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STATE RESPONSIBILITY FOR MODERN SLAVERY: UNCOVERING AND BRIDGING THE GAP

  • Philippa Webb (a1) and Rosana Garciandia (a2)

Abstract

International law prohibits slavery and slavery-like practices under treaties that have been in force for more than a century. Yet, contemporary forms of slavery are one of the prevailing challenges for the international community, with 40.3 million people in modern slavery on any given day in 2016. The State has been largely overlooked as a perpetrator or accomplice in the global movement to eradicate modern slavery. The hand of the State can however be found in contemporary cases of modern slavery. This article identifies five scenarios of State involvement in modern slavery and aims to uncover and bridge the responsibility gap.

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Copyright

Footnotes

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We are grateful to the British Academy for funding the underlying research and the United Nations University, especially Dr James Cockayne, for being our research partner. We received valuable comments on earlier drafts from Professor Kristen Boon, Dr Holger Hestermeyer, Associate Professor Justine Nolan and Professor Brad Blitz. All views expressed are the authors’ own and do not necessarily reflect those of the United Nations University, the British Academy or King's College London.

Footnotes

References

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1 Nazi Conspiracy and Aggression, Judgment of the Nuremberg International Military Tribunal (1 October 1946) Trial, Vol. I.

2 Vidmar, J, ‘The Concept of the State and Its Right of Existence’ (2015) 4 CILJ 547.

3 E Garcia, ‘US Has Provided $315m in Financing to Supplier of Mines Accused of Slave Labor’ The Guardian (22 February 2017).

4 Nevsun Resources Ltd. v Gize Yebeyo Araya et al., Supreme Court of Canada, pending.

5 Reyes v Al-Malki [2017] UKSC.

6 Vienna Conference, Yearbook, 1966, vol II, at 247; Barcelona Traction case, Light and Power Co, Ltd. (Belgium v Spain), ICJ Rep 1971 (5 February 1971) 32.

7 ILO, Walk Free Foundation, Global Estimate of Modern Slavery (September 2017). The estimation excluding forced marriage amounts to 24.9 million people.

8 Certain forms of forced labour are exempt from the prohibition of the ILO Convention (prison labour, emergency assistance, military assistance and communal duties). The scope of this article does not include forced marriage or prison labour.

9 Sustainable Development Target 8.7: ‘Take immediate and effective measures to eradicate forced labour, end modern slavery and human trafficking and secure the prohibition and elimination of the worst forms of child labour, including recruitment and use of child soldiers, and by 2025 end child labour in all its forms.’

10 For the purposes of this article, ‘non-state actors’ are ‘all actors who are not the State’ (ILA Committee on non-state actors, Rio Report (2008), at 2). As more recent work of the ILA Committee highlights, there is no consensus on the definition and some definitions exclude individuals and illegal groups (Johannesburg Report (2016) at 4).

11 This is the focus of the Anti-Slavery acts in the UK, Australia and California, as well as of the 2017 French law on the Duty of Vigilance. On the due diligence standard, see also UNCHR, ‘Report of the Special Rapporteur on contemporary forms of slavery, including its causes and consequences’ (2017) UN Doc A/HRC/36/43, at 5.

12 Research developed for the project ‘State responsibility for modern slavery: uncovering and bridging the gap’ by Dr Philippa Webb and Dr Rosana Garciandia (King’s College London), in cooperation with the United Nations University, with the support of the British Academy Scheme Tackling the UK International Challenges 2017.

13 Of the 24.9 million victims of forced labour in 2016, 16 million were in the private sector, another 4.8 million were in forced sexual exploitation, and 4.1 million were in forced labour imposed by State authorities (Global Estimates of Modern Slavery (n 8) at 10).

14 Freamon, BK, Possessed by the Right Hand: The Problem of Slavery in Islamic Law and Muslim Cultures (Brill 2019) Ch 9: ‘The Illusion of Abolition’ 439.

15 1926 Slavery Convention; 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery; Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime; and 1930 ILO Convention concerning Forced or Compulsory Labour.

16 Art 4 ARSIWA includes organs (entities or individuals) of the central, regional or local government, exercising whatever functions (legislative, executive or judicial organs) (Crawford, J, The International Law Commission's Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge University Press 2002) 41, para 7).

