Addressing Extraterritorial Jurisdiction and Inadequate Domestic Legislation: A Pathway to Eradicate Modern Slavery

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The extraterritorial applicability of human rights has evolved into a perplexing patchwork of sometimes contradictory doctrines, seemingly stitched together as one. Herein lies a deep irony, for given the number of treaties that have been drafted and ratified, there is still a lack of uniformity — not only in their textual interpretation, but also in the approach taken by various countries. Differing perspectives on the meaning conveyed by these treaties can make reaching a consensus on the exact scope and application of extraterritoriality in human rights obligations both flawed and challenged. The very considerations that gave rise to their presumption and supposedly motivated them are today tainted by systematic weaknesses, a lack of coordination among human rights instruments, and inadequate domestic legislation on the matter: the latter being the result of countries failing to prohibit all types of human exploitation in their domestic laws, which potentially may lead to extreme forms of human exploitation only being prosecuted indirectly through other offences. Recognizing the extraterritorial scope of other human rights instruments would effectuate their key purposes. Although slavery has existed throughout history, the umbrella term “modern slavery” is rather a recent definition, reflecting the changing nature of exploitation, primarily as a result of globalisation. Various forms of exploitation, such as human trafficking, forced labour, sexual exploitation, domestic servitude, and slave trade, are common types of slavery today. That is, modern slavery is a complex issue that requires a comprehensive and coordinated response to effectively combat it. This contribution makes several observations: the significant disparities in jurisprudence regarding the territorial application of human rights, and the link between extraterritorial shortcomings and inadequate domestic legislation — invariably, create loopholes that hinder the prosecution of international crimes.

Introduction

Human trafficking, slavery, slavery-like practices, forced labour, child labour, forced marriage, and servitude (debt bondage), which comprise the non-legal umbrella term “Modern Slavery”, have garnered unpreceded attention in recent years. Despite the abolition of slavery and serfdom in the mid-1800s, millions of people today are subject to modern slavery. In 2021, an estimated 50 million people globally were subjected to situations of modern slavery, with 12 million of them being children. 28 million people were subjected to forced labour, while 22 million were subjected to forced marriage, 14.9 million of whom were women and girls. Between 2018 and 2021, the number of people living in a situation of modern slavery increased by 10 million, indicating a growing human rights challenge and concern. At present, human exploitation may only be the tip of the iceberg, with jurisdictional ambiguity in international human rights instruments, inadequate legislative provisions, and conflicting obligations to which Member States of the European Union are parties presenting an even more complicated and bleak picture. According to a 2007 Amnesty International analysis, roughly 125 nations implemented domestic legislation allowing their courts to exercise extraterritorial jurisdiction over acts constituting a crime under international law. Despite 96 percent of all United Nations Member States having implemented domestic legislation against human trafficking, they either lack adequate prohibition against other types of human exploitation, such as servitude, for which 180 countries had no legislative provision in 2019, or fail to properly recognize the strict elements laid out in international law. A selective approach to international law is not an uncommon occurrence, but it leaves the scope of extraterritorial jurisdiction limited.

