Badges of modern slavery
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Paz-Fuchs, Amir (2016) Badges of modern slavery. Modern Law Review, 79 (5). pp. 757-785.
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1
Badges of Modern Slavery
Amir Paz-Fuchs
It is hard for us to appreciate that in spite of great efforts made by the
emancipators and their successors, in spite of the revolution in public opinion as
regards all forms of slavery, in spite of the plethora of international agreements
for the suppression of slavery (some 300 of them), the problem of slavery in the
twentieth century is as great, indeed greater than it was in the 1830s.
1
Abstract
Notwithstanding the 19
th
century formal abolition of slavery as legal ownership of people, modern slavery
and forced labour have not been consigned to the past. In fact, their existence is more widespread, and
made more difficult to tackle due to the lack of formal, legal criteria. This article suggests that reference to
the past, historical institutions reveals seven ‘badges of slavery’ that are helpful in identifying occurrences
of modern slavery and forced labour. These are: humiliation, ownership of people, exploitation of the
vulnerable, lack of consent, terms and conditions of employment, limits on the power to end the
employment relationship, and denial of rights outside the work relationship. These aspects constitute
modern slavery as such, and thus distinguishes it from other instances of exploitative employment
relations, however problematic. In addition, even where the label of modern slavery is misplaced, the
identification of particular badges of slavery in contemporary employment relations may assist in
highlighting their troubling facets.
Keywords: Slavery, forced labour, employment, exploitation, migrant workers, free choice.
1. Introduction: Badges of Slavery and the Long Shadow of the Institution
In Mohsin Hamid’s novel, the Reluctant Fundamentalist, the narrator muses: ‘once
admitted I hired a charioteer who belonged to a serf class lacking the requisite permissions
to abide legally and forced therefore to accept work at lower pay; I myself was a form of
indentured servant whose right to remain was dependent upon the continued benevolence
of my employer’.
2
This ‘indentured servant’, it should be immediately noted, was not a
member of an excluded caste working in a sweat shop in a developing country, but rather
a Princeton graduate working in New York city for a major investment firm. So could he
seriously be considered an ‘indentured servant’?
Senior Lecturer, School of Law, University of Sussex; Research Associate Fellow, Centre for Socio-Legal
Studies, University of Sussex. Jo Bridgeman, Tom Frost, Judy Fudge, Virginia Mantouvalou and Linsday Stirton
have offered very helpful comments to this paper, for which I am thoroughly grateful.
1
Lord Wilberforce, ‘Introduction’ in R. Sawyer, Slavery in the Twentieth Century (London: Routledge, 1986),
vii.
2
M. Hamid, The Reluctant Fundamentalist 178 (London: Penguin, 2008)
2
The reason this question is not complete hyperbole is because, while trade in slaves was
made illegal in the UK in 1807, and across the British Empire in 1834,
3
it is only one
particular instance of slavery, namely the legal, formal ownership of people, which has been
eradicated. In fact, it is abundantly clear that ‘slavery is not a horror safely consigned to the
past’.
4
A few indicators to that effect may be mentioned. In 2004, the European
Parliamentary Assembly stated that it ‘is dismayed that slavery continues to exist in Europe
in the twenty-first century. Although, officially, slavery was abolished over 150 years ago,
thousands of people are still held as slaves in Europe, treated as objects, humiliated and
abused’.
5
In Britain, the Modern Slavery Act
6
(MSA) received Royal Assent on 26
th
March,
2015, and the first prosecution under the MSA was launched in August 2015.
7
In 2016, the
Associated Press won the Pulitzer Prize for its year-long investigative report on slavery in
the seafood industry in Asia.
8
Slaves were forced to work 20-22 hours a day, were locked
up, drank filthy water and ate few spoons of rice, and were not permitted to contact their
families. The report led to the rescue of over 2000 slaves.
9
So how we are to reconcile the existence of slavery with its formal abolition? It has
become clear that the very abolition of formal, legal slavery, exemplified in the ownership of
an individual by another, has obscured the situation significantly, particularly in the
employment context.
10
In fact, the term modern slavery has been attached to discussions
ranging ‘from prostitution to child labour to illegal immigration to female circumcision to
3
British Emancipation Act 1834.
