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Industrial Law Journal/2006, Volume 35/Issue 4, December/Articles/Servitude and Forced Labour in the 21st
Century: The Human Rights of Domestic Workers - ILJ 2006 35 (395)
Industrial Law Journal
ILJ 2006 35 (395)
1 December 2006

Servitude and Forced Labour in the 21st Century: The Human Rights of
Domestic Workers1
Human Rights of Domestic Workers
Virginia Mantouvalou

Lecturer in Law, University of Leicester, email: V.Mantouvalou@lse.ac.uk.

2007 Industrial Law Society
Abstract Organisations and scholars have recently drawn attention to what they call a modern form of slavery, 'domestic slavery'. Domestic workers in Europe and elsewhere live and work in appalling conditions and
are vulnerable to abuse. This article describes the problem, presents the relevant legal instruments and
analyses a decision of the European Court of Human Rights, Siliadin v France, where France was found in
breach of the prohibition of slavery, servitude, forced and compulsory labour under the European Convention
on Human Rights. The paper examines the growing interaction between international labour law and international human rights law. It argues that the decision in Siliadin and its legal implications constitute a positive
first step towards addressing the problem of the coercion and vulnerability of migrant domestic workers.
TRADE INDUSTRY AND INDUSTRIAL RELATIONS

1. Introduction
The terms forced labour, slavery and servitude sound obsolete in 21st century Europe. Their contemporary
3
relevance first brings Myanmar to one's mind, and then various other developing countries, where exploita4
tive labour practices have been publicised to an extent. Most would assume that grave abuse in labour relations ended in Europe decades ago and that violations of labour rights nowadays may only involve more subtle aspects of freedom of association and working conditions. Is this assumption true, however? Is slavery,
servitude, forced or compulsory labour relevant in 21st century Europe? Are there instances of extreme
abuse in labour relations in the UK, France, Italy or other countries that are generally considered to be paradigmatic in the protection of human rights at global level?

2. The problem of domestic labour

'Slavery is not a horror safely consigned in the past', it was recently argued in an influential study on new
forms of slavery in Thailand, Mauritania, Brazil, Pakistan and India. The story of Seba, though, a young
woman from Mali, which introduces the study, does not come from one of these developing countries, but
from Paris. 'Every day I started work at 7am and finished at about 11pm,' Seba said. 'I never had a day off ...
One day I told [my mistress] that I wanted to go to school. She replied that she had not brought me to France
to go to school but to take care of her children ... I slept on the floor in one of the children's bedrooms; my
food was their leftovers ... She often beat me. She would slap me all the time. She beat me with the broom,

with kitchen tools, or whipped me with electric cable. Sometimes I would bleed; I still have marks on my body
5
...'
Seba's example is not unique in developed countries. In Paris there are around 3,000 domestic workers, who
face similar living and working conditions. London, Zurich, Athens, Barcelona are only a few of the other cit6
ies where such phenomena are far from isolated, as numerous studies and reports reveal. According to
Kalayaan, a non-governmental organisation that campaigns for the rights of migrant domestic workers in the
UK, 84% of domestic workers have suffered psychological violence, 54% have been locked up, 38% have
7
been beaten, and 10% sexually abused. Exploitation of domestic workers, moreover, is not only a European
phenomenon, when it comes to developed counties. The NGO Human Rights Watch in its Report 'Hidden in
the Home: Abuse of Domestic Workers with Special Visas in the United States' revealed the ugly face of do8
mestic labour in the US.
What has been the response of international governmental organisations to the widespread, as it appears,
phenomenon of the appalling working conditions in private households in general and in Europe in particu9
lar? The situation has attracted attention and has given rise to calls for regulation. As early as 1965, the International Labour Organisation (ILO) recognised the particularity of domestic labour and adopted a Resolu10
tion on the Condition of Employment of Domestic Workers. From research conducted following the adop11
tion of the resolution, it emerged that domestic workers are 'overworked, underpaid and underprotected'.
The ILO Study entitled 'Making Domestic Work Visible: The Case for Specific Regulation' identified the main
12
features of domestic labour, which can be summarised as follows: first, most domestic workers are women,
second, most of the times they are migrants and, third, they usually work in private households and have to
live with their employer. Recently, and following the adoption of the 1998 Declaration on Fundamental Principles and Rights at Work, the Director General of the ILO issued two Reports, in accordance with the Decla13
ration's Follow-Up mechanism. In the 2001 Global Report 'Stopping Forced Labour' and in the 2005 Report
14
'A Global Alliance Against Forced Labour' special attention was paid to domestic work. The 2001 Report
15
identified domestic labour as one of the main instances of forced labour today, and the 2005 Report the
Director General dealt specifically with migrant workers and domestic work. 'Domestic workers', the Report
explained, 'are especially vulnerable to forced labour because of the unprotected nature of their work and the
highly personalised relationship between the worker and the employer. Domestic work takes place in the private household, which is typically excluded from labour market regulations ... Migrant domestic workers', it
went on to say, 'are in a particularly precarious position because of their insecure legal status in the host
16
country.' As for women, the Report recognised, taking up this kind of employment is the only option that
they have in order to escape poverty. Employers take advantage of this situation and of the fact that domestic workers are most often not unionised.
Human rights instruments, both at global and at regional level, prohibit slavery and servitude, forced and
compulsory labour, and various bodies have paid special attention to domestic labour. In the context of the
United Nations, Article 4 of the Universal Declaration of Human Rights prohibits slavery and servitude, while
a further prohibition of forced and compulsory labour is to be found in Article 8 of the International Covenant
on Civil and Political Rights. The 1926 Slavery Convention makes no specific reference to forced labour, but
17
recently child domestic labour was identified as one of the areas where slavery-like practices persist, while
the UN Working Group on Contemporary Forms of Slavery expressed the will to give priority to domestic la18
bour. Accordingly in many of the Working Group's activities the problems that arise in domestic work were
19
20
highlighted. Finally, the ILO set up a Special Action Programme to Combat Forced Labour. In the context
21
of the Special Action Programme, attention has been paid to domestic labour.
The last few years, domestic labour has also attracted the attention of organs of the Council of Europe. In
2001 the Committee of Ministers of the Council of Europe urged Governments to deal effectively with what it
called a new form of slavery, domestic slavery, and expressed regret that none of the European countries
22
makes domestic slavery a criminal offence. 'The Parliamentary Assembly is appalled that slavery continues
23
to exist in Europe in the 21st century', it was more recently reaffirmed. Although slavery was abolished
more than 150 years ago, 'thousands of persons are still held like slaves in Europe ... [They] are forced to
work (through mental or physical threat) with no or little financial reward, are physically constrained or have
other restrictions placed on their freedom of movement and are treated in a degrading and inhumane way', it
was added. It is the duty of the Council of Europe to be in the forefront in dealing with this situation, the Parliamentary Assembly concluded, and made specific recommendations to member states.

