What is exploitation in the context of ‘modern slavery’? A legal proposal

Exploitation in the context of ‘modern slavery’ is defined by three conditions: abuse of vulnerability, excessive gain, and sustained action.

Workers unload bricks from a boat in Bangladesh.| Suvra Kanti Das/Zuma Press/PA Images. All rights reserved

 

Marija Jovanovic-4 December 2020

 

PALERMO 20TH ANNIVERSARY SPECIAL

What is exploitation?

FOREWORD: Twenty years of trafficking: taking stock of the world the Palermo Protocol built

What is exploitation anyway?
Neil Howard

Exploitation is the rule, not the exception
Michael Hardt and Kathi Weeks

Can we stop discussing labour exploitation and start fixing it?
Judy Fudge

Marx on exploitation: an ABC for an unequal world
Alf Gunvald Nilsen

What is trafficking in a region built on exploitation? Thoughts from the Caribbean
Kamala Kempadoo

Vulnerability to exploitation is created by law
Virginia Mantouvalou

Exploitation in trafficking: questions of context, commerce, and conduct
Marika McAdam

When lawmakers exploit workers, can the law stop them?
David Picherit

What is exploitation in the context of ‘modern slavery’? A legal proposal
Marija Jovanovic

→→ Part II: Are we better off on the inside?

Exploitation has been given a prominent place in the definition of ‘human trafficking’ found in the 2000 United Nations Palermo Protocol. It is identified as the specific aim of the crime of trafficking: all human trafficking is for the purpose of exploitation. But while the protocol lists some examples of exploitation, including slavery, servitude, or forced labour, it does not define the term itself. Nor do the numerous other international instruments that reference the term. And so, as Susan Marks has rightly wondered, we must ask ourselves: “When activists invoke international law to challenge exploitation, when lawyers advise on rights and duties regarding exploitation under international law, and when academics discuss the theme of exploitation in international legal writing, what is it that they have in mind?”

I recently proposed a tripartite definition of exploitation, which I argue underpins practices commonly referred to as ‘modern slavery’. While ‘modern slavery’ is not a legal category per se, I use it as an umbrella term for the practices of human trafficking, slavery, servitude, and forced or compulsory labour. These are jointly prohibited in many human rights instruments, either expressly, as in the EU Charter of Fundamental Rights or the Arab Charter on Human Rights, or implicitly, as in the case of the European Convention on Human Rights. Exploitation is a distinct harm that binds together practices captured by the human rights prohibition against ‘modern slavery’, which includes both actual manifestations of exploitation in the form of slavery, servitude, and forced or compulsory labour, and intended exploitation as part of human trafficking. The latter, if uninterrupted, always results in actual exploitation.

The three elements of my proposed definition are: “(a) abuse of vulnerability of an exploitee; (b) excessive (disproportionate) gain acquired through the actions of an exploitee; (c) sustained action (the practice takes place over a period of time)”. We will cover each element in turn below. Before we do that, however, I must first note that my proposed definition of exploitation applies only to practices of ‘modern slavery’ and represents the severity threshold for triggering important state obligations to protect victims under human rights law. Accordingly, while we may consider exploitation as a continuum, it is important to distinguish practices that trigger state obligations required by international human rights law from lesser forms of exploitation that warrant different types of action, or no action at all.

The absence of clear parameters for determining what counts as exploitation allows states to misclassify victims as ‘predatory economic migrants’ or as ‘criminals’.

In other words, the proposed definition of exploitation sets “a threshold of seriousness, which operates to prevent the inclusion of less serious forms of exploitation into the concept of trafficking in persons, such as labour law infractions that may be anyway subject to another legal regime”. As such, the definition represents an important tool for both courts and individual victims in determining whether a state owes and has complied with its obligations arising out of human rights law. The absence of clear parameters for determining what counts as exploitation allows states to misclassify victims as ‘predatory economic migrants’, who willingly deploy the services of smugglers to bring them across international borders, or as ‘criminals’, who engage in unlawful activities such as cannabis cultivation or shoplifting.

The three pillars of exploitation that underpins ‘modern slavery’

Exploitation as a distinct harm that underpins all practices of ‘modern slavery’ rests on three cumulative conditions. These are discernible from philosophical debates and the jurisprudence of international and domestic courts, but they have never been expressly spelled out. These are: a) the abuse of vulnerability of an exploitee; b) excessive (disproportionate) gain acquired through the actions of an exploitee; and c) sustained action over a period of time. These three cumulative conditions provide a universal frame of reference for the notion of exploitation in relation to ‘modern slavery’, while allowing for a certain leeway to account for specific conditions in different countries. We will consider each in turn.

Abuse of Vulnerability. It is generally accepted that the abuse of a position of vulnerability is “central to any understanding of trafficking” and “the common feature of all forms of exploitation” contained in the human rights prohibition of slavery and forced labour. The United Nations Office On Drugs And Crime states in a background paper that human traffickers “prey on people who are poor, isolated and weak”. And the explanatory report to the Council of Europe’s anti-trafficking convention notes that:

The vulnerability may be of any kind, whether physical, psychological, emotional, family-related, social or economic. The situation might, for example, involve insecurity or illegality of the victim’s administrative status, economic dependence or fragile health. In short, the situation can be any state of hardship in which a human being is impelled to accept being exploited.

