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Hall, Georgia --- "Is Slavery Slipping Through The Cracks Of The United Nations Human Rights Committee?" [2020] UNSWLawJlStuS 19; (2020) UNSWLJ Student Series No 20-19


IS SLAVERY SLIPPING THROUGH THE CRACKS OF THE UNITED NATIONS HUMAN RIGHTS COMMITTEE?

GEORGIA HALL

How loose definitions, minimal engagement and remedy, and stretched resources have led Article 8 of the International Covenant on Civil and Political Rights (ICCPR) to become a marginalised and misunderstood provision.

It has been almost a century since the 1926 Slavery Convention (Slavery Convention) called upon states to “progressively and as soon as possible” abolish slavery “in all its forms”,[1] and established the first and only existing international legal definition of slavery in international law.[2] In the years following the Slavery Convention, the General Assembly adopted the Universal Declaration of Human Rights (UDHR), which outlines under Article 4 that “No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited.”[3] By 1976, the International Covenant on Civil and Political Rights (the ICCPR or Covenant) enshrined these rights with the additional provision that “No one will be required to perform forced and compulsory labour.”[4] Similar anti-slavery provisions can be found in Article 4 of the European Convention on Human Rights (ECHR),[5] Article 6 of the American Convention on Human Rights,[6] and Article 5 of the African Charter on Human and Peoples’ Rights.[7] The prohibition of slavery is recognised as customary international law[8] and identified as a legal obligation erga omnes.[9] Indeed, the International Law Commission has described the prohibition of slavery as “one of the oldest and best settled rules of jus cogens.[10] Freedom from slavery is a fundamental human right in international law[11] and its eradication has become a global goal to be achieved by 2030.[12]

Despite the long-standing fight against slavery and the establishment of internationally recognised rights through authoritative legal instruments – slavery has survived its so-called abolition and is thriving in the modern day world.[13] More than 40 million people are estimated to be trapped in slavery and slavery-like situations today,[14] far surpassing the 10 to 12 million people believed to have been held in slavery between the 16th and 19th centuries.[15] Although the modern day concept of slavery cannot be compared with the extreme images of the transatlantic slavery trade – the common denominator of slavery remains the same.[16] In slavery, the person is in a situation of exploitation, subject to the illegal control of someone else for his or her own gain, and without viable alternatives or means of leaving.[17] It is through this lens that common ground can be established to better understand the nature, scope, and monitoring of state compliance with anti-slavery provisions in international law.

This paper is concerned with slavery in the context of the ICCPR, which confers the non-derogable individual right through Article 8 that “No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited. No one shall be held in servitude. No one shall be required to perform forced or compulsory labour.”[18] The scope and application of Article 8 of the ICCPR has garnered little attention in legal fields, perhaps because slavery is mostly considered an economic, social, and/or labour rights issue, or because other international instruments, monitoring bodies, and/or case law offers more substantive insights into the meaning of slavery and its application. Furthermore, analysis on the extent to which the ICCPR treaty body, the Human Rights Committee (the Committee), engages with issues of slavery through its monitoring, reporting, and quasi-judicial activities is even more lacking. These gaps are a “blindspot” and have “led to an inadequate understanding... of the required interventions”.[19]

The question of how the Committee can most effectively use its authority and influence to guide state responsiveness and establish clarity amongst the international community on the meaning, treatment, and application of the right to not be subjected to slavery, is of critical importance. This paper proposes that Article 8 has become a misunderstood, marginalised, and abstract provision within the Committee’s monitoring and reporting activities, and for this reason, is falling through the cracks of state party oversight of compliance with the ICCPR. As a first step, this paper considers the broader operating context of the UN Human Rights Organs and the problematic nature of defining slavery in the context of Article 8 of the ICCPR. Secondly, an assessment of how the Committee engages with Article 8 through its Concluding Observations and Views reveals broad interpretations riddled with inconsistencies. Thirdly, this paper looks at the slavery-related individual communications reviewed by the Committee and questions whether other international and regional court rulings offer more substance to the meaning of Article 8. Finally, a handful of contingent limitations are identified as having reduced the effectiveness of the monitoring of, and reporting on, state level cooperation with Article 8.

I THE UN HUMAN RIGHTS ORGANS AND THE PROBLEM OF SLAVERY

Since the adoption of the Universal Declaration of Human Rights (UNDR), nine core international human rights instruments[20] and supervisory bodies have been developed to incentivise and monitor states’ compliance with their international human rights obligations. There is significant overlap in coverage of human rights monitoring and reporting amongst the treaties,[21] with regional human rights treaties,[22] and with other protocols or conventions.[23] The issue of having similar human rights standards laid out across various instruments has, in the view of some, depleted the effectiveness and accountability of the UN Human Rights Organs in monitoring and reporting on states’ conduct in relation to human rights abuses.[24] This is certainly the case with the oversight and monitoring of state conduct in relation to slavery,[25] which has been described by some as “little short of a disaster.”[26] Multilateral actors have a tendency to treat forced labour, human trafficking, and slavery as discrete concerns, each with their own international legal definitions to be tackled by specific actors and requiring individual policy responses.[27] The appointment of a number of slavery-related Special Rapporteurs[28] by the UN Human Rights Council has further added to the complexity of oversight and accountabilities, arguably allowing some bodies, such as the Committee, to shy away from the issue as being “dealt with” elsewhere.[29] One of the undeniable problems of this fragmented oversight is the risk that UN actors do not learn from other, share insights, and leverage off existing work to allow for robust state monitoring, reporting, and victim-centred remedy. As will be discussed further into this paper, the UN Human Rights system lacks the resources to mobilise an integrated and strategic approach to bring slavery out of its structural silos.

II PUTTING ARTICLE 8 OF THE ICCPR INTO PERSPECTIVE

The ICCPR is the most comprehensive and established of the UN human rights treaties due to its coverage and influence over UN jurisprudence.[30] Through the adoption of the ICCPR by the General Assembly, Article 8 marked the first time international law conferred the individual right to not be subjected to slavery, servitude, forced labour or compulsory labour.[31] The recognition of individual legal entitlement from slavery is a central component of human rights law.[32] Article 8 is different to the slavery-related provisions enshrined by other international treaties and related multilateral bodies[33] in the sense that it squarely addresses slavery, as opposed to a specific slavery-related derivation, such as child labour, debt bondage, forced prostitution, sex trafficking, debt bondage, forced prostitution, and domestic servitude. Many of these slavery-related phenomena have their own definitions[34] and rights conferred through other international conventions.[35]

The prominence of the Committee and the central role of the ICCPR in human rights law has elevated the Committee to assume “a leadership role in coordinating the normative development of the system”.[36] The responsibilities are broadly two-fold. Firstly, the Committee monitors how states respect and ensure the rights of the ICCPR are recognised, and secondly, it supervises states’ compliance with the ICCPR and its domestic implementation.[37] State parties equally have a positive obligation to respect the rights of individuals within their jurisdiction and ensure those rights are recognised under Article 2(1), furthering extending their scope of responsibility to the conduct of the private space.[38] Article 2(1) has become an increasingly important provision in the context of Article 8 as the various forms of slavery have shifted from the public to private spheres over the course of the 20th century.[39]

