Introduction:

This essay will critically consider whether the definitions by the European Court of Human Rights (ECtHR) of slavery, servitude, and forced labour and compulsory labour are sufficient as the legal basis for dealing with human trafficking in the 21st century. Firstly, the concept of trafficking will be considered, followed by an examination of trafficking as a human rights problem. Consideration of the definitions of the terms found in article 4 will follow to assess whether they are sufficient to deal with human trafficking.  Throughout, the context of the European Convention on Human Rights (ECHR) will be drawn upon to aid the analysis. Whilst human trafficking is a problem which disproportionally affects women and children[1], trafficking of all human beings shall be the focus.  Ultimately, this essay will argue that the ECHR needs to be updated to include a specific provision to deal with human trafficking. Whilst the current use of slavery, servitude, and forced labour and compulsory labour by the ECtHR has been acceptable, the ECHR needs to develop a separate legal basis for human trafficking under article 4. As human trafficking will continue to be a global problem throughout the 21st century, rather than merely making do with the current definitions available the ECHR should be developed so as to provide an actual independent basis under article 4. This would help to ensure trafficking as a whole was recognised as a violation under the ECHR rather than through interpretation of existing definitions. By doing so, recognition of human trafficking as a problem could improve and the ECtHR could deal with the problem more effectively.

 

Defining Human Trafficking:

Human trafficking is a complex concept that encompasses many problems. As such, it is not a singular issue. It is a troublesome concept to define since it is “a powerful lodestone for a range of interests…”[2] As “a difficult concept to pin down”[3] it can be difficult to find an adequate definition. However, the United Nations (UN) has provided an internationally accepted definition since 2000[4]. The definition focuses on forms of control and exploitation, such as “…sexual exploitation, forced labour, slavery, servitude, and the removal of organs.”[5] Therefore, human trafficking is often seen as “a form of modern-day slavery.”[6] It is a global problem effecting every country[7] which “is far-reaching, [and] involves multiple dimensions…”[8] necessitating many legal provisions to tackle it. More needs to be done by the ECHR and UN, as one cannot rely on NGO’s to tackle the issue. Assuming …”the leading and most influential anti-trafficking groups…are fairly united…”[9] is not the case. There are “…notable divisions”[10] among these groups, and their impact can only go so far due to their status. A provision in the ECHR explicitly on human trafficking and more effective work to prevent it occurring in the first place is needed as one of the ways to effectively tackle the problem and provide victims with effective relief as far as is possible.

Human trafficking “has increasingly caught the world’s attention…as a significant and growing human rights problem.”[11] Commentators globally have expressed that trafficking is an acute human rights problem and that human rights “…must be at the core of any credible anti-trafficking strategy…”[12] In doing so, the needs and experiences of the trafficked person become more central[13], and this demonstrates respect for their human dignity. Respect for human dignity is an essential aspect of the normative framework of human rights and sits alongside the ECHR. It is also seen in action through the Court’s approach to rights protection.  A human rights focus on trafficking acknowledges that “trafficking is… a violation of human rights. Trafficking and the practices….associated, including slavery, sexual exploitation, child labour, forced labour, debt bondage and forced marriage, are themselves violations of the basic human rights to which all persons are entitled.”[14] It is therefore vital that trafficking is dealt with effectively as a human rights issue. However, it is important to consider whether the current human rights mechanisms already in existence sufficiently deal with human trafficking. Focus will therefore now turn to the current provisions available, namely the definitions under article 4 of slavery, servitude, and forced labour and compulsory labour.

