INTRODUCTION
The State—an abstract entityFootnote 1 and legal fictionFootnote 2—has been largely overlooked as a perpetrator or accomplice in the global movement to eradicate modern slavery. Yet the hand of the State can be found in contemporary cases of modern slavery. The United States has apparently granted export credit to a national companyFootnote 3 participating in the construction of the Bisha mine in Eritrea, a project for which a Canadian mining company, Nevsun Resources Limited, is said to be complicit in the forced labour and torture allegedly inflicted on Eritrean nationals working on the construction of the mine.Footnote 4 In the United Kingdom, the apparently private exploitation of domestic servants by wealthy households starts to implicate the State when the perpetrator is a diplomatic agent representing his State overseas.Footnote 5
International law prohibits slavery and slavery-like practices under treaties that have been in force for more than a century. The International Court of Justice recognized the peremptory nature of the prohibition of slavery and the slave trade nearly half-century ago.Footnote 6 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.Footnote 7
The policy term ‘modern slavery’ is used to refer to contemporary forms of slavery, including slavery, servitude, human trafficking, forced labour and child labour. For the purposes of this article, modern slavery covers: a) slavery, servitude and institutions and practices similar to slavery, as defined by the 1926 Slavery Convention and the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery; b) human trafficking, as defined by the Palermo Protocol; c) forced labour, as defined in the International Labour Organisation (ILO) Protocol on Forced Labour; and d) child labour, as defined in the ILO 1999 Convention on Worst Forms of Child Labour and in accordance with the UN Convention on the Rights of the Child.Footnote 8
Aware of the gravity of this situation, States committed to eradicate modern slavery as part of the 2030 Sustainable Development Agenda (Sustainable Development Goal ‘SDG’ Target 8.7).Footnote 9 As most modern slavery offences are committed by non-State actors (‘NSAs’)Footnote 10 such as transnational criminal networks involved in human trafficking and corporations exploiting workers in their supply chains, States’ efforts have focused on preventing, protecting and prosecuting with due diligence the offences committed by NSAs.Footnote 11 While acknowledging that this focus on positive obligations is necessary, this article identifies a gap in the international response to modern slavery: it overlooks the responsibility of States themselves for involvement in modern slavery.Footnote 12
State involvement in the commission of modern slavery occurs through State policy or through the actions or omissions of a State organ or official or of private entities exercising public functions. If that involvement amounts to a breach of a State's international obligations, the law of State responsibility provides mechanisms to hold it accountable. This article challenges the current focus on NSAs and aims at uncovering and bridging the existing responsibility gap.
The article proceeds in three parts. Part 1 analyses existing evidence and identifies five factual scenarios of State involvement in modern slavery that could give rise to State responsibility. Part 2 addresses the main challenges of this approach, including plausible deniability by States and implications for victims, and examines how the international law of State responsibility applies to modern slavery, unpacking its potential for advancing efforts to eradicate it. Part 3 presents legal policy recommendations that have been developed in consultation with representatives of States, international organizations and civil society, practitioners and academics specializing in international law and modern slavery.
I. STATE INVOLVEMENT IN MODERN SLAVERY: THE ILLUSION OF ABOLITION?
State involvement in modern slavery remains a small portion of the overall number of cases.Footnote 13 However, there are credible reports of pervasive State involvement in the commission of modern slavery offences. That reality must be confronted in order to advance towards the elimination of slavery in all its forms and avoid ‘the illusion of abolition’ created by the long-standing prohibition of slavery in international instruments.Footnote 14
The analysis of evidence indicates that certain practices and policies of some States could amount to a breach of the prohibition of slavery, forced labour and human traffickingFootnote 15 and constitute an internationally wrongful act entailing international responsibility under the 2001 International Law Commission Articles on the Responsibility of States for Internationally Wrongful Acts (‘ARSIWA’). The conduct of State organs (including individuals or entities)Footnote 16 may also involve the State in a modern slavery situation. Even non-State entities exercising public powers could implicate the State if they engage in an activity tainted by modern slavery. Employment agencies or export credit agencies, some of which are private or semi-public entities, are examples.
Based on the analysis of reports from international organizations, relevant case law and studies by experts working on the frontline, we have identified five scenarios identifying varying levels of State involvement in modern slavery. They range from the most direct involvement (scenario 1) to the more indirect forms of assistance (scenario 5).
A. Scenario 1: Modern Slavery as State Policy
There is evidence of human trafficking and forced labour cases arising from State policy. Forced labour has been used to achieve production quotas in State-managed industries, or to generate funds for the State. Confiscation of passports and the use of threats and violence are common in these contexts. Other States may be aware or even complicit as destinations for the trafficked workers or through trade agreements.
UzbekistanFootnote 17 and TurkmenistanFootnote 18 have both been accused of using forced labour in the State-controlled cotton harvesting industry. Those States allegedly force national ministry employees (such as medical professionals and teachers), as well as students, to participate in cotton picking under quota systems and menace of penalty. Working conditions are harsh, pay is poor and sometimes withheld, and there are reports of punishments if quotas are not met.
The Democratic People's Republic of Korea (‘DPRK’) government is alleged to engage in human trafficking of its own nationals for forced labour.Footnote 19 It is said to conclude bilateral contracts with foreign governments for trafficking DPRK nationals to work overseas in the fishing, construction or textile industries. Those trafficked workers are allegedly subject to extreme working conditions under significant coercive control, have their passports confiscated and their wages paid directly to the North Korean regime.Footnote 20 Some of the reported receiving countries are Russia, China, Mongolia, Kuwait, the United Arab Emirates (‘UAE’), Qatar, Angola or Poland.Footnote 21
B. Scenario 2: Participation of State Organs or Officials in Modern Slavery
There is evidence of the active participation or cooperation of public officials in the smuggling and exploitation of migrants by private companies, or in the deployment of forced labour at the local and national level. Those practices usually involve physical abuse, withholding of wages and confiscation of passports. The State may not even be aware, but the action could still be attributable to it.
