formal victim statement to the authorities. Attention is given to the protection of victims, with the prohibition to prosecute for acts committed under compulsion (art. 8).

Article 18 puts the accent on raising awareness and training, with paragraph 4 that suggests “Member States shall consider taking measures to establish as criminal offence the use of services which are the objects of exploitation”. Reference is clear to the Swedish law criminalizing and prosecuting the buyers of sexual activities (Kvinnofrid law, 1999).

As far as the harmonization of criminal law provisions, it is only partially achieved, as some concept (like the abuse of power or forced labour) still see different definition in national systems [Symeonidou-Kastanidou, 2016].
Most cases start with reporting to police authorities from the same victims, with a low effectivity of inspections from labour or migration authorities. As to the nature of the cases, the interpretation still varies from different national Courts as well as what is the requirement for intent, involvement, consent, withholding of wages and restriction of movements. Main difficulties arise in respect of evidences and credibility of testimonies. Penalties are usually above the minimum level set by the Directive but are still low in practice, as the elements of crimes are difficult to prove. Another difficulty lies in compensation, since practices among member States differ and yet benchmarks are not clear to judges in order to establish a value.

Thus, evidence must be secured and witness protected and recognized: it is not always easy for authorities to reach them when they have no understanding of their rights or they fear consequences for themselves. This shows that there is big lack of prosecution given that most cases come after a denounce of the same victim, when most of them don’t know this possibility or don’t dare to use it.

The nature of this violation is so specific that a wider definition may arguably be useful to achieve justice.

It is shown that those violations are taken into consideration as part of trafficking of human beings, an approach that does not cover the whole set of violations (the same happens in the USA, Australia and Canada, arguably for the historical charge that the word “slavery” raises[56]). As described, trafficking is kept separated from forced labour and slavery-like situations from international organizations and the ECHR. Therefore, the EU shall further reflect on how to fight the entire set of violations. The estimated victims of trafficking that evolves into forced labour is, according to the EU estimations [European Commission, 2015], only 19% of the total number of victims, throughout the territory of the Union. This implies a stricter interpretation of the phenomenon, if compared with the ILO definition of forced labour that is interpreted as encompassing all cases of trafficking (while is not valid the contrary, meaning that trafficking does not comprehends all cases of forced labour). Indeed, looking at the case-law present, differences arise as to the data found by the ILO and WFF: the majority of victims are still EU nationals and the main third nationals are Brazilians, Chinese and Moroccans, but no Nigerians are found, as their presence is strictly connected to sexual exploitation, here not considered.

Legal confusion arises when using trafficking to tackle all of those violations since it becomes necessary for prosecution (especially under criminal law) to find all elements required in this specific definition (acts and intent, specifically, must be proved and not only the mere effect, as it would be following the ILO forced labour definition). Chattel slavery requires the exercise of a power of ownership, forced labour the involuntariness of the work, with an additional requirement of a certain degree of exploitation in the ECHR.

Anti-slavery International sees trafficking as a process of enslavement that evolves into one form of modern slavery exploitation. One of many causes. The EU directorate- general for external policies [2013] agrees on separate slavery from trafficking, urging the Union to shift its focus from trafficking to slavery, thus covering a wider range of violations. Trafficking “is simply the means by which a person arrives under the control of another. It is illogical to name the mechanism of acquisition of a person as an essential component in defining whether a person is in slavery. The situation of enslavement – being forced to labour against your will for no pay – should be the determinant of status rather than the method of recruitment or transportation”.

There are many people enslaved without a trafficking process which do not see, at present, a proper EU legal protection. Rather than focus on how people get enslaved, the Union shall focus on slavery itself. Rather than focus on a particular form, the Union shall have a comprehensive system that includes trafficking, but is not limited to it. This also changes the common understanding of the phenomenon, where for example slavery is mostly aimed at labour exploitation, while trafficking to the sexual one.

This is why, according to the Policy Department, the Union shall solve this legal confusion and drive its attention over the general set of modern slavery violations: in particular this would imply the possibility to bring the attention over business’ supply chains and regulate them with a Directive (on the model set out in the 2010 California transparency in supply chain act or the 2012 Transparency in UK Company Supply Chains Bill), to participate in the International community debate and push towards the unification of all different definitions at stake (through a special representative of the UN secretary general, for instance), to influence national implementations through anti- slavery plans, with special task forces, to increase cooperation and information sharing and, in general, to have a slavery centered approach over external actions. In terms of language and policies this means to change the framework from anti-trafficking commissioner to anti-slavery commissioner, and so on.