III THE CONCEPTUAL FRAGMENTATION OF ‘SLAVERY’[40]

The changing nature of slavery over the past decade has stirred much debate in legal fields around its definition and application. The preparatory works of the ICCPR do not offer much by way of explaining the meaning of Article 8 in a contemporary sense, to the point that slavery was described at the time of drafting as a “relatively limited and technical notion” by the Social and Economic Council.[41] Although not referenced in the ICCPR, the Slavery Convention offers the only international legal definition of slavery today,[42] as “the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.”[43] The "powers attaching to the right of ownership" and the "forms" of slavery were not detailed in the Slavery Convention and have therefore been subject to considerable interpretation over the years. Importantly, however, the travaux préparatoires to the Slavery Convention draw a hazy boundary around the meaning of "slavery in all its forms" by indicating that that the phrase was not meant to, and does not serve to, broaden the definition beyond instances where there has been the demonstrable exercise of powers attached to the right of ownership.[44] With regards to the meaning of servitude, the 1956 Supplementary Slavery Convention (Supplementary Convention) was intended to define term due to a great deal of confusion around its meaning,[45] but stopped short of a definition and instead included debt bondage, servile marriages, serfdom, and the transfer of children to exploitation as “institutions and practices similar to slavery.”[46] As such, no definition of servitude has been established or exists today and has curiously disappeared from international human rights law.[47] Regional case law can be seen to retain the classical distinction between slavery and forced labour, while treating servitude as a gap filler between the two.[48]

Article 8 of the ICCPR expands upon the wording of Article 4 of the Universal Declaration of Human Rights (UDHR), to include forced and compulsory labour within the same article as slavery and servitude, but as separate line items. It is believed that the drafters did not seek to alter or contradict the wording contained within Article 4 of UDHR, but instead looked to clarify that forced and compulsory labour could, in some instances, amount to slavery and servitude.[49] This approach mirrors the graduating provision within Article 5 of the Slavery Convention, which states all parties must “prevent compulsory or forced labour from developing into conditions analogous to slavery.”[50] The drafters of the ICCPR stopped short of including a definition of forced and compulsory labour in Article 8(3) due to concerns around restricting the scope of the provision, whilst acknowledging existing definitions outlined in the 1930 ILO Forced Labour Convention (Forced Labour Convention) as a source of reference.[51] At the time of drafting, forced and compulsory labour was conceptualised as being state driven,[52] however, it is now recognised that 90% of cases (approximately 20.9 million people) exist within the private economy for sexual or labour exploitation.[53]

The notion that slavery as an institution can simply be abolished or outlawed is outdated and somewhat unconstructive. As Hyland explains, “Slavery in its modern manifestation cannot be banned by treaty. It is not a trade route that can be cut off. It is integrated, embedded and even institutionalised in our society. It is a cog in our economic machine, manifesting itself in a hidden underworld but interacting with the legitimate economy.”[54] Slavery is a product of specific and acute vulnerabilities[55] borne from social inequality,[56] illiteracy, state instability, conflict,[57] corruption, poor business conduct, a lack of labour protections, statelessness,[58] irregularity in immigration status,[59] and/or income disruption (such as global pandemics).[60] As such, beyond definitions, a greater focus on economic, social, and labour rights factors[61] is needed to help bring the term slavery into the contemporary world.

IV ARTICLE 8 IN THE COMMITTEE’S ACTIVITIES

An assessment of definitions and preparatory works only offers a slither of insight into how slavery, servitude, forced and compulsory labour is framed through Article 8 of the ICCPR. The main three activities of the Committee provide a more substantive and practical view of how Article 8 is applied.[62] Firstly, the Committee reviews state reports and responds with Concluding Observations; secondly, it publishes General Comments to clarify the substantive provisions of the rights contained within the ICCPR and the obligations of state parties; and thirdly, it reviews individual communications and considers any violations of the ICCPR by the state in question through Views.[63] There has been little scholarly analysis of how the Committee engages with the rights protected under Article 8.[64] Those who have addressed the topic have stated the Committee has “barely touched the issue”,[65] remains “aloof”,[66] and has “studiously avoided engagement” with Article 8.[67] Nevertheless, Article 8 should not be justified into a state of irrelevance and passivity in international human rights law. The norm-setting setting nature of the Committee combined with the breadth of non-derogable rights conferred through Article 8, makes for a potentially influential and powerful mechanism for driving state compliance and prioritising the issue on the international agenda. The question of why this is not the case deserves more attention.

V THE CONCLUDING OBSERVATIONS

The Concluding Observations (Observations) form the backbone of the Committee’s overall work.[68] Although not legally binding, the Observations have legal standing[69] by giving meaning to the rights of Article 8, assessing states’ implementation of the rights contained within the ICCPR, identifying progress, and highlighting areas of concern. The process of compiling the Observations is the more sensitive part of the Committee’s work.[70] By acknowledging the progress demonstrated by a state party at the beginning, the Committee undertakes the careful balancing act of proceeding to list out concerns around the state party’s failure to respect and ensure the rights of individuals within its jurisdiction, as stipulated through the Covenant.[71] The Committee follows a set structure by itemising its concerns in sections with headings and commentary, referencing the relevant rights contained within the Covenant (multiple articles are typically cited), followed by a description of actions the state “should” take to remedy the potential rights abuses or contributors to those abuses. The persistent and deliberate use of the word “should” (not “must”) demonstrates the limits of the Committee’s recommendations as non-binding. However, as the Committee is an expert body tasked with monitoring state compliance with an international human rights law instrument, the recommendations are authoritative pronouncements on state party compliance.[72]

VI SLAVERY AS A MARGINALISED AND ABSTRACT CONCEPT

An assessment of Observations issued over 2017 shows how the Committee treats Article 8 as a marginal and siloed provision with seemingly no relation to other human rights concerns listed for each state. Seventeen of the twenty Observations issued by the Committee contain a section on slavery-related concerns, but present a number of gaps and inconsistencies in terminology. Firstly, with the exception of Pakistan,[73] the Committee follows the tacit rule of only referencing Article 8 in a dedicated section on slavery and never in others, casting it as a provision that bears no weight or relevance to other rights concerns. This disconnect is particularly noticeable where the Observations discuss the treatment of women and gender equality.[74] To illustrate, in the case of Cameroon,[75] the Committee references Articles 8 and 24 in the ‘Trafficking in Persons’ section and states that “...forced prostitution (in the case of women) or domestic labour (in the case of children) still persists.”[76] It is unclear why the rights of the child (Article 24) are cited, but those relating to gender equality, cruel, inhumane, or degrading treatment, and equality before the law without discrimination (Articles 3, 7 and 26) are not linked to, or acknowledged as, contributing to slavery-like issues.[77] Indeed, related sections such as ‘Gender Discrimination and Gender Equality’ (Articles 2, 3 and 26) and ‘Violence against Women and Practices Harmful to Women’ (Articles 2, 3, 7, 24 and 26), do not cite Article 8. Other examples of this disconnect include statelessness (human trafficking),[78] refugee camps (forced marriage),[79] irregular migration (sexual exploitation and forced prostitution),[80] and child protection (child labour)[81]. Although the comments of the Observations are general in nature,[82] Article 8 seems to be framed as a niche and extraneous concept with no link to the social, economic, and labour related rights abuses discussed in other concerns.

