Symposium: A New Legislative Database for Anti-Slavery Advocacy

18 May 2020
Research Innovation

Katarina Schwarz  | Rights Lab Associate Director and Assistant Professor of Antislavery Law and Policy, University of Nottingham
Jean Allain  | Professor of Law, Monash University

“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 the statement has been taken for granted for equally as long, with antislavery advocates, practitioners, policymakers and academics seldom looking beneath the surface of the claim to assess the underpinning evidence. These accounts see Mauritania as legal slavery’s last stronghold, ending in 1981 when the country abolished the practice by presidential decree. At this point, so the story goes, slavery had been made illegal in every State. In fact, our new research reveals that just over half of the world’s States appear to have passed the laws necessary to make enslaving another human being a crime.

The conclusion that slavery had already been eradicated in law the world over is inextricably linked to the conception of slavery that dominated up to the turn of the twentieth century: slavery as legal ownership and property in persons. However, the definition of slavery established in the 1926 Slavery Convention, repeated in subsequent instruments and judicial decisions,[i] goes further than this to encapsulate both de jure and de facto slavery (slavery in law and in fact).[ii] Yet, the changing recognition of what constitutes slavery in international law did not go hand in hand with a serious interrogation of what that requires from States’ legal frameworks to give effect to these definitions in international law.

Although de jure slavery can be made illegal through abolition, de facto slavery requires something more: prohibition. This is explicitly identified in the texts of the 1948 Universal Declaration of Human Rights, the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery and the 1966 International Covenant on Civil and Political Rights. In these texts, States are called upon to prohibit—rather than simply abolish—slavery and the slave trade. Prohibition requires more than States repealing laws on the books allowing for slavery. Rather, they must actively put in place effective laws to prevent people from enslaving others. Further, criminalization and penal sanctions of slavery, the slave trade and institutions and practices similar to slavery are explicitly called for in the 1956 Convention, as they are in regard to forced labour in the 1930 Forced Labour Convention and trafficking by way of the 2000 Palermo Protocol.

It is these standards that we considered in the development of the Antislavery in Domestic Legislation database, looking beyond the abolition of legal slavery to consider States’ actions in prohibiting slavery. We did so not only because States have international commitments in this space but also because legislation is a crucial gateway to antislavery action at the domestic level. It engages the machinery of the State, empowering police, prosecutors, courts, labour officials, immigration officers and public service providers to respond to exploitative practices. Short of this, incomplete or ineffective legal frameworks inhibit effective antislavery action, failing to respond to the phenomenon in its various manifestations, placing higher burdens on non-governmental actors, leaving victims and survivors without proper legal redress and enabling impunity of perpetrators.

To assess the extent to which slavery and related forms of human exploitation have been prohibited in domestic law, the Antislavery in Domestic Legislation Database, compiles the national-level constitutional, criminal and labour legislation of all 193 UN Member States, examining provisions dealing with the following forms of exploitation:

  • Slavery and the slave trade
  • Servitude
  • Institutions and practices similar to slavery
  • Forced or compulsory labour
  • Trafficking in persons

From over 900 domestic statutes, thousands of individual provisions have been extracted and analyzed to establish the extent to which each and every State has prohibited these practices through domestic legislation. By mapping these provisions around the world, we begin to identify key trends, successes, shortcomings and diverging practice in States’ prohibitions of human exploitation.

Figure 1. Overview of States’ domestic legislation prohibiting slavery globally

This analysis reveals that the international community has a long way to go in achieving the effective universal prohibition that has been assumed for so long. Although almost all States have enacted some form of criminal sanction specifically against human trafficking, a large proportion of States do not appear to have enacted basic legal provisions criminalizing other forms of exploitative practices. Moreover, even where legislative provisions are in place, many of these do not satisfy, in toto, the requirements set out in relevant international instruments. Provisions on trafficking, for instance, often fail to capture the full spectrum of its definition, leaving out elements related to the acts, means and exploitative practices as set out in the Palermo Protocol.

Recognizing that the legal frameworks in place in States around the world are far less developed than previously assumed provides a foundation for better anti-slavery governance—governance that responds to evidence over assumptions, and benefits from learning from all the world’s States. As a result, the analysis captures the various manners in which States have sought to give voice to their legal obligations in this area, thus allowing for best practice to emerge and assisting in the design of future legislation. It supports reform that responds to the demands of different contexts by analyzing how other States sharing similar characteristics have responded to shared challenges. It enriches the information available for making assessments of the strengths and weaknesses of different choices in context, and makes responding to new and old challenges a more rigorous scientific exercise.

The Antislavery in Domestic Legislation database is another step in the development of a rich global evidence base for combating slavery and related forms of human exploitation. In releasing this first phase of the research, we invite States and other relevant actors to engage with the database, enriching the information available to all by submitting legislation not yet considered in the analysis. The platform will undergo continuous and ongoing developments, in the expectation of presenting the most accurate and up-to-date legislative information possible to a global audience. The scope of provisions will also expand, as we look beyond the prohibition of these specific forms of human exploitation to consider other practices and other obligations associated with States’ commitments in related to exploitative practices. That said, already, the clearer picture of the current state of domestic legislation provided by this new database invites concerted, evidence-based advocacy and reform to make the claim that slavery is illegal in every country in the world a reality.

The Antislavery in Domestic Legislation database is now freely available at antislaverylaw.ac.uk

[i] The definition is repeated in the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, as well as the Rome Statute of the International Criminal Court. It has subsequently been affirmed by the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Sierra Leone, the European Court of Human Rights, and the Inter-American Court of Human Rights.

[ii] See Jean Allain, The Slavery Conventions (Martinus Nijhoff 2008); Research Network on the Legal Parameters of Slavery, ‘The Bellagio-Harvard Guidelines on the Legal Parameters of Slavery’ available at <https://glc.yale.edu/sites/default/files/pdf/the_bellagio-_harvard_guidelines_on_the_legal_parameters_of_slavery.pdf>; Prosecutor v. Dragoljub Kunarac, Radomir Kovac & Zoran Vukovic, International Criminal Tribunal for the former Yugoslavia (12 June 2002); Case of the Hacienda Brasil Verde Workers v Brazil, Inter-American Court of Human Rights Series (20 October 2016); R v Wei Tang [2008] HCA 39.

Dr Katarina Schwarz is the Rights Lab Associate Director and Assistant Professor of Antislavery Law and Policy, University of Nottingham. Follow her on Twitter: @KLMSchwarz

Professor Jean Allain is Professor of Law at Monash University. Follow him on Twitter: @profjallain

This article has been prepared by Katarina Schwarz and Jean Allain as contributors to Delta 8.7. As provided for in the Terms and Conditions of Use of Delta 8.7, the opinions expressed in this article are those of the authors and do not necessarily reflect those of UNU or its partners.

This piece has been prepared as part of the Delta 8.7 “Antislavery in Domestic Legislation Database” symposium. Read all the responses below:

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