Evidence on the involvement of public officials in modern slavery cases is abundant. In Myanmar, where the 2008 Constitution prohibited forced labour leaving behind the era of its systematic use as State practice,Footnote 22 certain State authorities have informally resisted pressure from the International Labour Organization to reform forced labour practicesFootnote 23 and continue imposing it ‘not as part of an official policy, but in violation of it’.Footnote 24 In March 2018, there were allegations of the tatmadaw forcing villagers, especially in Rakhine state, to engage in portering, act as guides and human shields, tend military-owned fields and maintain military infrastructure.Footnote 25
In Thailand, modern slavery conditions have been reported in the fishing industry where, despite recent changes in the domestic legislation, enforcement continues to be an issueFootnote 26 partly due to the involvement of public officials in the smuggling of migrants from Myanmar or Cambodia, their recruitment process and the facilitation of exploitation by fishing companies, frequently subjecting them to forced labour, physical abuse, withholding of wages and confiscation of Seafarer Identification Documents.Footnote 27
Another common example is the complicity of border guards or immigration officials who facilitate human trafficking. It has been reported that in certain land borders labour recruiters bribe immigration officials to allow labour trafficking victims to leave the country and in some cases, as on both sides of the Indo-Bangladesh border, law enforcement agencies procure tokens to traffickers, allowing them to cross the border back and forth unhindered.Footnote 28
Eritrean officials are alleged to be involved in human trafficking. The UN monitoring Group reporting on the UN Security Council's sanctions against Eritrea collected evidence showing that sums extorted from victims of human trafficking were paid to agents of the Eritrean government who were allegedly trafficking people to Sudan, Egypt and Israel.Footnote 29 In China, in the last decade the black kiln scandal unveiled the involvement of local officials in the trafficking of persons to the kilns, where they were held in conditions that could amount to slavery.Footnote 30 Coercion by local governmental schools for students to accept forced internships has also been reported.Footnote 31
C. Scenario 3: Diplomatic Involvement in Domestic Servitude
Migrant domestic workers employed in diplomatic households constitute one of the groups most vulnerable to modern slavery.Footnote 32 They may be subject to exploitation, have their passport confiscated and be subject to physical, psychological and sexual abuse by public officials with diplomatic status.Footnote 33 And their avenues of legal redress are severely restricted by the bar of diplomatic immunity.Footnote 34
Finding a way out of those abuses is a challenge for victims, exacerbated in many cases by the domestic legal system of receiving States, which may restrict the right to change employer or residence rights. Visas of overseas domestic workers in diplomatic households are typically tied to the employer's diplomatic status and are only valid so long as they remain employed by the diplomatic agent.Footnote 35 In addition, many countries do not allow private domestic workers to change employer before the termination of the contract, a restriction that has been used in some cases as a tool to pressure the worker and increase his/her vulnerability.Footnote 36
The kafala system in certain Gulf States may require the employer's permission for the worker to leave their job and even the country, leaving domestic workers outside the protection of labour law and allowing their ‘sponsors’ to evade social security and medical costs.Footnote 37 Certain promising practices in some of these Gulf States show their acknowledgement of a need for change. Kuwait and the UAE introduced a unified standard domestic worker's contract (2006, 2007) and Oman introduced in 2011 a pilot contract for the employment of housemaids. However, implementation remains a challenge and the scope of some of those reforms does not include domestic workers.Footnote 38 An example of this is a new law that will allow the majority of migrant workers to leave Qatar without permission from their employers but does not cover migrant domestic workers.Footnote 39
The situation of victims is even more precarious in accessing justice due to the extensive scope of diplomatic immunity.Footnote 40 While diplomatic involvement in this form of modern slavery has become increasingly visible through court proceedings and thanks to the work of organizations protecting the victims in States such as the United Kingdom, the United States or Australia, when the victims manage to escape and bring a claim against a diplomat, diplomatic immunity from jurisdiction may restrict the possibilities of redress.
D. Scenario 4: State-Backed Labour Brokerage Practices Facilitating Human Trafficking
Recruitment agencies act as intermediaries matching workers in one country to jobs in another. The growth in the use of these agencies started with the facilitation of migration from Asian countries to the Gulf, and has now become a globalized feature of labour markets.Footnote 41 Some of the methods employed by these agencies are abusive and increase workers’ vulnerability to human trafficking and forced labour.Footnote 42 Certain practices, such as collection of excessive and sometimes extortionate recruitment fees,Footnote 43 are legal but may lead to debt bondage and other forms of modern slavery.Footnote 44 Other practices, such as deliberate misinformation and deception concerning the nature and pay and conditions of the work that is on offer,Footnote 45 threats, intimidation, retention of identity documents and physical or sexual violence,Footnote 46 are ‘abusive and fraudulent’Footnote 47 and may in certain cases amount to modern slavery offences. Access to means of redress in face of unscrupulous intermediaries is very limited once migrant workers arrive at their destinations and problems become apparent.Footnote 48
Following initiatives of the ILO, IOM and the International Organisation of Employers (IOE) to promote fair and ethical recruitment of migrant workers,Footnote 49 States are adopting measures to combat abusive labour recruitment and to promote fair recruitment practices globally and across specific migration corridors in North Africa, the Middle East and South Asia.Footnote 50 Yet, the problem persists in many countries where those practices used by employment agencies, which are regulated, licensed or owned by the State, put migrants at risk of trafficking and forced labour. In addition, certain State policies (such as visa and deportation policies, language requirements, job portability) can also increase vulnerability of migrant workers to modern slavery.
In the Philippines, despite former governments’ efforts to establish a comprehensive system of regulation and licensing of employment agencies,Footnote 51 deceptive and abusive recruitment practices persist in certain areas and enforcement remains weak.Footnote 52 In the Thai seafood industry, most workers are hired through irregular channels, such as informal referrals, or as walk-in applicants, without going through the legal immigration and labour procedures.Footnote 53 Most workers access Thailand through an intermediary who facilitates their transport and entry to the country for a fee. Some also paid intermediaries who link them with employers. Inhumane conditions during transport are usually reported, using overcrowded vehicles where people were ‘piled’, sleeping or sitting on top of each other.Footnote 54
Corruption is one of the main challenges in this scenario. The bribery of public officials by labour brokers to ensure that they turn a blind eye has been reported as a common practice in countries such as Nepal.Footnote 55 Beyond petty corruption, negotiation and implementation of some government-to-government memoranda of understanding (MoUs) has been reported as arbitrary and corrupt.Footnote 56 In some cases, restrictions placed by countries of origin on the type of work that migrants can do abroad lead to MoUs for manufacturing or construction, and not for fishers and domestic workers,Footnote 57 increasing the risk of trafficking in the non-regulated industries.Footnote 58 In addition, corruption may be entrenched in the execution of those agreements and the complex MoU process may discourage migrants to use regular avenues for migration. In the Myanmar to Malaysia migration corridor, for example, ‘under-the-table’ payments beyond ‘several thousand’ per worker are allegedly required at the Ministry of Labour offices to secure approval of the foreign employer and exit visas for selected workers.Footnote 59
E. Scenario 5: States Funding Modern Slavery through Export Credit Agencies
States could be funding projects tainted by modern slavery through the loans, insurance and guarantees executed by national export credit agencies (‘ECAs’). Many of these agencies, which facilitate exports or investments of private companies in foreign countries assuming the high costs associated to those operations,Footnote 60 do not have mechanisms in place to assess the human rights and social impact of those projects. Only very few States ‘explicitly consider human rights criteria in their export credit’.Footnote 61
Companies receiving this kind of support from their home institutions may engage in investments or economic activity tainted by slavery, forced labour, child labour or human trafficking. In these circumstances, the State may incur international responsibility for breaching its obligations under international law. An example of the need for human rights monitoring is the credit provided by EXIM, the Export-Import Bank of the United States, to a US company providing equipment to the Bisha Mine,Footnote 62 in the construction of which the Eritrean National Service Programme allegedly deployed forced labour.