17 ILO, ‘Child Labour in Cotton’ (2016) 12; ILO, ‘Third-Party Monitoring of Measures against Child Labour and Forced Labour during the 2015 Cotton Harvest in Uzbekistan’ (2018) 13, para 41.

18 UNCHR, ‘Concluding Observations on the second periodic report of Turkmenistan’ (2017) UN Doc CCPR/C/TKM/CO/2, paras 26–27. The same concern was shared by the ILO Committee of Experts (ILO, ‘Individual Case (CAS) – Discussion: 2016’ (2016)).

19 US Department of State, ‘Trafficking in Persons Report’ (2015).

20 R Breuker, ‘North Korean Forced Labour in the EU, the Polish Case: How the Supply of a Captive DPRK Workforce Fits Our Demand for Cheap Labour’ (Leiden Asia Centre 2016); Breuker, R and Gardingen, IBLH van, People for Profits: North Korean Forced Labour on a Global Scale (Leiden Asia Centre 2018).

21 Shin, CH and Go, MH, Beyond the UN COI Report on Human Rights in DPRK (The Asan Institute for Policy Studies 2014) 21.

22 ILO, ‘Report of the Commission of Inquiry appointed under Article 26 of the Constitution of the ILO to examine the observance by Myanmar of the Forced Labour Convention, 1930 (No 29)’ (1998).

23 MacLean, K, ‘Lawfare and Impunity in Burma since the 2000 Ban on Forced Labour (2012) 36 Asian Studies Review 189.

24 Horsey, R, Ending Forced Labour in Myanmar: Engaging a Pariah Regime (Routledge 2011) 185.

25 UN, ‘Fact-finding Mission on Myanmar: Concrete and Overwhelming Information Points to International Crimes’ (12 March 2018).

26 ILO, EU, ‘Ship to Shore Rights: Baseline Research Findings on Fishers and Seafood Workers in Thailand’ (2018).

27 ILO, ‘Report of the Committee set up to examine the representation alleging non-observance by Thailand of the Forced Labour Convention, 1930 (No 29), made under Article 24 of the ILO Constitution by the International Trade Union Confederation (ITUC) and the International Transport Workers’ Federation (ITF)’ (2017) 14–15. See also scenario 4, for the involvement of employment agencies in this type of recruitment.

28 IBA, ‘Human Trafficking and Public Corruption. A Report by the IBA's Presidential Task Force Against Human Trafficking’ (2016) 25–6.

29 ‘Report of the Monitoring Group on Somalia and Eritrea pursuant to Security Council resolution 2060 (2012): Eritrea’, UN Doc S/2013/440 (2013), Annex, paras 137–144, ‘Report of the Monitoring Group on Somalia and Eritrea pursuant to Security Council resolution 2002 (2011)’ UN Doc S/2012/545 (2002) paras 77–86.

30 I Franceschini, Cronache dalle fornaci cinesi (Chronicles from the Chinese Kilns) (Cafoscarina 2009).

31 SACOM, ‘Apple Watch 3 – Exploit Student Workers Further an Investigative Report on Apple Watch's Exclusive Manufacturer’ (2018).

32 J Ewins, ‘Independent Review of the Overseas Domestic Workers Visa, Final Report’ (2015) paras 8–29, at 41–42; Reyes and Al-Malki and (1) Secretary of State for Foreign and Commonwealth Affairs (2) Kalayaan, case for Kalayaan, Supreme Court of the United Kingdom on Appeal from the Court of Appeal (Civil), UKSC/2016/0023, at 10, para 36; Reyes v Al-Malki [2017] UKSC (n 5), Lord Wilson's opinion, para 59.

33 UNCHR, ‘Report of the UN Special Rapporteur on Contemporary Forms of Slavery, including its causes and consequences’ (2010) UN Doc A/HRC/15/20, para 23.

34 UNCHR, ‘Report of the UN Special Rapporteur on Contemporary Forms of Slavery, including its causes and consequences’ (2018) UN Doc A/HRC/39/52, para 37.

