The inclusion of contemporary forms of labour exploitation in Target 8.7 of the UN Sustainable Development Goals has been heralded as ‘a historic opportunity’, as it reinforces the global recognition and ensures global engagement in combatting contemporary forms of exploitation. However, in turn, there is a concern that efforts to implement the ambitious and far-reaching 2030 Agenda will be jeopardised by a lack of sufficient resources and a fragmentation in implementation efforts, as identified by the emergence of different initiatives that foster a “cherry-picking” response to different targets and goals. In parallel to the UN2030 agenda there are continued calls for improvement to the existing legal and policy frameworks that seek to tackle exploitation. Internationally, the UN Special Rapporteur on trafficking in persons has recommended consideration of the possibility of adopting a new international instrument that would tackle severe exploitation using a human rights-based approach. Similarly, the European Parliament was recommended to ‘adopt a new resolution on contemporary forms of slavery, acknowledging the definitional challenges posed by the concept and recommending the assessment of the possibility of drafting a new international treaty at the universal level.’ There is clearly more to be done, and the proposed legal conceptualisation of labour exploitation can serve as a basis for further discussion.

The findings from the research presented in this book have led to an evidence-based articulation of a legal conceptualisation of labour exploitation as the provision of work or services wherein A knowingly takes unfair advantage of B's position of vulnerability by means of the exercise of control in order to gain a benefit and shows a lack of respect for B's human dignity. We believe that the proposed conceptualisation identifies the necessary and sufficient conditions that are required to determine whether or not the involuntary provision of work or services amounts to labour exploitation. The proposal's use of standardised language and its development in light of existing law and practice means that it offers an opportunity to strengthen the existing responses against the exploitation of work or services.

In this Part, we will analyse the legislative and judicial implementation of labour exploitation offences into the domestic criminal law of two national legal orders: Belgium and England and Wales. The analysis of the criminalisation of labour exploitation is twofold: first, the formal criminalisation of labour exploitation by the legislative considers the intentions of the law makers which is secondly overseen by the substantive criminalisation which considers the judicial adjudication of black-letter law. The dual focus acknowledges that whilst there is an overall goal of compliance with the supranational legal obligations to domestically prohibit labour exploitation (as outlined in Part II), there are limits to the political process when it comes to determining the legal framework. Thus, the role of the courts is vital to ensuring that labour exploitation is handled and assessed in a consistent manner. Importantly, the analysis of the judicial interpretation of the material scope of labour exploitation returns to the necessary and sufficient conditions of exploitation in Part I. These conditions will be revisited in this Part to determine to what extent they arise in the factual circumstances of the criminal cases.

There are no standalone offences for slavery, servitude and forced labour in Belgian law. Instead the legislative opted for an approach whereby slavery, servitude and forced or compulsory labour are encompassed by the understanding of human trafficking as ‘work or living conditions contrary to human dignity’ and the removal of the means element. The adoption of a broader human trafficking definition sought to overcome difficulties such as the non-recognition of victim status amongst potential victims. Thus the analysis of the legal framework in Belgium, will focus upon a single offence: human trafficking for the purposes of labour exploitation. Conversely, in England and Wales, the criminalisation of human trafficking saw a gradual development, first introduced in 2002 but restricted to the traffic of prostitution and then extended in material scope to include other forms of exploitation in accordance with the international and regional definition. Only in 2009, were the standalone offences of slavery, servitude and forced or compulsory labour criminalised.

In recent decades, there has been much focus on human trafficking in law, policy and academia with a significant achievement being the promulgation of an internationally agreed definition in Article 3(a) of the 2000 Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (hereinafter: “the Palermo Protocol”). The Palermo Protocol defines the international crime of human trafficking as:

The definition of human trafficking consists of three constituent elements, the action, the means and the purpose of exploitation. The emphasis in this book is the third element, the purpose, as the Palermo Protocol fails to define the meaning of the term exploitation. Instead, different forms of exploitation are non-exhaustively listed as the use of a phrase “at a minimum” suggests that there is room for manoeuvre. The adoption of a non-exhaustive and enumerative approach to exploitation in international law results in an undefined concept, wherein ‘the absence of a clear definition of “exploitation” makes it difficult to draw the line between exploitation in terms of violation of labour rights and extreme exploitation amounting to forced labour.’ This book will address this legal lacuna by seeking to better understand the interpretation of the material scope of exploitation in the context of “human trafficking for the purpose of labour exploitation”, wherein the enumerated forms of exploitation include, at a minimum, forced labour or services, slavery or practices similar to slavery, and servitude.