In light of the extraterritorial scope and application of human rights instruments, it must be emphasised that the assertion of enforcement jurisdiction is generally limited to national territory. International law recognizes particular circumstances in which a state may legislate for events that occur outside of its territory: on this basis, extraterritorial jurisdiction requires a link between the act committed and the state asserting jurisdiction. However, state responsibility and the extraterritorial applicability of international human rights instruments may be partly a matter of challenging interpretations arising from inconsistencies in the provisions of the European Convention on Human Rights (ECHR or Convention) of 1950 and the International Covenant on Civil and Political Rights (ICCPR) of 1966. It is further no surprise that, with the number of treaties that have been drafted and concluded on matters of human rights, there is a lack of uniformity, not only in the textual interpretation of these treaties, but also in the approach taken by different countries. Of course, human rights norms must, to a certain extent, be interpreted and applied with some latitude. No right can ever be universally interpreted to mean the same thing, but different opinions about the meaning conveyed by them can make it challenging to reach a consensus on the exact scope and application of extraterritoriality in human rights obligations. This can potentially impact the effectiveness of these instruments at both national and international levels. At the time of each of their ratifications, and shortly afterwards, the world looked remarkably different: the presumption for the extraterritorial scope of human rights did not gain prominence until the 1990s, partly due to the end of the Cold War and its impact on the governmental propensity of international human rights. In principle, as previously mentioned, a State is presumed to have exclusive jurisdiction over its territory: “sovereignty is essentially a relative notion”, argued Josef L. Kunz, an Austrian-American twentieth-century legal theorist. Kunz believed that any unrestricted political notion of sovereignty would inevitably lead to the non-existence of international law. Yet, it is possible that it will work the opposite way around. As the notion of sovereignty continually evolves, it becomes widely accepted for states to take action in response to human rights violations committed by other states. In recent times, several cases involving the substance of extraterritoriality with reference to human rights treaties have been at the core of debates. The United States’ mass transnational cyber surveillance in the context of extraterritorial interferences with privacy is one example. Another example is the application of human rights due diligence policies (applied to extraterritorial cooperation) to prevent irregular migration. The European Union, for instance, has used such policies to support Libya in the areas of border control and the detention of refugees and other migrants. Extraterritorial jurisdiction in the context of modern slavery cases, however, continues to be a controversial issue: the EU Anti-Trafficking Directive, which will be addressed further on in this policy brief, only facilitates Member States to use extraterritorial jurisdiction in cases of human trafficking when the crime is committed within their territory or if the offender is one of their own nationals.

The lingering question arising is whether the trouble is caused by human exploitation itself, or by the critical lack of coherence and harmony across instruments of human rights and their extraterritorial application. The question delves into the root causes of the issues at hand: understanding whether it is due to systematic weaknesses or a lack of coordination among human rights instruments will provide valuable insights for developing effective solutions in the context of modern slavery. This policy brief will examine the extraterritorial application of both the European Convention on Human Rights and the International Covenant on Civil and Political Rights, focusing on two jurisdictional observations: one relating to the significant differences between jurisprudence on questions of territorial application of human rights, and the other relating to the link between extraterritorial shortcomings in inadequate domestic legislations — invariably, creating loopholes that hinder the prosecution of international crimes. An appraisal of Norway and the mechanisms of extraterritorial application in their Penal Code is also offered. Despite Norway’s potent governmental response to modern slavery being commendable, it is important to recognize that even with such strong measures in place, inadequate domestic legislation can still leave gaps in practical protection against serious human exploitation. These gaps highlight the need for continuous evaluation and improvement of legislation to effectively eradicate modern slavery.

The Legal Framework

For reasons of scope, the “Palermo Protocol”¹ and the EU Trafficking Directive of 2011² have been selected among the numerous international agreements, standards, and conventions on modern slavery, and will be mentioned briefly in this section. The internationally recognized definition for trafficking in human beings is provided for in the United Nations Convention Against Transnational Organized Crime — also known as the 2000 “Palermo Protocol” — in its Article 3: 

“trafficking in persons shall mean the recruitment, transportation, transfer, harbouring receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.”³

When defining consent, the Palermo Protocol distinguishes between adults and any person under the age of eighteen: child victims cannot consent to being exploited, regardless of the means implemented.

Human trafficking is further divided into three major elements in the “Palermo Protocol”:

1. The act: recruiting, transporting, transferring, harbouring, or receiving the person.
2. The means: using threat, force, other forms of coercion, a position of vulnerability, or receiving payments or benefits to facilitate the act.
3. The purpose: sexual exploitation, forced labour, slavery or slavery-like practices, servitude, or organ removal.

Subsequently, if a victim of human trafficking is rescued before exploitation, as stipulated in the Palermo Protocol, takes place, the intent (mens rea) of exploitation is no longer required to be fulfilled.