35 OSCE, ‘How to Prevent Human Trafficking for Domestic Servitude in Diplomatic Households and Protect Private Domestic Workers’ (Office of the Special Representative and Co-ordinator for Combatting Trafficking in Human Beings 2014) 14.

36 ibid 36.

37 R Bajracharya and B Sijapati, ‘The Kafala System and Its Implications for Nepali Domestic Workers’ (2012) CESLAM Policy Brief.

38 ibid 4.

39 P Webb and R Garciandia, ‘Slavery in Domestic Work: The Potential for State Responsibility?’ (17 September 2018) EJIL Talk!.

40 UN Doc A/HRC/39/52 (n 34) para 37.

41 ILO, ‘Fair Migration: Setting an ILO Agenda’ (2015) Report of the Director General, at 15, para 85; Farbenblum, B, ‘Governance of Migrant Worker Recruitment: A Rights-Based Framework for Countries of Origin’ (2017) 7 AsianJIL 1.

42 IOM, ‘IOM, IOE Join Forces to Combat Unethical Recruitment of Migrant Workers’ (2014); ILO, ‘Profits and Poverty: The Economics of Forced Labour’ (2014); Verité, ‘Corruption and Labour Trafficking in Global Supply Chains’ (2013); Verité, Freedom Fund, ‘An Exploratory Study on the Role of Corruption in International Labour Migration’ (2016); Verité, ‘The Cost of a Job: Systematic Forced Labor in Asia and What Companies Can Do to Eliminate It’ (2015).

43 ILO, ‘Fair migration’ (n 41); UNODC, ‘The Role of Recruitment Fees and Abusive and Fraudulent Recruitment Practices of Recruitment Agencies in Trafficking in Persons’ (2015).

44 The UN Guiding Principles on Business and Human Rights and the work of the ILO in this area provide a solid basis for improvements.

45 ILO, ‘Fair Migration’ (n 41).

46 B Andrees et al., ‘Regulating labour recruitment to prevent human trafficking and to foster fair migration: Models, challenges and opportunities’ (ILO 2015) 10–11.

47 Term established in the ILO Private Employment Agencies Convention, 1997 (No 181).

48 ILO, ‘Fair Migration’ (n 41).

49 The ILO launched its Fair Recruitment Initiative and IOM and the IOE launched an international initiative to promote ethical recruitment of migrant workers through a voluntary certification process.

50 ILO Integrated Programme on Fair Recruitment (FAIR) and Global Action to Improve the Recruitment Framework of Labour Migration (REFRAME).

51 Key national legislation was adopted under the governments of Fidel Ramos in 1995 (Migrant Workers and Overseas Filipinos Act, Republic Act No 8042), and Gloria Arroyo in 2007 (Philippine Overseas Employment Administration Act, Republic Act No 9422) and in 2009 (Amendment Act, Republic Act No 10022).

52 ILO, ‘Fair Share? International Recruitment in the Philippines’ (2017).

53 Verité, ‘A Verité Assessment of Recruitment Practices and Migrant Labor Conditions in Nestlé’s Thai Shrimp Supply Chain. An Examination of Forced Labor and Other Human Rights Risks Endemic to the Thai Seafood Sector’ (2015) 14.

54 ibid.

55 In Nepal, the exchange of information and interaction between labour brokers and the Department of Foreign Employment had generated by 2010 an estimated USD 194.7 bn of bribery or corruption payments (S Manandhar, J Adhikari, ‘Study of Issues on the Recruitment of Migrant Labour in Nepal, submitted to the World Bank Country Office’ (2010)).

56 Verité, Freedom Fund (n 42).

57 ILO, ‘Review of the Effectiveness of the MOUs in Managing Labour Migration between Thailand and Neighbouring Countries’ (2016).

58 ibid 24.

59 Verité, Freedom Fund (n 42) 16.

60 That cost corresponds to the political and commercial risks, currency exposure, cross-cultural risk and financial risk of certain projects (M Sant'Anna, ‘Enabling Risky Business: Human Rights and the Role of Officially Supported Trade Finance and Investment Guarantees’ (International Institute for Sustainable Development 2013); Klasen, A, ‘The Role of Export Credit Agencies in Global Trade’ (2011) 2 Global Policy 2.