VII MIXED MESSAGES AND CONFUSING LABELS

The Committee uses expansive, inconsistent, and sometimes contradictory terminology when describing slavery in the context of Article 8. At least thirteen different categories of slavery are listed in the Observations issued in 2017, including domestic servitude, forced prostitution, sex trafficking, human trafficking, forced marriage, sexual exploitation, sexual abuse, child labour, forced labour, compulsory labour, and labour exploitation, slavery-like conditions, and contemporary slavery.[83] The scope of Article 8 is therefore exceptionally broad. To add to the confusion, the terminology is applied disparately, for example, the section headings may not relate to the substantive comments, while the terms slavery, forced labour, and human trafficking are used interchangeably with other forms of slavery.[84] These findings are supported by research undertaken by Stoyanova on Article 8 of the ICCPR, who also points out how the Observations are “bedevilled with inconsistencies”.[85] Some sections may be labelled ‘Human trafficking’ or the ‘Elimination of slavery and servitude’, but describe entirely different issues underneath. [86] While the matters may be related, they are not interchangeable or like-for-like. Additional inconsistencies can be found when comparing Observations with one another, for example, it is not clear why states such as Switzerland warrant the Committee’s concerns relating to slavery, but higher risk countries such as Bangladesh do not.[87] Returning to the Slavery Convention (of which Article 8 was based on), a situation of human trafficking, debt bondage, forced labour is only defined as slavery if it has involved "the exercise of any or all of the powers attached to the right of ownership”.[88] The briefness of the Observations makes it difficult to tell whether this is the point of reference for the Committee, or whether various slavery-related labels are collated by the Committee as a catch-all for Article 8.[89]

VIII THE GENERAL COMMENTS

The Committee’s General Comments (Comments or Comment) form part of the reporting procedure established by Article 40 of the ICCPR.[90] The Comments have become, over time, “a distinct juridical instrument, enabling the Committee to announce its interpretations of different provisions of the Covenant... (they) are relied upon by the Committee in evaluating the compliance of states with their obligations”.[91] Although not legally binding, the Comments are considered authoritative instruments[92] with norm generating ability.[93] Unfortunately, however, the Committee has not issued a Comment on Article 8, further adding to the ambiguity around the meaning of the slavery provisions within the context of the ICCPR. As previously highlighted, there is significant confusion around the meaning and scope of the term “slavery and servitude”, and what constitutes “all its forms”. The Committee’s lack of Comment on Article 8 is a lost opportunity to create much-needed clarity in international human rights law and establish normative consensus.[94] Nevertheless, Comment No. 28 (Gender Equality) does shed some light by citing Article 8 and outlining how states should provide the Committee with information on measures taken to eliminate the trafficking of women and children, forced prostitution, and slavery disguised as domestic or personal services.[95] Comment No. 28 reaffirms the findings discussed earlier in relation to the Observations; that is, Article 8 is broader than may seem at face value and extends to human trafficking and forced prostitution.

It is impossible to explore the full breadth of reasons why the Committee has failed to issue a Comment on Article 8 in this paper. With the limited scholarly analysis available, some speculations can be put forward. It could be argued that the Committee has not had the resources to do so, as a handful of other ICCPR provisions have similarly not been the object of Comments.[96] Alternatively, the long-standing confusion and evolving nature of the definition of slavery (in all its forms) and servitude may have caused the Committee to sidestep the Comments as a way of ensuring the provision remains a “living instrument.”[97] For Stoyanova, the absence of a Comment on Article 8 is understandable as the Committee issues Comments to consolidate experience gained through state reports and individual communications, and in the instance of slavery – there is little experience to consolidate.[98] It is worth pointing out that the Committee does reaffirm the non-derogable nature of Article 8 in Comment No. 24, which stipulates that, “A state may not reserve the right to engage in slavery, to torture, to subject people to cruel, inhuman and degrading treatment or punishment.”[99]

IX THE QUAGMIRE OF HUMAN TRAFFICKING

It is noteworthy that human trafficking is cited far more often than slavery, servitude, and forced labour combined in the Observations issued over 2017.[100] This finding is also echoed by Stoyanova, who describes how the Observations issued over 2014, 2015, and 2016 only relate to concerns with human trafficking and overlook the concepts explicitly provided for in the text of Article 8.[101] The Observations indicate that human trafficking has been factored into conceptual boundaries of slavery.[102] The “quagmire” of human trafficking in human rights[103] has spurred intense debate. For some, the tendency to lump slavery with human trafficking dilutes and muddles legal regimes, international human rights monitoring, and victim-centred remedy.[104] As Hathaway readily points out, human trafficking is a minor part of the global slavery issue, and its over-promotion as constituting slavery has allowed governments and multilateral actors to justify inaction, thereby ignoring the issue of culturally accepted and engrained slavery.[105] Some argue for a more dynamic and universal definition that can evolve with changing economic and social relationships,[106] and identify the Rome Statute[107] as evidence that the definition of slavery now includes human trafficking.[108] Gallagher rejects this view by explaining that the Rome Statute is “a cautious expansion of the concept (of slavery) by acknowledging that certain practices not intrinsic to slavery could, under certain circumstances, become slavery.”[109] Irrespective of these arguments, the Committee has not materially clarified its position on, or definition of, human trafficking in its General Comments or Concluding Observations.