In the European legal framework on human trafficking, the 1997 Joint Action, an instrument concerned with Combating Trafficking of Human Beings and the Sexual Exploitation of Children, was the first legal response to human trafficking. The Joint Action was adopted as part of the objectives of the Third Pillar of the Treaty on European Union (TEU)⁴, and was later recast in the Treaty of Amsterdam. The instrument had no legally binding effects on Member States, and was eventually replaced by the 2002 Framework Decision on Combating Trafficking in Human Beings and Offenses Against Children. The latter introduced two additional means: abuse of power or of a position of vulnerability in which there is no other acceptable alternative but to submit to the abuse involved, as well as giving or receiving payments or benefits to gain control over another person⁵. The Council of Europe (CoE), in its 2002 Framework Decision, upheld the definition set forth in the UN Palermo protocol, but expanded the definition of trafficking in human beings and the scope of its application to modern forms of trafficking. It established core elements of trafficking such as recruitment, transportation, transfer or harbouring and subsequent reception of persons, including the role of consent and the exchange or transfer of control of victims of trafficking. The latter element was a contrast to the UN Palermo Protocol, which exclusively covered recruiting, transportation, transfer, harbouring or receipt of persons. The 2002 Framework Decision became obsolete as the Treaty of Lisbon came into force in 2009 and was later replaced by the EU Anti-Trafficking Directive (Directive 2011/36/EU). In this respect, the question of why Joint Actions, Framework Decisions, or Directives are necessary arises given that the ECHR, which is binding on all EU Member States, already includes their content: Joint Actions originated to complement and improve ECHR implementation in the Member States, but the ECHR is a subsidiary instrument and thus not opposed to being implemented or extended through domestic or European legislation⁶.

Beyond Sovereign Soil 

“Lord Ronald said nothing; he flung himself from the room, flung himself upon his horse, and rode madly off in all directions” writes Stephen Leacock in his Nonsense Novels (1911). Likewise, is there a critical lack of conceptual conformity between the many human rights treaties and their jurisdiction clauses? According to the Westphalian view⁷, jurisdiction is primarily territorial, meaning that states are responsible for upholding the rights of individuals within their territory. However, this view is considered insufficient in today’s globalised world, where states often engage in activities abroad that can impact the rights of individuals. As such, it is important to examine the concept of jurisdiction and determine when and to what extent states are required to respect and protect the rights of individuals they have the power to affect. The confusion created by the English Courts in determining whether the ECHR applied to the actions of British forces in Iraq (in 2011) has made this question particularly pertinent: are we moving beyond the Westphalian view?⁸ One of the most challenging aspects of human rights litigation is often considered to be extraterritoriality, as states generally find it difficult to acknowledge that they have a responsibility to protect the human rights of individuals who are not within their territory. This issue of extraterritoriality is particularly relevant in cases where human rights violations occur in one country, but the individuals or entities responsible for those violations are based in another country. Under such circumstances, it can be challenging to hold the perpetrators of, for instance, human exploitation accountable. This section aims to clarify the obligations of states that are parties to the ECHR and the ICCPR with respect to human rights outside their territories by exploring the concept of “jurisdiction” as it is used in both treaties to define the scope of states’ obligations and as offering a thought-provoking analysis of ECtHR case-law on extraterritorial jurisdiction.

The scope of the application of the ECHR is governed by Article 1, while Article 2 of the ICCPR defines the scope of legal obligations taken by state parties to the Covenant. It may appear paradoxical that neither the ICCPR nor the ECHR align linguistically, or in terms of territorial application. While Article 2(1) of ICCPR states that “each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant”, Article 1 of ECHR provides that “the High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention”. The textual distinctions are particularly noticeable, as ICCPR specifies state jurisdiction as “within its territory”, whereas ECHR sets forth “within their jurisdiction” [emphasis added]. It was established early on that the ECHR had to be interpreted objectively, leaving minimal room for shifting interpretations of its jurisdiction: a so-called “tailoring and dividing” of human rights ought to be avoided. A reference to the concept of “within their jurisdiction”, rather than “within its territory” could imply that states may be obliged to secure rights and freedoms for those outside their territory. In this regard, it is contradictory that case-law on the extraterritorial application of the Convention reveals that jurisdiction, under Article 1 of the ECHR, has been in a state of flux over time:

1. Loizidou v. Turkey (March 23, 1995): although Article 1 of the ECHR confined the scope of the Convention, the Court stressed that the notion of “jurisdiction” under the aforementioned provision was not rigidly limited to the national territory of the Contracting States.
2. Bankovic and Others v. Belgium and 16 Other Contracting States (December 19, 2001): while international law did not exclude a state from exercising extraterritoriality, the Court, as a rule of thumb, deemed that jurisdiction was restricted and constrained by the sovereign territorial rights of other relevant states.
3. Al-Skeini and Others v. the United Kingdom (July 11, 2011): the Court brought attention to earlier case-law in which it had decided that a state typically only is required to apply the Convention within its own territory, thus overruling part of its Bankovic decision. Only in exceptional circumstances would an extraterritorial act fall under the jurisdiction of the State under the Convention.