61 UNCHR, ‘Business and Human Rights: Mapping International Standards of Responsibility and Accountability for Corporate Acts’, Report of the Special Representative of the Secretary general on the issue of human rights and transnational corporations and other business enterprises (2007) UN Doc A/HRC/4/035, para 17.

62 Araya v Nevsun Resources Ltd. case (2017) British Columbia Court of Appeal 401.

64 Recommendation of the European Ombudsman in case 150/2017/JN on the European Commission's failure to carry out a human rights impact assessment before approving the inclusion of a Sector Understanding on Export Credits for Coal-fired Electricity Generation Projects as Annex VI to the OECD Arrangement on Officially Supported Export Credit, 17 July 2018.

65 There is a consensus that ARSIWA accurately reflect customary international law on State responsibility, as confirmed by the ICJ (Genocide Convention (Bosnia v Serbia) case, ICJ Rep (2007) 43, 209).

66 KE Boon, ‘Modern Slavery and State Responsibility’ (11 February 2019) Opinio Juris. See Crawford (n 16) on the peremptory (n 416, 641) and erga omnes (n 640) nature of the prohibition of slavery.

67 Slavery was criminalized in Mauritania in 2007.

68 UNCHR, ‘Report of the Special Rapporteur on contemporary forms of slavery, including its causes and consequences, Gulnara Shahinian, Mission to Mauritania’ (2010) UN Doc A/HRC/15/20/Add.2, para 33.

69 Established decades ago in Gulf States as a sign of hospitality to foreigners, in current times kafala has become a door to abuse (n 37).

70 In Eritrea, forced labour of military conscripts was identified by the UN Commission of Inquiry as a common practice (UNCHR, ‘Report of the Commission of Inquiry on Human Rights in Eritrea’ (2015) UN Doc A/HRC/29/42, paras 63–65).

71 The dismissal of the Uzbek Deputy Prime Minister in October 2018 over a scandal involving the public humiliation of a group of farmers is an illustrative example of sanctions to officials for a practice conducted at a State level (n 92).

72 For Cassam, an epistemic vice is ‘a blameworthy or otherwise reprehensible character trait, attitude or way of thinking that systematically obstructs the gaining, keeping or sharing of knowledge’ (Cassam, Q, Vices of the Mind: From the Intellectual to the Political (Oxford University Press 2019)).

73 Jägers, N, Corporate Human Rights Obligations: In Search for Accountability (Intersentia 2002) 175.

74 Trabajadores de la Hacienda Brasil Verde v Brasil, Judgment of the Interamerican Court of Human Rights, of 22 August 2017 (case on ‘slave labour’ practices in an agricultural complex in northern Brazil); Hadijatou Mani Koraou v The Republic of Niger, Judgment of the ECOWAS Court No ECW/CCJ/JUD/06/08 of 27 October 2008 (case on the obligations of domestic authorities in Niger to prosecute and punish slavery suffered by Hadijatou Mani); Siliadin v France, ECHR Judgment of 26 July 2005 (case on a foreign minor subject to servitude in France and the protection provided by criminal domestic legislation); Rantsev v Cyprus and Russia, ECHR Judgment of 7 January 2010 (case on trafficking in human beings and the protection of the victim by Cyprus and Russia).

75 Eritrea Focus, ‘Mining and Repression in Eritrea: Corporate Complicity in Human Rights Abuses’ (2018) Eritrea Focus to the All-Party Parliamentary Group on Eritrea, 34.

76 ‘Chinese and Turkish Companies Show Interest in Eritrea’ The Economist (9 July 2013).

77 Bloomberg, ‘Chinese Miner to Start Copper Output in Eritrea by Next Year’ (23 August 2018).

78 Hankings-Evans, A, ‘Power and Justice in International Investment Law: China's Rise and Its Extraterritorial Human Rights Obligations vis-à-vis the African Host State Population’ (2016) 4 African East-Asian Affairs; D Kucera, ‘The Effects of Core Workers’ Rights on Labour Costs and Foreign Direct Investment: Evaluating the “Conventional Wisdom”’ (2001) International Institute for Labour Studies Discussion Paper DP/130/2001.