In regards to defining the terms, article 4 of the ECHR is evidently the most important article, and is therefore the starting point for any analysis. Article 4(1) prohibits slavery and servitude, and article 4(2) prohibits forced or compulsory labour. Slavery and servitude are regarded as continuing states, whereas forced or compulsory labour are presented as something arising temporarily. Thus, whilst absolute, there are exemptions found under article 4(3). Such exemptions include forms of prison and military service, life-threatening emergencies, and civic obligations. The ECHR and the Court’s definitions of these terms and their usage in human rights cases will now be critically examined in order to determine if they are sufficient to be the basis for dealing with trafficking. However, of note is the unfortunate fact that there has been “limited judicial output”[15] around article 4 compared to other provisions. It is argued here that this lack of engagement with the article highlights why the Court has struggled in the few cases before it on article 4. The Court has not had sufficient opportunity to truly manifest its understanding of article 4. This aids our understanding as to why the Court may have used article 4 in the way it has done in trafficking cases. Unlike with other articles, there has been little opportunity to develop a robust understanding of article 4 in practice.

 

The Approach of the Court:

The Court often appears to view slavery, servitude and forced and compulsory labour as a hierarchy, with slavery as the most extreme of them. However, slavery and servitude are often considered together in cases due to being under the same subsection of the article. The meaning of slavery was examined in M and Others v Italy.[16] In the case, slavery was expressed as connoting a person being wholly in the legal ownership of another. As such, in that case no violation of Article 4(1) was found as payment on marriage was a cultural practice; it was not the transferal of ownership. Servitude is seen as more limited than slavery, but still connotes the idea of service which is outside the individual’s control. Additionally, there is an “obligation on the part of the ‘serf’ to live on another’s property and the impossibility of changing his condition.”[17] This is why the ECtHR found there was no violation of article 4(1) when a worker was not remunerated for work they did as an employee[18]. When a violation of article 4(1) is found, it is often for the lesser but still negative concept of servitude rather than slavery. The Court seems more cautious in making a finding of slavery in such cases, likely due to the status they have given it. For instance, the ECtHR found the facts amounted to servitude but not slavery in the Siliadin[19] case. This was the first case where the ECtHR could apply article 4 in the “context of harm inflicted by private actors.”[20] The Court has noted that servitude is essentially a more aggravated form of compulsory labour[21] which continues to promulgate the idea of a hierarchy. In C.N[22] the notion of compliance through coercion was elaborated upon. The Court expressed that there is a “complex set of dynamics”[23] at work with the coercion being overt and more subtle. Additionally, the victim’s feelings help to distinguish servitude and forced or compulsory labour, along with the permanence and unchangeable nature of the situation. Whilst it can be problematic to form these hierarchies of suffering, these problems are not central to the argument on trafficking so will not be examined here. What will be relevant is the treatment of the status of slavery in these cases compared to its use in cases related to human trafficking.

 

Key Judgments:

One of the most important cases in this area is that of Rantsev v Cyprus and Russia[24] due to the developments found in the judgment. The Court explicitly extended the material scope of article 4 to cover human trafficking. In the case, the Court had clearly expressed that servitude can be seen as a consequence of human trafficking. Yet from such a statement, it is clear that to use the definition of servitude to deal with trafficking would be to deal with just one potential result of trafficking instead of effectively dealing with trafficking as a whole. Indeed, whilst this case has been “widely applauded”[25] by some, there are many criticisms to be made of the judgment. Critics like Allain[26] have noted the lack of critical comments on the case.

One of the problems with the judgment of the case is that the view of the Court seems contradictory to the decision made in Siliadin.[27] In that case, slavery was decided to not be an issue due to the definition of slavery under article 4 corresponding to the “’classic’ meaning of slavery as it was practiced for centuries…the applicant…[was not] held in slavery in the proper sense…”[28] despite her deprivation of personal autonomy. However, in Rantsev[29] the Court then determined trafficking was in fact based on the definition of slavery. The Court also decided that human trafficking fell within the entire scope of article 4 and it would be unnecessary to pinpoint whether the trafficking came under slavery, servitude or forced and compulsory labour. Critics such as Allain argue the Court “expanded the scope of Article 4, beyond its textual boundaries of slavery, servitude and forced labour, to make it applicable to any type of exploitation including…trafficking.”[30] Whilst it is excellent that the Court has recognised that trafficking needs to be dealt with, I would agree with Allain’s view of the expansion. Unlike Allain, I would also add that this expansion may have good intentions, but it creates problems for legal certainty and opens the ECtHR up to criticism for creating rather than interpreting the law. This further evidences why there should be a new provision for human trafficking rather than merely utilising existing definitions under article 4.

