Viewpoint by Katarina Schwarz and Jean Allain, with Andrea Nicholson*

NOTTINGHAM (IDN) – “Slavery is illegal everywhere.” So said the New York Times, repeated at the World Economic Forum, and used as a mantra of advocacy for over 40 years. The truth of this statement has been taken for granted for decades. Yet our new research reveals that almost half of all countries in the world have yet to actually make it a crime to enslave another human being.

Legal ownership of people was indeed abolished in all countries over the course of the last two centuries. But in many countries, it has not been criminalised. In almost half of the world’s countries, there is no criminal law penalising either slavery or the slave trade. In 94 countries, you cannot be prosecuted and punished in a criminal court for enslaving another human being.

Our findings displace one of the most basic assumptions made in the modern anti-slavery movement – that slavery is already illegal everywhere in the world. And they provide an opportunity to refocus global efforts to eradicate modern slavery by 2030, starting with fundamentals: getting states to completely outlaw slavery and other exploitative practices.

The findings emerge from our development of an anti-slavery database mapping domestic legislation against international treaty obligations of all 193 United Nations member states (virtually all countries in the world). The database considers the domestic legislation of each country, as well as the binding commitments they have made through international agreements to prohibit forms of human exploitation that fall under the umbrella term “modern slavery”. This includes forced labour, human trafficking, institutions and practices similar to slavery, servitude, the slave trade, and slavery itself.

Although 96 percent of all these countries have some form of domestic anti-trafficking legislation in place, many of them appear to have failed to prohibit other types of human exploitation in their domestic law. Most notably, our research reveals that:

• 94 states (49 percent) appear not to have criminal legislation prohibiting slavery
• 112 states (58 percent) appear not to have put in place penal provisions punishing forced labour
• 180 states (93 percent) appear not to have enacted legislative provisions criminalising servitude
• 170 states (88 percent) appear to have failed to criminalise the four institutions and practices similar to slavery.

In all these countries, there is no criminal law in place to punish people for subjecting people to these extreme forms of human exploitation. Abuses in these cases can only be prosecuted indirectly through other offences – such as human trafficking – if they are prosecuted at all. In short, slavery is far from being illegal everywhere.

A short history

So how did this happen?

The answer lies at the heart of the great British abolition movement, which ended the transoceanic slave trades. This was a movement to abolish laws allowing the slave trade as legitimate commerce. During the 19th century, states were not asked to pass legislation to criminalise the slave trade, rather they were asked to repeal – that is, to abolish – any laws allowing for the slave trade.

This movement was followed up by the League of Nations in 1926 adopting the Slavery Convention, which required states do the same: abolish any legislation allowing for slavery. But the introduction of the international human rights regime changed this. From 1948 onwards, states were called upon to prohibit, rather than simply abolish, slavery.

As a result, states were required to do more than simply ensure they did not have any laws on the books allowing for slavery; they had to actively put in place laws seeking to stop a person from enslaving another. But many appear not to have criminalised slavery, as they had undertaken to do.

This is because for nearly 90 years (from 1926 to 2016), it was generally agreed that slavery, which was considered to require the ownership of another person, could no longer occur because states had repealed all laws allowing for property rights in persons. The effective consensus was that slavery had been legislated out of existence. So the thinking went: if slavery could no longer exist, there was no reason to pass laws to prohibit it.

This thinking was galvanised by the definition of slavery first set out in 1926. That definition states that slavery is the “status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised”. But courts the world over have recently come to recognise that this definition applies beyond situations where one person legally owns another person.

So, let’s dig into the language of that definition. Traditionally, slavery was created through systems of legal ownership in people – chattel slavery, with law reinforcing and protecting the rights of some to hold others as property. The newly recognised “condition” of slavery, on the other hand, covers situations of de facto slavery (slavery in fact), where legal ownership is absent but a person exercises power over another akin to ownership – that is, they hold the person in a condition of slavery.

This creates the possibility of recognising slavery in a world where it has been abolished in law but persists in fact. Torture, by analogy, was abolished in law during the 18th century, but persists despite being outlawed.

Human trafficking

Because of the remarkably late consensus on what slavery means in a post-abolition world, only very specific practices related to severe human exploitation are currently covered under national laws around the world – primarily, human trafficking. And while most countries have anti-trafficking legislation in place (our database shows that 93 percent of states have criminal laws against trafficking in some form), human trafficking legislation does not prohibit multiple other forms of human exploitation, including slavery itself.

Human trafficking is defined in international law, while other catch-all terms, such as “modern slavery”, are not. In international law, human trafficking consists of three elements: the act (recruiting, transporting, transferring, harbouring, or receiving the person); the use of coercion to facilitate this act; and an intention to exploit that person. The crime of trafficking requires all three of its elements to be present. Prosecuting the exploitation itself – be it, for instance, forced labour or slavery – would require specific domestic legislation beyond provisions addressing trafficking.