79 Crawford (n 16) 126, para 3.

80 Gabcíkovo-Nagymaros case, ICJ Rep 1997, 7, at 38, para 47.

81 Slavery Convention (1926, 45 States Parties) and Supplementary Convention (1956, 124 States Parties).

82 Some of those instruments are the UN Protocol to Prevent, Supress and Punish Trafficking in persons, Especially Women and Children (2003, 173 States Parties); the ILO Convention on Forced Labour (1929, 178 States Parties); the ILO Protocol on Forced Labour (2016, 22 States Parties); the Convention against Torture (1984, 163 States Parties) and the Convention of Human Rights of Migrant Workers (1990, 51 States Parties).

83 UNCHR, ‘Report of the UN Special Rapporteur on Contemporary Forms of Slavery, Including its Causes and Consequences’ (2017) UN Doc A/HRC/36/43, para 13. On positive obligations, see Gallagher, AT, The International Law of Human Trafficking (Cambridge University Press 2010); Stoyanova, V, Human Trafficking and Slavery Reconsidered: Conceptual Limits and States’ Positive Obligations in European Law (Cambridge University Press 2017); Allain, J, Slavery in International Law: Of Human Exploitation and Trafficking (Brill 2012).

84 Art 4 Universal Declaration of Human Rights and Art 8 International Covenant on Civil and Political Rights (ICCPR).

85 Art 7 ICCPR.

86 Art 7 International Covenant on Economic, Social and Cultural Rights.

87 Application of the Genocide Convention, ICJ Rep 2007, paras 166–179.

88 ibid, para 166.

89 ibid, para 166. See also Gowlland-Debas, V, ‘The ICJ and the Challenges of Human Rights Law’ in Adenas, M and Bjorge, E (eds), A Farewell to Fragmentation: Reassertion and Convergence in International Law (Cambridge University Press 2015) 109, 132.

90 ILO (n 22) para 528 (added emphasis).

91 Lee, J, ‘State Responsibility and Government-Affiliated Entities in International Economic Law’ (2015) 49 JWT 1.

92 BBC News, ‘Uzbek Deputy PM Sacked in Ditch Row’ (29 October 2018).

93 See Art 91 of the 1977 Geneva Protocol I Additional to the Geneva Conventions of 12 August 1949. See also Caire case before the French-Mexican Claims Commission (5 RIAA, 516 (1929)) and Velásquez Rodríguez case before the Inter-American Court of Human Rights (IACHR, Series C, N. 4 (1989), para 170).

94 Crawford (n 16) 45, para 2.

95 ibid, para 3.

96 13 RIAA, 494 (1953).

97 Crawford (n 16) 98.

98 Momtaz, D, ‘Attribution of Conduct to the State: State Organs and Entities Empowered to Exercise Elements of Governmental Authority’ in Crawford, J, Pellet, A and Olleson, S (eds), The Law of International Responsibility, Oxford Commentaries on International Law (Oxford University Press 2010) 243.

99 Genocide Convention (Bosnia v Serbia) case, ICJ Rep 2007, 43, 205, para 406.

100 Ibid, para 392.

101 ibid, para 393.

102 IBA (n 28) 25–6.

103 Privatisation of public functions is increasingly common in areas such as security and border control. See Bures, O and Carrapico, H, ‘Private security beyond private military and security companies: exploring diversity within private-public collaborations and its consequences for security governance’ (2017) 67 CL&SC 3; Dickinson, LA, Outsourcing war and peace: preserving public values in a world of privatized foreign affairs (Yale University Press 2011).

104 Art 5 ASRIWA.

105 See Crawford (n 16) 100.

106 Nevsun Resources Ltd. v Gize Yebeyo Araya et al. (n 4).

107 Araya v Nevsun Resources Ltd. Case (n 62) paras 33–38.

108 The Eritrean National Service Programme is a government program of military and national service administered by the Eritrean Ministry of Defence.

109 On 19 January 2018, Nevsun Resources Ltd. appealed the decision of the British Columbia Court of Appeal to the Canada Supreme Court.