3. Domestic labour and international labour standards

The unparalleled vulnerability of domestic workers and their abuse is a widespread phenomenon in France
and worldwide. A number of studies put in question the supposed high level of protection of workers' rights in
Europe and other developed countries, and confirm that reality is much harsher and more complex than one
might initially hope. Are there any international labour standards that may regulate domestic labour? Can one
identify such standards at international level, in the context of the ILO, and at regional level, in Europe, where
the problem recently raised special concerns?
Numerous ILO Conventions and Recommendations may be of relevance to the regulation of domestic
24
work. The present section will present the ILO's main human rights conventions, namely the child labour,
forced labour, freedom of association and the non-discrimination instruments. Key documents on forced labour are the Forced Labour Convention of 1930 (No 29), which defines forced or compulsory labour as 'all
work or service which is exacted from any person under the menace of any penalty and for which the said
25
26
person has not offered himself voluntarily', requiring States to punish forced labour as a criminal offence,
and the Abolition of Forced Labour Convention of 1957 (No 105). When it comes to child labour, the 1973
Minimum Age Convention (No 138) and Recommendation No 146 apply to child domestic workers, but al27
lows the exclusion of certain categories of child workers. The 1999 Worst Forms of Child Labour Conven28
tion (No 182) and Recommendation No. 190 identify forced labour as one of the worst forms of child labour.
Turning to freedom of association, both the 1948 Freedom of Association Convention (No 87) and the 1949
Right to Organise and Collective Bargaining Convention (No 98) are applicable to domestic workers. Finally,
regarding the prohibition of discrimination, the 1951 Equal Remuneration Convention (No 100) and Recommendation No 90, the 1958 Discrimination (Employment and Occupation) Convention (No 111), and Recommendation No 111 and the 1981 Workers with Family Responsibilities Convention (No 156) and Recommendation No 165 are also applicable to domestic labour.
At regional level, the European Social Charter (ESC), counterpart of the European Convention on Human
Rights in the area of social and labour rights, in its Article 1 Paragraph 2 on the right to work, states that Contracting Parties undertake 'to protect effectively the right of the worker to earn his living in an occupation
freely entered upon'. The European Committee of Social Rights, former Committee of Independent Experts,
monitoring body of the ESC, has interpreted the phrase 'freely entered upon' as prohibiting forced labour. In
this context, the Committee found that 'the coercion of any worker to carry out work against his wishes, and
without his freely expressed consent, is contrary to the Charter. The same applied to the coercion of any
worker to carry out work he had previously freely agreed to, but which he subsequently no longer wanted to
29
carry out'. Issues arising out of domestic labour in particular have been examined in the Reporting Proce30
dure under the ESC in the context of Article 3 on the Right to Safe and Healthy Working Conditions, Article
31
7 on the Right of Children and Young Persons to Protection and Article 8 on the Right of Employed Women
32
to Protection.
The long list international and regional instruments that can be applicable to domestic labour did not solve
the problems domestic workers face. In spite of the fact that both the ILO and the Council of Europe, in various recent documents, appeared determined to deal with the situation, and despite increasing awareness
that domestic labour worldwide is certainly not unproblematic and that it requires regulation, things remained
unchanged. National authorities took no effective measures to address the phenomenon. Domestic workers,
in turn, did not have the opportunity to have their voice heard and had no avenue of redress before the competent organs, as there is no right of individual petition before the ILO or the European Committee of Social
Rights. The failure to take concrete steps at national level, as a result, raised questions over the relevance
33
and adequacy of legal regulation and international supervision when it comes to the most difficult issues.

