From old slavery to new forms of exploitation: A reflection on the conditions of irregular migrant labour after the Chowdury case

Published date01 September 2019
Date01 September 2019
AuthorAnnalisa Lucifora
Subject MatterArticles
From old slavery to new
forms of exploitation:
A reflection on the conditions
of irregular migrant labour
after the Chowdury case
Annalisa Lucifora
Universidad Aut´
onoma de Madrid, Spain
The spread of exploitative working practices requires an in-depth reflection on the impact of the
free market and global competitiveness on some fundamental rights that are inherent to all human
beings. After an investigation into the conditions that have led to an exponential increase in the
exploitation of illegal migrant labour, the article focuses on the system of legal protection set by the
European Convention on Human Rights (ECHR), which in Article 4 only prohibits slavery and
servitude (para 1) and forced and compulsory labour (para 2). It could raise the question of where
to put those conducts that, although they are manifestly inconsistent with fundamental rights, they
do not, however, easily conform to any of the labels expressly laid out in Article 4 ECHR. The issue
has recently been put under the spotlight by the Chowdury case, where the analysis of the
extremeness of the working conditions allows the Court to rule out any relevance of the element
of consent. This interpretation would allow the most serious cases of exploitation to be brought
within the scope of forced labour and thus to expand the protection offered by Article 4 ECHR.
Globalization, forced labour, Chowdury case, new slavery, irregular migrant labour, labour
Preliminary observations for an overview of the new forms of slavery
The spread of exploitative working practices, which has been caused by having an increasingly
integrated global economy, requires an in-depth reflection on the impact of the free market and
Corresponding author:
AnnalisaLucifora, InterTalentum– Marie Curie Fellow at the UniversidadAut ´
onoma de Madrid,Department of Criminal Law,
Ciudad Universitariade Cantoblanco, C/Kelsen 1, Madrid 28049, Spain.
New Journal of European Criminal Law
2019, Vol. 10(3) 251–267
ªThe Author(s) 2019
Article reuse guidelines:
DOI: 10.1177/2032284419864683
global competitiveness on working conditions, labour standards
and inherent fundamental rights.
Some of the most important of these include the right not to be submitted to any form of modern
slavery, such as forced labour, forced marriage, debt bondage, human trafficking or other slavery-
like practices.
Although the official abolition of slavery can be traced back to the end of the 19th century, these
practices have not disappeared, but have rather evolved into more fluid and less visible forms.
What they all have in common is that they are characterized by the total control of one person by
another through the use of coercion for purposes of economic (or sexual) exploitation.
The key distinction between current practices and those that preceded it is that the own-
ership of slaves is now illegal, and therefore people can no longer be seen as legal property.
As a consequence, the relationship between slaves and slave-owners has developed a great
deal over the years: while in the past slaves were considered to be a major investment, today
their ‘performance’ is less permanent, their cost is very low and they can be easily di sposed
of for a large profit. Some authors have indicated that this may represent an even better
situation for slave-owners, as they can have total control over people, but without having any
This evolution may also be related to changes in the global economy, as a result of which
slaves have been transformed from fixed assets into fungible resources and disposable pro-
duction inputs.
For some authors, the emergence of new forms of slavery are not o nly mere
outcomes of globalization, but they are also part of the process itself.
Admittedly, the new
practices can be considered as the underside of contemporary globalization,
as they are
strictly related to the search for unlawful financial profits by a range of actors, including
those involved in organized crime.
The main features of modern forms of exploitation are the ways in which they are created and
the fact that they mostly concern people living at the margins of society, such as migrants (espe-
cially those who have not fully completed the legal processes involved in migration). Furthermore,
because of their vulnerability, they are often deprived of their identity documents and treated as
commodities to be bought and sold on the labour market, as well as kept in conditions of
1. According to Robert Flanagan, the term ‘labour standards’ refers to actual and proposed policy objectives or legal
requirements, established through a political process; on the contrary, the term ‘labour conditions’ refers to the actual
working conditions (such as hours, wages, etc.) and labour rights experienced by workers. See more widely R. Flanagan,
Globalization and Labour Condition: Working Conditions and Working Rights in a Global Economy. 1st ed. (Oxford:
Oxford University Press, 2006).
2. The ILO estimates that in 2016, 40.3 million people were victims of modern slavery, including 24.9 million in forced
labour and 15.4 million in forced marriage. See ILO, Global Estimates of Modern Slavery (Geneva: ILO, 2017), p. 5.
3. On the similarities and differences between ‘new’ and ‘old’ forms of slavery, see A. Yasmine Rassam, ‘International
Law and Contemporary Forms of Slavery: An Economic and Social Rights-Based Approach’, Penn State International
Law Review (2005). Available at: (accessed 14 August 2018); C. Villa-
campa, ‘La Moderna Esclavitud y su Relevancia Jur´ıdico-Penal’, Revista de Derecho Penal y Criminologı
´a3 (2013),
p. 300.
4. See K. Bales, Disposable People: New Slavery in the Global Economy. 3rd ed. (California: University of California
Press, 2012), p. 5.
5. See K. Bales, ‘Expendab le People: Slavery in the Age of Globaliza tion’, Journal of International Affairs 53
(2000), p. 463.
6. Op. cit., p. 473.
7. ILO, Stopping Forced Labour. Global Report Under the Follow-up to the ILO Declaration on Fundamental Principles
and Rights at Work (Geneva: International Labour Conference, 89th Session 2001), p. 47.
252 New Journal of European Criminal Law 10(3)

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