110 Art 8 ASRIWA.

111 See Crawford (16) 110.

112 Their translation has raised some issues. In French, for example, ‘direction’ may imply complete power, unlike in English.

113 See Crawford (n 16) 154, para 7.

114 In the Nicaragua case, the ICJ considered ‘effective control’ as a requirement for attribution. Although in the Tadic case the ICTY adopted a more flexible approach and applied what has been known as the ‘overall control test’, the issue in this case was not of State responsibility but of individual criminal responsibility. In 2007, the International Court of Justice confirmed its position on effective control Genocide Convention (Bosnia v Serbia) case, stating that the overall control test was not appropriate for State responsibility (ICJ Rep, 2007, 43, 209–210).

115 ibid, at 205, para 400.

116 ibid, para 406.

117 Boon, KE, ‘Are Control Tests Fit for the Future? The Slippage Problem in Attribution Doctrines’ (2014) 15 Melbourne Journal of International Law.

118 ibid.

119 ibid, 149, para 3.

120 This third requirement is in line with arts 34 and 35 of the Vienna Convention on the Law of Treaties, as a State cannot do by another what it cannot do by itself.

121 Domestic courts may dismiss its responsibility based on immunity.

122 See Crawford (n 16) 148, para 1.

123 Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, A/HRC/37/50 (26 February 2018) at 11, para 34.

124 Campaign Against the Arms Trade, UK High Court of Justice, Queen's Bench Division, Administrative Court, Judgment of 10 July 2017, [2017] EWHC 1726 (QB).

125 Written Submissions on Behalf of Amnesty International, Human Rights Watch and Rights Watch UK.

126 ibid.

127 Art 16 ARSIWA.

128 Judgment, 10 July 2017.

129 See (n 125).

130 Individual complaint procedures are available under the UN human rights treaty system under the Optional Protocols to the ICCPR, the ICESCR, the UNCRC and under the Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, among other treaties (United Nations OHCHR, Individual Complaint Procedures under the United Nations Human Rights Treaties, Fact Sheet No 7/Rev.2, 2013). The ECHR, the Inter-American Court of Human Rights and the ECOWAS Court also envisage direct individual action.

131 See section III below.

132 The Convention entered into force in 2008, and 47 States have ratified it.

133 Verité, Freedom Fund (n 42).

134 McCorquodale, R and Simons, P, ‘Responsibility beyond Borders: State Responsibility for Extraterritorial Violations by Corporations of International Human Rights Law’ (2007) 70 MLR 598.

135 UN Guiding Principles on Business and Human Rights, Principle 4.

136 TAD/ECG (2012) 5.

137 OECD Common Approaches for Officially Supported Export Credits and Environmental and Social Due Diligence, 2016, TAD/ECG (2016) 3, para 10.

138 Shift, Integrating Human Rights Due Diligence: A Review of Atradius DSB’s Environmental & Social Policy and Procedure, November 2017.

139 Information on ECAs environmental and social practices can be found on the OECD website, where states also submit reports on their implementation of the Common Approaches. See also OECD, Guidance Note, Good Practice in the Use of Consultants by Export Credit Agencies, TAD/ECG (2016)9/FINAL, 2016.

140 See (n 74).

141 According to a recent report of the UN Special Rapporteur on Contemporary Forms of Slavery, 11.5 million domestic workers are international migrants, which represent 17.2 per cent of all domestic workers and 7.7 per cent of all migrant workers worldwide. The domestic work sector accounted for 24 per cent of forced labour exploitation in 2017 (UN Doc A/HRC/39/52 (n 34), para 43).

142 ILO 201 Recommendation on Decent Work for Domestic Workers, OSCE Handbook (OSCE, ‘How to Prevent Human Trafficking for Domestic Servitude in Diplomatic Households and Protect Private Domestic Workers’, (Office of the Special Representative and Co-ordinator for Combatting Trafficking in Human Beings 2014), US TIP Office and DLA Piper Model Contract of Employment.

