Guest post by Tommaso Braida, PhD Candidate in Philosophy of Law at Uppsala University. Tommaso was a practising lawyer in Italy with an interest in the history of legal thought. He currently investigates the administrative detention of non-nationals, including the stateless, in contemporary Europe.
Review of Human Trafficking and Slavery Reconsidered: Conceptual Limits and States’ Positive Obligations in European Law by Vladislava Stoyanova (Cambridge University Press, 2017)
The book follows a tripartite structure: it starts with an introductory historical analysis of the contingencies that led to the origin of the concepts of human trafficking and slavery, to then move to consider the definitions of such concepts in international treaties/conventions and their interpretation by international courts, to eventually identifying and comparing states’ positive obligations. Stoyanova employs the notion of positive obligations developed by the European Court of Human Rights (ECtHR), which is the judicial body entitled to assess which reasonably available measure would have prevented or reduced the harm imposed on the individual. States are under an obligation to criminalize slavery, servitude and forced labour according to international law. under the impetus of the Belgian Linguistic’s Case of 1968. Such obligations in practice require national authorities to take the necessary measures to safeguard a right or, more specifically, to adopt reasonable and suitable measures to protect the rights of the individual.
Stoyanova illustrates the historical origins of the concept of human trafficking in Europe, dating back to the anti-trafficking treaties of the 1930s and 1940s, which originally referred to the recruitment into prostitution of European women who were trafficked to colonial territory. Such introduction is required to understand a distinction Stoyanova draws in chapter 7 between human trafficking on the one hand -- ‘the international supply chain into exploitation’ (p.299)-- and slavery, servitude and forced labour on the other, which are mere examples of exploitative practices, given in the Palermo definition of Human Trafficking.
Stoyanova examines the definitional uncertainty that affects the concept of human trafficking as defined in the Palermo Definition of Human Trafficking. Such ambiguity is caused by the ‘lack of certainty as to the thresholds of coercion and deception on the victims’ (p.73); and the uncertainty of the ‘purpose of exploitation’ element. To enhance legal certainty, Stoyanova proposes to employ a ‘proportionality test’ to reveal what conditions are to be considered exploitative, based on the comparison/disproportion between the actual and legally required working conditions. She uses this definitional uncertainty as a reason to question the value of a concept of human trafficking that can cover both ‘grave forms of abuses and simply deceptive migration’ (p.429).
Tackling states’ positive obligations under the human trafficking legal framework, Stoyanova notes that the uncertainties of the international definition of human trafficking are most of the times absorbed at a national level, because states are prone to copy verbatim the international definition of Human Trafficking. She eventually evidences the inappropriateness of conditioning the protection of victims of abusive practices to the commission of abuses that include an element of transnationality. This would exclude from protection victims of, say, forced labour or servitude, that did not cross any border.
The second part of the book opens with an historical contextualization of the reasons that led to the multiplication of labels employed for similarly abusive practices, namely slavery, forced labour and servitude. In fact, while the 1926 Slavery Convention addressed the so-called African slavery, the notion of forced labour was coined in order to describe the demand for labour by the colonial governments –as it was revealed by ILO’s Forced Labour Report of 1929-- and servitude constituted a distinct concept that encompassed dominations not sanctioned by law –as noted by the drafters of the ICCPR in 1955. The contextualization of each concept in its historical origin and evolution through time, adds consistently to Stoyanova’s purpose of identifying the contemporary definition and legal discipline of human trafficking, slavery, servitude and forced labour.
Stoyanova addresses the demand for conceptual clarity providing new definitions of slavery, servitude and forced labour. She does so via comparison of international legal instruments and international case law. She proposes a ‘gradualist model’, based on the degree of control exercised by the abuser on the victim’s life, in order to distinguish between slavery, servitude and forced labour. She discusses the relationship between human trafficking, slavery, servitude and forced labour holding that these concepts ought not to overlap. Human trafficking refers to the international supply chain into exploitation, while the others are mere types of exploitation. She further argues that the use of human trafficking to conceptualize abuses against migrants does not come without risk: ‘if abusers had not assisted the victim’s migration to and arrival in the host country, the state authorities might ignore the fact that [the victim] might have been subjected to slavery, servitude, or forced labour’ (p. 312).
Towards the end, Stoyanova analyses states’ positive obligations under Human Rights Law. In addition to their obligation to criminalize slavery, servitude and forced labour according to international law, states also ought to comply with requirements as to the quality and effectiveness of national criminal law and as to the effectiveness of investigation of allegations of ill-treatment. Apart from such requirements, ‘article 4 of the ECHR imposes a positive obligation upon states to develop national regulatory frameworks that contain preventive safeguards ensuring that migrants are practically and effectively protected against ill-treatment by private parties’ (p. 425). According to Stoyanova this is the most important of all positive obligations imposed on states because it has the potential to impel national systems to better protect migrants. States, in fact, can be held responsible for not framing their legal system in a way that adequately protects migrants from private harm.
Stoyanova’s work is a fundamental addition to the literature on human trafficking and the protection of individuals from trafficking-related abuses. Her definitional efforts and her invaluable investigation into the broad range of case-law and international treaties related to the topic will prove of great help to states willing to reform their legislation and to human right activists and lawyers.
How to cite this blog post (Harvard style)
Braida, T. (2018) Book Review: Human Trafficking and Slavery Reconsidered: Conceptual Limits and States’ Positive Obligations in European Law. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2018/01/book-review-human (Accessed [date]).