4. Domestic labour and the ECHR

A response to the pressing problems of domestic labour came from a body that one would describe as a
rather unlikely forum when it comes to the supervision of labour rights. This development sheds new light on
the interaction between human rights and international labour law. A decision of the European Court of Hu-

man Rights showed the potential of the European Convention of Human Rights (ECHR) to address violations
of labour rights. It highlighted that, apart from freedom of association and other Convention rights that may
by implication affect specific aspects of the employment sphere, there is one provision, which directly concerns the employment relationship and deals comprehensively with a potentially unfair outcome. Article 4 of
the Convention shows that in the event that an employment relation leads to grave abuse, forced or compulsory labour, slavery or servitude, individuals have a right to be heard and States have a duty to guard against
this outcome, protecting the weaker and most vulnerable party from exploitation. Article 4 provides:
(1)

No one shall be held in slavery or servitude.

(2)

No one shall be required to perform forced or compulsory labour.

(3)

For the purpose of this article the term 'forced or compulsory labour' shall not include:

(a) any work required to be done in the ordinary course of detention imposed according to
the provisions of Article 5 of this Convention or during conditional release from such detention;
(b) any service of a military character or, in case of conscientious objectors in countries
where they are recognised, service exacted instead of compulsory military service;
(c) any service exacted in case of an emergency or calamity threatening the life or well-being
of the community;
(d)

any work or service which forms part of normal civic obligations.

This provision shows that such is the inequality of bargaining power and so significant the potential for abuse
that a state might have to intervene in the final result of the individual or collective bargaining process. Yet
the exact scope of Article 4 has been relatively unexplored, as it is one of the ECHR provisions that have not
placed a heavy burden on the already overloaded European Court of Human Rights. While until recently one
would say that the prohibition of slavery, servitude, forced or compulsory labour is not relevant in contemporary Europe, in July 2005 this assumption was found to be untrue. The ECtHR decided a case, which shed
light on the contemporary relevance of Article 4 in Europe, and which emphasised the significance of the
character of the ECHR as a living instrument and its increasing relevance to workplace rights.

4.1 Siliadin v France

34

The unanimous decision of the Court in Siliadin v France addressed contemporary forms of slavery in
Europe and highlighted the obligation of States to protect individuals from an unfair outcome in the employment relation under the ECHR. The applicant, a domestic worker, claimed that under French criminal law,
she was not afforded adequate and effective protection against slavery, servitude, forced and compulsory
labour, contrary to Article 4 of the ECHR.
Siwa-Akofa Siliadin is a Togolese national, born in 1978. In 1994 her father agreed with Ms D that she would
take her to Paris. The agreement was that the applicant would do housework for Ms D until she paid back
the amount of her air-ticket, and Ms D would arrange for her education and the regularisation of her immigration status. Instead, Ms D withheld the applicant's passport and kept her as an unpaid house servant.
Later in 1994, Ms D 'lent' the applicant to Mr and Mrs B, who had three young children. While with Mr and
Mrs B, Siliadin became a general housemaid to the couple. She would work seven days a week without a
day off. She would wake up at 7.30 every morning, take care of the children and the baby throughout the
day, and do all house cleaning. At night, she would prepare dinner and then go to bed at 10.30. She had to
sleep on a mattress on the floor of the children's room. She had to wear old clothes. She would work around
15 hours per day and would also have to clean Mr B's office. Siliadin was never paid for her work. She only
received one or two 500 FF notes (76,22 euros).

At some point, the applicant got hold of her passport, and spoke of her situation to a neighbour. In 1998, the
police entered the house of Mr and Mrs B. The couple was accused of abusing Siliadin's vulnerable and dependent status, having her do unpaid or insufficiently paid work for them, forcing her to work and live in inhuman conditions, and accepting her with no work permit. According to Article 225-13 of the French Criminal
Code, it is prohibited to have someone at your service without pay or with pay that is clearly disproportionate
to services provided. Article 225-14, in turn, states that it is prohibited to subject someone to working conditions incompatible with human dignity, abusing that person's vulnerable or dependent situation. The penalty
for both crimes is two years imprisonment.
In 1999 Mr and Mrs B were convicted at first instance to 12 months imprisonment for having the applicant do
unpaid work for them. As for her working conditions, the Court held that they were not incompatible with human dignity. In 2000 the Paris Court of Appeal acquitted Mr and Mrs B of the offence, because Siliadin had
some autonomy. The Public Prosecutor did not appeal against the decision and the applicant appealed on
points of law in relation to her civil claim. The case was referred to the Court of Cassation, which quashed
parts of the judgment, and referred the case to the Versailles Court of Appeal. In 2003 the Versailles Court of
Appeal ordered Mr and Mrs B to pay Siliadin damages for her unpaid work but held that her working condi35
tions were not incompatible with human dignity. The Paris employment tribunal awarded her an amount for
salary arrears, notice period and holiday leave.
Before the ECtHR, the applicant maintained that France was in breach of Article 4 of the ECHR, for not having effective criminal legislation to combat slavery, servitude, and forced or compulsory labour.
The Court first examined whether Article 4 was applicable in the present instance. At first glance, the alleged
violation of the Convention here involves private parties with no direct involvement by French authorities.
States, however, may have positive obligations under the Convention. State responsibility, therefore, may be
engaged under the ECHR, because of an omission to set up the necessary system that will safeguard the
Convention's guaranties.
Turning to the alleged breach of Article 4, the Court repeated the words of the Parliamentary Assembly,
stressing that 'although slavery was officially abolished more than 150 years ago, "domestic slavery" persists
36
in Europe and concerns thousands of persons, the majority of whom are women'. The absolute, fundamental character of Article 4, which cannot be limited or derogated from, shows that it may require criminalisation
of any conduct that violates it.
Does Siliadin's situation fall within the ambit of Article 4, however? ILO treaties, the Court emphasised, bind
almost all ECHR member States. The 1930 Convention on Forced Labour is of particular relevance when it
comes to the interpretation of Article 4, as there is striking similarity between Article 4, Paragraph 3 ECHR,
and Article 2 Paragraph 2 of ILO Convention 29. According to Paragraph 1 of the same provision, forced or
compulsory labour is 'all work or service which is exacted from any person under the menace of any penalty
and for which the said person has not offered himself voluntarily'. In Van der Mussele, accordingly, the Court
held that forced or compulsory labour is work 'exacted ... under the menace of any penalty' and also performed against the will of the person concerned, that is work for which he 'has not offered himself voluntar37
ily'. The first condition, the Court went on to explain, is satisfied. While the applicant did not face a penalty,
she faced an equivalent threat. Being an illegal immigrant, she feared that she would be stopped by the police, while Mr and Mrs B maintained this fear, and encouraged her to hope that her status would be legalised.
As for the second condition of forced labour, namely whether her work was voluntary, the Court stressed that
38
Siliadin had no other option. She had, therefore, been subject to forced labour at the least.
Had she been subjected to slavery or servitude, though? Mr and Mrs B did not exercise a right of ownership
upon the applicant, reducing her to the status of an object. She was not a 'slave', therefore. Servitude, in
turn, involves a particularly grave restriction of one's liberty, and entails not only an obligation to provide
39
one's services, but also to live with one's 'employer', and be unable to change this. If the applicant had left
Mr and Mrs B, she would have had nowhere else to go and no other place to stay. She was totally at the
mercy of the couple, having no passport and being an irregular migrant. She had no freedom of movement
and no free time. Further, she had no hope that her situation would improve, as she was not sent to school.
40
She had, accordingly, been subjected to servitude. Was protection afforded by French legislation adequate
for the purposes of Article 4 of the ECHR? The relevant provisions of the Criminal Code, the Court noted,
were much more limited than Article 4, as there was no clear prohibition of slavery and servitude as such in