In Bankovic and Others v. Belgium and 16 Other Contracting States, a case brought before the Court by the relatives of civilians killed in the NATO missile strike of the Radio Television of Serbia (RTS) building in Belgrade (former Federal Republic of Yugoslavia) on April 23, 1999, the Grand Chamber of the Court unanimously declared the case inadmissible. While international law did not exclude states from exercising extraterritoriality, the Grand Chamber held that jurisdiction was, as a general rule, defined and constrained by the sovereign territorial rights of the other relevant States. In Al-Skeini and Others v. the United Kingdom, a case brought before the Court by the relatives of six Iraqi civilians killed or fatally wounded by British soldiers in Basra, Iraq, in 2003 during British security operations, the Court determined that the deceased was subject to the jurisdiction of the UK under Article 1 ECHR. The case clarified the principle of ratione loci⁹ in ECHR, and while the Court did not completely abandon the territorial concept of jurisdiction, which it had embraced in its 2001 Bankovic decision, it did reconsider its conflicting line of case law on extraterritorial jurisdiction and moved closer to the principle of ratione personae¹⁰. In Al-Skeini, the Court suddenly accepted that the ECHR could be divided and tailored, now abandoning its own prohibition of “tailoring and dividing human rights”. It is also essential, however, to address the dates on which the Court issued the judgement in the Bankovic case, which subsequently halted the progression of extraterritorial application of human rights. Indeed, the decision was delivered three months after 9/11, with Europeans not only unwilling to trade their right to privacy for greater security, but the Court also attempting to avoid dealing with an eruption of perplexing cases due to the challenging circumstances in Iraq. Al-Skeini did expand the scope of extraterritorial application of the ECHR, but despite the clarifications provided, certain ambiguities and inconsistencies surrounding the territorial principle and territorial reach of the ECHR remain today. The Court concedes overall that jurisdiction is primarily territorial by nature, and the exercise of extraterritorial jurisdiction merely an exceptional occurrence. It is, however, clear that the shifting nature of the concept of extraterritoriality, as well as conflating jurisdiction under international law (with jurisdiction under Article 1) is an Achilles heel for the Court, leading to a constrained concept of extraterritorial jurisdiction, albeit extraterritoriality being an abstract concept.

Human rights obligations are a necessity but could also be a source of complexity, leading to either ambiguity or double standards. In this context, certain human rights duties apply within state territory, while others extend abroad, albeit retaining the same human rights. A lack of consistency amongst the numerous human rights treaties, and their exact territorial scope being heavily debated, undoubtedly paints a bleak picture. There is a high potential for conflicts to arise between human rights obligations at stake, and the domestic and international interpretation of such obligations. With minimal differences in interpretation by international and regional bodies, or domestic courts, states may struggle to strike a balance between their responsibilities to protect human rights. If the interpretation of certain human rights treaties diverges from the common international understanding, significant problems in upholding and protecting human rights in the long term may occur.

“Frankenstein’s Monster”, said scholar Anthony J. Colangelo critically about the presumptions against extraterritoriality, “the judge-made presumption against extraterritoriality has recently become a motley patchwork of eccentric and sometimes contradictory doctrines seemingly stitched together for one, and only one, mission: to deprive plaintiffs¹¹ the right to sue […] for harms suffered abroad”. The concept of “jurisdiction” as employed in the ICCPR and ECHR, has been comprehensively explored within academic discourse due to its ambiguity¹². Instead, alternative interpretations of “jurisdiction” have been proposed, taking into account both factual and legal ties, such as effective sovereign control over territory, control over an individual, or the laws of cause and effect¹³. In interpreting extraterritorial jurisdiction under the ECHR, the Court has relied on a constrained, primarily territorial understanding of jurisdiction in international law. Extraterritorial jurisdiction is therefore rather viewed as exceptional and requiring peculiar justification, as opposed to being the natural outcome of State’s actions abroad. The great paradox is whether the Court’s approach to cases involving state parties’ extraterritorial jurisdiction, instead (potentially) has given rise to several judicial interpretations of the ECHR: interpretations that were initially sought to be avoided. Moreover, the interpretive nature of Article 2(1) of the ICCR may further result in challenging scenarios of parallel obligations for Member States in one threshold question: when, if at all, does the ICCPR apply extraterritorially (and beyond a state’s territory)? The challenging (textual) unalignment of the many human rights treaties on territorial scope of application, combined with inadequate domestic legislation on “modern slavery”, and a narrow reach of legislation in including various types of human exploitation, creates a double-edged sword. Several human rights instruments have been created in the quest for securing universal protection of human rights, resulting in either a broad interpretative approach, a conflicting line of case-law, or contradictory human rights commitments, potentially leading to Leacok’s “driving madly off in all directions”.