4
K. Bales, Disposable People (Revised Edition, Berkeley: University of California Press, 2004) 3.
5
Parliamentary Assembly Report (Recommendation 1663, Doc. 10144) Domestic Slavery: Servitude, Au-Pairs
and Mail-Order Brides (2004), para 1.
6
Modern Slavery Act 2015 c 30.
7
F. Lawrence, ‘Lithuanian migrants trafficked to UK egg farms sue “worst gangmaster ever”’ The Guardian (10
August 2015).
8
R. McDowell, M. Manson and M. Medoza, “Slaves may have caught the fish you bought” The Associated Press
(25 March 2015)
http://www.ap.org/explore/seafood-from-slaves/ap-investigation-slaves-may-have-caught-the-fish-you-
bought.html
9
E. Htusan and M. Mason, ‘More than 2,000 enslaved fisherman rescued in 6 months’ Associated Press (17
September 2015).
http://www.ap.org/explore/seafood-from-slaves/more-than-2,000-enslaved-fishermen-rescued-in-6-months.html
10
In Britain, the denial of the existence of chattel slavery is associated with Lord Mansfield’s speech in Somerset
v Stewart (1772) Lofft 1, 98 ER 499. And yet, Lord Manfield’s decision in The Zong – Gregrson v Gilbert (1783)
3 Dougl 232, 99 ER 629 points to the limits of the Somerset ruling. As TT Arvind explains, “the entire transatlantic
slave trade was based around treating slaves as if they were chattel”, and Lord Mansfield was not willing to rule
in a manner that would have severe implications for the British economy – ‘“Though it Shocks One Very Much”:
Formalism and Pragmatism in the Zong and Bancoult’ (2011) Oxford Journal of Legal Studies 1, 29.
3
begging to organ trading’.
11
But it holds an even more uncomfortable place for those
concerned with employment rights and employment relations. The lack of a clear definition
as to what forms of exploitative labour relations may be regarded as slavery has allowed
critics of agency work,
12
workfare schemes,
13
privatisation,
14
the regulation of migrant
workers
15
and even the treatment of professional athletes,
16
to align these practices with
forced labour, or even slavery. In some cases, these comparisons are no more than
rhetorical tools, designed to attract attention to a particular claim.
17
In other cases, however,
the comparison between the historical institution of slavery and contemporary
employment practices may be instructive.
The growing appreciation for the need to find a more open-ended term that
addresses the problems with voluntariness in contemporary labour markets, without the
need to refer to every such instance as slavery, servitude or forced labour, has led to the
term ‘unfree labour’ to appear more prominently in the literature in recent years.
18
Unlike
forced labour or slavery, ‘“unfree labour” is not a legal concept, nor should it aspire to
be’.
19
To an extent, it offers an additional, less intimidating, and yet still conceptually
problematic, way of criticising the regulation of migrant work
20
and temporary work
11
J. O’Connell Davidson, Modern Slavery – The Margins of Freedom 3 (Basingstoke: Palgrave Macmillan, 2015)
12
J. Denys, ‘Challenges for Temporary Agency Work in the Information Society’, in R. Blanpain and R. Graham
(eds), Temporary Agency Work and the Information Society (London: Kluwer Law, 2004) 9, 11, noting that ‘Some
still consider the industry as a modern form of slave labour’.
13
B. Anderson, Us and Them? The Dangerous Politics of Immigration Control (Oxford: OUP, 2013) 150; The
argument that workfare is forced labour was raised before the British Supreme Court, the European Court of
Human Rights, and American Courts – respectively: R (Reilly and Wilson) v Secretary of State for Work and
Pensions [2013] UKSC 68; Talmon v the Netherlands (1997) EHRLR 448 and Schuitemaker v the Netherlands
(2010) ECHR 820; Brogan v San Mateo County, 901 F.2d 762 (9th Cir. 1990). See also: S. Duffy, ‘Workfare is
Modernised Slavery’, Huffington Post (27 February 2013)
http://www.huffingtonpost.co.uk/dr-simon-duffy/workfare-is-modernised-slavery_b_2773051.html (all URLs
were last accessed on 15 May 2016).