An interesting development, although not on modern slavery but in relation to social and human rights impact more generally, is the withdrawal of the British ECA in 2006, and then of the Austrian, German and Swiss ECAs in 2009, from the Ilisu Dam project in Turkey. The withdrawal was precipitated by serious social, cultural and environmental risks such as displacement of those living in the area and potential destruction of an ancient town considered part of the region's cultural heritage. It was the first project to have export credit guarantees from European governments withdrawn after the guarantees had been agreed.Footnote 63
On the supranational level, the European Ombudsman determined in July 2018 that the European Commission had wrongly decided not to carry out a human rights impact assessment before agreeing to the 2015 Sector Understanding on Export Credits for coal-fired electricity generation projects, negotiated in the context of the OECD Arrangement on Officially Supported Export Credits. The Ombudsman cited maladministration on the part of the Commission for having taken this decision in the absence of a thorough analysis of whether it was likely there would be any significant economic, social or environmental impact, including on human rights.Footnote 64
II. INTERNATIONAL LAW OF STATE RESPONSIBILITY: A FOCUS ON MODERN SLAVERY
International law imposes obligations of a diverse nature on States in the area of modern slavery. The breach of those obligations can give rise to the liability of the State by virtue of the principles of State responsibility codified by ARSIWA.Footnote 65 As Boon has indicated, the problem of slavery was well known to the drafters of the Articles on State Responsibility, and it is frequently invoked in the commentaries, including as an example of a jus cogens and an erga omnes obligation.Footnote 66
A. Challenges of Uncovering and Bridging the Gap in Accountability for Modern Slavery
Looking at the involvement of the State in modern slavery through the lens of ARSIWA, there are three main challenges for unpacking the potential of the law of State responsibility to tackle modern slavery more effectively.
First, there is the plausible deniability of States. States may point to the prohibition of slavery in their legislation (or even their constitution) as sufficient evidence that they are not involved in such practices. Former UN Special Rapporteur on Contemporary Forms of Slavery Gulnara Sahinian reported in 2014 after a country visit to Mauritania that some officials denied the existence of slavery stating that because Mauritania had legally abolished and criminalized slavery,Footnote 67 it therefore no longer existed as an institution. These officials spoke of ‘the remnants of slavery or vestiges of slavery which exist as a result of poverty’,Footnote 68 denying any role for the State.
States may also characterize their own involvement in modern slavery as benevolent sponsorship,Footnote 69 military service,Footnote 70 community work or just isolated cases of corrupt officials.Footnote 71 Attempts to cover modern slavery as lawful practices or to blame a ‘rogue’ public official are common and constitute an obstacle to advancing the efforts against modern slavery. A State may not want to acknowledge publicly its limited capacity to enforce anti-slavery legislation or its insufficient mechanisms to control corrupt officials. In other cases, a recent history of chattel-slavery may lead to understanding certain patronizing slavery-like practices as beneficial and may drive public institutions, including the executive, the judiciary and police officers to turn a blind eye to those practices, failing to tackle them effectively. These attitudes and approaches, which could be considered ‘epistemic vices’ using Cassam's terminology,Footnote 72 must be confronted as they constitute an obstacle to tackling the problem and could ultimately give rise to State responsibility.
Second, most efforts against slavery are focused on the rights of victims, and the law of State responsibility may not seem to be the most immediate and effective avenue for securing redress for victims. But the potential of State responsibility as a tool is not limited to its mere invocation or the adoption of countermeasures, although those remain important aspects. It can also contribute to raising awareness of State obligations and the need to uphold those obligations in order to avoid the potential consequences of a breach. In this regard, as Jägers has noted, ‘the law of State responsibility offers an interesting, yet underutilized tool for addressing human rights violations’.Footnote 73 Human rights courts are starting to apply certain principles of the international law of State responsibility to modern slavery cases, holding States to account. Landmark cases in this regard are the Hacienda Brasil Verde case before the Inter-American Court of Human Rights, the Mani case before the ECOWAS Court, and the Siliadin and Rantsev cases before the ECHR.Footnote 74
Third, the State responsibility approach may have unintended consequences for victims and for the dynamics of modern slavery. Protection of victims must be a priority in the design of any accountability strategy. Equally relevant is the impact that accountability mechanisms could have in the trends and dynamics of modern slavery. As some States have not ratified all the existing conventions and treaties relevant to modern slavery, holding a State party accountable could leave a space open for non-States parties to engage in modern slavery, indirectly aggravating the problem. An interesting case in this regard is the increasing presence of Chinese companies in the Eritrean mining sector, which is plagued by allegations of forced labour.Footnote 75 In 2012, Australian based Chalice Gold Mines sold its 60 per cent stake of the Koka gold mine to a Chinese company,Footnote 76 and in 2019 the Chinese Sichuan Road & Bridge Company will start producing copper, zinc, gold and silver at another mine in Eritrea. Both investments have been funded via a preferential loan from the Chinese government.Footnote 77
In response to this argument, which has also been raised in relation to extraterritorial human rights obligations in the context of foreign investment,Footnote 78 two considerations must be taken into account. First, the jus cogens nature of the prohibition of slavery and slave trade allows for the invocation of international responsibility of a State which has not ratified the relevant treaties. Second, as in all areas of international law, State consent remains at the core of international obligations of States and, the lack of an equally binding obligation for all sovereign States should not undermine the validity of the obligations that some States have accepted. The fact that one State may not have ratified a convention should not prevent international law from holding other States to account of its respective international obligations. Those potential unintended collateral effects must encourage the design of transparent monitoring systems that provide assurances to States and businesses and allow them to operate respecting human rights.
B. Which Violations of International Obligations Could Give Rise to State Responsibility for Modern Slavery?
According to Article 2 ARSIWA, there is an internationally wrongful act of a State when the conduct consisting of an act or omission a) constitutes a breach of an international obligation of the state; and b) is attributable to the state under international law.