143 Ewins (n 32); UN Doc A/HRC/39/52 (n 34).

144 Reyes v Al-Malki [2017] UKSC (n 5).

145 P Webb, ‘Introductory Note to Reyes v Al-Malki and Another (UK SUP CT)’ (2018) 57 ILM (ASIL) 1.

146 This case was settled in similar terms to previous cases, such as the Swarna and Baoanan cases in the US (Swarna v Al Awadi case (SDNY, June 2006); Baoanan v Baja case (SDNY, June 2008), on the ground of art 39(2) of the Vienna Convention on Diplomatic Relations.

147 Reyes v Al-Malki [2017] UKSC (n 5) para 62.

148 While two of the judges (Sumption and Neuberger) interpreted this exception in a restrictive way, the other three (Wilson, Hale and Clarke) argued for a broader interpretation of the exception by defining the relevant activity ‘not just [as] the so-called employment but the trafficking’; an approach that understands that ‘the employer of the migrant is an integral part of the chain, who knowingly effects the “receipt” of the migrant and supplies the specified purpose, namely that of exploiting her, which drives the entire exercise from her recruitment onwards’; and considers that ‘in addition to the physical and emotional cruelty inherent in it, the employer's conduct contains a substantial commercial element of obtaining domestic assistance without paying for it properly or at all’ (ibid, para 62). Wilson, Hale and Clarke were followed in JW v Basfar, ET 2006477/2018 of 13 June 2019.

149 Reyes v Al-Malki [2017] UKSC (n 5), Lord Wilson, para 67.

150 M Vandenberg, S Bessell, ‘Diplomatic Immunity and the Abuse of Domestic Workers: Criminal and Civil Remedies in the United States’ (2016) 26 DukeJComp&IntlL 604.

151 In this case, Mauritius's ambassador to the US pled guilty to charges that he had failed to pay his domestic worker minimum wage or overtime while he was serving as his country's permanent representative to the UN (Plea Agreement, United States v Soborun, No 2, 2:12-mj-03121 (DNJ Sept 7, 2012)).

152 The Deputy Consul General of India had allegedly forced her domestic worker to work long hours for a low wage and under an illegal employment contract (Vandenberg and Bessell (n 150) 605).

153 Art 42 ASRIWA.

154 Barcelona Traction, Light and Power Company, Limited (Belgium v Spain), Judgment, ICJ Rep 1970, at 3. See also Seventh report on diplomatic protection, by M. John Dugard, Special Rapporteur, UN Doc A/CN.4/567, 7 March 2006.

155 J Allain, ‘Slavery and its Obligations Erga Omnes’ (2019) AustYBIL.

156 ICJ Rep 1970, 3, at 32, para 34. Allain calls to read this pronouncement in context and reminds of the absence of cases of slavery where an obligation owed to the international community as a whole was invoked. Instead, he states that it is the erga omnes nature of the obligations derived from the protection from slavery what is at the basis of the jus cogens prohibition of slavery (see Allain (n 83) at 110, referring to Crawford, J, ‘Multilateral Rights and Obligations in International Law’ (2006) 319 Collected Courses of The Hague Academy, at 410).

157 The key conventions in this area are Convention 29 (forced labour) and Convention 182 (worst forms of child labour).

158 Art 29, ILO Constitution.

159 See n 74.

160 Crawford, J, ‘Investment Arbitration and the ILC Articles on State Responsibility’ (2010) 25 ICSID Review 1; UN, ‘Report of the Secretary General, Responsibility of States for internationally wrongful acts. Compilation of decisions of international courts, tribunals and other bodies’ (2017) UN Doc A/71/80/Add.1.

161 This is the case for treaties concerning the protection of human rights. In addition, the LaGrand case is an example of how this can also be the case outside the human rights framework (LaGrand ICJ judgment, 27 June 2001).

162 Art 30 ASRIWA.

163 Art 31 ARSIWA, PCIJ, 1927, Series A, N. 9, at 21.

164 See Germany v Italy case, Jurisdictional Immunities of the State, ICJ, 3 February 2012.

165 See Lusitania case, RIAA, vol. VII, 32 (1923).

166 See Crawford (n 16) 224, para 19.

167 ibid 231, para 4.