Rantsev[31] is of further use when examining the true scope of article 4. In relation to the case facts, it is questionable whether the Court came to the correct conclusion firstly when finding the case to be within the material scope of article 4. As Stoyanova explains, “the story of the Russian woman did not indicate that she was, indeed, subjected to abuses that could be qualified as slavery, servitude or forced labor.”[32] Yet, the Court was convinced that the applicant was a victim of human trafficking.[33] The Court referred to many reports of trafficking in Cyprus and instruments from international bodies. Thus, there was clear concern from the ECtHR about the trafficking problem, particularly in Cyprus at the time. As such, the ECtHR seemed to focus on securing what they deemed to be justice in this particular case rather than the appropriate use of article 4. This aids in evidencing why there is a need for a clear and separate provision for human trafficking under the ECHR rather than using the current article 4 provisions of slavery, servitude and forced or compulsory labour.

 

The Historical Context and Principles:

When considering the need for a separate provision for trafficking, it is important to consider the context historically surrounding the formation of the ECHR and the international instruments accompanying. The idea of slavery as being primarily thought of as the transatlantic slave trade seen in previous centuries is no longer accurate. Kevin Bales argues “the world’s slave trade has seen a rapid escalation since 1945 and a dramatic change in character.”[34] It is obvious that Bale is correct. Therefore, to rely upon provisions which do not reflect this change seems inappropriate and against the interests of justice. The problems and diverse nature of modern day slavery and widespread human trafficking had likely not been in the contemplation of the authors of the ECHR and other old international works. Trafficking is a thoroughly modern problem that is trying to be governed by vital, yet dated, legislation and recommendations. It is therefore essential that the ECtHR continues to interpret the law until a new provision specifically for trafficking can be made. Only through a new mechanism can the human rights challenges of human trafficking be tackled. Thus, when the Court utilised article 4 in Rantsev[35] they were doing so to try and bring about justice. The Court saw the real need for protection against trafficking and tried to use the tools they had available in order to do so. Yet in doing so the Court has rather “muddied the waters”[36] of article 4 and also the appropriate way to deal with human trafficking. As such, the Court’s attempts at interpretation can be problematic as a mechanism.

The use of interpretation has been welcomed by some academics[37] for embracing the idea of the ECHR as a living instrument. It is not disputed that interpretation is required to ensure the ECHR is effective. This is of course part of the role of the Court.[38] Indeed, the Court seeks to give the provisions the “fullest weight and effect consistent…with the rest of the text”[39]. There is case law to support the concept of the ECHR as “a living instrument”[40] and that it must be “interpreted in the light of present-day conditions”.[41] Thus, the notion of the ECtHR embracing an activist approach comes through. Yet, there is a clear need for restraint when exercising this power. Such activism “raises the spectre of judges illegitimately enlarging their role in society to one of legislating on general policy matters and of exceeding their given functions of interpretation”.[42] Whilst activism and restraint are complementary, relying on active interpretation alone to protect human trafficking is unsatisfactory. That is not to say that interpretation should be completely ignored. Cases such as Selmouni[43] have been useful in allowing the living instrument doctrine to update the ECHR to reflect higher standards that have developed. Ultimately, however, the use of interpretation should be to aid the intended reading of the ECHR, rather than to create entirely new provisions that could be better served with a real and tangible provision.