1. International obligations
Under Article 12 ARSIWA, ‘there is a breach of an international obligation by a state when an act of that state is not in conformity with what is required of it by that obligation, regardless of its origin or character’. These obligations may arise by a treaty or under customary international law,Footnote 79 ‘whatever the nature of the obligation it has failed to respect’.Footnote 80 The international legal framework creates two types of obligations for States related to modern slavery: the so-called ‘positive obligations’, which include preventing, protecting and punishing modern slavery offences and the obligation not to commit or facilitate those offences.
a) Positive obligations: preventing, protecting and punishing slavery
The 1926 and 1956 Slavery Conventions oblige States to abolish slavery and to criminalize slavery and institutions and practices similar to slavery, such as debt bondage, serfdom, forced marriage or child exploitation.Footnote 81 States’ obligations in relation to human trafficking, forced labour and child labour are contained in ILO and UN Conventions and human rights treaties.Footnote 82 In addition, international human rights law obliges States to prevent, protect and punish slavery offences committed by NSAs,Footnote 83 in provisions protecting the rights of individuals not to be subject to slavery or servitude,Footnote 84 not to be subject to inhumane or degrading treatmentFootnote 85 or the right to just and favourable conditions of work.Footnote 86 States are also obliged to cooperate with each other and with the United Nations to give effect to the 1956 Supplementary Convention.
b) The prohibition on the commission of slavery
Those obligations to prevent and punish necessarily imply the prohibition of the commission of slavery, forced labour and human trafficking by the State, following the reasoning of the International Court of Justice on the prohibition on genocide.Footnote 87 In the Bosnia Genocide case, the ICJ emphasized that, although Article 1 of the Genocide Convention does not expressly require States to refrain from themselves committing genocide, speaking only of prevention, ‘it would be paradoxical if the parties had an obligation to prevent acts of genocide under Article 1 but were not forbidden to commit such acts through their own organs, or persons over whom they had effective control, where such conduct may be attributable to them’.Footnote 88 The Court stated clearly that ‘the obligation to prevent genocide necessarily implies the prohibition of the commission of genocide’.Footnote 89 The reasoning of the Court on the prohibition of genocide can apply by analogy to slavery, forced labour, human trafficking and child labour.
2. Attribution of the breach to the State
If the obligation to respect the prohibition of slavery or the positive obligations mentioned in section a) are breached and such breach is attributable to the State, the violation will constitute an internationally wrongful act. The rules for attribution for the five factual scenarios described above are detailed in Chapter II ARSIWA.
a) Conduct of State organs or officials
Most of the breaches of obligations that may occur under the five factual scenarios would be attributable to the State under Article 4 ARSIWA, as they are committed by State organs or officials. Under Article 4, ‘the conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions’ notwithstanding the position and character (national, regional or local) of that organ in the internal organization of the State. According to this provision, decisions by State organs or officials committing or facilitating modern slavery, as well as failing to prevent, protect and punish modern slavery, could give rise to State responsibility.
In many slavery-related cases where conduct occurred with the complicity or involvement of a State, it is a State organ who engages in the conduct. For example, in the Uzbek cotton harvesting industry in which forced labour is allegedly deployed, numerous major government organizations, including national enterprises, utility companies, banks, factories, law enforcement, and government agencies, require their employees to pick cotton or pay for replacement pickers. Further, the 1998 Report of the ILO Commission of Inquiry into Issues of Forced Labour in Myanmar found ‘abundant evidence’ of the ‘pervasive use of forced labour imposed on the civilian population throughout Myanmar by the authorities and the military’.Footnote 90
As regards employment agencies and ECAs (scenarios 4 and 5 discussed above), their legal nature varies from public or quasi-public to private entities. ECAs act under a mandate from their government and employment agencies under a regulation or licence issued by the government. If the ECA or employment agency is a public entity, its acts or omissions are attributable to the State under Article 4 ARSIWA.Footnote 91 If it is a semi-public or private entity, its acts or omissions may still be attributable to the State under Articles 5 or 8 ARSIWA (see sub-section ii).
In certain cases, the State may claim that its official was disobeying instructions by committing modern slavery. In Uzbekistan, Deputy Prime Minister Zoyir Mirzayev was dismissed in October 2018 over a scandal involving the public humiliation of a group of farmers conscripted to pick cotton.Footnote 92 Article 7 ARSIWA makes clear, in line with international jurisprudence and general principles of international law, that ultra vires acts of State organs, persons or entities acting in their official capacity are attributable to the State.Footnote 93 This is the case ‘even where the organ or entity in question has overtly committed unlawful acts under the cover of its official status or has manifestly exceeded its competence. It is so even if other organs of the State have disowned the conduct in question.’Footnote 94 Otherwise, ‘one would end by authorizing abuse, for in most cases there would be no practical way of proving that the agent had or had not acted on orders received’.Footnote 95
Evidence gathering under this provision poses challenges in discerning the line between an act in an official capacity and an act disobeying instructions. The Mixed Commission in the Mossé case noted that even if an official was acting outside the statutory limits of the competence of their service, it would still be necessary to consider ‘whether in the international order the State should be acknowledged [as] responsible for acts performed by officials within the apparent limits of their functions, in accordance with a line of conduct which was not entirely contrary to the instructions received’.Footnote 96
For the purposes of Article 4, in case the internal law of a State does not classify—exhaustively or at all—which entities are considered ‘organs’, the powers of an entity and its relationship to other bodies under internal law will be relevant. In addition, in some systems the status and functions of an entity are determined by a combination of law and practice,Footnote 97 creating a de facto organ.Footnote 98 This rule of attribution was explained by the ICJ in the Bosnia v Serbia case, in which the Court referred to ‘persons or entities which are not formally recognized as official organs under internal law, but which must nevertheless be equated with State organs because they are in a relationship of “complete dependence” on the State’.Footnote 99 Referring to the Nicaragua judgment, the ICJ observed that ‘according to the Court's jurisprudence, persons, groups of persons or entities may, for purposes of international responsibility, be equated with State organs even if that status does not follow from internal law, provided that in fact the persons, groups or entities act in “complete dependence” on the State, of which they are ultimately merely the instrument. In such a case, it is appropriate to look beyond legal status alone, in order to grasp the reality of the relationship between the person taking action, and the State to which he is so closely attached as to appear to be nothing more than its agent: any other solution would allow States to escape their international responsibility by choosing to act through persons or entities whose supposed independence would be purely fictitious.’Footnote 100 Attribution on this basis would only be on an exceptional basis, ‘for it requires proof of a particularly great degree of State control over them’.Footnote 101
b) Conduct of other persons or entities exercising public functions
