How to empower the human rights banner in human trafficking

By Emily Ho In the wake of the horrific deaths of 39 Vietnamese nationals whose bodies were found in a lorry in Essex in October and the human trafficking charges pressed on the suspects, it is timely to consider the legal responses to human trafficking. Whilst trafficking has clearly been established as a crime domestically (s.2, Modern Slavery Act 2015) and internationally (UN Palermo Protocol[1], within the Organized Crime Convention[2]), the human rights framework for human trafficking is less fleshed out and secure. It was in 2012 that the European Court of Human Rights in Rantsev v Cyprus and Russia[3] brought human trafficking within the scope of Article 4 despite its not being expressly listed in the Article. Since then, human trafficking has been used as a category within the article at seemingly equal status to the express categories of slavery, servitude, and forced labour (see, for example, L.E. v Greece). Inadequacy of the present human rights basis Rantsev supported its recast of trafficking as an Article 4 issue with only unsatisfactory assertions such as: ‘[there] can be no doubt that trafficking threatens the human dignity and fundamental freedoms of its victims’ (at [282]) and the invocation of nebulous ECHR principles without real explanation of how they were to be applied. Consequently, Stoyanova has pointed out that human trafficking rests on shaky human rights grounds.[4] The principles invoked by the Court in Rantsev can be laid out thus: First, the Court invoked the principle that it ‘does not apply [Convention provisions] in a vacuum’ (at [273]). Fair enough—perhaps the Court shouldn’t thoughtlessly exclude novel categories simply because they are not expressed in the Article. The Court then invoked the principle that ‘[as] an international treaty, the Convention must be interpreted in the light of the rules of interpretation set out in the Vienna Convention of 23 May 1969 on the Law of Treaties’ (at [273]); this necessitated an ascertainment of the ‘ordinary meaning to be given to the words [of Article 4] in their context and in the light of the object and purpose of the provision’ (at [274]). A corollary of this, the Court stated, is that, ‘as an instrument for the protection of individual human beings, … its provisions [must] be interpreted and applied so as to make its safeguards practical and effective’ (at [275]). Furthermore, with reference to Stec v UK[5], the Court elaborated that ‘the Convention must be read as a whole, and interpreted in such a way as to promote internal consistency and harmony between its various provisions’ (at [274]). The Court’s meagre attempt to apply these principles fell flat, leaving its decision poorly justified. It first defined the parameters of the established ‘slavery’ concept as being ‘based on the exercise of any or all of the powers attaching to the right of ownership’ (at [280]). It then stated: ‘[the] Court considers that trafficking in human beings, by its very nature and aim of exploitation, is based on the exercise of powers attaching to the right of ownership’, showing the close relationship between human trafficking and slavery. This by itself does not justify bringing human trafficking within Article 4. The Court went on, digging a deeper hole for itself by stating: ‘[Trafficking] implies close surveillance of the activities of victims, whose movements are often circumscribed. It involves the use of violence and threats against victims, who live and work under poor conditions. … It is described … as the modern form of the old worldwide slave trade’ (at [281]). If the concept of trafficking that the Court is considering bears these abusive elements (‘surveillance’; ‘circumscribed … movement’; ‘violence and threats’; ‘poor conditions’), will not the existing concepts of slavery, servitude and forced labour suffice? The Court in previous cases has set out indicators of slavery, servitude, and forced labour that would capture these: for example, deprivation of personal autonomy[6], menace of penalty[7], and violence[8]. The only possible justification for bringing human trafficking in its own right within the scope of Article 4 is if the migration of human beings for the abstract purpose of exploitation should count as a violation of human rights even if its actual abuse never takes place (e.g. if officials intervened before the planned abuse took place). It is argued that it should not. As Stoyanova puts it, ‘the definitional limits of human trafficking can cover both grave forms of abuses and simply deceptive migration’[9]. The ‘simply deceptive migration’ should not count as a human rights abuse: it is more in the nature of people smuggling, with elements of fraud or deception, and does not remove the ‘inalienable’ dignity of the victims, who have not actually been subjected to abuse and still have opportunity to seek legal redress[10]. A mere abstract purpose of exploitation with no evidence of actual exploitation—culpable as that is—is poor material with which to build a human rights basis, with all of its onerous State obligations. Rantsev was a radical, poorly justified step; more than that, it was positively problematic. Previously there had been no doubt that contemporary forms of slavery that often took the form of trafficking were violations of human rights (e.g. Siliadin v France); nevertheless, those instances were considered abusive by virtue of their manifestations of slavery, servitude, and forced or compulsory labour. Rantsev dispensed with the need to even consider whether slavery, servitude, or forced labour applied: so long as human trafficking applied, Article 4 was breached. In doing this, the Court ignored the massively awkward problem that human trafficking as a concept is not analogous to slavery, servitude, and forced labour. Trafficking is made out if the requisite act took place (‘recruitment, transportation, transfer, harbouring or receipt of persons’), with the requisite means (‘by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception… [etc.]’) and with the requisite purpose (‘for the purpose of exploitation’)[11]. The conceptual incompatibilities of trafficking with slavery, servitude, and forced labour are twofold: (1) Whilst the latter concepts are installed with a sensitivity to the degree of exploitation, and have therefore developed analytical thresholds for their measurement[12], trafficking is based on much more binary, yes-or-no elements (as is suitable for a criminal offence). Does this mean that all trafficking, even ‘simply deceptive migration’ (see above) triggers the positive State obligations? (2) Exploitation only plays the role of colouring the act of migration with an abusive mens rea, and need not actually have taken place in order for trafficking to be made out. This is evidenced by the fact that the Modern Slavery Act 2015 criminalises human trafficking (s.2) and slavery, servitude, and forced labour (s.3) separately, because they are fundamentally different concepts: one is primarily migrational whilst the other is primarily exploitative. On the whole, therefore, Rantsev was poorly justified and positively problematic. Human trafficking should never have been brought, in its own right, within the human rights framework. Instead, the established concepts of slavery, servitude, and forced labour, should have been retained exclusively. What’s the point? As rhetorically powerful as the assertion of a ‘violation of human rights’ may sound to the person on the street, States are not such big fans of the idea of human rights. Human trafficking is an area that is particularly the target of such scepticism. As a transnational crime, the protective positive obligations imposed on states may chafe against sovereign immigration policy. For example, the US Department of State reported in 2019 that in Denmark (Tier 2): ‘[the] rise in migrants, asylum-seekers, and refugees entering and transiting Denmark increased the size of the population vulnerable to human trafficking’[13] This highlights the potentially abrasive interface between human rights obligations to combat human trafficking and immigration policy (e.g. issuance of work permits for victims of trafficking). By emphasising the exploitative elements of instances of trafficking (by using the terminology and analytical tools of slavery, servitude, and forced labour) rather than sticking to the trafficking concept that is centred around migration, States are more willing to view measures to combat trafficking as a high political priority. On a more basic level, ensuring there is a firm and properly explained human rights basis for all expansions of the human rights jurisdiction will vindicate the value of the human rights law framework generally. Unsatisfactory treatments of contemporary forms of abuse as demonstrated in Rantsev commit a deep disservice to human rights law. They portray human rights to be a wishy-washy jurisdiction, and create the impression that its onerous influence creeps into new areas without sufficient accountability[14]. Instead, human rights courts should work to portray human rights as a robust and principled framework. Strategic use of human rights law is important. Human trafficking is still very much a live problem. We’ve just finished Black Friday, and can be sure that many of us have purchased items produced by victims of trafficking. We’ve also just finished Cyber Monday, and can be sure the supply chains are far from free of the curling fingers of trafficked labour. Meanwhile, even well-meaning States feel caught between a rock and a hard place when human rights frameworks seem to shout at them to enact trafficking policy that runs counter to its border policy, and the exploitative aspect of the trafficking doesn’t come across clearly to them. If we are to develop effective legal measures against trafficking, we must ensure the human rights obligations rest on a sturdy normative foundation.