The understanding of labour exploitation in international and regional law in subsequent chapters will illustrate the international community's engagement with the prohibition of the most egregious forms of human exploitation and affirms Allain's assertion that ‘labour exploitation is hardly a novel phenomenon.’ However, as we will see, a number of conceptual difficulties exist that are detrimental to legal certainty and demonstrate that the legal clarification of exploitation in both law and policy remains a necessary task. To this end, in this chapter, a preliminary identification of the necessary and sufficient conditions of exploitation from the theoretical analysis is presented. The findings of the theoretical analysis are used to categorise three different stages of the exploitation process: background, procedural and substantive. The following five conditions have emerged from the theoretical analysis and constitute the building blocks of exploitation: (i) a position of inequality; (ii) an imbalance of bargaining power; (iii) taking unfair advantage, (iv) the irrelevance of consent; (v) a detrimental yet (mutually) beneficial outcome. Crucially, we will see that the conditions of exploitation are interrelated and, their presence in isolation, will not amount to exploitation. A tolerance of exploitation will be introduced as a caveat to the conditions of exploitation, and will be an issue of importance in the legal analysis where any understanding of exploitation also requires a clear intervention strategy i.e., even if exploitation does exist, to what extent should we intervene?

A POSITION OF INEQUALITY

The typology of exploitation theories revealed the presence of both ex ante and ex post inequalities. In the first instance our attention goes to the ex ante position of inequality. Political theorists demonstrate that sources of inequality are often derived from a number of unjust background conditions that can arise from both structural injustices or personal features: as illustrated by Marx's unequal distribution of assets, Roemer's unequal initial distribution of the means of production, Synder and Mayer's lack of the means of subsistence and Zwolinski's lack of an alternative.

The weight afforded to structural inequalities as opposed to personal inequalities has been subject to varying interpretations.

Severely exploiting the labour of others is deemed to be of sufficient seriousness so as to be prohibited in criminal law. This position is emphasised in both jurisdictions where the judiciary assert that the behaviour must amount to criminal acts, and not just violations of employment laws, or – in the Belgian context – the Social Criminal Code. The Belgian cases further emphasised the need to recognise the “subtle distinction” between exploitation and illegal working, with the latter not always amounting to exploitation. A similar discussion also arises when determining a distinction between abuse and exploitation, wherein the former is not serious enough to amount to criminal conduct. The articulation of such distinctions is not always clear cut. A certain amount of interpretative assistance has been provided in the travaux préparatoires of the Law of 5 April 2013, on the basis of indicators that refer to social criminal law. However, the possibility of making a clear distinction between illegal employment as mere violations of social criminal law and human trafficking for the purposes of labour exploitation is still put into question, as Clesse et al. ponder: ‘How to distinguish between exploitation and undeclared work? By looking for an attack on human dignity. How to establish this infringement? By searching for offenses of social criminal law.’

In this chapter we will begin to resolve this conundrum by considering the judicial interpretation of the material scope of exploitation in the domestic case law analysis and the judicial alignment with the theoretical conditions of exploitation that were presented in Part I. We will ask, to what extent do the conditions of exploitation surface in the case law when interpreting the material scope of labour exploitation in law? We will see that whilst there are convergences with the conditions of exploitation that emerged from the theoretical analysis, the domestic judicial interpretation of labour exploitation does reveal additional features for consideration.

THE THEORETICAL CONDITIONS OF EXPLOITATION REVISITED

The alignment of the conditions of exploitation from the theoretical analysis with the judicial interpretation of exploitation in the domestic case law analysis reveal both similarities (notwithstanding terminological disparities) and differences in the understanding of the material scope of exploitation.