French criminal law. The provisions were open to many different interpretations. They were neither concrete
nor effective, although one of the fundamental values of democratic societies was at stake. France was,
therefore, in breach of the ECHR.

4.2 The ECHR and International Labour Standards

A number of novel and remarkable aspects of the complex interaction between labour and human rights law
emerged from Siliadin. Two points require further analysis. First, it is crucial to assess the relation between
the ECHR, a traditional civil and political rights instrument, and the relevant documents of the ILO. Second, it
is necessary to consider the conditions under which an employment relation as a whole may raise issues
under Article 4 of the ECHR.
Labour lawyers have traditionally regarded with scepticism the interaction between labour law and human
41
rights. Past ECHR case law was in part to blame for this stance. Perhaps the most striking example of the
unwillingness of the European Commission on Human Rights (EComHR) to promote coherence in the inter42
national protection of labour rights was the 1987 Council of Civil Services Unions, also known as GCHQ. In
GCHQ, while the ILO Committee of Freedom of Association found that the total ban of union membership
43
violated the right to associate under Article 2 of Convention 87, the EComHR, having to examine the UK's
compliance with Article 11 ECHR, relied upon the provision's second paragraph, which permits restrictions
on the right to associate when there are national security issues involved. Article 11 Paragraph 2 has no
counterpart in ILO Convention 87 and the EComHR declared the application inadmissible, instead of considering whether the UK Government could have imposed a lesser restriction of the right to associate, especially in view of the ILO's findings. Labour lawyers criticised severely the stance that the Commission opted
44
to follow.
45

While there have been examples where the Court and the Commission were less hostile towards the ILO, it
was not until 2002 that the ECtHR took a decisive step in the opposite direction. In Wilson, contrary to its
past practice, the ECtHR referred to ILO materials as relevant, and added that the Committee of Independent Experts (renamed to European Committee on Social Rights) and the ILO's Committee on Freedom of
Association had criticised the UK legislation under scrutiny, in order to maximise rather than restrict the Con46
vention's coverage. Wilson showed, it has therefore been argued, 'how social rights can have indirect legal
47
effect by influencing the interpretation of legally enforceable rights'. In 2004, in Sidabras, following a similar
approach, the ECtHR stated: 'having regard in particular to the notions currently prevailing in democratic
states, the Court considers that a far-reaching ban on taking up private-sector employment does affect "private life". It attaches particular weight in this respect to the text of Article 1 2 of the European Social Charter
and the interpretation given by the European Committee of Social Rights ... and to the texts adopted by the
48
ILO'.
In Siliadin, affording ILO materials indirect legal effect was particularly important for two reasons. First, it
shed light on the application of Article 4 between private parties and, second, it assisted in the determination
of the material scope of the provision. Does the prohibition of slavery, servitude, forced or compulsory labour
impose a positive duty on States to intervene in a relationship between private individuals? While international human rights law initially concerned State action and did not involve relations between individuals, the
Court's decision in Siliadin reaffirms that a State may have positive obligations to regulate the private employment relation. States' duty to intervene in private relations may have various justifications: on the one
hand, it may stem from the fundamental character of Convention rights, which, arguably, becomes even
49
more significant when it comes to non-derogable provisions, and on the other, from the clear unequal
status of individuals in certain private relations. A state that does not criminalise murder or torture would not
be in compliance with international human rights law, nor would a state, which does not investigate forced
50
disappearances, according to well-established case law. The fact that a specific action is not directly imputable to the authorities does not mean that it cannot impose obligations under human rights law.
Siliadin was the first case where the Court examined the horizontal effect of the Convention in the context of
Article 4. References to ILO instruments, here, carried special weight in the determination of States' positive
obligations. More specifically, the Court cited Article 4 of the 1930 Forced Labour Convention, which has
been ratified by France and which provides as follows: '(1) The competent authority shall not impose or per-

