We recently discussed what Australia’s new Modern Slavery Act needs in order to have a meaningful impact in reducing not only the number of slaves within Australia, but the number of slaves worldwide.
This week, we’re taking a look at how international law aims to prohibit slavery worldwide and how effective the law has been in reducing slavery.
In order to properly understand the information you’re about to take in though, we’re going to give you a quick rundown of how international law works. This will be a very basic explanation and if you want to know more in-depth information about international law then let us know in the comments.
First, some jargon
For the purposes of this article, it is necessary to understand that international law comes from two main sources (though, there are others): Treaties and Custom.
A treaty is an agreement between countries (States) to adhere to the contents of the document that they are signing. The contents may include obligations and prohibitions, amongst other things. For example, a number of countries have recently agreed to prohibit the use and possession of nuclear weapons through the Treaty on the Prohibition of Nuclear Weapons. Once a treaty comes into force, the contents then becomes law between the countries party to the treaty. However, the contents are not, generally, binding on non-party countries.
Custom, on the other hand, is a rule of international law that is considered to be universal in its application (subject to certain exceptions). It is determined through the practice of countries displaying that they consider the rule to be law, as well as their opinion that the rule is law. An example of this is the rule of war for combatants to not target civilians or those not taking part in hostilities.
While it can at times be confusing to separate the two, especially when a rule in a treaty could be considered custom, the major take-away from the above should be that treaty law only applies to countries agreeing to the treaty, while custom is, for the most part, universal.
The distinction between a country signing and ratifying a convention should also be made. Signing a convention means a country agrees to the content of the treaty, but the treaty does not legally bind the country until it is ratified (or acceded or succeeded).
With that in mind, let’s take a look at what international law does to prohibit and attempt to abolish slavery.
The prohibition of slavery was first recognised in an international treaty through the 1815 Declaration Relative to the Universal Abolition of the Slave Trade, which aimed to abolish the Atlantic slave trade in the colonies of European countries and within the United States. The prohibition spread in 1926, when the Slavery Convention was negotiated by States belonging to the League of Nations (which would be replaced by the United Nations after WWII), though it would not come into force until 1955. But perhaps the most important treaty reflecting the prohibition of slavery is the International Convention on Civil and Political Rights (ICCPR), which entered into force in 1976. 2 of the 3 countries with the most slaves, India (1st) and Pakistan (3rd), are parties to the treaty, with China (2nd) signing but not ratifying it. There are currently 171 State parties to the ICCPR, exemplifying the widespread prohibition against slavery. States party to the Rome Statute, which established the International Criminal Court, also recognise the crime of slavery as a crime against humanity.
Further though, there is strong evidence to support the claim the prohibition on slavery is customary international law. The International Committee of the Red Cross have identified the prohibition as custom in times of armed conflict, and much of the ICCPR has been considered as custom, with the prohibition of slavery being no exception.
However, this prohibition spreads further again. The International Court of Justice has identified protection from slavery as an erga omnes right. Going back again to legal jargon, an erga omnes right is a right that is owed to everybody. In international law, this means States owe this right to everyone, and for the present discussion it means that States owe everyone the protection from slavery.
So, in summary, the prohibition is widely supported through treaty law, exists in custom, and even exists as a right for States to protect all people from slavery. The ban on slavery is comprehensive under international law, so what’s going wrong? Why are there still 30 million slaves in the world? Well, law is one thing; law enforcement is another.
In its simplest form, there is no international police force to bring individuals to justice if a State will not or cannot do so. The International Criminal Court can only exercise their jurisdiction in the territory of a State if that State is party to the Rome Statute or over a national of a State party. This is problematic in modern slavery as neither India, China, or Pakistan are party to the Rome Statute, giving the International Criminal Court no power to enforce crimes against humanity in those areas.
States may be held responsible for breaching their duty to protect individuals from slavery if another State holds them accountable, but we are yet to see this happen.
These two significant factors are what is holding us back from achieving a world without slavery. If the slave trade can operate in countries where there is no real threat of punishment and there is no pressure placed on States to crackdown on slavery within their borders, we are unlikely to see real change.
The bottom line for this discussion is that while international law provides a comprehensive blanket of law for protecting individuals against slavery, States need to be accountable for actions within their territories and prosecute those enslaving individuals in their territory—especially if they are unwilling to allow the International Criminal Court to do so. With the prohibition being provided in numerous treaties and under international criminal law, established under custom, and even provided for erga omnes, there is nothing more international law can do, it is now on the States. India, China, and Pakistan: time to be accountable.