X THE VIEWS

The Committee carries out a quasi-judicial function by receiving, reviewing, and commenting on communications lodged by individuals claiming to be a victim of a state party violation of a right enshrined through the ICCPR. A communication can only be made against a state party where the state has ratified the relevant Optional Protocol (the First Optional Protocol in the case of Article 8)[110] and where certain admissibility criteria is met.[111] The Committee forwards its consensus views (Views) to the state party and individual on whether there has been a violation of the ICCPR, and includes, in some instances, the dissenting views of Committee members as an appendix. Similar to the Observations, the Views are non-binding,[112] however, the Committee is considered “the pre-eminent interpreter of the ICCPR which is itself legally binding... (the) decisions are therefore strong indicators of legal obligations, so rejection of those decisions is good evidence of a State’s bad faith attitude towards its ICCPR obligations.”[113] The legal and normative character[114] of the Committee’s Views sets it apart from other complaint mechanisms such as those available through Special Rapporteurs and other Treaty Bodies, which are more political in nature.[115] Irrespective of their institutional legitimacy, the Views are fundamentally advisory. This can make it hard for complainants in domestic courts to rely on the Views as authoritative decisions when they are seen to be lacking obligatory character, and importantly, be used by some countries as an excuse to dismiss the remedies prescribed by the Committee.[116]

Cases relating to Article 8 barely feature in the Committee’s caseload. In their analysis of cases brought under the Optional Protocol to the ICCPR, Castan and Joseph consider complaints relating to Article 8 in a chapter titled “Miscellaneous Rights” due to “the virtual absence of jurisprudence” on the slavery provisions of the ICCPR.[117] The right to not be subjected to slavery or servitude has never the object of a View by the Committee.[118] To quantify the lack of jurisprudence, Article 8 it is cited once in the 173 cases registered in 2017;[119] once in the 190 cases registered in 2018;[120] and in none of the 146 cases registered in 2019.[121] The few cases relating to Article 8(3) have considered situations where state imposed labour has been argued to have been incompatible with the exceptions outlined in Article 8(3)(b)(c). These exceptions include, but are not limited to, circumstances where the person is required to undertake prison labour, any service of a military character (or any national service required by law of conscientious objectors), any services exacted in cases of emergency or calamity, and/or any work or service which forms part of normal civil obligations.[122] The Committee has produced few consensus Views on the scope of these specific qualifications, while a number of cases citing Article 8(3) have been dismissed on the basis there has been no such breach by the state party in question.[123] As the private sphere is likely to incur the majority of Article 8(c) abuses as opposed to states themselves, and state parties carry the positive obligation to ensure the rights of those within its jurisdiction are protected and upheld[124] – it is surprising that no cases relating to private actors and state obligations have been reviewed by the Committee.[125] This is an important and perplexing lacuna in the Committee’s jurisprudence.

XI LOOKING TO INTERNATIONAL CASES FOR INSPIRATION

Summarising these points, the absence of Views citing Article 8, the high rate of dismissal of alleged violations of Article 8(3); the high hurdles for admissibility;[126] and the fact that decisions of the Committee are ultimately advisory – suggests that victims of slavery are unlikely to use the ICCPR complaints mechanism as a course of remedy. One would need to look towards the practice of other international courts, national courts, international criminal courts and tribunals, and other international treaty monitoring bodies to interpret Article 8 of the ICCPR in instances of remedy. According to Article 31(3)(b) of the Vienna Convention, one can take “subsequent practice” into account when assessing the application of a treaty,[127] which could, in theory, include the case law of international human rights courts. A handful of important decisions have been delivered through regional human rights courts, thereby offering greater insight in the application of Article 8 in case law. The ruling issued by the Inter-American Court of Human Rights on Brasil Verde v Brasil clarified how the concept of slavery has evolved and is no longer limited to the legal ownership of a person.[128] The ruling resulted in a rare compensation payout. Hadijatou Mani Koroua v Republic of Niger is one of the few cases where a court, in this case the Economic Community of West African States Court, has declared a state internationally responsible for violating the right to not be subject to slavery.[129] The European Court of Human Rights’ ruling on the case of Rantsev v Cyprus and Russia builds on the jurisprudence of Article 4 of the European Convention on Human Rights by expanding on the definition of slavery to human trafficking “based on the exercise of powers attaching to the right of ownership”.[130] Although international case law has made inroads on the slavery provisions of regional human rights conventions, the scarcity of judicial engagement with slavery, servitude, forced and compulsory labour is remarkable.[131] For example, in the case of the European Court of Human Rights, these three forms of slavery are not defined in the text of Article 4 of the ECHR and there is very little case law citing the provision.[132] Again, definitions bear particular importance here, as a failure to define the substantive content of slavery will “affect the ability of the international community to bring to justice those individuals who are criminally responsible for violating the prohibition”.[133]

XII CONTINGENT LIMITATIONS

Analysing the intersections between the Committee and Article 8 offers one perspective, but the contingent boundaries within which the Committee operates deserves discussion. The quality of the Committee’s work is limited in two key ways, firstly, the combination of the breadth of monitoring responsibilities and inadequate resourcing has stretched its capabilities, and secondly, insufficient cooperation from state parties undermines its mandate and quality of work. The Committee undertakes a critical but challenging role. Formed under Article 28 of the ICCR, the Committee comprises a panel of 18 human rights experts who are required to act in their personal capacity[134] and not on behalf of the state party they have been nominated by. The ICCPR has the highest rate of state party ratification relative to the other UN human rights treaties, meaning the scale of coverage required to monitor and report on state compliance with the breadth of provisions is an immense undertaking. There are practical and resource-related challenges associated with reviewing, deliberating, and responding to reports; communicating with various state representatives; collating evidence to supplement state reporting (such as non-governmental organisations and UN agencies); coordinating hearings; reviewing individual communications for admissibility and producing Views with a consensus. The Treaty Bodies, including the Committee, are chronically under-resourced. By way of example, the UN allocated US$4.5 million of budget to the work of the Treaty and Human Rights Commission in 2005, whereas the European Court of Human Rights received a €42 million budget the same year.[135] With so few resources, the Committee regularly fails to challenge or follow up on the Observations,[136] and from a practical perspective, a reduction in administration staff has created delays in the translation of state reports and the subsequent dissemination of the Observations, therefore limiting the ability of the Committee to deliver its mandate in a timely manner.[137]

Perhaps, because of its extensive ratification, the quality and effectiveness of the Committee’s work is more dependent on state party cooperation than any other treaty body. A lack of state party cooperation impedes the Treaty Body reporting process. The long-standing issue of states submitting reports that are “inaccurate, incomplete, or not submitted at all”,[138] and delegates not bothering to appear in front of Treaty Bodies bodies to defend their reports undermines the monitoring process[139] and the quality of output.[140] In an attempt to address some of these issues, in 2002, the Committee instigated a tougher approach[141] by still reviewing state reports where the delegation has not presented themselves on the arranged date, and by continuing to examine a state party’s compliance with the ICCPR in the absence of a report.[142] Turning back to the Views, states’ willingness to give effect to the recommendations and follow up with the Committee leaves a lot to be desired. The Committee has described the follow-up activities under the Optional Protocol, saying that “roughly 30 per cent of the replies received could be considered satisfactory", while others were not satisfactory “in that they either do not address the Committee’s recommendations at all or merely relate to one aspect them”. [143] The Committee continues to explain how the remainder of the replies suggested that “the State party will not, for one reason or another, give effect to the Committee’s recommendations”.[144] Some argue the Committee has taken on more of an activist role over time to help combat lacklustre compliance.[145] Nonetheless, the enforcement mechanisms employed by the Committee are only designed to be a secondary form of ICCPR rights protection.[146] The implementation of the rights conferred through the ICCPR are first and foremost a domestic matter.[147] State parties have an international obligation to translate the rights conferred through the ICCPR into domestic law, while all individual complainants must have exhausted all domestic remedies to submit a communications for review by the Committee.[148]