The Obstacles of Extraterritorial Jurisdiction: Norway

In 2011, the EU Anti-Trafficking Directive replaced the 2002 Council Framework Decision on combating trafficking of human beings in the EU. It became the fundamental legislative tool addressing human trafficking in the EU, as the shortcomings of the 2002 Framework Decision included restricting the scope of aggravating circumstances by defining human trafficking in terms of sexual and labour exploitation only¹⁴. When comparing the 2002 Framework Decision to the 2011 Directive, it is essential to note that the Framework Decision specified that a victim was to be considered in a “particularly vulnerable state”, when the victim had not reached the age of sexual consent stipulated by national legislation on the subject, and when the offence was committed for the purposes of exploiting the prostitution of others, and other forms of sexual exploitation, including pornography¹⁵. The Directive expanded its scope to include all forms of exploitation. A provision requiring Member States to take the appropriate measures through their domestic laws to enable competent authorities to seize and confiscate instruments and products of human trafficking and related offences is included in the Directive, thereby depriving human trafficking of being seen as a profitable criminal activity and discouraging organised crime groups from engaging in it. The Directive also fosters cooperation between Member States and cross-border collaboration between Member States’ law enforcement authorities. The 2011 Directive expanded the obligations of the Member States regarding the nationality principle (i.e., when a state has jurisdiction to make its criminal law applicable to acts committed by its nationals outside its territory). This contrasts to the 2002 Framework Decision, which had a loophole for the nationality principle to be avoided by, for instance, ensuring it was only applicable in certain conditions, thus subordinating its exercise.

The Directive includes three feasible extraterritorial jurisdiction parameters:

• When the offender is a habitual resident of the concerned Member State’s territory; 
• When the offence is committed against one of its nationals or one of its habitual residents; 
• When the offence is “committed for the benefit of a legal person established in its territory”.

While the Directive encourages Member States to extend their extraterritorial jurisdiction, from 1986 to its adoption in 2011, only 26 people were legally convicted based on extraterritorial jurisdiction, and universal jurisdiction in particular¹⁶. Albeit the precise number of suspects being unknown due to structural investigations, 2022 saw 102 alleged perpetrators, 66 of whom were related to crimes against humanity. There were 15 convictions (Universal Jurisdiction Annual Review, 2022)¹⁷.

The jurisdiction of domestic and international law is not entirely separate, but they are also not completely overlapping. International law establishes a framework for the protection of human rights, while domestic law refers to the legal system created by states within their own jurisdictions (or territories). As such, states have the responsibility to ensure that their domestic laws align with their international human rights obligations. However, they only necessarily overlap to the extent that domestic law’s state jurisdiction is the object of jurisdiction under international law.

