Slavery and forced labour: unfortunate bygones or skeletons still in our cupboards?

The image of black African slaves tied to chains and subjected to forced labour and all forms of inhuman and degrading lives of servitude is undoubtedly still clear in all our minds. Shocking as it might sound to many of us, such slavery was actually legal and was thus carried out with the blessing of the world community until the very end of the 18th century.

The campaign for the abolition of slavery was long and hard fought, mainly because this was not welcomed by most developed states. So, while there were strong humanitarian concerns, slavery was actually seen as an important asset to the economy, and anything that is harmful to the economy is always hard to stomach.

Complete abolition took almost two centuries, starting with abolition by individual states, until it was finally completely abolished internationally in 1926 by the League of Nations.

The abolition of slavery is now provided for under all international human rights instruments, immediately after the protection of the paramount right to life and freedom from torture. Slavery is also one of the hierarchically protected rights in that, like the right to life and freedom from torture, it may not be derogated from in times of war.

Freedom from slavery is also a jus cogens norm, that is a norm of international law, which may not be derogated from irrespective of ratification of international or national laws (an exceptionless norm). Slavery is also protected by the Geneva Conventions on the Laws of War and is a crime against humanity. It is also prosecutable before the newly established International Criminal Court.

The illegality of slavery is so strongly entrenched that victims, or their descendants, are still requesting apologies or filing lawsuits against the alleged aggressors. The so-called `comfort women` are still demanding an apology from Japan for their enslavement during the second world war for being forcibly kept by the Japanese government of the time to provide sexual favours for its army.

The current German government recently made a public apology to Italy for the Nazis` treatment of a large number of Italian citizens who were, among other things, kept in slave camps. Thousands of descendants of America`s slave trade are suing big corporations in the United States for acts and effects of slavery carried out in the past, as we write.

Despite its international standing, can one say that the world is rid of this inhuman practice? The answer is a definite no! Auschwitz and the Nazi saga during the second world war, Milosevic`s movement of ethnic cleansing and systematic genocidal rape in Yugoslavia, as recently as the early Nineties, slave trade and forced prostitution of, mostly, women and children in many parts of Asia, child labour and cheap labour carried out by many transnational companies who lay anchor in developing countries mainly for the very reason of finding cheap labour and increasing their already bulging pockets. The list is endless.

These are all examples of violations of the entrenched right to be free from slavery.

Thus, the issue of slavery nowadays is not a mere question of making amends and compensating victims for past actions. Slavery remains with us. The harsh truth is in fact that, for many, slavery and forced labour are still an everyday reality or threat to the enjoyment of a normal life.

Those who are still being subjected to the different forms of slavery might actually think they are lucky to be given a chance to have food on their table and a place to sleep. True, maybe, but also true is the expression that "ignorance is bliss".

The reality is that, despite how charitable it may be made to appear to the rest of the world, the honest truth is that any form of slavery deprives its victims of a chance to live a life of dignity and respect to which all are entitled and it is ultimately a violation of an internationally protected human right.

Freedom from slavery under international law has been extended to include freedom from being subjected to servitude and forced labour. Despite the fact that slavery, servitude and forced labour might appear to mean one and the same thing, international human rights law has provided a distinction.

Slavery, in accordance with the Slavery Convention of 1926, is defined as "the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised". The condition of servitude and forced labour differ from that of slavery in that the former do not involve a matter of ownership.

Moreover, servitude differs from forced labour in that, over and above the obligation to provide another person with certain services, servitude also includes the obligation on the part of the `serf` to live on another person`s property. It also brings with it the impossibility of the serf to change his condition.

These three freedoms are not absolute. There are certain situations and circumstances that allow a suspension of these rights. According to the European Court of Human Rights (ECHR), jurisprudence and interpretation of Article 4 of the European Convention on Freedom from Slavery, servitude or forced labour, work during detention, military service or other substitute civilian service, as well as community service in case of public emergency, are among such permitted instances.

Such limitations, however, must, as in the case of other rights, be interpreted restrictively, and in all circumstances, they must respect international human rights standards. Thus all forms of slavery, servitude and forced labour must be legitimate in the sense that their substance, nature and objective may be scrutinised for legitimacy to be monitored.

The contemporary understanding of this freedom is moreover not only limited to the clear-cut situation of slaves in chains working from dusk till dawn. Other more subtle forms might also bring about a violation.

For example, the ECHR found that Belgium had violated its duty to protect the freedom from forced labour in 1972 in Van Der Mussele v Belgium. It was then compulsory in Belgium for newly graduated lawyers to carry out legal work for free.

The ECHR held that the fact that if the apprentice refused to carry out such duties he would have been struck off the list of pupils was construed as forced labour. This modern concept of slavery has been extended beyond physical work to all forms of work or services when these are forced or compulsory under pain of penalty.

This case also provided an added value to the right to be free from slavery, in that the state was not only bound to ensure that it was not responsible for slavery, but it also had a duty to ensure that no individual was in a position to subject others to forced labour. In the US, this interpretation might give rise to problems if the surfacing of certain practices is not properly addressed.

There have been, in the US, reported incidents of a practice whereby American families have unlawfully been keeping illegal immigrants in their home to work for free.

In Malta, Notary Joseph Abela, in a case against the Prime Minister and the Minister of Finance, claimed a violation of this right in which he argued that as a notary he was being subjected to forced labour due to the obligation imposed by the state on notaries to collect taxes from their clients.

The Maltese Constitutional Court did not find a violation since it argued that the collection of taxes was an intrinsic and inherent part of a notary`s job, and could not thus be argued to be an imposed or even an unexpected duty. This decision was in line with the ECHR`s decision in Four Companies v Austria.

Others forms of compulsory work, which are not in violation of the right to be free from slavery, include the requirement of an unemployed person to accept employment on pain of not being provided with the dole if he refuses - and for notaries to be forced to charge lower fees when serving non-governmental organisations.

The Constitution of Malta does not provide for the protection of either slavery or servitude. It is only forced labour that is prohibited under Article 35 of the Constitution. Thus, the full guarantee of this international freedom will only find protection locally by an application to the ECHR or through the Human Rights Committee, which monitors adherence to the United Nations Civil and Political Rights Covenant (ICCPR). Incidentally, the ICCPR also provides for protection against the slave trade.