mit the imposition of forced or compulsory labour for the benefit of private individuals, companies or associations". Making further mention of the 1956 Supplementary Convention on the Abolition of Slavery and to the
International Convention on the Rights of the Child, the Court held that 'limiting compliance with Article 4 of
the Convention only to direct action by the State authorities would be inconsistent with the international in51
struments specifically concerned with the issue and would amount to rendering it ineffective'.
The second reason why reference to ILO instruments carried special significance in Siliadin is that it played a
central role in the examination of the material scope of Article 4, which is one of the least invoked provisions
of the otherwise widely explored ECHR. Although there is by now a wealth of case law on most ECHR articles, the Court and the Commission have had few opportunities to determine the scope of the prohibition of
slavery, servitude, forced or compulsory labour. While, in accordance to its common practice, the lack of
specific national legislation on domestic servitude that would serve as evidence of consensus in member
52
states could have made the ECtHR have recourse to its well-established 'margin of appreciation' doctrine,
in Siliadin it did not do so. The Court, on the contrary, criticised the lack of special regulation, and went on to
examine whether Article 4 was breached. As there was neither much jurisprudence to build upon, nor much
national practice to take into account, it decided to rely heavily upon relevant materials of the ILO and other
Council of Europe and international instruments. It made mention of the 1930 ILO Convention on Forced Labour, the 1926 Slavery Convention and the 1956 Convention on the Abolition of Slavery, which have all been
53
ratified by France. It was with the aid of these instruments that the Court reached its decision.
References by international human rights bodies to ILO standards are not unique in the case law of the
ECtHR. The Inter-American Court of Human Rights in its Advisory Opinion on the Juridical Condition and
54
Rights of the Undocumented Migrants held that 'undocumented migrant workers who are in a situation of
vulnerability and discrimination with regard to national workers, possess the same labour rights as those that
correspond to other workers of the State of employment, and the latter must take all necessary measures to
ensure that such rights are recognised and guaranteed in practice. Workers, as possessors of labour rights,
55
must have the appropriate means to exercise them'. To reach its decision the Court made several refer56
57
ences to ILO instruments and took into account the 1998 ILO Declaration, relevant ILO Conventions, and
58
numerous other related ILO instruments and studies.
The central importance of the interaction between international supervisory mechanisms lies in that it promotes what Helfer and Slaughter described as a crucial factor of effective supranational adjudication. Judicial
59
cross-fertilisation and dialogue, described as '[e]ach tribunal's willingness to refer to the other's rulings' and
60
which 'has interesting implications for enhancing their influence and effectiveness generally' can only be
seen as a welcome development of the last few years in the case law of international bodies. It certainly enhances both the scope of the ECHR and the protection of labour rights as human rights at supranational
level, in general.
The relation between international labour law, therefore, and international human rights law should no longer
61
be regarded as competitive. The overlap and convergence in the protection of labour rights appears to be
highly beneficial to the ILO, a usual critique of which is that its soft law procedures are ineffective. The
ECtHR and the Inter-American Court in their recent jurisprudence show increasing deference to the ILO, not
by encouraging applicants to turn to the specialist organisation, but by utilising ILO expertise in order to clarify the scope of human rights treaties. This is true both in respect of ILO Conventions and Recommendations, and when it comes to decisions of the Committee on Freedom of Association and the Committee of
Experts on the Application of Conventions and Recommendations. This practice affords a new, binding character to international labour rights, making them potentially justiciable through individual petition procedures,
which do not exist in the context of the ILO itself.

4.3 The ECHR and Forced Labour

Individual complaints brought before the ECtHR under Article 4 ECHR are few. In the past, the Court had
had to look at various state-imposed obligations, which allegedly breached the provision. Examining these
complaints, the European Commission on Human Rights (EComHR) and the ECtHR explored the material
62
scope of the provision. In Van Droogenbroeck, for instance, the applicant complained that work he had to
do while in detention was in violation of Article 4 of the Convention. The EComHR, discussing the notion of