5.3 The EU human rights competence

Article 5 of the EU charter reads as follow: “1. No one shall be held in slavery or servitude. 2. No one shall be required to perform forced or compulsory labour. 3. Trafficking in human beings is prohibited.” The prohibition is quite straight forward and the first two paragraphs resembles article 4.1 and 2 of the ECHR, thus providing the same meaning and scope by virtue of article 52.3. This means that no limitations may be placed on the first paragraph, while forced labour is limited as in article 4 ECHR. As regard to paragraph 3 reference is made also to specific EU instruments. Being that, after Rantsev v. Cyprus and Russia, trafficking is prohibited already by the first two paragraphs, the third one is considered to entail an approach more centered on the criminal justice framework.

Again [Peers, Hervey, Kenner and Ward, 2014], EU competence and application focused mainly on the third paragraph, considering the specific competence arising since Maastricht in the area of Justice and Home affairs. Also, the limited use of EU law in matters of slavery-like situations appears an important factor in understanding why the EU did not deal with such matters: indeed, they do not generally fall into EU competence by default. We have seen however what kind of positive obligations such provision entails, thus making possible for the Union to play a greater role [57]. Instances may be found in the EU Generalized system of preferences linking human rights to trade policies and also in the EU immigration framework to recognize international protection. Specifically on forced labour, example may be directive 2009/52 setting up sanctions for exploitative employment of irregular migrants.

ECJ jurisprudence on the first two paragraphs is rather limited, as only mentioned in few cases but was not central[58]. It is possible that in the future the Court will have to address it more in depth.
The European Commission releases every year a so-called staff working document on the application of the EU charter and it appears that the Commission exercises a monitoring function [European Commission, 2017], as it requested Poland to investigate the alleged employment of north Korean forced workers (on a co-financed project), as well as cases regarding the fishing industries and third country national workers.

Another EU body which is strictly connected to the charter’s respect is the Agency for Fundamental Rights, FRA. They consider a wider exploitation, entailing the sum of article 5 and article 31 (right to fair and just working conditions) all of which bring a criminal sanction. This “severe labour exploitation” is universal in character and brings criminal liability, though article 31 may not be regarded as forced labour or slavery-like. The report analyzes preventive measures, monitoring frameworks, victims’ treatment and access to justice. Here reference is made to the employer sanction directive. Moreover, the need to extend the mandate to all forms of labour exploitation is highlighted, not to be limited only to trafficking and its victims. Indeed, it emerges that in some member States only certain categories are protected, while in some others the instruments reflect the universal character of the violations. An EU consensus is thus needed to achieve common standards, enhance cooperation and improving the rule of law in trans-boundary situations (recruitment agencies) on the example of the employer sanction directive.

6. Conclusion

At the beginning of the ‘90s the international community decided to address the abuses on migrants with the notion of trafficking under criminal law, sidelining the more general framework of slavery, servitude and forced labour typical of human rights law. Historically, such a conceptualization resembles the separation in international law between forced labour and slavery decided in the beginning of the 20th century. A legal fragmentation is again enhanced to favor States’ interest over migration and borders’ control, as it was in the past to maintain a system of colonial exploitation of work [Stoyanova, 2017]. Referring to the crime of trafficking means a higher degree of precision in meeting the definition and a higher simplification of the phenomenon that does not poses the accent on the vulnerabilities of the victims and on the role of States in relation to their positive obligations. This last is precisely the role of human rights law, which is not limited (and thus comprehends also trafficked victims) to criminalize a certain act: it creates obligations that may bring responsibilities into the supply chains of enterprises [Gold, Trautrims and Trodd, 2015] and may limit the freedom of States to deport illegal migrants in countries where they are at risk of suffering from slavery-like situations (by threatening human dignity and fundamental freedoms, as described in Rantsev v. Cyprus and Russia) [Stoyanova, 2011]. Criminal acts do not have to be proven to raise positive obligations, but “reasonable suspicions” will suffice to call for the respect of defined standards, namely protection, prevention, investigation and achievement of justice. Those comprehends the duty to criminalize (as in Siliadin v. France) and the respect of procedural guarantees that apply also when using criminal law, having a bigger and more comprehensive mission: as an example, one may look to the Council of Europe convention on trafficking on which the human rights doctrine exercises a strengthening effect over the specific criminal provisions.

Such a framework does not produce harmonized obligations over all States party to a convention, as human rights law is not developed as such, but it is undisputable that it affects the general system and develops a wider protection for the victims. The Council of Europe convention over trafficking in human beings, for instance, does not present this transformative potential over the regulatory spheres [Stoyanova, 2017].