The involvement in modern slavery of certain semi-public or private entities may be attributable to the State under Article 5 ARSIWA. This encompasses certain ECAs or employment agencies (Scenarios 4 and 5), private security firms empowered to act as prison guards, or private or State-owned airlines exercising immigration controls (Scenario 2).Footnote 102 This type of attribution is potentially on the rise, with a wide range of public functions being increasingly outsourced to private actors.Footnote 103
Under Article 5 ARSIWA, the conduct of a person or entity which is not an organ of the State shall be attributable to the State if this person or entity is empowered by the law of that State to exercise elements of the governmental authority, and if it is acting in that capacity.Footnote 104 The variety of entities to which a State can possibly delegate some of its functions include public corporations, semi-public entities, public agencies and even private companies.Footnote 105
In the Nevsun case,Footnote 106 forced labour and torture were allegedly inflicted on military conscripts in the construction of the Bisha mine, owned by the Canadian company (60 per cent) and the Eritrean government (40 per cent). The construction was managed by a South African company which subcontracted two Eritrean companies (Segen and Mereb)Footnote 107 under the framework of the Eritrean National Service Programme.Footnote 108 Those are the two companies allegedly deploying forced labour. Although it was not the State that directly subcontracted the companies and it is not clear whether the works done by the companies can be considered as ‘elements of governmental authority’, the allegations of the connection of the companies with the Eritrean State and the claimants’ statement that this programme provides labour to various companies owned by senior military officials provide elements of a situation to which Articles 5 or 8 ARSIWA may apply.Footnote 109
If the empowerment element of Article 5 is not found to be applicable on the facts, another possible basis for attribution would be Article 8 ARSIWA, although there is no consensus on its customary nature. It must be shown that the conduct of persons or groups of persons acting (i) on the instructions of a State, or (ii) under the direction or control of that State shall be attributable to it.Footnote 110 The first possibility, attribution on the basis of instructions, is widely accepted. It covers cases in which State organs supplement their action by recruiting, commissioning or instigating private persons or groups to act as ‘auxiliaries’ while remaining outside the official structure of the State.Footnote 111 The second possibility, attribution on the basis of ‘direction’ or ‘control’,Footnote 112 involves domination and actual direction of an operation, not simply the exercise of oversight, influence or concern.Footnote 113
International case law provides guidance, with the ICJ confirming the ‘effective control’ test in the Bosnia Genocide case.Footnote 114 As the Court indicated, in order to establish a factual basis for a person or entity to be responsible on grounds of direction or control, it must be shown that the ‘effective control’ was exercised ‘in respect of each operation in which the alleged violations occurred, not generally in respect of the overall actions taken by the persons or group of persons having committed the violations’.Footnote 115 It must be proved that the State provided the direction or exercised control ‘over the action during which the wrong was committed’.Footnote 116 However, the level of control required for attribution remains unclear, making necessary a flexible and fact-dependent view of what falls within a State's control. The application of the effective control standard to certain questions, such as terrorism or the right to use of force in self-defence against non-State actors has been problematic, leading commentators and some tribunals to advocate for lower control thresholds.Footnote 117 Various techniques have emerged to overcome those challenges and to adapt control thresholds, locating responsibility within omissions, the duty to prevent, or under the due diligence rule and articulating principles of shared responsibility.Footnote 118
c) Aid or assistance to another State
A State may also be responsible for aiding or assisting other States in the commission of an internationally unlawful act under Article 16 of ARSIWA. There are three elements:Footnote 119
– the State must be aware of the circumstances making the conduct of the aided or assisted State internationally wrongful;
– the aid or assistance is provided with the view to facilitating the commission of the internationally wrongful act, or is facilitating it; and
– the act would be internationally wrongful if committed by the State.Footnote 120
The acting State remains primarily responsible,Footnote 121 but the aiding or assisting State will be responsible to the extent that its own conduct has caused or contributed to the internationally wrongful act.Footnote 122
Although the customary nature of this provision remains controversial, this rule could be particularly relevant in cases of human trafficking, an area where there is evidence of corruption and collusion between State officials and traffickers,Footnote 123 as well as in some of the cases that fall under scenario 1 where, under certain circumstances, cases of assistance or aid of a State to another could emerge. Reception by UAE authorities of workers trafficked by the DPRK government could amount to aid or assistance if the requirements of ARSIWA are met.
In the Campaign Against the Arms Trade case,Footnote 124 Article 16 ARSIWA was tested in the English courts in the context of weapons sales to Saudi Arabia with onward use for unlawful acts in Yemen. The intervenor representing Amnesty International, Human Rights Watch and Rights Watch UK, argued that the Defendant, the UK Secretary of State for International Trade, had failed to consider the UK's international obligations reflected in Article 16 ARSIWA. According to the intervenor, the sale and supply of weapons and military support from one State to another is a paradigm example of a situation where Article 16 may be engaged; the central question in interpreting and applying Article 16 is whether the assisting State has the requisite ‘knowledge of the circumstances’ of the internationally wrongful act.Footnote 125 He stated that there is strong academic support for the proposition that ‘knowledge’ encompasses not just ‘near-certainty’ or ‘something approaching practical certainty’, but also ‘wilful blindness’.Footnote 126
In order to explore this argument, the Court would have had to first establish whether Saudi Arabia had committed an internationally wrongful act.Footnote 127 As this was beyond its functions, the claim was rejected.Footnote 128 However, the test proposed by the intervenor suggests an approach that could contribute to a more systematic application of Article 16 ARSIWA to situations such as the reception by UAE authorities of workers trafficked by the DPRK government. The test would mean that knowledge or certainty of the trafficking would not be necessary for UAE to be responsible for aiding or assisting the DPRK in the trafficking. Turning a blind eye or ‘wilful blindness’ would suffice.Footnote 129
C. What Is the Potential of the Law of State Responsibility to Tackle Modern Slavery More Effectively?
The ARSIWA, many provisions of which reflect customary international law, provide an applicable set of secondary rules to apply when primary obligations regarding slavery are not respected.
As mentioned above, it may be said that such legal framework is not beneficial for victims because it does not envisage an individual right of action, and individuals can only obtain redress if a State decides to exercise diplomatic protection. While other mechanisms will allow for direct action by individuals,Footnote 130 the potential of ARSIWA to overcome the gap identified in this article will ultimately benefit potential and actual victims by reducing their vulnerability, providing them a way out and adequate protection, and having a deterrent effect in perpetrators.Footnote 131 And beyond the scenario of invoking the responsibility of a State for modern slavery, the application of ARSIWA to State involvement in modern slavery can enhance the fight against slavery in two ways: first, by encouraging States to uphold in practice what they have agreed to in international treaties; second, providing a valuable tool for States to put pressure on other States to change exploitative behaviour.