servitude, held that 'in addition to the obligation to provide another with certain services, the concept of servitude includes the obligation on the part of the 'serf' to live on another's property and the impossibility of
63
changing his condition'. Work that one has to perform while in prison and which aims at rehabilitation falls
64
within the scope of Article 4(3)(a) and does not constitute a breach of the Convention. Military service in
65
which someone has entered as a volunteer, moreover, was found to be in accordance with Article 4. On
forced or compulsory labour, the Commission has had to look at issues such as the duty imposed on dentists
66
to work for up to two years for a public dental service, the requirement imposed on barristers to represent
67
poor clients under the threat of severe punishment and without adequate compensation, and the obligation
68
to seek and take a job as a prerequisite to unemployment benefits. Two elements were found to be crucial
for the notion of forced or compulsory labour, according to the relevant decisions. First, work should be per69
formed by the worker against his or her will and, second, that this work is unjust or oppressive. None of the
above allegations was held to amount to a breach of the prohibition under Article 4. In Ould Barar v Swe70
den, finally, the Court had to consider whether returning the applicant to Mauritania, where he might face
slavery, could give rise to a violation of the Convention. The Court, re-iterating its well established case law
on extraditions and expulsions, held that in principle this may be true. However, in the instant case, the complaint was not substantiated.
Siliadin sheds new light to Article 4 of the ECHR and the prohibition of forced labour. There are two issues
that require further consideration in this context. A first question to address is whether Siliadin was indeed
particularly prone to abusive labour conditions. Second, one needs to assess whether her decision to live
and work in such conditions was a matter of free choice or whether it resulted from external coercion, a notion central in past jurisprudence.
In a 2001 Human Rights Watch Report entitled 'Hidden in the Home: Abuse of Domestic Workers with Special Visas in the United States' the situation was described as follows:
[domestic workers] start feeling overwhelmed by their fears ... They feel trapped, but ambivalent about leaving, talking and seeking help. After feeling betrayed by their employers ... it is hard for them to trust strangers. The social isolation they have been subjected to has made them even more distrustful and vulnerable.
Their self-esteem suffers considerable damage after prolonged periods of maltreatment, abuse and humilia71
tion. They feel inadequate, powerless and worthless.
Siliadin was in such a weak position. An illegal migrant and a domestic worker, isolated from French society,
she appeared to have no prospect of seeing her situation improve. The confiscation of her passport was only
one of the factors that determined the Court's decision, while her living and working conditions carried significant weight in the determination of the voluntary character of her work, as they impeded her social integra72
tion and flourishing and condemned her to exclusion and isolation. Is it only the status of the applicant as a
minor at the time that brought her within the scope of the Convention? Or can any employment relation, from
its establishment and all the way until its solution, fall within the ambit of the ECHR? While the Court did
mention that the applicant was a minor, it was only one of the factors that it considered. Even if Siliadin were
over eighteen when she was taken to France and kept as a domestic worker, it seems that the Court would
not have found otherwise. It is the situation of an individual who comes from a foreign country having no legal documents, who is desperately trying to escape extreme poverty and has to work long hours in inhuman
conditions that carried most weight in the Court's finding.
While work is central for an individual's sense of fulfillment and self-respect, a further function of one's job is
the sense of belonging and social inclusion that it inspires. Isolation, often deliberately created, is one of the
primary effects that domestic servitude has upon individuals. 'The physical and emotional isolation in which
the victims [of domestic slavery] find themselves', the Parliamentary Assembly of the Council of Europe underlined, 'coupled with fear of the outside world, causes psychological problems which persist after their re73
lease and leave them completely disoriented'. This situation runs contrary to the evolving object and pur74
pose of both the Convention and numerous other initiatives of the Council of Europe, and was determinative in the Court's conclusion.
75

Consent, it appears from ECHR case-law, cannot legitimise slavery or servitude. When it comes to forced
76
or compulsory labour, though, things are less clear-cut. If someone 'willingly' subjects herself to very harsh
working conditions, then one might argue that it is not forced labour and the authorities have neither an obligation nor a right to intervene. In the Vagrancy cases in the context of Article 5, however, the Court stressed

that 'the right to liberty is too important in a "democratic society" within the meaning of the Convention for a
person to lose the benefit of protection for the single reason that he gives himself up to be taken into detention. Detention,' the Court went on to explain, 'might violate Article 5 (Article 5) even although the person
concerned might have agreed to it. When the matter is one which concerns ordre public within the Council of
Europe, a scrupulous supervision by the organs of the Convention of all measures capable of violating the
77
rights and freedoms which it guarantees is necessary in every case'. Article 4, like Article 5 of the ECHR,
involves such a fundamental aspect of one's liberty, making it hard to see how consent might carry significant
weight in the Court's finding.
Even if the ECtHR held that an individual can consent to such living and working conditions, it should then
take a step further, and examine whether there is clear choice and true consent or whether the agreement is
actually coerced. Was Siliadin's decision to work in such conditions free and voluntary, as some might argue,
or was it imposed or significantly influenced by external factors? Did she have the opportunity to escape and
take control of her life? Seba, Bales observed, 'is baffled by the idea of "choice". Her volunteer family tries to
78
help her make choices, but she still can't grasp it'. Having lived for a long time in conditions of oppression
and exploitation, she is unable to think and decide clearly. Even if she were able, however, to think and decide clearly, her options would be extremely limited. 'If we value freedom in each particular case because of
the importance of choice and of not being constrained in the choices one makes,' J. Waldron argued discussing homelessness and freedom, 'then that value ought to direct some attention to how many choices a per79
son has left after each constraint has been exercised.' Here the options Siliadin had were in fact two. She
was 'free' either to stay with Mr and Mrs B, work in inhuman conditions and hope that her immigration status
would at some point be regularised, or to leave them. Should she decide to leave them, she would not be
free to stay in the country and find a better job. She would most probably face detention and deportation. In
her home country, then, she would have to live in conditions of inescapable extreme poverty. It is highly
questionable, therefore, how free her choice was, as '[e]xploitation, forced labour, and appalling working
conditions', according to a recent study, 'can [...] be perceived as the only viable option for the migrant
80
worker. To appeal to the authorities or another type of assistance would be to eliminate this only option'.
'Labour is not a commodity', echoes the central principle of the ILO, enshrined in its Constitution. The situation of domestic workers adds a further tragic dimension to this call. In an employment relation in general
many fundamental aspects of one's well-being may be affected and give rise to issues under the Convention.
Siliadin, however, faced additional hardship. She had no privacy, as she was made to sleep with the family's
children, and had almost no free time. She was not allowed to communicate freely with the outside world,
having an illegal status in the country and living in fear, and she was subjected to inhuman treatment. Keeping someone in servitude and forcing her to work in such conditions is a negation of all aspects of personhood and human dignity, core values of the ECHR. That individual's complete isolation and social exclusion
is unavoidable, and her chance to change her life hopeless. It is not only the domestic worker's labour that is
81
commodified, but her existence as a whole.
It is this extreme injustice and this negation of Siliadin's dignity that compelled the Court to consider her employment relationship as a whole, and to find that it constituted forced labour. What the Court's conclusion in
Siliadin finally demonstrates, then, is not some formalistic insistence that the exact wording of the Convention be included in French criminal legislation. It is more than mere conceptualism. It reflects the realisation
that the gravity of such acts and the harm that they provoke to workers demand positive and effective state
action and protection, which was not afforded by French criminal law at the time.