One last element to differentiate the criminal law that regulates trafficking and the human rights law that regulates slavery is the objective: criminal law focuses on the punishment of the trafficker (thus granting resident permit when victims cooperate) while human rights law protects the victims by focusing on defining States’ responsibilities (and thus granting non-removal and the right to have justice).

In this regard, the role of the ECHR is central and possibly a mean of legal development. Article 4 presents a strong impact over the legislator in all its duties (having positive obligations for every right therein), but it is not fully recognized as customary international law: forced labour is not jus cogens and is considered less grave than slavery, thus less protected and enforceable (possibility of universal jurisdiction, customary obligation, no derogations possible, international criminal responsibility). However, looking at data and opinion juris, it could be argued that in the XXI century time has come to set a higher degree of protection, and bring equal treatment for slavery and slavery-like situations. Doubts may be shown over this strong separation between forced labour and slavery, especially when the effects are the same and the only difference between being jus cogens (paragraph 1 of article 4) or not is either an old-world legal ownership requirement or a temporal perspective of exploitation (for what concerns servitude). Moreover, in the international arena it is still disputed, specifically from the ILO, that forced labour, comprehending debt bondage and serfdom, may not be included in the “servile statues” enshrined in the Supplementary slavery convention of 1957.

If the ECtHR stops requiring legal ownership, many modern practices may be so heinous in their effect to be worth categorized as chattel-slavery. Also, this historical confusion over the use of the term slavery and has made impossible to build a comprehensive legal approach that can consider the future developments of the violation. At present, it is clear that defining slavery only with reference to legal ownership is a mistake (in all areas of law, from criminal international law to the pure international instruments), but still there is the need to differentiate among different practices. Recognizing a unique framework to tackle those violations does not mean not to have different definitions, that would run contrary to the duty to repair the harm and give full recognition to the victim. It means to build a higher protection and to consider all situations giving the same effect as equally heinous. A comparable approach may the one of article 3 ECHR: the Court here has developed a clear conceptual separation among torture and inhuman or degrading treatment, but does also allow a development of what is considered as torture by referring to the societies of the States’ parties. Modern slavery situations are today fully considerable part of slavery.

This operation is purely internal to the framework of the ECHR (thanks to the “leaving instrument” doctrine), but has all the potential to exercise a strong influence in other areas of law.
The accent shall be set on the effects, not the procedures. A unification of all the violations may bring clarity in the theory and a wide protection for all forms. Furthermore, a conceptual clarity effort shall link slavery to present and future times, to highlight what this phenomenon means at the common denominator: it means a vicious usage of vulnerabilities to exploit people, bringing his or her social death (here the reference to the “powers attached to the rights of ownership” but only as effects). Certain groups are historically vulnerable and it is legally possible to define them (with reference to the ECtHR) [Stoyanova, 2012]. Moreover, on the example of the European Council convention on trafficking, having a specific European convention dealing with modern slavery practices can for sure develop jurisprudence over vulnerabilities, effects (thus also underlining cases where the disproportionate burden test is always met) and clarify definitions. The EU can favor the process with a powerful shift in its approach from trafficking to human rights and thus influence an important part of the State parties to the Council of Europe. If the Union start focusing on the human right not be subjected to slavery, intended as all modern slavery practices, the influence in favor of a wide human rights approach will have gained a powerful ally.

Concluding, to achieve the SDG target 8.7 it is necessary that the marginalization of the concepts of slavery and all slavery-like practices is put aside, in order to reinforce a more comprehensive approach from human rights law, within Europe and in the international arena.

NOTES

1 Nils Muiznieks, “Improving protection for victims of forced labour and human trafficking”, 2015, availa- ble at https://www.coe.int/en/web/commissioner/-/improving-protection-for-victims-of-forced-labour- and-human-trafficking

2 19th International Conference of Labour Statisticians, 2013
3 See ECtHR, 31 July 2012, M. and others v. Italy and Bulgaria
4 See https://www.antislavery.org/slavery-today/modern-slavery/
5 ICTY, 12 June 2002, Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic
6 ICTY, 15 March 2002, Prosecutor v. Milorad Krnojelac
7 ECtHR, 7 January 2010, Rantsev v. Cyprus and Russia
8 The Pohl case from 1947 in front of a US military tribunal, quoted in Kunarac, underlines that slavery may be well clothed, comfortably housed but is still slavery when there is a deprivation of freedom.
9 ICC-01/04-02/06, The Prosecutor v. Bosco Ntaganda
10 1815 Congress of Vienna declaration
11 ICC Rome statute, preamble, §4-6
12 Amnesty International, “Universal jurisdiction: the duty of States to enact and implement legislation”, 2001
13 ECtHR, 26 July 2005, Siliadin v. France
14 ECtHR, 28 July 1999, Selmouni v. France
15 ECtHR, 7 January 2010, Rantsev v. Cyprus and Russia
16 ECtHR, 31 July 2012, M. and others v. Italy and Bulgaria