1. Calling States to uphold their existing obligations in practice
The analysis of evidence and of State obligations on modern slavery through the lens of ARSIWA, and consultation with modern slavery experts, indicate four avenues for maximizing compliance with existing international legal obligations.
The first avenue is to use existing international mechanisms to tackle modern slavery. States are bound by a complex framework of interconnected international obligations, including UN Conventions, ILO Conventions and international and regional human rights instruments which provide mechanisms to protect victims and to ensure redress and accountability, although some of those mechanisms are rarely used in the fight against slavery and in general in the protection of human rights. A good example is Article 24(c) of the Council of Europe Convention on Action Against Trafficking, which considers the involvement of public officials in the performance of their duty as an aggravating circumstance in the determination of the penalty for offences established in accordance with the Convention.Footnote 132
The second avenue is tackling corruption and enhancing monitoring over State-backed entities to avoid State responsibility. It is critical that States strengthen controls to identify corrupt officials and networks and prosecute corrupt officials. Otherwise, they may be responsible for failing to investigate and prosecute with due diligence. Corruption and lack of transparency has also been identified as a problem in government-to-government memoranda of understanding for migration of workers.Footnote 133
More generally, enhanced monitoring mechanisms and human rights due diligence are identified as desirable developments in the regulation of ECAs and employment agencies, since a lack of monitoring could lead some States to unknowingly sponsor or support slavery-tainted projects or practices.Footnote 134 According to the UN Guiding Principles on Business and Human Rights, ‘States should take additional steps to protect against human rights abuses by business enterprises that are owned or controlled by the State, or that receive substantial support and services from State agencies such as export credit agencies and official investment insurance or guarantee agencies, including, where appropriate, by requiring human rights due diligence.’Footnote 135 In 2012 the OECD adopted its Common Approaches for Officially Supported Export Credits and Environmental and Social Due Diligence (‘the OECD Common Approaches’),Footnote 136 amended in 2016 to explicitly include as potential social impacts of projects human trafficking, forced labour and child labour.Footnote 137
In line with the OECD Common Approaches, States are increasingly regulating ECAs’ obligation to assess the social impact of the projects they fund and some States and ECAs are actively looking for support to ensure the correct functioning of those assessments.Footnote 138 Nevertheless, those examples are still rare and there are circumstances in which impact assessments do not guarantee modern slavery-free investments and exports.Footnote 139 In harmony with the UN Guiding Principles on Business and Human Rights and the OECD Common Approaches on ECAs, such enhanced monitoring would allow States to have more control over the activities in which they become involved.
The third avenue is preventing vulnerability and ensuring a way out for victims. Regional human rights courts are holding States accountable for failing to prevent modern slavery and protect victims (their ‘positive obligations’).Footnote 140 States must uphold their policies and strategies to their obligation to prevent modern slavery, which includes any policies or decisions that may affect migrant women.Footnote 141 A wider implementation of practices on prevention and protection of victims which have been successful in a selection of countriesFootnote 142 would be desirable, accompanied by other measures such as enhanced labour inspections. In addition, visa and sponsorship regimes for overseas domestic workers have been identified as two policy areas with potential to ensure a way out for victims.Footnote 143 Fair recruitment and the prohibition of recruitment fees and abusive recruitment practices is also of importance.
The fourth avenue is ensuring that State or diplomatic immunity does not prevent victims from obtaining redress. A recent landmark case in this regard is Reyes v Al-Malki,Footnote 144 in which the UK Supreme Court considered the implications of human trafficking for the scope of diplomatic immunity.Footnote 145 Although in this case the diplomat was not entitled to immunity as he was no longer in post,Footnote 146 the Court referred in obiter dictum to the situation in which the diplomat would have been still in post, particularly to the applicability of the commercial exception to diplomatic immunity under Article 31(1)(c) of the Vienna Convention on Diplomatic Relations. According to Lord Wilson, it can rationally be argued that ‘the relevant “activity” is not just the so-called employment but the trafficking; 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; that the employer's exploitation of the migrant has no parallel in the purchaser's treatment of the stolen goods; and 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’.Footnote 147 This opens up an avenue to considering the trafficking and exploitation of the domestic worker to fall within the ‘commercial or professional activity exception’ to diplomatic immunity (Article 31(1)(c) of the Vienna Convention on Diplomatic Relations) as seen in a recent UK Employment Tribunal judgment.Footnote 148
In addition to exploring the interpretation of exceptions to diplomatic immunity, as suggested obiter dicta by three judges of the UK Supreme Court in the Reyes v Al Malki case,Footnote 149 other measures could contribute to ensuring redress to victims. The sending State can play a key role by cooperating in the investigation and prosecution before the Courts of the receiving State and considering waiving the immunity from jurisdiction of public officials when there are credible allegations of their involvement in modern slavery.
The general practice of sending States appears to be cooperation with the investigation or at least allowing the cases to proceed without objection.Footnote 150 In the Soborun case in the US, for example, a critical matter was resolved quietly and diplomatically with the cooperation of the sending State, Mauritius, which agreed to a waiver from immunity requested by the US.Footnote 151 Unfortunately, not all sending States cooperate, as the Khobragade case shows, but this seems to be an exception to the rule. In that case, India denied the waiver of immunity requested by the US State Department and obstructed the proceedings by transferring its consular agent to India's Mission to the UN to ensure and expand her immunity.Footnote 152
2. Providing a tool for accountability
The application of ARSIWA to State involvement in modern slavery also provides a valuable tool for States to put pressure on other States involved in modern slavery and ultimately to invoke their responsibility for internationally wrongful acts. These avenues correspond to the traditional use of the international law of State responsibility, which enables the international community to use sanctions, countermeasures (Article 49 ARSIWA) and the invocation of State responsibility as last resort mechanisms ensuring accountability for modern slavery.
a) Who may invoke State responsibility and in which fora?