XIII CONCLUDING REMARKS

Article 8 of the ICCPR has become an elusive outlier amongst a patchwork of better-defined slavery derivations protected through other social, economic, and labour rights legal instruments. Although analysis of this specific provision provides a narrow focus that must be countered with a broader appreciation for the way slavery is addressed throughout the UN Human Rights Organs and the other multilateral bodies, the importance of Article 8 cannot be dismissed or justified into a state of passivity. Of all the Treaty Bodies, the Committee is best placed to make a substantive contribution to the abstract and polarising concept of slavery. Clarifying and embedding Article 8 within the ICCPR would help sharpen its application in state monitoring, reporting, and remedy, perhaps even allowing more cases to come through the pipeline of individual communications. When looking exclusively at the Committee’s activities, the scope of Article 8 remains blurred, inconsistent, and at best, guesswork. One can only understand the meaning Article 8 by looking elsewhere for inspiration through international and regional courts, specialised treaty bodies, the work of the slavery-related Special Rapporteurs, and other multilateral bodies. However, taking a broader perspective, the ICCPR is part of an inherently fragmented human rights system that lacks strategic coordination and clarity around how best to tackle slavery, drive state compliance, and deliver remedy to victims. A particular tension lies between those who rely on slavery definitions developed almost a century ago and those who suggest the evolving nature of slavery is synonymous with an ever-expanding definition. Turning the meaning of slavery into a catch-all umbrella term blunts the tools of international human rights law, and more worryingly, serves to distract from state misconduct and the underlying social, economic and labour rights factors that have collectively catapulted 40 million people into slavery. The Committee’s interpretation of Article 8 must only serve to promote its effectiveness, and an initial assessment of the touchpoints with the provision demonstrate that this is not the case.

Appendix 1

Analysis: ICCPR Article 8 in Concluding Observations issued by UN Human Rights Committee in 2017

1 January 2017 - 31 December 2017

Key

Word included in title of section

Anomaly

Categories

Country

Article 8

Slavery

Contemporary slavery

Slavery-like conditions

Servitude & domestic servitude

Forced labour

Compulsory labour

Labour exploitation

Human trafficking

Child labour

Forced prostitution

Sexual exploitation/abuse

Sex trafficking

Forced marriage

Notes

Australia CCPR/C/AUS/CO/6

-

-

Bangladesh - initial report CCPR/C/BGD/CO/1

-

Yes

Note: although the concluding observations do not reference Article 8, they do place emphasis on the issue of underage (15 years old) and forced marriage, particularly amongst refugees

Bosnia and Herzegovina CCPR/C/BIH/CO/3

1

Yes

yes

Labelled 'Protection of minors and the rights of the child' - the only exception of 2017 because Article 8 is noted under a section relating to the rights of the child, as opposed to a specific slavery-related concern.

Cameroon CCPR/C/CMR/CO/5

1

Yes

Yes

Yes

Labelled 'Human trafficking' with human rights other abuses listed underneath

Democratic Republic of the Congo CCPR/C/COD/CO/4

1

Yes

Labelled 'Child protection and child labour'. Refers to child soldiers but doesn't link this to Article 8. However, under child labour and child protection, there is mention of use of children in warfare. Points out mineral extraction specifically in relation to economic exploitation of children.

Dominican Republic CCPR/C/DOM/CO/6

1

Yes

Yes

Yes

Yes

Labelled 'Prohibition of slavery, forced labour and trafficking in persons'. Practices being driven by vulnerabilities. Child labour in domestic and farming.

Honduras CCPR/C/HND/CO/2

1

Yes

Yes

Yes

Yes

Yes

Labelled 'Prohibition of slavery, forced labour and trafficking in persons'

Italy CCPR/C/ITA/CO/6

1

Yes

Yes

Labelled 'Trafficking in human beings and labour exploitation'. The Committee is concerned at reports of a rise in trafficking in human beings and the exploitation of migrants, particularly in the context of the recent migration flow. Migrants at greater risk of vulnerability.

Jordan CCPR/C/JOR/CO/5

1

Yes

Yes

Labelled 'Migrant domestic workers'. Domestic and migrant workers' passports being confiscated. Framed within the realms of labour laws. Lack of freedom of movement. Prolonged detention.

Liechtenstein CCPR/C/LIE/CO/2

-

-

Madagascar CCPR/C/MDG/CO/4

2

Children

Yes

Yes

Labelled (1) 'human trafficking' and (2) 'child labour'. Children are engaged in domestic work, agricultural work, mining and quarrying and are subjected to commercial sexual exploitation. Human trafficking for the purposes of exploitation (domestic & abroad).

Mauritius CCPR/C/MUS/CO/5

1

Yes

Labelled 'Trafficking in persons'. Trafficking, including of children and migrants, for sexual and labour exploitation purposes, persists in the State party. Low number of cases related to trafficking brought before the courts

Mongolia CCPR/C/MNG/CO/6

2

Yes

Yes

Yes

Labelled 'Trafficking in persons and child labour' and 'forced labour'. Lack of identified victims and resources to support programs of work. Migrants from China and the Democratic People’s Republic of Korea working in conditions tantamount to forced labour in mining, construction and other sectors.

Pakistan - initial report CCPR/C/PAK/CO/1

1

Yes

Yes

Yes

Labelled 'Protection of children'. Early and forced marriage is not linked to Article 8. Hazardous and slavery-like conditions. Insufficient inspections of child labour. Strenghtening of labour laws.

Romania CCPR/C/ROU/CO/5

1

Yes

Yes

Yes

Yes

Yes

Yes

Labelled 'Slavery and servitude' with other human rights abuses listed underneath.

Serbia CCPR/C/SRB/CO/3

1

Yes

Yes

Yes

Labelled 'Trafficking in persons and forced labour' - lack of budget and resources of programs of action.

Swaziland - absence CCPR/C/SWZ/CO/1

1

Yes

Yes

Yes

Yes

Yes

Yes

Labelled 'Trafficking in persons and forced labour'

Switzerland CCPR/C/CHE/CO/4

1

Yes

Labelled 'Human Trafficking'. Delayed program of work, lack of funding, resources, training for personnel & victim identification

Thailand CCPR/C/THA/CO/2

1

Yes

Yes

Yes

Labelled 'Trafficking and forced labour'. Takes note of efforts undertaken to address trafficking and forced labour, the Committee remains concerned that trafficking in persons and forced labour remains and give rise to sexual exploitation, domestic exploitation. Reports on child labour and exploitation of vulnerable people, such as irregular migrants and Indigenous peoples, and reports of victims of trafficking being deported without being effectively screened for an assessment of their protection needs, and about the premature collection of their testimonies (Articles 7-8, 24).