From the analysis of labour exploitation in international and regional law, three obstacles to achieving a legal clarification of labour exploitation in law have emerged. The existence of these moral, legal and political obstacles continues to exacerbate contemporary efforts to tackle exploitative working practices, thus further emphasising that exploitation still needs to be addressed in both academia and practice. The first obstacle is the focus on the prohibition of human trafficking in criminal law. This is a legal obstacle that has seen the international community's efforts be dominated by an emphasis on anti-trafficking initiatives that strongly advocate a criminal justice approach, whereby criminalisation and prosecution are prioritised. The second obstacle is the neo-abolitionist influence on law and policy developments. This is a moral obstacle that has not only strongly influenced the anti-trafficking legal regime, particularly with an emphasis on the criminalisation of human trafficking for sexual exploitation but is also present in more recent discussions on modern slavery. The third obstacle is the marginalisation of labour exploitation through political inertia and a tolerance of exploitation. This is a political obstacle that explores the side-lining of labour exploitation in law and policy and the impact that this has on a tolerance of exploitative labour practices.

THE FOCUS ON CRIMINAL LAW RESPONSES FOR HUMAN TRAFFICKING: A LEGAL OBSTACLE

Despite the legacy of the prohibition of slavery, servitude and practices similar to slavery, the judicial adherence to a very traditional understanding of these forms of exploitation can be attributed to the international legal regime's advancement of a global movement against human trafficking. The Palermo Protocol is hailed as a leading global anti-trafficking standard that for Gallagher demonstrates ‘an increased acceptance on the part of States that severe exploitation, even that which takes place within the private sphere, is indeed a matter for public concern and international regulation.’ To this end, it can be said to have had a chilling effect on further efforts to tackle exploitation in the absence of trafficking. Indeed, anti-trafficking academic and policy discourse has flourished on an unprecedented scale since the 2000 Palermo Protocol. We consider that one limitation of the emphasis on human trafficking by the international community has led to governments defining exploitative situations as either human trafficking or not.

FORCED OR COMPULSORY LABOUR IN INTERNATIONAL AND REGIONAL LAW

Forced or compulsory labour was first mentioned, but not defined, in Article 5 of the Slavery Convention (1926), that outline the circumstances in which States may employ such a practice, whilst acknowledging the potential grave consequences of its use.

The inclusion of the term in Article 5 of the 1926 Convention demonstrated ‘a definite attempt to deal with forced or compulsory labour in a general international agreement.’ Allain, however, draws attention to the lack of a definition of the concept and the lack of limitations placed on forced or compulsory labour for public purposes as being indicative of the attitudes at the time of the Colonial powers wherein the need to use forced or compulsory labour was justified for the purpose of public works and development. As with slavery, servitude and practices similar to slavery, the legal understanding of forced or compulsory labour in a contemporary context has required adaptation in order to pay heed to societal and political shifts such as decolonialisation, globalisation, neoliberalism and the deregulation of the labour market. In particular, the shiftfrom forced or compulsory labour as a State practice to a form of labour exploitation whereby an estimated 90% of forced labour occurs in the “private economy” is unique to the trajectory of the prohibition of forced or compulsory labour in law. As such, the recognition of these political and societal changes in law can be contrasted to the forms of exploitation discussed in previous chapters. In particular, the changes in the political and societal landscape are reflected in amendments to the law on the books, rather than a merely reiteration of the original text of the law and a reliance upon subsequent judicial interpretation to consider its application in a contemporary setting – as is the case with slavery and servitude.

