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What Is Exploitation in the Context of ‘Modern Slavery’? A Legal Proposal

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Lambert here: I don’t know why the tri-partite definition doesn’t apply to ordinary wage labor.

By Marija Jovanovic, Lecturer at the School of Law, University of Essex, UK. She researches modern slavery, human trafficking, criminal justice and human rights, and human rights in the private sphere more generally. Originally published at Open Democracy.

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.

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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:

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.