Turkmenistan CCPR/C/TKM/CO/2

1

Yes

Yes

Labelled 'forced labour'


[1] The Convention to Suppress the Slave Trade and Slavery (Slavery Convention), opened for signature 25 September [1927] LNTSer 19; 1926, 60 LNTS 253 (entered into force 9 March 1927) art 2(b).

[2] Nicholas McGeehan, ‘Misunderstood and Neglected: The Marginalisation of Slavery in International Law’ (2012) 16(3) The International Journal of Human Rights 437.

[3] Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, UN Doc A/810 (entered into force 10 December 1948) art 4.

[4] International Covenant on Civil and Political Rights (ICCPR), opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 8(c)

[5] Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953) art 4.

[6] American Convention on Human Rights (ACHR), opened for signature 22 November 1969, 144 UNTS.123 (entered into force 18 July 1978) art 6.

[7] African Charter on Human and Peoples’ Rights (Banjul Charter), OAU Doc. CAB/LEG/67/3 (entered into force 21 October 1986) art 5. Note the African Charter of Human Rights includes slavery and the slave trade as a form of exploitation and degradation of man in Article 5.

[8] Prosecutor v. Kunarac (Appeal Judgment) (International Criminal Tribunal for the former Yugoslavia, Case No. IT-96-23-T, 22 February 2001 [520]; Report of the International Law Commission to the General Assembly, UN Doc.A/CN.4/Ser.A/Add.1 (12 July 1963)

[9] The basis for legal obligation erga omnes was first recognised by the International Court of Justice in Barcelona Traction, Light and Power Company Ltd (Belgium v. Spain) (Judgment) [1970] ICJ Rep 3, 32.

[10] Cherif Bassiouni, ‘Enslavement as an International Crime’ (1991) 23(2) New York University Journal of International Law and Politics 445.

[11] Kevin Bales and Peter Robbins, ‘No One Shall Be Held in Slavery or Servitude: A Critical Analysis of International Slavery Agreements and Concepts of Slavery’ (2001) 2(2) Human Rights Review 18.

[12] United Nations, ‘Sustainable Development Goals: Decent Work and Economic Growth’ (Web Page, Goal 8 targets: 8.7) <https://www.un.org/sustainabledevelopment/economic-growth/>

[13] Justine Nolan and Martijn Boersma, Addressing Modern Slavery (UNSW Press, 2019) 3; McGeehan (n2) 436; Anne Gallagher, ‘Human Rights and Human Trafficking: Quagmire or Firm Ground? A Response to James Hathaway’ (2009) 29(4) Virginia Journal of International Law 790.

[14] Walk Free Foundation, ‘Global Slavery Index: 2017’, Global Findings (Web Page, 2018) <https://www.globalslaveryindex.org/2018/findings/global-findings/

[15] See Jenny Martinez, The Slave Trade and the Origins of International Human Rights Law (Oxford University Press, 2012).

[16] McGeehan (n2) 455.

[17] Nolan and Boersma (n13) 10; Bales and Robbins (n11) 32.

[18] ICCPR (n4)

[19] Vladislava Stoyanova, ‘United Nations Against Slavery: Unravelling Concepts, Institutions and Obligations’ (2017) 38(3) Michigan Journal of International Law 361-362.

[20] Office of the United Nations High Commissioner for Human Rights (OHCHR), The Core International Human Rights Instruments and their Monitoring Bodies (Web Page) <https://www.ohchr.org/EN/ProfessionalInterest/Pages/CoreInstruments.aspx>

[21] Such as the Convention on the Rights of the Child; International Covenant on Economic, Social and Cultural Rights; and Convention on the Elimination of All Forms of Discrimination against Women.

[22] ECHR (n5); ACHR (n6); Banjul Charter (n7).

[23] Such as the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children; ILO Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour; and the ILO Convention Concerning Forced or Compulsory Labour.

[24] Michael O'Flaherty and Claire O'Brien, ‘Reform of UN Human Rights Treaty Monitoring Bodies: A Critique of the Concept Paper on the High Commissioner's Proposal for a Unified Standing Treaty Body’ (2007) 7(1) Human Rights Law Review 141-145.

[25] James Cockayne, ‘Unshackling Development: why we need a global partnership to end modern slavery’, (United Nations University, 2015) 48-51 <https://freedomfund.org/wp-content/uploads/Unshackling-Development-FINAL-FOR-EMAIL.pdf>

[26] James Hathaway, ‘The Human Rights Quagmire of "Human Trafficking"’ (2008) 49(1) Virginia Journal of International Law 24.

[27] Cockayne (n25) 5, 39.

[28] Special Rapporteur on contemporary forms of slavery, including its causes and consequences; Special Rapporteur on trafficking in persons, especially women and children; Special Rapporteur on the sale of children, child prostitution and child pornography.

[29] O'Flaherty and O'Brien (n24) 141-145.

[30] Sarah Joseph and Melissa Castan, The International Covenant on Civil and Political Rights Cases, Materials, and Commentary (Oxford University Press, 3rd ed, 2013) 8.

[31] Stoyanova (n19) 397.

[32] L.E. v. Greece (European Court of Human Rights, Court (First Section) Application No 71545/12,

21 January 2016) [64]. Refers to Article 4 of the ECHR as a provision that “enshrines one of the fundamental values of democratic societies”; See Martinez (n15) 96-97; Jean Allain, The Law and Slavery: Prohibiting Human Exploitation (Brill, 2015) 37-45.

[33] See examples of international conventions (n23)

[34] Evidence to Joint Standing Committee on Foreign Affairs, Defence and Trade, Parliament of Australia, Canberra, 11 August 2017 p. 19 (Anne Gallagher).

[35] Bales and Robbins (n11) 33.

[36] Yuval Shany, ‘The Effectiveness of the Human Rights Committee and the Treaty Body Reform' (Hebrew University of Jerusalem Research Paper, 2013) 10 <https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID2223298_code597900.pdf?abstractid=2223298&mirid=1>

[37] Adam McBeth, Justine Nolan and Simon Rice, The International Law of Human Rights, (Oxford University Press, 2017) 237-238.

[38] ICCPR (n4) art 2(1).

[39] Walk Free Foundation, ‘Global Slavery Index 2018: Key Trends’, (Web Page, 2018) <https://www.globalslaveryindex.org/2018/findings/global-findings/>

[40] The umbrella term ‘modern slavery’ offers important advocacy and awareness-raising potential, particularly in the field of business and human rights, but must not be confused with the meaning contained within Article 8. Particularly as no universally accepted legal definition of modern slavery exists today. For this reason, this paper does not consider the term modern slavery as a benchmark to measure the effectiveness of the Committee in relation to Article 8.

[41] United Nations Economic and Social Council, Summary Record, 6th sess, 142nd mtg, UN Doc E/CN.4/ST.142 (10 April 1950) 74, 79.

[42] Stoyanova (n19) 370.

[43] Slavery Convention (n1) art 1(1).