The need for legal certainty further supports the creation of a separate provision for trafficking. Legal certainty requires rules to be ascertainable through reference to publicly accessible and easily identifiable sources.[44] The rule of law is central to ensuring citizens know the legal consequences of an act before they commit it.[45] The preamble to the ECHR expresses that the rule of law is part of the common heritage of Europe and should be respected. Additionally, references to the rule of law are peppered throughout the document. Therefore, relying heavily upon interpreting definitions to protect victims of trafficking causes problems for the rule of law. Indeed, the Grand Chamber explicitly referenced this as a potential problem in the Micallef[46] case. The approach lacks legal certainty and thus creates problems of uncertainty for trafficking victims and the perpetrators before the ECtHR. Therefore, whilst full of good intentions and creativity, it is problematic for the Court to continue to use interpretative powers to deal with trafficking through the terms slavery, servitude and forced and compulsory labour. Article 4 should be updated to include a trafficking provision in order to reflect the changing reality and circumstances. However, one cannot place all the expectations upon the definitions and precise wording of articles and international instruments. Definitions can easily become outdated, thus necessitating the interpretation of the Court continuing but within its ambit. It is therefore clear that there must still be the ability of the Court to use their powers of interpretation, just not in a manner that seeks to create new provisions not already found in the ECHR. Therefore, by creating a separate provision for human trafficking, but continuing to follow article 32(1) and allow interpretation, human trafficking could be dealt with effectively by the ECtHR.

 

Conclusion:

To conclude, the definitions of slavery, servitude, and forced labour and compulsory labour by the ECtHR are not sufficient as the legal basis for dealing with human trafficking. Interpreting article 4 has been an acceptable practice by the ECtHR whilst they began to recognise trafficking as a large problem, but now that understanding of trafficking has developed and international instruments have come about, an actual provision is now necessary. There are too many problems with relying upon a pure interpretative approach for the definitions of slavery, servitude and forced and compulsory labour under article 4 to continue to be the basis for dealing with trafficking cases. Due to the likelihood of more cases on trafficking coming before the ECtHR, now is the appropriate time for such a provision to be created. The previously small number of cases before the ECtHR on trafficking will likely have grown without such a provision, but a concrete provision on trafficking will help to protect trafficking victims in making their case before the ECtHR. However, the Court should continue to use its interpretative powers once an actual trafficking provision is added, in order to continue to reflect the standards of member states. This form of interpretation and activism from the ECtHR will help to keep the ECHR a living instrument that fulfils its objectives, whilst still maintaining certainty and respecting their true role. This balance is at the heart of the relationship the ECtHR has with the ECHR, and allows the document to not remain static and best protect human rights and dignity. Therefore, a real and separate provision on human trafficking that does not rely upon the definitions of slavery, servitude and forced and compulsory labour should be adopted.

 

[1] Stephanie L Mace, Donald L Venneberg, James W Amell ‘Human Trafficking: Integrating Human Resource Development Toward a Solution’ (2012)  Advances in Developing Human Resources Vol 14(3) 335

[2] Joel Quirk, The Anti-Slavery Project: From the Slave Trade to Human Trafficking (2011) 216

[3] Ibid 224

[4] United Nations General Assembly (2000) Protocol to prevent, suppress and punish trafficking in persons, especially women and children, supplementing the United Nations convention against transnational organized crime (adopted 15 November 2000), Article 3(a).

[5] Paolo Campana and Federico Varese, ‘Exploitation in Human Trafficking and Smuggling’ (2016) European Journal on Criminal Policy and Research, Vol 22 (1), 89

[6] Stephanie L Mace, Donald L Venneberg, James W Amell ‘Human Trafficking: Integrating Human Resource Development Toward a Solution’ (2012)  Advances in Developing Human Resources Vol 14(3) 334

[7] Ibid 335

[8] Ibid 336

[9] Ronald Weitzer, ‘Rethinking human trafficking’ (2013) Dialectical Anthropology, Vol 37 (2) 310

[10] Ibid

[11] David Ould, ‘Trafficking and International Law’ in Christien van den Anker The Political Economy of New Slavery (2004) 55

[12] Mary Robinson, UN High Commissioner for Human Rights quoted in David Ould, ‘Trafficking and International Law’ in Christien van den Anker The Political Economy of New Slavery (2004) 55