The Global Slavery Index found the most potent governmental responses to modern slavery in Norway, among others. In what concerns Norway’s efforts to eradicate the prevalence of modern slavery incidents, their political paradigm is outlined in their anti-trafficking and forced labour provisions in both their constitutional text and the 2005 Penal Code. In practice, the social construct of when extraterritorial jurisdiction applies to acts committed abroad is quite complex: provisions related to slavery and forced labour are found in the Norwegian Constitution in Article 93, which declares, “No one may be subjected to torture or other inhuman or degrading treatment or punishment: no one shall be held in slavery or required to perform forced labour; the authorities of the State shall protect the right to life and oppose torture, slavery, forced labour, and other forms of inhuman or degrading treatment.” Section 5(1) of the Norwegian New General Civil Penal Code of 2005 “Application of the criminal legislation to acts committed abroad”¹⁸ provides for passive personality jurisdiction, a limited universal jurisdiction, and specifies when Norwegian criminal legislation applies to acts committed abroad by a Norwegian national, a person resident in Norway, or acts committed on behalf of an enterprise registered in Norway. Section 5(2) further specifies the applicability of the criminal legislation to acts committed abroad by an alleged perpetrator who is — or who since the act has become — a national of or is resident in another Nordic country and is staying in Norway. This section addresses the extraterritorial reach of the Penal Code, requiring that for the Penal Code to apply to acts committed abroad, the act must be regarded as directed towards the Norwegian State or a Norwegian State authority, acts that are punishable under the law of the country in which the crimes were committed, acts considered war crimes, genocide, crime against humanity, a breach of international law of war, or forced marriage, among others. Individuals who have stayed in Norway for a specific time or who have been granted a formal residence permit following the applicable immigration laws and who are domiciled at the time an investigation is opened are considered to be residents in Norway, whereas persons who have no connection to Norway and are only visiting for holiday or business — or applying for asylum — and are present in Norway when investigations are opened are considered to bear presence in Norway. In both instances, Norway retains jurisdiction even if the alleged perpetrators leave the country after initiating an investigation. It is especially noteworthy that this section pinpoints prosecutions to be instituted when in the “public interest”, reflecting the specificities of an alleged perpetrator not being a Norwegian national or residing in Norway when a prosecution is instituted. Section 6 of the Penal Code establishes absolute universal jurisdiction over acts for which Norway has the right or obligation to prosecute under international law or agreements with foreign states. There is currently no legislation in place in Norway that prohibits servitude. As previously mentioned, it is not unusual for states to adopt a selective or nitpicking approach when it comes to applying international law to the issue of human trafficking.

Given the aforementioned provisions in the Norwegian Penal Code, the scope of universal jurisdiction, and the principle of double criminality (as per the Penal Code), it is established that a prosecution of an act committed abroad can only proceed if said act also constitutes a crime in the country where it occurred. Additionally, this requires that the alleged perpetrator is either a Norwegian national or a habitual resident in Norway. It is essential to clarify that in 2020, 94 nations (49%) had no criminal legislation prohibiting slavery, 112 countries (58%) appeared not to have put in place penal provisions punishing forced labour, while 170 (88%) had not criminalised slavery-like practices, and 180 states (93%) had not enacted legislative provisions criminalising servitude¹⁹. One of the most challenging obstacles is how different countries define and categorise extraditable crime. Although the prohibition of slavery, slavery-like practices, forced labour and servitude are enshrined in international law, domestic law often fails to align: there are limited options for prosecuting alleged exploitation of forced labour or servitude if both the requesting and requested countries lack proper domestic legislation beyond that of human trafficking.

It is crucial to note that the absence of these penal provisions may result in obstacles in the exercise of universal jurisdiction, such as alleged perpetrators only being prosecuted implicitly through other violations, like human trafficking. Because domestic legislation falls short in certain types of human exploitation, several forms of exploitation may only be prosecuted under related laws, raising the likelihood that alleged perpetrators can escape criminal prosecution. Denmark has also not properly defined the Palermo Protocol’s exclusion of children in having to fulfil all three elements of human trafficking in its domestic law. As previously noted, trafficking in children does not require forms of coercion, as children cannot give consent to being exploited: this matter is not defined in accordance with the Palermo Protocol.

The key challenge for European countries is to keep these variables in mind and incorporate them into national policies and legislation to widen their seemingly narrowly defined domestic laws on matters regarding the trafficking of human beings as defined by international law.

Recommendations on Efforts to Eradicate Prevalence of Modern Slavery

Based on the preceding, we infer that the ECHR provides a pragmatic definition of “jurisdiction” in its Article 1, albeit reflecting the potential for a second coming of the Convention’s extraterritorial jurisdiction and obligations. However, expanding extraterritoriality would ultimately necessitate not only political pressure, but also voluntary acquiescence from states: the jurisdiction and applicability of human rights treaties should be consistent with the evolving political nature of human rights themselves. Many countries’ current domestic legislation is critically insufficient in broadening the scope of their legislation or definitions of “modern slavery” to include other types of human exploitation beyond human trafficking. The detrimental consequences this has for protecting those currently subjected to modern slavery, the prosecution of alleged perpetrators via extraterritoriality, and the quest to eradicate diverse forms of modern slavery, especially by 2030, cannot be stressed enough.

