Human trafficking is defined in international law, while other catch-all terms, such as “modern slavery”, are not. In international law, human trafficking consists of three elements: the act (recruiting, transporting, transferring, harbouring, or receiving the person); the use of coercion to facilitate this act; and an intention to exploit that person. The crime of trafficking requires all three of its elements to be present. Prosecuting the exploitation itself — be it, for instance, forced labour or slavery — would require specific domestic legislation beyond provisions addressing trafficking.

So having domestic human trafficking legislation in place does not enable prosecution of forced labour, servitude or slavery as offences in domestic law. And while the vast majority of states have domestic criminal provisions prohibiting trafficking, most have not yet looked beyond this to legislate against the full range of exploitation practices they have committed to prohibit.

Shockingly, our research reveals that less than 5% of the 175 states that have undertaken legally-binding obligations to criminalise human trafficking have fully aligned their national law with the international definition of trafficking. This is because they have narrowly interpreted what constitutes human trafficking, creating only partial criminalisation of slavery. The scale of this failing is clear:

• a handful of states criminalise trafficking in children, but not in adults
• some states criminalise trafficking in women or children, specifically excluding victims who are men from protection
• 121 states have not recognised that trafficking in children should not require coercive means (as required by the Palermo Protocol)
• 31 states do not criminalise all relevant acts associated with trafficking, and 86 do not capture the full range of coercive means
• several states have focused exclusively on suppressing trafficking for the purposes of sexual exploitation, and thereby failed to outlaw trafficking for the purposes of slavery, servitude, forced labour, institutions and practices similar to slavery, or organ harvesting.

Our database

While there is no shortage of recognition of de facto slavery in the decisions of international courts around the world, the degree to which this understanding is reflected in national laws has not – until now – been clear. The last systematic attempt to gather domestic laws on slavery was published over 50 years ago, in 1966.

Not only is this report now outdated; the definition of slavery it tested against – slavery under legal ownership – has been thoroughly displaced with the recognition in international law that a person can, in fact, be held in the condition of slavery. This means that there has never been a global review of antislavery laws in the sense of the fuller definition, nor has there ever been such a review of laws governing all of modern slavery in its various forms. It is this significant gap in modern slavery research and evidence that we set out to fill.

We compiled the national laws relating to slavery, trafficking, and related forms of exploitation of all 193 UN member states. From over 700 domestic statutes, more than 4,000 individual provisions were extracted and analysed to establish the extent to which each and every state has carried out its international commitments to prohibit these practices through domestic legislation.

This collection of legislation is not perfect. The difficulties of accessing legislation across all of the world’s countries make it inevitably incomplete. Language barriers, difficulties of translating legal provisions, and differences in the structures of national legal systems also presented obstacles. But these challenges were offset by conducting searches in multiple languages, triangulating sources, and the use of translation software where necessary.

The findings

The results, as we’ve shown, are shocking. In 94 countries, a person cannot be prosecuted for enslaving another human being. This implicates almost half of all the world’s countries in potential breaches of the international obligation to prohibit slavery.

What’s more, only 12 states appear to explicitly set out a national definition of slavery that reflects the international one. In most cases, this leaves it up to the courts to interpret the meaning of slavery (and to do so in line with international law). Some states use phrases such as “buying and selling human beings”, which leaves out many of the powers of ownership that might be exercised over a person in a case of contemporary slavery. This means that even in the countries where slavery has been prohibited in criminal law, only some situations of slavery have been made illegal.

Also surprising is the fact that states who have undertaken international obligations are not significantly more (or less) likely to have implemented domestic legislation addressing any of the kinds of exploitation considered in our study. States who have signed up to the relevant treaties, and those who have not, are almost equally likely to have domestic provisions criminalising the various forms of modern slavery. Signing onto treaties seems to have no impact on the likelihood that a state will take domestic action, at least in statistical terms. However, this does not mean that international commitments are not a significant factor in shaping particular states’ national antislavery efforts.

The picture is similarly bleak when it comes to other forms of exploitation. For example, 112 states appear to be without penal sanctions to address forced labour, a widespread practice ensnaring 25 million people.

In an effort to support their families, many of those forced into labour in developed countries are unaware they are not taking up legitimate work. Travelling to another country for what they believe to be decent work, often through informal contacts or employment agencies, they find themselves in a foreign country with no support mechanism and little or no knowledge of the language. Typically, their identity documents are taken by their traffickers, which limits their ability to escape and enables control through the threat of exposure to the authorities as “illegal” immigrants.

They are often forced to work for little or no pay and for long hours, in agriculture, factories, construction, restaurants, and through forced criminality, such as cannabis farming. Beaten and degraded, some are sold or gifted to others, and many are purposefully supplied with drugs and alcohol to create a dependency on their trafficker and reduce the risk of escape. Edward (not his real name) explains:

I felt very sick, hungry and tired all the time. I was sold, from person to person, bartered for right in front of my face. I heard one man say I wasn’t even worth £300. I felt worthless. Like rubbish on the floor. I wished I could die, that it could all be behind. I just wanted a painless death. I finally decided I would rather be killed trying to escape.

Our database also reveals widespread gaps in the prohibition of other practices related to slavery. In short, despite the fact that most countries have undertaken legally-binding obligations through international treaties, few have actually criminalised slavery, the slave trade, servitude, forced labour, or institutions and practices similar to slavery.

A better future

Clearly, this situation needs to change. States must work towards a future in which the claim that “slavery is illegal everywhere” becomes a reality.

Our database should make the design of future legislation easier. We can respond to the demands of different contexts by analysing how similar states have responded to shared challenges, and adapt these approaches as needed. We can assess the strengths and weaknesses of different choices in context, and respond to problems with the type of evidence-based analysis provided here.

To this end, we are currently developing model legislation and guidelines meant to assist states in adapting their domestic legal frameworks to meet their obligations to prohibit human exploitation in an effective manner. Now that we have identified widespread gaps in domestic laws, we must move to fill these with evidence-based, effective, and appropriate provisions.

While legislation is only a first step towards effectively eradicating slavery, it is fundamental to harnessing the power of the state against slavery. It is necessary to prevent impunity for violations of this most fundamental human right, and vital for victims obtaining support and redress. It also sends an important signal about human exploitation.

The time has come to move beyond the assumption that slavery is already illegal everywhere. Laws do not currently adequately and effectively address the phenomenon, and they must.

This article by Katarina Schwarz, Rights Lab Associate Director and Assistant Professor at the University of Nottingham and Jean Allain, Professor of International Law at the University of Hull, first appeared in The Conversation. Andrea Nicholson, a Rights Lab Research Fellow in Survivor Voices at the University of Nottingham, contributed.

Image: Reuters.