So, having domestic human trafficking legislation in place does not enable prosecution of forced labour, servitude or slavery as offences in domestic law. And while the vast majority of states have domestic criminal provisions prohibiting trafficking, most have not yet looked beyond this to legislate against the full range of exploitation practices they have committed to prohibit.

Shockingly, our research reveals that less than 5% of the 175 states that have undertaken legally binding obligations to criminalise human trafficking have fully aligned their national law with the international definition of trafficking. This is because they have narrowly interpreted what constitutes human trafficking, creating only partial criminalisation of slavery. The scale of this failing is clear:

• a handful of states criminalise trafficking in children, but not in adults
• some states criminalise trafficking in women or children, specifically excluding victims who are men from protection
• 121 states have not recognised that trafficking in children should not require coercive means (as required by the Palermo Protocol)
• 31 states do not criminalise all relevant acts associated with trafficking, and 86 do not capture the full range of coercive means
• several states have focused exclusively on suppressing trafficking for the purposes of sexual exploitation, and thereby failed to outlaw trafficking for the purposes of slavery, servitude, forced labour, institutions and practices similar to slavery, or organ harvesting.

Our findings

We compiled the national laws relating to slavery, trafficking, and related forms of exploitation of all 193 UN member states. From over 700 domestic statutes, more than 4,000 individual provisions were extracted and analysed to establish the extent to which each and every state has carried out its international commitments to prohibit these practices through domestic legislation.

The results are shocking. In 94 countries, a person cannot be prosecuted for enslaving another human being. This implicates almost half of all the world’s countries in potential breaches of the international obligation to prohibit slavery.

What is more, only 12 states appear to explicitly set out a national definition of slavery that reflects the international one. In most cases, this leaves it up to the courts to interpret the meaning of slavery (and to do so in line with international law). Some states use phrases such as “buying and selling human beings”, which leaves out many of the powers of ownership that might be exercised over a person in a case of contemporary slavery. This means that even in the countries where slavery has been prohibited in criminal law, only some situations of slavery have been made illegal.

Also surprising is the fact that states which have undertaken international obligations are not significantly more (or less) likely to have implemented domestic legislation addressing any of the kinds of exploitation considered in our study. States which have signed up to the relevant treaties, and those which have not, are almost equally likely to have domestic provisions criminalising the various forms of modern slavery. Signing onto treaties seems to have no impact on the likelihood that a state will take domestic action, at least in statistical terms. However, this does not mean that international commitments are not a significant factor in shaping particular states’ national anti-slavery efforts.

The picture is similarly bleak when it comes to other forms of exploitation. For example, 112 states appear to be without penal sanctions to address forced labour, a widespread practice ensnaring 25 million people.

In an effort to support their families, many of those forced into labour in developed countries are unaware they are not taking up legitimate work. Travelling to another country for what they believe to be decent work, often through informal contacts or employment agencies, they find themselves in a foreign country with no support mechanism and little or no knowledge of the language. Typically, their identity documents are taken by their traffickers, which limits their ability to escape and enables control through the threat of exposure to the authorities as “illegal” immigrants.

Our database also reveals widespread gaps in the prohibition of other practices related to slavery. In short, despite the fact that most countries have undertaken legally binding obligations through international treaties, few have actually criminalised slavery, the slave trade, servitude, forced labour, or institutions and practices similar to slavery.

A better future

Clearly, this situation needs to change. States must work towards a future in which the claim that “slavery is illegal everywhere” becomes a reality.

While legislation is only a first step towards effectively eradicating slavery, it is fundamental to harnessing the power of the state against slavery. It is necessary to prevent impunity for violations of this most fundamental human right, and vital for victims obtaining support and redress. It also sends an important signal about human exploitation.

The time has come to move beyond the assumption that slavery is already illegal everywhere. Laws do not currently adequately and effectively address the phenomenon, and they must. [IDN-InDepthNews – 15 February 2020]

* The full version of this article by Katarina Schwarz, Rights Lab Associate Director and Assistant Professor, University of Nottingham, and Jean Allain, Professor of International Law, University of Hull, with the collaboration of Andrea Nicholson, Rights Lab Research Fellow in Survivor Voices, University of Nottingham, was originally published on The Conversation – an independent source of news and views, sourced from the academic and research community and delivered direct to the public – under Creative Commons licence.

Photo: François-Auguste Biard, Proclamation of the Abolition of Slavery in the French Colonies, 27 April 1848 (1849). Credit: Wikimedia Commons

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