Drawing from behavioural concepts in the studies of incoherences in legal systems, the following findings may be particularly relevant to the second recommendation outlined below, as well as illustrating the essence of the issue: “within categories, penalties seem extremely sensible, at least in the sense that the more serious harms are punished more severely. It should not surprise you, however, that the size of penalties varied greatly across agencies, in a manner that reflected politics and history more than any global concern for fairness. The fines [for serious violations] are sensible in the context of other penalties set by each agency, but they appear odd when compared to each other: you can see the absurdity only when the two cases are viewed together in a broad frame. The system of administrative penalties is coherent within agencies but incoherent globally.”²⁰ Consequently, the establishment of a comprehensive database would allow Member States to benchmark their legislation, offering insights into the efficacy of legal frameworks in combating various forms of human exploitation. This in turn can lead to evidence-based policymaking and reform efforts.

The recommendations below reflect inadequate domestic legislation on covering a wide range of human exploitation.

• Recommendation 1: Human rights law must adapt to the ever-changing interpretations of human rights. 

Changes in interpretations can be due to various factors, such as shifts in social contexts, advancements in technology, increased awareness, improvements in international law education, a growing understanding of who is vulnerable to human exploitation, and the emergence of new forms of human exploitation. As societies evolve, it is crucial for human rights law to remain dynamic and responsive. This necessitates a continuous evaluation and adjustment of human rights law to ensure its relevance, and calls for a proactive approach to identifying emerging issues and addressing them through comprehensive legal frameworks that reflect the evolving needs of society.

• Recommendation 2: An easily accessible database or framework. 

Although there is an anti-slavery database that compares the domestic laws of all United Nations Member States with their obligations under international treaties, it requires several unnecessary steps to reach a final result. These additional steps could make it more difficult for the general public to use the database. Long-term benefits may come from a structured collection and joint display of current data on domestic laws and constitutional texts related to human trafficking and other forms of exploitation in European Union Member States. This would entail a collaborative effort between government agencies and civil society actors to eliminate exploitation linked to modern slavery and human trafficking. A joint evaluation is more comprehensive than a single evaluation, as domestic laws may be coherent when considered individually but incoherent when considered globally. To increase efforts to reduce modern slavery, the framework could include contemporary, evidence-based research.

• Recommendation 3: Governance arrangements for the establishment of (research) committees. 

One shortcoming in applying extraterritorial jurisdiction is that nations’ domestic legislation is often narrowly defined and does not include additional forms of human exploitation beyond human trafficking. For example, servitude is a mainly overlooked form of human exploitation in many European countries. To prosecute alleged perpetrators of servitude would necessitate domestic provisions in addition to those targeting human trafficking. A research committee could effectively monitor and assist in adapting domestic political paradigms to meet their commitments to effectively prohibit human exploitation, adhering to Directive 2011/EU/36 on the extension of extraterritoriality (and collaboration between the Member States of the European Union), and potentially encouraging wide-ranging policies on the matter.

REFERENCES

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Council Framework Decision. (2002). 2002/629/JHA, Art. 1a-d. [pdf]. Available at: https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2002:203:0001:0004:EN:PDF 

European Commission. (2014). The Fight Against Trafficking in Human Beings in EU: Promoting Legal Cooperation and Victim Protection. [pdf]. Available at: https://www.transcrime.it/wp-content/uploads/2016/01/THB_CoopToFight.pdf 

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Acknowledgments

We thank Vannina Bozzi-Robadey, Camille Cottais, Jeanne Delhay, Niccolò Fantin & Vincent Lefebvre for their proofreading.

Picture: Kyle Glenn via Unsplash

To quote the article:

ROUBART, E. (2024). Addressing Extraterritorial Jurisdiction and Inadequate Domestic Legislation: A Pathway to Eradicate Modern Slavery. Generation for Rights Over the World. growthinktank.org. [online] Feb. 2024.