Whilst the previous chapter is both illustrative of the judicial interpretation of the material scope of labour exploitation and crucial to the conceptualisation of labour exploitation in law proposed in the next chapter (see Chapter 10), it is vital to acknowledge the practical way in which the judiciary qualifies the threshold of labour exploitation. With this in mind, this chapter discusses two instances where a judge will qualify the factual circumstances before them using indicators: first, when determining the nature of exploitation (does it exist or not?) and second, when assessing the degree of exploitation (the severity or harm). This chapter presents a nuanced perspective of the national law in action as it is not yet clear from the supranational jurisprudence whether the parameters of Article 4 comprise an understanding of exploitation that is premised upon a minimum threshold of severity. The inclusion of these emergent findings is therefore of importance as they reveal that ultimately, in practice, the qualification of a situation as labour exploitation is achieved by the courts assessment of the situation with the assistance of “indicators.” In particular, the courts use indicators as grounds for their judicial reasoning when deciding whether elements of the material scope of exploitation can be derived from the factual circumstances, including for instance, the means of coercion used to exercise of control. Furthermore, this discussion extends beyond merely the judicial interpretation of the law, and is also applicable to other actors who play a role in the administration of the criminal justice process, such as law enforcement authorities, prosecutors and, labour inspectors etc.

THE JUDICIAL USE OF INDICATORS TO QUALIFY THE NATURE OF LABOUR EXPLOITATION

The domestic case law analysis reveals that indicators are frequently referred to when interpreting the factual circumstances in order to determine the existence of exploitation. These indicators are operationalised by the judiciary in order to determine the ‘level of quality of life protected by respect for others and a human existence whose basic preventions are guaranteed.’ Importantly, a combination of indicators is used to determine the exploitative nature of the living and working conditions. Very seldom will single factors alone lead to a conclusion that a situation amounts to exploitation.

Historically, the international understanding of exploitation in human trafficking law was restricted to instances of sexual exploitation, or the white slave trade. In 2000, the transnational crime of human trafficking was defined in one of three Additional Protocols to the United Nations Convention against Transnational Organized Crime. The entry into force of the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, 2000 (hereinafter: “the Palermo Protocol”) is considered as a ‘watershed in galvanising the global movement against trafficking’ as it not only addresses gaps in existing legal frameworks but also includes a ‘universally accepted’ definition in Article 3(a):

The definition consists of three constituent elements that must all be present for a situation to constitute trafficking in persons under international law: (i) an action; (ii) a means by which that action is achieved (except where the victim is a child; it is not necessary to prove that one of the acts was accomplished through the use of any of the listed means); and (iii) a purpose of exploitation. Whilst it is acknowledged that exploitation is dol specialis requiring evidence of an action and means for the ‘purpose of exploitation’, a United Nations Office on Drugs and Crime (UNODC) Issue Paper on the international definition of human trafficking notes that in practice, the existence of exploitative situations trigger investigations and constitute the ‘most compelling evidence of intention to exploit.’

List of Cases Accessed in Belgium and England and Wales

The legal conceptualisation of labour exploitation proposed in this chapter constitutes a definitive articulation of the building blocks of exploitation flowing from the foregoing theoretical and legal analysis, and in particular, the domestic case law analysis. Whilst we go one step further than Jovanovic – who identified three necessary and sufficient conditions of exploitation but stopped short of providing a conceptualisation – we do adhere to the same note of caution: rather than seeking to amount a definitive and uniform approach, the proposed conceptualisation ‘serves as a frame of reference to be further specified on a national level.’ Similarly, in light of the richness of the empirical findings, we have adopted a different approach to Allain who argues that exploitation ‘should not be understood by undertaking an inductive search of the commonalities among the various instances deemed exploitative in the Palermo Protocol.’ Instead, when seeking to conceptualise labour exploitation, the common features have been drawn out with a view to eliminating the ambiguous nature of the phenomenon.

THE LEGAL CONCEPTUALISATION OF LABOUR EXPLOITATION

The robustness of the proposed conceptualisation is rooted in its emergence from the cross-disciplinary doctrinal legal and theoretical analysis and comparative empirical legal analysis. In particular, despite the misgivings and legal lacunas identified by academic scholarship, the findings reveal coherence in that the same concepts keep resurfacing, including, inter alia, taking unfair advantage or abuse of a position of vulnerability, the exercise of control and the irrelevance of consent suggesting a somewhat partial convergence among the elements of exploitation. Consequently, these and other conditions are incorporated into the proposed legal conceptualisation. It is important to emphasise that the conditions of exploitation, individually, do not amount to labour exploitation, it is their cumulative existence that leads to a situation being identified as one of labour exploitation.

We propose that labour exploitation should be legally conceptualised as: