Modern-day slavery? A judicial catchall for trafficking, slavery and labour exploitation: a critique of Tang and Rantsev.

• Author: Vijeyarasa, Ramona
• Position: R v. Wei Tang, and Rantsev v. Cyprus and Russia

1. INTRODUCTION II. TANG AND RANTSEV: COMPARATIVE JURISPRUDENCE ON TRAFFICKING AND SLAVERY 1. MS. WEI TANG AND THE MELBOURNE BROTHEL 2. VIOLATIONS OF THE RIGHTS OF MR. RANTSEV BY CYPRUS AND RUSSIA III. THE CRIME OF TRAFFICKING AND THE UN PROTOCOL 1. THE ELEMENTS OF THE CRIME OF TRAFFICKING: MEANS, METHOD AND PURPOSE 2. APPLICATION OF THE PROTOCOL IN AUSTRALIA AND EUROPEAN JURISDICTIONS IV. THE ELEMENTS OF THE CRIME OF SLAVERY 1. THE 1926 SLAVERY CONVENTION AND THE 1956 SUPPLEMENTARY CONVENTION 2. APPLICATION OF THE SLAVERY CONVENTION IN AUSTRALIA AND EUROPEAN JURISDICTIONS V. DEFINING THE LIMITS OF EXPLOITATIVE LABOUR, TRAFFICKING AND SLAVERY: RETHINKING TANG AND RANTSEV 1. CONTEXTUALIZING TANG AND RANTSEV IN THE TRAFFICKING PROTOCOL AND AUSTRALIAN TRAFFICKING PROVISIONS 2. CONTEXTUALIZING TANG AND RANTSEV IN THE SLAVERY CONVENTION AND THE SUPPLEMENTARY CONVENTION VI. CONCLUSION I. Introduction

   Slavery and trafficking in persons continue to draw global attention, fostering debates in sociological, political, academic and legal circles. Governments, in particular, value being seen on the global stage as working to combat the trafficking of human beings to and from their territories. With prosecution of traffickers difficult in many jurisdictions, civil society organizations and others always welcome efforts by regional courts to hold governments accountable for their failure to fulfil their counter-trafficking international obligations, or those by domestic courts to find traffickers guilty.

   What is at risk, however, in this desire to identify traffickers and grant remedies to victims, is a judicial interpretation of slavery and trafficking alien to their meaning in international law. The increasing tendency by academics and researchers, (1) journalists, (2) the United Nations, (3) governments, (4) civil society organisations (5) and other policy makers (6) to label human trafficking as a form of modern-day slavery is a powerful tool to attract support for this objective; but is also a concerning trend. In this conflation of trafficking and slavery the key elements that distinguish the two concepts are often lost, including in efforts to raise public awareness; to implement policies and programs designed to prevent trafficking; and to protect and provide reintegration assistance to its victims.

   In this article, we look specifically at the judicial treatment of the concepts of slavery and trafficking, with a critical review of Australian and European case law. The case against Victorian brothel owner Ms Wei Tang was the first jury conviction under the slavery offences in Australia's Criminal Code (Cth). (7) This conviction was subsequently appealed (Court of Appeal of the Supreme Court of Victoria) and finally upheld by Australia's High Court in 2008.8 The case of Rantsev v Cyprus and Russia (9) was the second time the European Court of Human Rights (hereinafter the European Court or ECtHR) addressed human trafficking, but its first substantive analysis of the issue.

   Both the cases of Tang and Rantsev deal with cross-border movement of women for the provision of sexual services and are two of the few examples across the globe of superior courts adjudicating on the so-called issue of "modern day slavery". As we will explain, both cases involved facts that appeared, at face value, to contain some elements of the crime of human trafficking; yet neither Court was expressly adjudicating on the question of human trafficking but rather on the question of slavery. There are clear parallels in the experiences of the five Thai sex workers in Australia, discussed in Tang, and Ms Rantseva's experience in Cyprus, as well as an evident desire of both courts to protect migrant sex workers who find themselves in situations of exploitation. Both courts attempt to do so by using slavery provisions as the legal tool to find the States of Cyprus and Russia and the accused, Ms Tang, at fault. These cases, therefore, lend themselves to a comparative study of the facts and law.

   From a victim's point of view, the outcome of the ECtHR's decision is a positive one, with Mr Rantsev receiving some form of recognition for the violations of his rights as the father of Ms Oksana Rantseva, who was found dead in Cyprus on 28 March 2001. The case of Tang is more difficult to couch in such terms. Indeed, while two of the five women who were sex workers in Ms Tang's Melbourne brothel stayed on to work in the brothel after their "debts" were paid, we do not know what happened to the other three. It is therefore difficult to discern the extent to which the ruling of the Australian High Court could be considered a victory for these women. (10) Nonetheless, both cases have received significant praise from various groups, particularly the human rights movement, for offering redress for crimes that are typically difficult to prosecute at the national level. (11)

   Although several pieces have been written separately on each of these two cases, (12) the originality of this article lies in the comparison of these two globally significant--and often praised--cases. As noted, our main concern lies with the treatment by the Australian and European judiciaries of the concepts of slavery and trafficking when compared to the definitions articulated in international treaties. We use the facts in the Australian and European cases as the basis for our discussions of not only the intended meaning of slavery and trafficking in the relevant international instruments, but also how they should be understood in contemporary law.

   In this article, we argue that both the Australian High Court and the ECtHR erred, respectively, in upholding the decision that Ms Tang's actions amounted to slavery, and in finding that there had been a breach of Article 4 of the European Convention of Human Rights (European Convention or ECHR) which prohibits slavery, servitude and forced or compulsory labour. As stated above, neither of the judicial bodies was looking explicitly at the question of trafficking. In the case of Tang, trafficking is treated at various points throughout the reasoning of the trial judge, Court of Appeal, and High Court, as tantamount to slavery. In Rantsev, given the lack of an explicit reference to trafficking in the European Convention, the ECtHR goes so far as to argue, without any substantiation, that trafficking is "by its very nature and aim of exploitation", modern-day slavery. (13) In our view, had either of these judicial bodies actually been looking at the question of trafficking, neither of the two cases could be accurately judged to be cases of human trafficking. This distinction becomes even starker when we introduce a third case, R v Dobie, the first conviction for human trafficking in Australia, in the latter part of this paper.

   Our purpose in this article is to establish an interpretation of these principles that does not dilute the high standards required for slavery and trafficking in international law nor undermine future prosecutions. It is also our aim to provide a framework that does not exclude those who have been exploited but are not slaves. We intend to establish a standard that has a legally defined scope in order to protect the rights of defendants from instances where the concepts of slavery and trafficking are applied beyond their intended meaning. To do this, we demonstrate that labelling some situations as "seriously oppressive employment relationships," (14) borrowing from the minority reasoning of Honourable Justice Kirby in R v Tang, is an approach that is more applicable to what is typically evident in cases labelled as trafficking; that is, initially voluntary negotiations by the victim to enter into a (written or otherwise documented) employment agreement. Moreover, this approach draws on legal principles that exist in many jurisdictions in destination countries, in the form of workplace regulations. It calls for more vigorous application of such laws to cases that fall outside of the realm of trafficking or slavery but where victims are deserving of redress for labour exploitation.

   In the first section of this article, we provide an overview of the facts of the two cases. This overview is followed by a discussion on the meaning of trafficking and the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (UN Protocol). (15) In this same section we also touch upon trafficking-related domestic legislation in Australia and instruments of the Council of Europe. In the third section of this article, we explore the concept of slavery and the evolution of the 1926 Convention to Suppress the Slave Trade and Slavery (Slavery Convention) (16) and the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade and Slavery (Supplementary Slavery Convention) (17) In this section, we also consider how the two Conventions' key concepts related to slavery have been incorporated into Australian law and the European Convention on Human Rights (European Convention). We briefly discuss here the different manifestations of the concept of "debt bondage". In the final section, we bring together the facts and the law and highlight the gaps in evidence necessary to prove the essential elements of the two crimes. We conclude that the experiences of the five Thai women in Australia and that of Ms Rantseva in Cyprus were not clear cases of slavery or trafficking. Such a finding is not inconsistent with our view that, in both cases, the women involved were victims of crimes worthy of redress. In support of this conclusion, we argue for an alternative legal framework that is better suited to address crimes of this nature that do not meet the legal standards set for trafficking and slavery.

   It should be noted here that we recognise the limitations of comparing two cases that involved entirely different legal procedures. However, a key common factor was that both judiciaries, if they...