[1] Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children.

[2] United Nations Convention against Transnational Organized Crime.

[3] Rantsev v Cyprus and Russia (2010) 51 EHRR 1.

[4] V. Stoyanova, ‘Dancing on the Borders of Article 4: Human Trafficking and the European Court of Human Rights in the Rantsev Case’ (2012) 30 Netherlands Quarterly of Human Rights 2, 163.

[5] Stec v UK (2005) Application nos. 65731/01 and 65900/01.

[6] Siliadin v France (2005) Application no. 73316/01.

[7] Van der Mussele v Belgium (1983) Application no. 8919/90. See also Chowdury v Greece (2017) Application no. 21884/15.

[8] C.N. and V v France (2012) Application no. 67724/09.

[9] V. Stoyanova, Human Trafficking and Slavery Reconsidered: Conceptual Limits and States’ Positive Obligations in European Law (Cambridge University Press 2017), at 429.

[10] See Stoyanova’s idea of ‘legal limbo’ as being a key indicator of slavery: V. Stoyanova (n 9), at 430. If the individuals’ means of seeking legal redress were removed during the migration process (e.g. by detainment), that would constitute abuse within the established categories of slavery, servitude, or forced or compulsory labour.

[11] Article 3(a) Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children.

[12] See for example Siliadin (n 6) and Chowdury v Greece (n 7).

[13] US Department of State, 2019 Trafficking in Persons Report, at 173.

[14] See Chuang’s idea of exploitation creep: J.A. Chuang, ‘Exploitation Creep and the Unmaking of Human Trafficking Law’ (2014) 108 American Journal of International Law 4, 609.