5. Conclusion
Considering the relevance of Article 4 for the UK before Siliadin, as with the rest of Council of Europe member states, most would be inclined to say that slavery, servitude, forced labour, are all practices which have
by now been eliminated. To what extent is this true? Are there any forced labour practices in the UK, and if
so, is UK legislation in compliance with ECHR standards? The UK Asylum and Immigration Tribunal in cases
82
similar to Ould Barar has had to examine whether returning individuals to their home country, where they
would face a risk of having to work in conditions of forced labour or slavery, could be contrary to ECHR Arti83
cles 3 and 4. The decision of the ECtHR in Siliadin, however, makes us reconsider the contemporary rele-

vance of forced labour, not only when it comes to extradition and expulsion, but also with respect to such
allegations within UK territory.
Sadly, both from Council of Europe documents and from domestic sources, it appears that modern forms of
84
slavery are not an unknown phenomenon in the UK. The Study on 'Forced Labour and Migration to the UK',
prepared by the Centre on Migration, Policy and Society in collaboration with the Trade Union Congress and
published in 2005, illustrated the issues, both with reference to practice and legislation, setting out numerous
85
examples of coercive labour practices. Immigration adjudicators, moreover, have heard complaints under
86
Article 4 by women who have been trafficked to the UK and worked as domestic servants.
The UK, like France, has ratified the key ILO Conventions on forced labour. Moreover, there is the 19th century Slave Trade Act, which prohibits slavery and bonded labour. 'Legal remedies that enforce prohibition
87
against ownership are ineffective, since enslavement and control are achieved without ownership', Bales
argued. Indeed, the ECtHR in Siliadin, held that the applicant was not a slave, as no right of ownership was
exercised upon her. In a similar fashion, Lord Giddens in a parliamentary debate contended that contempo88
rary forms of abuse differ and should be distinguished from the traditional notion of slavery.
Recently adopted legislation that is of relevance here is, first, the Asylum and Immigration Act and, second,
the Gangmasters Licensing Act. The Asylum and Immigration (Treatment of Claimants) Act 2004 criminalises forced labour when it is connected to trafficking. Section 4 of the Act, entitled 'Trafficking people for exploitation', provides that a person commits an offence if he arranges or facilitates the arrival or travel within
the UK or the departure from the country of an individual, aiming at the exploitation of that person within or
outside the UK. A person is exploited according to the Act 'if (and only if)- (a) he is the victim of behaviour
that contravenes Article 4 of the Human Rights Convention (slavery and forced labour) ... or (c) he is subjected to threats, force or deception designed to induce him--(i) to provide services of any kind, (ii) to provide
another person with benefits of any kind, or (iii) to enable another person to acquire benefits of any kind'.
The Gangmasters Licensing Act 2004 sets up a licensing system for individuals, who supply or use workers
in agricultural work, harvesting fish and performing other agricultural, processing and packaging activities.
The Act requires everyone that either employs people for such activities, or supplies workers to others, to be
licensed, and makes such activities an offence, if they are performed without a license.
Is UK legislation adequate? Does it satisfy ECHR standards? Not necessarily. This is so because, while a
person who has been trafficked has a route of redress, an irregular migrant who has not been trafficked and
89
is subject to forced labour practices, will remain unprotected. Trafficked migrants, it is true, are subject to a
high risk of exploitative working conditions. This is not to say, though, that they are the only group of individuals who may be abused. Moreover, it is not only the trafficker who may abuse them. The Immigration
Act, it has therefore been argued, confuses illegal immigration and trafficking, and presents forced labour as
90
an immigration issue solely. As for the Gangmasters Act, Lord Brett pointed out that '[i]t will put an end to
the exploitation of workers in one industry, but the truth is that it needs to be expanded. Major human rights
abuses take place in the construction industry with the often coerced importation of labour from eastern and
91
central Europe'.
The assumption that slavery-like practices have been eliminated is far from real in the 21st century. The decision of the European Court of Human Rights in Siliadin v France raises awareness of one of the darkest
sides of the protection of labour and human rights in Europe. Domestic slavery is something more than labour as a commodity, for it is each single aspect of the domestic worker's life that may be commodified and
abused. This extreme injustice led the ECtHR to impose a duty upon Council of Europe member states to
have in place effective criminal legislation that will punish such appalling working conditions, which were
thought to have vanished. Of course, when it comes to domestic slavery, having legislation in place is not a
panacea. This is so because there are particular difficulties in its implementation, more than in any other private sector relationship. Migrant domestic workers will not easily leave the household. Their fear will often
impede them from going to the authorities, making their situation visible and aiding the effective elimination
of the crime. The adoption of effective legislation, however, is a decisive first step and rebuilds confidence
that the protection of labour and human rights in Europe, even in the most difficult cases, is not 'theoretical
92
and illusory' but 'practical and effective'.