14
In the Israeli case of The New Histadtrut Workers’ Union v The Israeli Aerospace Industry, minority judge
Elisheva Barak of the National Labour Court argued that transferring workers from the public to the private sector
against their will is modern slavery.
15
V. Mantouvalou, ‘“Am I Free Now?’ Overseas Domestic Workers in Slavery’ (2015) 42 Journal of Law and
Society 329; When the Israeli Supreme Court struck down a policy binding migrant workers to a particular
employer, Justice Cheshin referred to the practice as ‘modern slavery’ – HCJ 4542/02 Workers Hotline v the
Government of Israel (2006).
16
I. Herbert, ‘Ronaldo: I am a slave’ The Independent (11 July 2008); S. Leahy, ‘Adrian Peterson: Players’ Place
in NFL ‘like modern day slavery”’ USA Today (15 March 2011).
17
On the problem of using the same concept for historical and contemporary practices see Rebecca Scott, “Under
Color of Law: Siliadin v France and the Dynamics of Enslavement in Historical Perspective” in J. Allain (ed) The
Legal Understanding of Slavery – From the Historical to the Contemporary 152 (2012).
18
Anderson, n 13 above, 148.
19
C. Costello, “Migrants and Forced Labour” in A. Bogg et al The Autonomy of Labour Law (2014).
20
Ibid.
4
agencies,
21
for example, without resorting to the legally imbued terms such as slavery and
forced labour.
22
But it deflects, rather than addresses, the core issue: how can we ascertain
where we are on that continuum, or ‘hierarchy of denial of personal autonomy’,
23
from
slavery, through forced labour, unfree labour, and on to everyday, commodified labour in
a capitalist economy?
24
To complicate matters further, we should clarify that while slavery is a core term
signifying ‘unfree labour’, it is not the only term. Indeed, several parallel concepts surround
‘slavery’, and at times (but not always) are viewed as comparable, rhetorically and legally.
These include servitude (and, at times – indentured servitude), serfdom, debt bondage or
peonage and, primarily, forced labour. Some view them as ‘proxy categories’ for modern
slavery.
25
Others, such as the ILO, state very clearly that ‘Slavery is one form of forced
labour’,
26
whilst also acknowledging that national laws sometimes treat the two as two
different instances and ‘tend to reflect an assumption that forced labour is the least serious
of these offences’.
27
In some countries, such as Brazil, forced labour is defined as existing
when one reduces a person to a condition ‘analogous to that of a slave’.
28
One can easily
agree that the relationship between the two ‘is not always quite clear’.
29
The British Modern
Slavery Act (MSA) offers no assistance on the matter. Indeed, as it covers slavery and
forced labour,
30
one could imagine a situation of forced labour, which is not slavery under
ILO definitions (for slavery is but one form of forced labour) and yet still considered
‘modern slavery’, as it is covered by the MSA.
Against the background of this conceptual quagmire, I would suggest that forced labour
and slavery are concepts that have significant overlaps, but also areas of mutual
21
J. Fudge and K. Strauss (eds) Temporary Work, Agencies, and Unfree Labour: Insecurity in the New World of
Work (New York: Routledge, 2014).
22
cf K. Strauss, “Coerced, Forced and Unfree Labour: Geographies of Exploitation in Contemporary Labour
Markets” (2012) 6 Geography Compass 137, 139 in which she suggests that “unfree labour is, therefore, a broad
category of which forced labour and slavery are subsets”.
23
R v SK [2011] EWCA Crim 1691 [39].
24
K. Strauss ‘Unfree Labour and the Regulation of Temporary Work Agencies in the UK’ in Fudge and Strauss,
n 21 above, 164, 174.
25
Davidson, n 11 above, 8.
26
ILO, A Global Alliance Against Forced Labour: Global Report under the Follow-Up to the ILO Declaration
on Fundamental Principles and Rights at Work (2005) 8.
27
Ibid, 20.
28
Ibid, 21.
29
N. Lassen, ‘Slavery and Slavery Like Practices: United Nations Standards and Conventions’ (1988) 57 Nordic
Journal of International Law 197, 205.
30
Section 1(2) of the Modern Slavery Act.