Importantly, it is the abuse of vulnerability, not vulnerability per se, that is a necessary condition for the notion of exploitation. It is considered that “one’s vulnerability is exploited if the other person uses this weakness to obtain agreement to, or at least acquiescence in, a course of action that one would not have accepted had there not been this asymmetry in power”.

Establishing that a person had no realistic alternative due to the abuse of vulnerability might seem a weighty task, but it is not unlike other matters domestic courts engage with on a daily basis when it comes to assessing factual circumstances. For example, the UK Court of Appeal addressed this question in a case concerning an Iraqi Kurdish woman. She appears to have voluntarily approached the smuggler to bring her to the UK but was allegedly coerced into having sex with him along the way. The court found that “while she may have been vulnerable, she had a real and acceptable alternative available to her (…) in the shape of making an asylum and human rights claim to the French authorities.” The extent to which domestic courts are sympathetic to the plight of victims and are willing to interpret this condition broadly is debatable, but this is something which can be evaluated.

In all situations of exploitation an exploited person gives significantly more than she receives in return.

Excessive Gain. The second element of my approach to exploitation is concerned with excessive gains. While an exploited person may sometimes ‘benefit’ from being exploited, whatever benefits might accrue will fall significantly short in terms of “what [they] might or ought to be” when judged from the standpoint of fairness, as the philosopher Robert Mayer put it. However, the nature of fairness is not necessarily straightforward. An entry in the Encyclopedia of Ethics notes, there may be “as many competing conceptions of exploitation as theories of what persons owe to each other by way of fair treatment”. Nonetheless, the philosopher Mikhail Valdman is likely right when he concludes that extracted benefits become unfair and excessive when “they deviate from the benefits we would expect A to receive were he transacting with someone who was rational, informed, and could reasonably refuse his offer”.

Thus, in addition to the abuse of vulnerability, exploitation is characterised by excess: a disproportionate gain at the expense of an exploited person. In all situations of exploitation an exploited person gives significantly more than she receives in return. Take, for example, a case before the European Court of Human Rights which considered allegations of servitude and forced or compulsory labour by two orphaned Burundi sisters, aged sixteen and ten. The court ruled that “the type and amount of work involved (...) help distinguish between ‘forced labour’ and a helping hand which can reasonably be expected of other family members or people sharing accommodation”.

Distinguishing between the situations of the two sisters, the court found that the older one was forced to work “so hard that without her aid Mr and Mrs M. would have had to employ and pay a professional housemaid”. The second sister, by contrast, was said not to have contributed “in any excessive measure to the upkeep of Mr and Mrs M.’s household”. It is clear that all circumstances of the case need to be taken into account when assessing whether actions required from an individual were disproportionate to the benefits she received in return. Like the assessment of ‘no realistic alternative’ for the element of abuse of vulnerability, this is a factual question which courts can determine.

Sustained Action. We have so far established two necessary conditions for an exploitation: first, that one extracts excessive benefits, and second, that these benefits are extracted from someone who is unable to reasonably refuse an offer or demand. The final element of my approach to exploitation is the idea of repetitiveness. Exploitation takes place (or is intended to) over a period of time. One-off situations may qualify as fraud or abuse, but exploitation in the context of ‘modern slavery’ involves sustained activity. This “indeterminate temporal nature” is said to be “one of the defining characteristics of the crime of slavery”. Similarly, inherent in the notion of servitude is a victim’s feeling that her condition is permanent and that the situation is unlikely to change. When it comes to the concept of forced labour, it is obvious that ‘labour’ implies work that stretches over a period of time – not a one-off transaction.

When these three elements are put together, we have a working legal definition of exploitation within the context of ‘modern slavery’: to exploit is to acquire disproportionate gains from the actions of an individual by abusing her position of vulnerability over a sustained period of time. All three cumulative conditions (abuse of vulnerability, excessive gain, and sustained action) are factual, which leaves room for domestic courts to use national parameters when interpreting potentially exploitative practices while preserving the universality of the definition itself.

In a seminal case by the Dutch Supreme Court concerning the exploitation of Chinese restaurant workers with irregular migration status in the Netherlands, the court held that “the wretchedness of the working conditions required to conclude that exploitation is an issue” was to be determined by using “the Dutch situation as the benchmark”.

This approach means that exploitation must be regarded as a relative concept. What one country understands as exploitation may not amount to exploitation in another country, with differences being especially pronounced along the North-South divide. Yet, such flexibility is both inevitable and appropriate. This is because divergent standards between states is far less problematic than unequal protection of individuals within one state, where characteristics such as one’s immigration status or type of employment are decisive in determining the extent of protection against exploitation one may enjoy. Virginia Mantouvalou shows how the immigration system and schemes leading to precarious employment conditions are conducive of exploitation of certain categories of individuals within the UK. Thus, while labour conditions are expected to differ between states, practice reveals that even within one country certain categories of individuals experience unequal treatment and lesser protection of their rights than other categories, regardless of whether a country in question belongs to the Global North or South.

Even though the proposed definition allows for some divergence between states when determining which practices count as exploitative, it mandates each state to provide equal treatment to all persons within their jurisdiction once the three conditions are met, irrespective of their immigration or employment status. As such, it represents a powerful tool in hands of individuals subject to exploitation and a useful benchmark for courts when asked to determine which practices engage important human rights obligations of states.