[13] Ibid

[14] United Nations High Commissioner for Human Rights, ‘Recommended Principles and Guidelines on Human Rights and Human Trafficking Commentary’ (2010) OHCHR, 3

[15] Vladislava Stoyanova, ‘L.E v. Greece: Human Trafficking and the Scope of States Positive Obligations under the ECHR’ (2016) 3 European Human Right Law Review, 290

[16] M and Others v Italy App no 40020/03 (ECHR, 31 July 2012)

[17] The Commissioner’s Report in the Van Droogenbroeck Case (Report of 9 July, 1980, Series B, No 44).

[18] Soloyev v Ukraine App no 4878/04 (ECHR, 14 December 2006)

[19] Siliadin v France (2006) 43 EHRR 287

[20] Vladislava Stoyanova, ‘L.E v. Greece: Human Trafficking and the Scope of States Positive Obligations under the ECHR’ (2016) 3 European Human Right Law Review, 290

[21] C.N v France App no 67724/09 (ECHR, 11 October 2012)

[22] Ibid

[23] Ibid para [80]

[24] Rantsev v Cyprus and Russia App no 25965/04 (ECHR, 7 January 2010)

[25] Vladislava Stoyanova, ‘L.E v. Greece: Human Trafficking and the Scope of States Positive Obligations under the ECHR’ (2016), 3 European Human Right Law Review, 290

[26] Jean Allain, ‘Rantsev v. Cyprus and Russia: The European Court of Human Rights and Trafficking as Slavery’ (2010) Human Rights Law Review Vol 3(10)

[27] Siliadin v France (2006) 43 EHRR 287

[28] Ibid para [122]

[29] Rantsev v Cyprus and Russia App no 25965/04 (ECHR 7 January 2010)

[30] Jean Allain, ‘Rantsev v. Cyprus and Russia: The European Court of Human Rights and Trafficking as Slavery’ (2010) Human Rights Law Review Vol 3(10) 555

[31] Rantsev v Cyprus and Russia App no 25965/04 (ECHR 7 January 2010)

[32] Vladislava Stoyanova, ‘Dancing on the Borders of Article 4: Human Trafficking and the European Court of Human Rights in the Rantsev Case’ (2012) Netherlands Quarterly of Human Rights Vol. 30(2), 166

[33] Rantsev v Cyprus and Russia App no 25965/04 (ECHR  7 January 2010) para [252]

[34] Christien van den Anker, ‘Contemporary Slavery, Global Justice and Globalization’ in The Political Economy of New Slavery, (Palgrave Macmillan 2004) 21

[35] Rantsev v Cyprus and Russia App no 25965/04 (ECHR 7 January 2010)

[36] Jean Allain, ‘Rantsev v. Cyprus and Russia: The European Court of Human Rights and Trafficking as Slavery’ (2010) Human Rights Law Review Vol 3(10) 557

[37] Bernadette Rainey, Elizabeth Wicks and Claire Ovey, Jacobs, White & Ovey: The European Convention on Human Rights (6th edition OUP 2014) 212

[38] Article 32(1) European Convention on Human Rights

[39] J. G. Merrills, The Development of International Law by the European Court of Human Rights (Manchester University Press 1988) 98

[40] Tyrer v United Kingdom App no 5856/72 (ECHR 25 April 1978) 31

[41] Ibid

[42] Paul Mahoney, ‘Judicial Activism and Judicial Self-Restraint in the European Court of Human Rights: Two Sides of the Same Coin’ (1990) Human Rights Law Journal vol.11, 58

[43] Selmouni v France App no 25803/94 (ECHR 28 July 1999)

[44] Fothergill v Monarch Airlines Ltd [1981] AC 251 [279]

[45] Black-Clawson International Ltd v Papierwerke Waldhof Aschaffenberg AG [1975] AC 591 [38]

[46] Micallef v Malta App no 17056/06 (ECHR 15 October 2009)

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