17 Ibidem, §161
18 ECtHR, 25 April 1983, Van Droogenbroeck v. Belgium
19 Ibidem, §79
20 ECtHR, decision, 7 March 2000, Seguin v. France
21 ECtHR, 11 October 2012, C.N. and V. v. France
22 ECtHR, 23 November 1983, Van der Mussele v. Belgium, §37
23 “A condition to the effect that a person must take demonstrable efforts in order to obtain ad take up generally accepted employment cannot be considered unreasonable” in ECtHR, 4 May 2010, Schuite- maker v. the Netherlands
24 ECtHR, 18 June 1971, De Wilde, Oomsand and Versyp v. Belgium
25 ECtHR, decision, 17 December 1963, I. v. Norway

26 ECtHR, 7 July 2011, Stummer v. Austria
27 ECtHR, decision, 29 November 2011, V.F. v. France
28 ECtHR, 23 November 1983, Van der Mussele v. Belgium, §38

29 Ibidem, §39 and 40
30 Ibidem, §40
31 ECtHR, 22 April 1997, X, Y and Z v. the United Kingdom
32 ECtHR, 13 November 2012, C.N. v. the United Kingdom
33 Ibidem, § 80
34 ECtHR, 11 October 2012, C.N. and V. v. France, § 88
35 ECtHR, 18 February 1998, Samy Hermas v. the Federation of Bosnia and Herzegovina
36 ECtHR, 18 July 1994, Kaelheinz Schmidt v. Germany
37 ECtHR,20 June 2006, Zarb Adami v. Malta
38 ECtHR, 7 July 2011, Bayatyan v. Armenia
39 ECtHR, 30 March 2017, Chowdury and others v. Greece
40 Ibidem, §96
41 Ibidem, §70 (with reference to Siliadin v. France) and 73
42 ECtHR, 13 November 2012, C.N. v. UK, §76
43 Ibidem, §80
44 ECtHR, 4 December 2003, M.C. v. Bulgaria
45 ICTR, 3 December 2003, the Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza and Hassan Ngeze
46 ICTY, 28 November 1997, the Prosecutor v. Dokmanovic
47 ICTY, 21 July 2000, the Prosecutor v. Anto Furundzija
48 ICC, 10 July 2012, the Prosecutor v. Thomas Lubanga Dyilo
49 European Commission, “Proposal for a COUNCIL DECISION on the position to be adopted on behalf of the European Union at the 103rd session of the International Labour Conference concerning a Recom- mendation to supplement the Forced Labour Convention n° 29, 1930, of the International Labour Organ- isation”, 2014, available at http://ec.europa.eu/transparency/regdoc/rep/1/2014/EN/1-2014-239-EN- F1-1.Pdf
50 European Council, decision 2015/2071, available at http://eur-lex.europa.eu/legal-con- tent/EN/TXT/?uri=CELEX:32015D2071#ntr2-L_2015301EN.01004701-E0002
51 C-45/07, Commission of the European Community v Hellenic Republic, 2009
52 Opinion 1/13 of the Court (Grand Chamber), “Opinion pursuant to Article 218(11) TFEU — Convention on the civil aspects of international child abduction — Accession of third States — Regulation (EC) No 2201/2003 — Exclusive external competence of the European Union — Risk of undermining the uniform and consistent application of EU rules and the proper functioning of the system which they establish”, 2014
53 See also Opinion 2/91 of the Court, “Opinion delivered pursuant to the second subparagraph of Article 228 (1) of the EEC Treaty – Convention No 170 of the International Labour Organization concerning safety in the use of chemicals at work”, 1993
54 C-399/12, Federal Republic of Germany v Council of European Union, 2014
55 C-22/70, Commission of the European Communities v Council of the European Communities, 1971
56 Also, the first UN special rapporteur over contemporary forms of slavery was asked not to use that terminology, see Gulnara Shahinian, “Slavery must be recognised in all its guises”, 2013, The Guardian
57 Peers, Hervey, Kenner and Ward, “The EU charter of fundamental rights. A commentary”, 2014, Hart publishing, §5.03, 5.14
58 In a High Court case from Ireland (IEHC 222, 2015) the EU charter was called into place together with the trafficking directive, where the applicant was the victim and not the criminal

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