The responsibility of a State involved in modern slavery may be invoked by an injured State, that is, the State to which the breached obligation is due.Footnote 153 The State of nationality of the victims is entitled to invoke responsibility through diplomatic protection, a mechanism which can also protect non-nationals, such as refugees or stateless persons, although it has no obligation to do so.Footnote 154
An injured State is not however the only sovereign actor able to invoke the responsibility of another State for breaching its international obligations. Some modern slavery obligations are included in treaties ratified by a group of States and are therefore owed to that group (obligations erga omnes partes).Footnote 155 As a consequence, any State Party to those treaties would be able to invoke the responsibility of the breaching State. Furthermore, protection from slavery is an obligation owed to the whole international community (obligation erga omnes) as confirmed by the ICJ in the Barcelona Traction case,Footnote 156 and therefore any State could invoke a breach of that obligation. The forum is determined by the applicable primary treaty, with this section of the ARSIWA acting as the secondary norm establishing the framework for such invocation. Article 8 of the 1926 Slavery Convention establishes that any dispute shall be settled by direct negotiation and otherwise be referred to the PCIJ. Under Article 10 of the 1956 Supplementary Convention, negotiation and referral to the ICJ are the dispute settlement mechanisms established, unless the parties concerned agree on another mode of settlement. Article 15 of the Palermo Protocol also relies on negotiation, arbitration and referral to the ICJ. The connection of the ILO ConventionsFootnote 157 with the ICJ is limited to those cases in which a complaint results in a report of a Commission of Inquiry: under Article 29 of the ILO Constitution, the governments concerned may propose to refer the complaint to the International Court of Justice.Footnote 158
State responsibility has traditionally been invoked in inter-State litigation. Beyond that traditional approach, its use in fora alternative to litigation is not only possible under ARSIWA but also increasingly explored in practice. In addition to the promising trend recently initiated by human rights courts,Footnote 159 investment arbitration is the area where ARSIWA are most heavily cited.Footnote 160 The potential of the international law of State responsibility in negotiation, mediation or conciliation are worth exploring. Under Article 8 of the 1956 Supplementary Convention, States have the obligation to cooperate with each other and with the United Nations to give effect to the Convention. The existence of that obligation, and the international responsibility that could derive from its violation, suggests that State responsibility could play an important role in encouraging effective settlement of disputes through methods alternative to international litigation.
b) What can ARSIWA forms of reparation offer in the fight against slavery?
One of the reasons for unpacking the potential of State responsibility in the fight against slavery are the advantages offered by the forms of reparations envisaged under ARSIWA. If a State commits or facilitates a modern slavery offence, it must repair the damage caused. The obligation of reparation is towards a State, although the beneficiary of the obligation may be an individual, as the ultimate holder of certain rights.Footnote 161 In addition, the responsible State may be asked to offer assurances of non-repetitionFootnote 162 and it must cooperate with others to bring the situation to an end.
The set of alternatives that ARSIWA provides to ensure that the responsible State makes full reparation for the injuries causedFootnote 163 is a valuable tool for modern slavery cases. The first step is to re-establish the status quo ante prior to the concurrence of the wrongful act, which can be particularly relevant if the involvement of the State in modern slavery has occurred through the adoption of legislation allowing the State to commit labour exploitation, or if a decision of a domestic court constitutes the internationally wrongful act.Footnote 164
If restitution is not possible, both material and non-material damage may be the subject of a claim of compensation,Footnote 165 the quantification of which has been dealt with by human rights bodies.Footnote 166 Alternatively, when a damage is not financially assessable,Footnote 167 satisfaction may take the form of an acknowledgment of the breach, an expression of regret, a formal apology or other appropriate modalities. An example of satisfaction relevant in the context of modern slavery is disciplinary or penal action taken by the responsible State against the individuals whose conduct caused the internationally wrongful act.Footnote 168
Ex-gratia payments, such as the one made by the Tanzanian government to compensate a victim of slavery in the Mazengo v Mzengi case,Footnote 169 are welcomed as a form of redress to those victims.Footnote 170 Those payments are usually accompanied by a disclaimer and would not, in principle, trigger State responsibility. But if no disclaimer is made, in addition to compensating victims those payments could serve for holding States accountable for modern slavery under Article 11. Such an approach should be explored with caution to avoid any chilling effect on such payments, which provide a measure of redress to the victims even if on a without prejudice basis.
The obligation to cooperate to bring the breach to an end is applicable in this context given the peremptory nature of the prohibition of slavery and slave tradeFootnote 171 as well as of the prohibition against torture,Footnote 172 though there is not yet a consensus on the peremptory nature of the prohibitions of forced labour and human trafficking.Footnote 173 In case of breaching a peremptory norm, the responsible State is under the duty to cooperate to bring to an end those serious breaches, be it within an institutional framework or in the form of non-institutionalized cooperation. The ICJ emphasized this obligation to cooperate in its Advisory Opinion on the Chagos Archipelago, stating that ‘the United Kingdom has an obligation to bring to an end its administration of the Chagos Archipelago as rapidly as possible, and that all Member States must co-operate with the United Nations to complete the decolonization of Mauritius’.Footnote 174 It is also under a double duty of abstention, not to recognize as lawful situations created by such serious breach, and not to render aid or assistance in maintaining that situation.Footnote 175
III. LEGAL POLICY RECOMMENDATIONS
Given the patterns identified in the five factual scenarios and the analysis of those patterns through the lens of ARSIWA, the following legal policy recommendations would help bridge the gap in accountability for State involvement in modern slavery. Although this is an academic article, we include these recommendations because we believe the practice of legal scholarship involves the exploration of alternative arrangements, which is an ‘intellectual task [that] is active and interventionist and engages the fundamental responsibility of the jurist and the citizen’.Footnote 176
A. Using Existing International Mechanisms to Tackle Modern Slavery
States are encouraged to:
i. Co-operate with each other and with the United Nations to give effect to the 1956 Supplementary Convention. This includes communicating to the Secretary-General of the United Nations any measures adopted to implement the Convention. Under Article 8.3, the Secretary-General shall communicate that information to the other Parties and to the ECOSOC as part of the documentation for any discussion which the Council might undertake with a view to making further recommendations for the abolition of slavery, the slave trade or the institutions and practices which are the subject of the Convention.
ii. Use the ILO mechanisms in place, particularly the complaint mechanism against member States. Non-ILO members are encouraged to accept the obligations of the ILO Constitution and Conventions. Those member States that have not done so yet, are encouraged to consider ratifying the ILO Conventions.
iii. Use existing human rights mechanisms to tackle modern slavery, by addressing structural situations and policies (eg economic migration) that may create the circumstances for unlawful behaviours amounting to modern slavery. The Palermo Protocol, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination against Women or the Convention on the Rights of the Child provide mechanisms for inter-State dispute or complaints mechanisms that could be used for those purposes.Footnote 177
B. Tackling Corruption and Enhancing Monitoring over State-Backed Entities to Avoid State Responsibility
States are encouraged to:
i. Strengthen controls to identify corrupt officials and networks and to set effective penalties for corruption in line with the UN Convention against Corruption and to instruct public officials on modern slavery and its consequences as part of routine training.
ii. Increase transparency and monitoring mechanisms in the way government-to-government Memoranda of Understanding (MoUs) for migration of workers are negotiated and implemented.
iii. Implement enhanced monitoring and human rights due diligence in accordance with the UN Guiding Principles on Business and Human Rights and the OECD Common Approaches, particularly concerning Export Credit Agencies.