[44] Gallagher (n13) 800-801; Jean Allain, The Slavery Conventions: The Travaux Preparatoires of the 1926 League of Nations Convention and the 1956 United Nations Convention (Brill, 2008) 74-79.

[45] United Nations Economic and Social Council, Ad Hoc Committee on Slavery, 2nd sess, UN Doc E/1988 (4 May 1951) 8 <https://digitallibrary.un.org/record/724681?ln=en>

[46] Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, opened for signature 7 September 1956 UN Doc E/CONF.24/23 (entered into force 30 April 1957) art 1.

[47] Jean Allain, ‘On the curious disappearance of human servitude from general international law’, in Allain (n32) 297-298.

[48] Prosecutor v. Kunarac (Appeal Judgment) (International Criminal Tribunal for the former Yugoslavia, Case No. IT-96-23-T, 22 February 2001 [520]; Holly Cullen, ‘Siliadin v France: Positive Obligations Under Article 4 of the European Convention on Human Rights’, (2006) 6(3) Human Rights Law Review 592.

[49] Nina Lassen, ‘Article 4’, in Asbjørn Eide and Gudmundur Alfredsson (eds), The Universal Declaration of Human Rights: A Common Standard of Achievement, (Martinus Nijhoff Publishers, 1999) 110.

[50] Slavery Convention (n1) art 5.

[51] Stoyanova (n19) 428.

[52] Stoyanova (n19) 210.

[53] International Labour Organisation, ‘ILO Global Estimates of Forced Labour’ (Results Paper, 2012) 13 <https://www.ilo.org/wcmsp5/groups/public/---ed_norm/---declaration/documents/publication/wcms_182004.pdf>.

[54] Kevin Hyland, ‘Putting slavery firmly on development agenda is just the beginning’, The Guardian (online, 17 August 2015) <https://www.theguardian.com/global-development/2015/aug/17/modern-slavery-act-human-trafficking-development-agenda-just-beginning>

[55] Gallagher (n13) 822.

[56] Gerry Boyle and Lauren Shields, ‘Modern Slavery and Women’s Economic Empowerment’ (discussion paper) 7 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/726283/modern-slavery-womens-economic-empowerment.pdf

[57] Walk Free Foundation, ‘Global Slavery Index 2018: Key Trends’, (Web Page, 2018) <https://www.globalslaveryindex.org/2018/findings/global-findings/>

[58] Bill Berkeley, ‘Stateless People, Violent States’ (2009) 26(1) World Policy Journal 12; Joseph and Castan (n30) 332-334.

[59] Gallagher (n13) 822.

[60] Cockayne (n25) 5.

[61] Bales and Robbins (n11) 20; Cockayne (n25) 17-19.

[62] Note that interstate complaints are not discussed in this paper.

[63] Helen Keller and Leena Grover, ‘General Comments of Human Rights Committee and their Legitimacy’, in Helen Keller, Geir Ulfstein and Leena Grover (eds) UN Human Rights Treaty Bodies Law and Legitimacy (Cambridge University Press, 2012) 116-117; Thomas Buergenthal, ‘The U.N. Human Rights Committee’, The Max Planck Yearbook of United Nations Law (Article, 2001) 347-351 <https://www.mpil.de/files/pdf1/mpunyb_buergenthal_5.pdf>

[64] With the exception of Stoyanova (n19) 360-454; Joseph and Castan (n30) 329-334.

[65] Stoyanova (n19) 454.

[66] Hathaway (n26) 24.

[67] Gallagher (n13) 821.

[68] Stoyanova (n19) 400.

[69] Nigel Rodley, The United Nations Human Rights Council, Its Special Procedures, and Its Relationship with the Treaty Bodies: Complementarity or Competition? New Institutions for Human Rights Protection (Oxford University Press, 2009) 60.

[70] McBeth, Nolan and Rice (n37) 247.

[71] Rodley (n70) 60.

[72] Buergenthal (n63) 351.

[73] Human Rights Committee, Concluding observations on the initial report of Pakistan, UN Doc CCPR/C/PAK/CO/1 (23 August 2017) [43, 44]

[74] General Comment No. 28: Gender Equality (adopted 2000) instructs states to inform the Committee of anti-trafficking measures in the case of women and children and forced prostitution. In addition to this, states should provide information on measures to protect women and children from slavery and instances of forced prostitution.

[75] Human Rights Committee, Concluding observations on the fifth periodic report of Cameroon, UN Doc CCPR/C/CMR/CO/5 (30 November 2017); See also Human Rights Committee, Concluding observations on the second periodic report of Thailand, UN Doc CCPR/C/THA/CO/2 (25 April 2017); Human Rights Committee, Concluding observations on the fifth periodic report of Romania, UN Doc CCPR/C/ROU/CO/5 (11 December 2017);

[76] Ibid

[77] See also Human Rights Committee, Concluding observations on the fourth periodic report of Madagascar, UN Doc CCPR/C/MDG/CO/4 (22 August 2017).

[78] Human Rights Committee, Concluding observations on the sixth periodic report of the Dominican Republic, UN Doc CCPR/C/DOM/CO/6 (27 November 2017); HRC Pakistan (n73); Human Rights Committee, Concluding observations on the fourth periodic report of the Democratic Republic of the Congo, UN Doc CCPR/C/COD/CO/4 (30 November 2017); Human Rights Committee, Concluding observations on the sixth periodic report of Mongolia, UN Doc CCPR/C/MNG/CO/6 (22 August 2017); Human Rights Committee, Concluding observations on the second periodic report of Honduras, UN Doc CCPR/C/HND/CO/2 (22 August 2017); Human Rights Committee, Concluding observations on the sixth periodic report of Italy, UN Doc CCPR/C/ITA/CO/6 (1 May 2017); HRC Thailand (n75); Human Rights Committee, Concluding observations on the third periodic report of Bosnia and Herzegovina, UN Doc CCPR/C/BIH/CO/3 (13 April 2017); Human Rights Committee, Concluding observations on the third periodic report of Serbia, UN Doc CCPR/C/SRB/CO/3 (10 April 2017).

[79] Human Rights Committee, Concluding observations on the initial report of Bangladesh, UN Doc CCPR/C/BGD/CO/1 (27 April 2017); HRC Bosnia and Herzegovina (n78).

[80] HRC Thailand (n75); HRC Dominican Republic (n78).

[81] HRC Romania (n75); HRC Mongolia (n78); HRC Madagascar (n77); HRC Pakistan (n73).

[82] ICCPR (n4) art 40(4).

[83] See Appendix 1

[84] HRC Romania (n75); HRC Cameroon (n75); HRC Dominican Republic (n78); HRC Honduras (n78); HRC Thailand (n75); HRC Serbia (n78).

[85] Stoyanova (n19) 403.

[86] Stoyanova (n19) 399-404.

