What Is Exploitation in the Context of ‘Modern Slavery’? A Legal Proposal
Excessive Gain. The second element of my approach to exploitation is concerned with excessive gains. While an exploited person may sometimes ‘benefit’ from being exploited, whatever benefits might accrue will fall significantly short in terms of “what [they] might or ought to be” when judged from the standpoint of fairness, as the philosopher Robert Mayer put it. However, the nature of fairness is not necessarily straightforward. An entry in the Encyclopedia of Ethics notes, there may be “as many competing conceptions of exploitation as theories of what persons owe to each other by way of fair treatment”. Nonetheless, the philosopher Mikhail Valdman is likely right when he concludes that extracted benefits become unfair and excessive when “they deviate from the benefits we would expect A to receive were he transacting with someone who was rational, informed, and could reasonably refuse his offer”.
Thus, in addition to the abuse of vulnerability, exploitation is characterised by excess: a disproportionate gain at the expense of an exploited person. In all situations of exploitation an exploited person gives significantly more than she receives in return. Take, for example, a case before the European Court of Human Rights which considered allegations of servitude and forced or compulsory labour by two orphaned Burundi sisters, aged sixteen and ten. The court ruled that “the type and amount of work involved (…) help distinguish between ‘forced labour’ and a helping hand which can reasonably be expected of other family members or people sharing accommodation”.
Distinguishing between the situations of the two sisters, the court found that the older one was forced to work “so hard that without her aid Mr and Mrs M. would have had to employ and pay a professional housemaid”. The second sister, by contrast, was said not to have contributed “in any excessive measure to the upkeep of Mr and Mrs M.’s household”. It is clear that all circumstances of the case need to be taken into account when assessing whether actions required from an individual were disproportionate to the benefits she received in return. Like the assessment of ‘no realistic alternative’ for the element of abuse of vulnerability, this is a factual question which courts can determine.
Sustained Action. We have so far established two necessary conditions for an exploitation: first, that one extracts excessive benefits, and second, that these benefits are extracted from someone who is unable to reasonably refuse an offer or demand. The final element of my approach to exploitation is the idea of repetitiveness. Exploitation takes place (or is intended to) over a period of time. One-off situations may qualify as fraud or abuse, but exploitation in the context of ‘modern slavery’ involves sustained activity. This “indeterminate temporal nature” is said to be “one of the defining characteristics of the crime of slavery”. Similarly, inherent in the notion of servitude is a victim’s feeling that her condition is permanent and that the situation is unlikely to change. When it comes to the concept of forced labour, it is obvious that ‘labour’ implies work that stretches over a period of time – not a one-off transaction.
When these three elements are put together, we have a working legal definition of exploitation within the context of ‘modern slavery’: to exploit is to acquire disproportionate gains from the actions of an individual by abusing her position of vulnerability over a sustained period of time. All three cumulative conditions (abuse of vulnerability, excessive gain, and sustained action) are factual, which leaves room for domestic courts to use national parameters when interpreting potentially exploitative practices while preserving the universality of the definition itself.
In a seminal case by the Dutch Supreme Court concerning the exploitation of Chinese restaurant workers with irregular migration status in the Netherlands, the court held that “the wretchedness of the working conditions required to conclude that exploitation is an issue” was to be determined by using “the Dutch situation as the benchmark”.
This approach means that exploitation must be regarded as a relative concept. What one country understands as exploitation may not amount to exploitation in another country, with differences being especially pronounced along the North-South divide. Yet, such flexibility is both inevitable and appropriate. This is because divergent standards between states is far less problematic than unequal protection of individuals within one state, where characteristics such as one’s immigration status or type of employment are decisive in determining the extent of protection against exploitation one may enjoy. Virginia Mantouvalou shows how the immigration system and schemes leading to precarious employment conditions are conducive of exploitation of certain categories of individuals within the UK. Thus, while labour conditions are expected to differ between states, practice reveals that even within one country certain categories of individuals experience unequal treatment and lesser protection of their rights than other categories, regardless of whether a country in question belongs to the Global North or South.
Even though the proposed definition allows for some divergence between states when determining which practices count as exploitative, it mandates each state to provide equal treatment to all persons within their jurisdiction once the three conditions are met, irrespective of their immigration or employment status. As such, it represents a powerful tool in hands of individuals subject to exploitation and a useful benchmark for courts when asked to determine which practices engage important human rights obligations of states.