168 Count Bernadotte case.

169 Mazengo v Mzengi, N 07-cv-756, DDC filed on 25 April 2007.

170 Wexler, L and Robbennolt, JK, ‘Designing Amends for Lawful Civilian Casualties’ (2016) 42 YaleJIntlL 1.

171 See (n 6).

172 See UK Court of Appeal in the Al-Adsani v Government of Kuwait case (1996) 107 ILR 536 and 540–1.

173 The peremptory character of forced labour was recognized by the 1998 Report of the ILO Commission of Inquiry into Issues of Forced Labour in Myanmar (ILO (n 22), para 528), which stated that forced or compulsory labour constitute peremptory norms and confirmed by the US Court of Appeals for the Ninth Circuit in the Doe case (Doe v Unocal, 14208). Some authors have however expressed reservations to this recognition. According to Allain there is no evidence that indicates that forced or compulsory labour has reached the normative level of a jus cogens norm. Instead, he states that forced or compulsory labour may attain the threshold of a peremptory norm, but only when the labour compelled is slavery (see Allain (n 83) 246–54). Concerning the peremptory nature of the prohibition of human trafficking, it is to note that, although ‘legal conceptions of slavery have expanded to embrace practices that go beyond chattel slavery, it is difficult to sustain an absolute claim that trafficking, in all its modern manifestations, is included in the customary and jus cogens norm prohibiting slavery and the slave trade’ (see Gallagher (n 83) 252).

174 Advisory Opinion on the Legal Consequences of the Separation of the Archipelago from Mauritius in 1965, ICJ Rep 2019, para 182.

175 Art 41 ASRIWA.

176 Reisman, WM et al. , International Law in Contemporary Perspective (2nd edn, Foundation Press 2004) 7.

177 Also relevant is art 24.c of the Council of Europe anti-trafficking convention, which considers the involvement of public officials as an aggravating circumstance. The Global Compact for Migration adopted on 10 December 2018 contains several provisions on modern slavery.

179 Webb, P, ‘The Immunity of States, Diplomats and International Organizations in Employment Disputes: The New Human Rights Dilemma?’ (2016) 27(3) EJIL 764–5.

180 The Benkharbouche case in the UK is an example of a situation in which the State itself was sued (Benkharbouche (Respondent) v Secretary of State for Foreign and Commonwealth Affairs (Appellant) and Secretary of State for Foreign and Commonwealth Affairs and Libya (Appellants) v Janah (Respondent), 2017 UKSC 62, (18 October 2017).

181 The inclusion of obligations for the State in the Australian Modern Slavery Act (2018) and recent developments in the UK concerning section 54 of the Slavery Act indicate interesting upcoming developments concerning public procurement. Under Art 15 of the Australian Slavery Act, ‘the Minister must prepare a modern slavery statement for the Commonwealth, for a reporting period, covering all non-corporate Commonwealth entities within the meaning of the Public Governance, Performance and Accountability Act 2013’. In the UK, the independent review of the Modern Slavery Act called for extending section 54 of the Modern Slavery Act to the public sector. It also emphasized that the ‘Government should further strengthen its public procurement processes to make sure that non-compliant companies in scope of section 54 are not eligible for public contracts’ and that ‘the Crown Commercial Service should keep a database of public contractors and details of compliance checks and due diligence on all relevant aspects of corporate governance carried out by public authorities’, a database that should be easily accessible to public authorities for use during the procurement Purposes (Independent Review of the Modern Slavery Act 2015: second interim report, 22 January 2019, section 2.5).

182 A recent example illustrating the risks in development aid concerns legal proceedings launched against the EU in April 2019 by Eritreans in exile, accusing the EU of financing a scheme in Eritrea that uses forced labour (<http://www.pressclub.be/wp-content/uploads/2019/04/Letter-of-Summons-EU-Emergency-Trust-Fund-for-Africa-1.pdf>).

We are grateful to the British Academy for funding the underlying research and the United Nations University, especially Dr James Cockayne, for being our research partner. We received valuable comments on earlier drafts from Professor Kristen Boon, Dr Holger Hestermeyer, Associate Professor Justine Nolan and Professor Brad Blitz. All views expressed are the authors’ own and do not necessarily reflect those of the United Nations University, the British Academy or King's College London.

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