Slavery in Domestic Work: The Potential for State Responsibility?

On 10 September 2018, UN Special Rapporteur on Contemporary Forms of Slavery, Urmila Bhoola, presented her latest report to the Human Rights Council. The report focuses on an often-hidden aspect of modern slavery – the slavery and servitude of “marginalized women workers in the global domestic economy” (para 11). In this post, we highlight key findings of the report and also indicate areas for further exploration, including the potential use of State responsibility.

11.5 million domestic workers are international migrants, which represent 17.2% of all domestic workers and 7.7% of all migrant workers worldwide (para. 31). To give a sense of the scale, in Hong Kong there are 370,000 domestic workers of which 98.8% are women.

The social, cultural and racial biases these women face are often extreme. To give an example, Sondos Alqattan, an Instagram star and makeup artist with over 2.3 million followers, criticised new laws in Kuwait giving Filipino workers one day off per week and preventing employers from seizing their passports. She said, “How can you have a servant at home who keeps their own passport with them? What’s worse is they have one day off every week”.

The UN Special Rapporteur notes that the domestic work sector accounted for 24% of forced labour exploitation in 2017 (para 43). Exploitative practices include psychological, physical and sexual violence; retention of identity documents preventing freedom of movement; withholding of wages; and excessive overtime (para 42).

There are two aspects of the Report that make a particular contribution to the discussion of slavery in domestic work. First, the UN Special Rapporteur notes that domestic workers in diplomatic households face similar practices to those just described as their residence permits are often linked to their employers (para. 37). Their situation is even more precarious in accessing justice due to the extensive scope of diplomatic immunity under the Vienna Convention on Diplomatic Relations.

Second, she considers the impact of private employment agencies which include recruiters, their sub-agents, pre-departure training centres, transport companies, travel agencies, medical screening centres, insurance companies and visa consultancies (para 58). The lack of regulatory scrutiny over this network of agencies provides “an enabling environment for abuse and human rights violations” (para. 60).

In our research project on State Responsibility for Modern Slavery, we are looking at specific aspects arising from State involvement or complicity in modern slavery. In this context, we have identified five scenarios: (1) Modern slavery as state policy; (2) Informal participation of State organs in modern slavery; (3) diplomatic involvement in domestic servitude; (4) State-backed labour brokerage and labour trafficking (including of domestic workers); (5) State export credit of slavery-tainted projects.

The UN Special Rapporteur’s Report intersects with scenarios 3 and 4. She makes 24 recommendations to States (para 82), including to create viable, accessible and non-discriminatory employment options for women to prevent exploitation; enact and enforce criminal legislation prohibiting slavery, servitude and forced labour; make the inclusion of a gender perspective a strategic priority of labour inspectorates; regulate and monitor private recruitment agencies and sub-agents, including using bilateral, regional or multilateral agreements to prevent abuses.

We endorse such measures and consider them an important piece of the effort to eradicate modern slavery in line with Sustainable Development Goal 8.7. What we aim to contribute to that effort is a supplementary perspective based on State responsibility for modern slavery. We see a gap in the current response to modern slavery. Existing research and strategies have focused on the role of the non-state actors and the positive obligations of states to ‘Prevent, Protect and Punish’ these non-state actors. The responsibility of States has largely been overlooked or avoided.

If we apply a state responsibility lens to domestic servitude in diplomatic households, the conduct of State officials is attributable to the State under Article 4 ARSIWA. The bar of diplomatic immunity can be overcome by suing officials after they have left the post (see the recent success of this strategy in Reyes v Al-Malki in the UK Supreme Court) and developing the commercial exception in Article 31(3)(c) of the Vienna Convention (see the dictum of three Justices in Reyes v Al-Malki). The employment exception to state immunity provides another avenue (as seen in Benkharbouche and Janah, which was not strictly a domestic servitude case). Other avenues for accountability could also include invoking the international responsibility of a state for the involvement of its diplomatic agents or embassies in an internationally wrongful act.

As for private employment agencies, attribution to the State could, depending on the facts, be based on Articles 5 or 8 ARSIWA. Avenues for accountability would include use of the ILO supervisory and complaints mechanisms, sanctions against a State for breaching a bilateral agreement on labour migration, and ultimately invoking the responsibility of the State for an internationally wrongful act.

The UN Special Rapporteur has admirably helped shine a light on the exploitation that occurs in kitchens, basements, and behind closed doors. She also points out the gap between promising legislative and policy initiatives and actual implementation. This is a gap that must be constantly kept in mind. For example, a new law will allow the majority of migrant workers to leave Qatar without permission from their employers (The Guardian), but this does not cover migrant domestic workers (HR Watch). The spectre of initiatives and claims based on State responsibility may well be an additional tool to encourage States to fulfil their obligations to respect, protect and fulfil the human rights of all persons within the jurisdiction irrespective of their migration status or gender (see para 86(s)).