[87] Human Rights Committee, Concluding observations on the periodic report of Switzerland, UN Doc CCPR/C/CHE/CO/4 (22 August 2017); HRC Bangladesh (n79); Walk Free Foundation, Global Slavery Index: 2018, ‘The Statistics’ (Web Page) <https://www.globalslaveryindex.org/2018/data/maps/#prevalence>

[88] Slavery Convention (n1) art (1)(1)

[89] Gallagher (n13) 801.

[90] International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 40.

[91] Buergenthal (n63) 386.

[92] Phillip Aston and Ryan Goodman, International Human Rights (Oxford University Press, 2012) 792-793; Rodley (n69) 57.

[93] Keller and Grover (n63) 129.

[94] Keller and Grover (n63) 116.

[95] Human Rights Committee, General Comment No. 28: The equality of rights between men and women, 68th sess, UN Doc CCPR/C/21/Rev.1/Add.10 (29 March 2000)

[96] General Comments are also missing on Article 4, Article 5, Article 11, Article 13, Article 15, Article 16, Article 21, and Article 22.

[97] Human Rights Committee, Views: Communication No 829/1998, 78th sess, UN Doc CCPR/C/78/D/829/1998 (13 August 2003) [10.3] (‘Judge v. Canada’). “The Committee considers that the Covenant should be interpreted as a living instrument and the rights protected under it should be applied in context and in the light of present-day.”

[98] Stoyanova (n19) 405.

[99] Human Rights Committee, General Comment No. 24: Issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under article 41 of the Covenant, 54th sess, UN Doc CCPR/C/21/Rev.1/Add.6 (11 November 1994).

[100] See Appendix 1

[101] Stoyanova (n19) 400.

[102] Stoyanova (n19) 403.

[103] Hathaway (n26) 57.

[104] Stoyanova (n19) 452; Bales and Robbins (n11) 20.

[105] Hathaway (n26) 5.

[106] Bales and Robbins (n11) 41-42.

[107] Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002) art 7(2)(c). “‘Enslavement’ means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children.”

[108] Bales and Robbins (n11) 27; Silvia Scarpa, A Review of Trafficking in Human Beings: Modern Slavery (Oxford University Press, 2008) 12.

[109] Gallagher (n13) 807; see also Jean Allain, The Law and Slavery: Prohibiting Human Exploitation (Brill, 2015) 189-190, 199.

[110] While there are two Optional Protocols to the ICCPR, this paper will only consider the Second Optional Protocol as being most relevant to Article 8.

[111] Optional Protocol to the International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).

[112] Human Rights Committee, General Comment No. 33: Obligations of States parties under the Optional Protocol to the International Covenant on Civil and Political Rights, 94th sess, UN Doc CCPR/C/GC/33 (25 June 2009) 11, 13, 15.

[113] Joseph and Castan (n30) para 1.34.

[114] Buergenthal (n63) 397.

[115] Buergenthal (n63) 395-396.

[116] Buergenthal (n63) 397.

[117] Joseph and Castan (n30) chapter 10.

[118] Stoyanova (n19) 407.

[119] Human Rights Committee, ‘Registered Cases: 2017’, Communication No 3052/2017 <https://www.ohchr.org/Documents/HRBodies/CCPR/RegisteredCases2017.docx>

[120] Human Rights Committee, ‘Registered Cases: 2018’, Communication No 3263/2018 <https://www.ohchr.org/Documents/HRBodies/CCPR/RegisteredCases2018.docx>

[121] Human Rights Committee, Registered Cases: 2019 <https://www.ohchr.org/Documents/HRBodies/CCPR/RegisteredCases2019.docx>

[122] ICCPR (n4) art 8(3)(b)(c).

[123] Human Rights Committee, Views: Communication No 1292/2004, 60th sess, UN Doc CCPR/C/84/D/1292/2004 (22 July 2005) 8 (‘Radosevic v Germany’); Human Rights Committee, Views: Communication No 185/1984, 25th sess, UN Doc CCPR/C/25/D/185/1984 (9 July 1985) 5.2 (‘LTK v Finland’); Human Rights Committee, Views: Communication No 1036/2001, 61st sess, UN Doc CCPR/C/85/D/1036/2001 (31 October 2005) 7.5 (‘Faure v Australia’); Human Rights Committee, Views: Communication No 825-8/1998, UN Doc CCPR/C/75/D/825-8/1999 (25 July 2002) 6.3 (‘Silva v Zambia’); Human Rights Committee, Views: Communication No 1994/2010, 101st sess, CCPR/C/101/D/1994/2010 (25 March 2011) 4.4 (‘IS v Belarus’).

[124] ICCPR (n4) art 2(1).

[125] Stoyanova (n19) 408; Joseph and Castan (n30) 331-332.

[126] Joseph and Castan (n30) 20.

[127] Vienna Convention on the Law of Treaties Article, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980) art 31(3)(b).

[128] Brasil Verde v. Brazil (Merits, Reparations, Costs, and Judgement) (Inter-American Court of Human Rights, 20 October 2016) Series C App No 318 [269-270].

[129] Hadijatou Mani Koraou v Niger (Judgement) (Economic Community of West African States Community Court of Justice, 27 October 2008) App No ECW/CCJ/JUD/06/08 [77, 80]

[130] Rantsev v. Cyprus (Judgement) (European Court of Human Rights, Chamber, Application No 25965/04, 7 January 2010) [281].

[131] Joseph and Castan (n30) 453.

[132] Holly Cullen, ‘Siliadin v France: Positive Obligations Under Article 4 of the European Convention on Human Rights’, (2006) 6(3) Human Rights Law Review 586–587.

[133] Gallagher (n13) 799.

[134] ICCPR (n4) art 28(3).

[135] O'Flaherty and O'Brien (n24) 142.

[136] McBeth, Nolan and Rice (n37) 248.

[137] Buergenthal (n63) 357.

[138] Julie Mertus, The United Nations and Human Rights: A guide for a new era (Routledge, 2nd ed, 2009) 64.

[139] McBeth, Nolan and Rice (n37) 253.

[140] Joseph and Castan (n30) 16.

[141] Human Rights Committee, General Comment No. 30: Reporting Obligations of States parties under article 40 of the Covenant, 75th sess, UN Doc CCPR/C/21/Rev.2/Add.12 (16 July 2002) paras 3, 4(a).

[142] See Human Rights Committee, Concluding observations on Swaziland in the absence of a report, UN Doc CCPR/C/SWZ/CO/1 (23 August 2017).

[143] Human Rights Committee, Report of the UN Human Rights Committee, Volume I, UN Doc A/55/40 (10 October 2000).

[144] Human Rights Committee, Report of the UN Human Rights Committee, Volume I, UN Doc A/55/40 (10 October 2000).

[145] Buergenthal (n63) 376.

[146] Joseph and Castan (n30) 11.

[147] Joseph and Castan (n30) 11.

[148] See Office of the United Nations High Commissioner for Human Rights, ‘23 Frequently Asked Questions about Treaty Body Complaints Procedures’ (Document) <https://www.ohchr.org/Documents/HRBodies/TB/23FAQ.pdf>


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