C. Preventing Vulnerability and Ensuring a Way Out for Victims
States are encouraged to:
i. Revise visa requirements for overseas domestic workers to provide them a safe way out of potentially abusive situations by guaranteeing their right to change employer and by allowing them to apply for annual extensions. States with a kafala system are encouraged to revise it to protect potential victims of modern slavery, enabling them to change employer and leave the country without permission of their employer. All workers should enjoy equal protection under domestic labour law.
ii. Perform human rights impact assessments on any legislation on borders and passport controls, in order to reduce vulnerability of victims of trafficking to practices such as confiscation of identity documents.
iii. Prohibit recruitment fees in their domestic law and enhance controls and inspections to ensure that employment agencies do not tolerate or use abusive practices; ensure that their legal and judicial system guarantees migrant workers’ rights, in particular the right to remedy, and that extraterritorial jurisdiction is used to end impunity of companies operating abroad; follow the ILO General principles and operational guidelines for fair recruitment (2016).
iv. Follow ILO 201 Recommendation on Decent Work for Domestic Workers and promising practices in prevention and protection of victims (OSCE Handbook, US TIP Office and DLA Piper Model Contract of EmploymentFootnote 178).
D. Ensuring That Immunity Does Not Prevent Victims from Obtaining Redress
States are encouraged to:
i. Waive the immunity from jurisdiction of public officials when there are credible allegations of their involvement in modern slavery, in the territory of the State or in a foreign country. States could require diplomatic missions give a prospective waiver of immunity for employment-related disputes when there is a reasonable basis to believe that gross violations of human rights of domestic servants could have been committed. The vast majority of States will not be content to provide a blanket waiver, so, in order to be workable, the waiver should be limited to cases where there are: (i) reasonable grounds for believing that (ii) gross human rights violations have been committed (iii) against a domestic servant. This would capture the most serious cases and provide a best practice model for other jurisdictions to follow, leading to the accumulation of State practice.Footnote 179 Once waiver is provided, States should cooperate with foreign courts’ investigations of such allegations by disclosing documents and making personnel available for interviews.
ii. Revise employment laws so that overseas domestic workers in diplomatic households are employed by the foreign State. This would allow victims to sue the State instead of the diplomat and to benefit from the employment exception to State immunity.Footnote 180 To avoid that service of process becomes a barrier to redress, States may agree to permit channels of transmission other than those provided for in the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, such as direct communication between respective authorities.
Domestic courts are encouraged to:
i. Develop the idea in the UK Supreme Court Reyes v Al-Malki [2017] UKSC 61 to interpret the commercial exception to diplomatic immunity in Article 31(1)(c) Vienna Convention on Diplomatic Relations to cover exploitation of domestic workers. This would allow those courts of receiving States to prosecute diplomats in post involved in the exploitation of domestic workers and hold them to account.
ii. Consider the application of exceptions to State immunity from jurisdiction when there are credible allegations of the involvement of a public official or body in modern slavery. Examples of these exceptions are the commercial activity or territorial tort exceptions to State immunity.
E. Putting Pressure on Other States through Sanctions
States and international organizations such as the UN or the EU are encouraged to:
i. Consider imposing economic, commercial or other types of sanctions within their respective legal frameworks to put pressure on States if there is a sufficiently solid factual basis to believe that they are committing modern slavery offences. The decision on the adoption of those sanctions should take into consideration any potential collateral effects.
ii. Consider adopting legislation allowing for targeted sanctions or visa bans on individuals who have committed human rights violations in other States.
F. Invoking State Responsibility and Countermeasures
States are encouraged to:
i. Invoke the responsibility of another State for failing to investigate and prosecute with due diligence non-State actors committing modern slavery offences, as well as corrupt officials that may facilitate the commission of modern slavery offences (Article 4 ARSIWA).
ii. State responsibility may be invoked through diplomatic protection by the State whose nationals are victims of modern slavery (Article 42 ARSIWA), or by other States based on erga omnes or erga omnes partes obligations (Article 48 ARSIWA).
iii. Invoke the international responsibility of other States, if they commit an internationally wrongful act by engaging in modern slavery (Articles 42 or 48 ARSIWA).
iv. If the wrongful act constitutes a serious breach of an obligation, States have a positive duty to cooperate in order to bring to an end such breach. They also have the obligations not to recognize the situation created by the internationally wrongful act and not to render aid or assistance in maintaining that situation (Article 41 ARSIWA).
v. Invoke the international responsibility of a State for aiding or assisting another State in the commission of an internationally wrongful act (Article 16 ARSIWA)
vi. Consider adopting countermeasures (Article 49 ARSIWA) against another State, if the latter commits an internationally wrongful act by engaging in modern slavery. Examples of possible countermeasures include asset freezes, import restrictions or travel bans.
IV. CONCLUDING REMARKS
Behind the classic image of the ‘modern slave’ as a construction worker exploited by a private company or a vulnerable female migrant working 24/7 in a family home may lurk the State: the export credit agency funding the construction project or the diplomat bringing his domestic servant to his overseas posting. The focus to date on the role of NSAs in modern slavery is important, but it also creates a gap in accountability. This article, and the research project on which it is based, seeks to make the role of the State visible—to uncover the gap. There are at least five scenarios in which evidence of State involvement in modern slavery could give rise to State responsibility. Beyond this, and a potential project for future research, is the possibility of modern slavery in public procurement,Footnote 181 development aidFootnote 182 and in conflict situations.
The law of State responsibility provides a framework for bridging the accountability gap. As the legal policy recommendations presented in this article show, there are many existing mechanisms for State responsibility. Many widely ratified conventions already require States to prevent and punish forms of slavery. A State may incur responsibility if it does not adequately prevent and punish certain private misconduct subject to a due diligence standard. And the obligations to prevent and punish necessarily imply an obligation not to commit or facilitate modern slavery.
We do not envisage our recommendations triggering a wave of inter-State litigation. That remains an infrequent and difficult form of ensuring State responsibility. There are many measures that States can take beyond the courtroom, such as exercising vigilance in visa processing, enforcing minimum wage rules and border inspections, stamping out corruption, and monitoring compliance with laws on living and working conditions, particularly for migrant workers.
The development of strategies to tackle tomorrow's slavery requires a comprehensive understanding of its drivers and risk factors. An important element of that exercise is uncovering and bridging the existing gap in accountability for State involvement in modern slavery.