In memory of Venetia Newitt Moschovakou.

I am grateful to the Journal Editor, to Hugh Collins, George Letsas and an anonymous referee for valuable comments on
this paper. Many thanks are also due to Conor Gearty, Steven Greer, Stuart Lakin, Gerry Simpson, Ann Singleton and Erika
Szyszczak.
3

See the Report of the International Labour Organisation Commission of Inquiry appointed to examine the observance of the
1930 Forced Labour Convention, 'Forced Labour in Myanmar (Burma)', 2 July 1998. See also, Amnesty International Report,
'Human Rights for Human Dignity: A Primer on Economic, Social and Cultural Rights' (2005) 18.
4

See, among others, the detailed 2005 ILO Report of the Director General of the ILO 'A Global Alliance Against Forced Labour'. See also the Human Rights Watch Report, 'Help Wanted: Abuses Against Female Migrant Domestic Workers in Indonesia and Malaysia' (2004).
5

K. Bales, Disposable People: New Slavery in the Global Economy (University of California Press, 1999) 1-2.

Ibid at 3. See also B. Anderson, Doing the Dirty Work? The Global Politics of Domestic Labour (Zed Books, 2000) chs 3-5.

Data based on a sample of 1,000 domestic workers, available at

http://ourworld.compuserve.com/homepages/kalayaan/home.htm and included in the Council of Europe's Report of the Committee on Equal Opportunities for Women and Men, Doc 9102, 17 May 2001, para 12.
8

Report available at http://www.hrw.org/reports/2001/usadom/usadom0501.pdf. See also J.M. Zambeka 'America's Dirty

Work: Migrant Maids and Modern-Day Slavery' in Ehrenreich, Hochschild (eds), Global Woman, (Metropolitan Books, 2003)
142; and 'Freedom Denied: Forced Labour in California', Human Rights Centre, University of California Berkeley (February
2005) available at http://www.hrcberkeley.org/download/freedomdenied.pdf.
9

ILO, 'Making Domestic Work Visible: The Case for Specific Regulation', available at
http://www.ilo.org/public/english/dialogue/ifpdial/publ/infocus/domestic/ and 'Helping Hands or Shackled Lives? Understanding
Child Domestic Labour and Responses to it', International Labour Office (2004).
10

ILO, Official Bulletin, Vol XLVIII(3), (July 1965) Supplement I, pp. 20-1.

11

'The Employment and Conditions of Domestic Workers in Private Households: An ILO Survey' (1970) 102 International Labour Review 391 at 400.
12

A. Blackett, 'Making Domestic Work Visible: The Case for Specific Regulation', available at
http://www.ilo.org/public/english/dialogue/ifpdial/publ/infocus/domestic/.
13

Report available at http://www.ilo.org/dyn/declaris/DECLARATIONWEB.DOWNLOAD_BLOB?Var_DocumentID=1578, pp

29-30.
14

Report available at http://www.ilo.org/dyn/declaris/DECLARATIONWEB.DOWNLOAD_BLOB?Var_DocumentID=5059.

15

2001 Report, pp 29-31.

16

2005 Report, pp 50-1.

17

Office of the High Commissioner on Human Rights, Fact Sheet No 14, 'Contemporary Forms of Slavery'.

18

Subcommission Resolution 1997/22, paras 34-5.

19

See, for instance, Report of the Working Group on Contemporary Forms of Slavery, E/CN4/Sub2/2005/34, paras 25-7 and
E/CN4/Sub2/2004/36, para 51.
20

On the Special Action Programme, see R. Plant and C. O'Reilly, 'The ILO Special Action Programme to Combat Forced
Labour' (2003) 142 International Labour Review 73.
21

See Discussion Paper on the Protection of Domestic Workers Against the Threat of Forced Labour and Trafficking, prepared for Anti-Slavery International by Lin Chew in cooperation with the ILO's Special Action Programme to Combat Forced Labour (January 2003) available at http://www.antislavery.org/homepage/resources/AntiSlavery%20domestic%20workers%20discussion%20paper%200203.pdf.
22

Recommendation 1523(2001), para 9.

23

Council of Europe, Parliamentary Assembly Report, Doc 10144, 'Domestic Slavery: Servitude, Au Pairs and Mail-Order
Brides' (2004) para 1. See final text of Recommendation 1663 (2004).
24

For an overview see J.M. Ramirez-Machado Domestic Work, Conditions of Work and Employment: A Legal Perspective,
Conditions of Work and Employment Series No 7 (ILO, 2003).
25

Article 2(1).

26

Article 25.

27

Article 4(1).

28

Article 3(a).

29

Conclusions III, p 5, cited by L. Samuel in Fundamental Social Rights: Case Law of the European Social Charter, 2nd ed
(Council of Europe Publishing, 2002) p 18.
30

See, for instance, Conclusions XIII-4, on Belgium, p 342 cited by Samuel, above, n 27, p 66.

31

See Samuel, pp 173, 176.

32

Ibid, p 205 ff.

33

Bales, above, n 3, pp 32-3.

34

Siliadin v France, App No 73316/01, Judgment of 26 July 2005 ([2005] ECHR 545: available only in French).

35

Siliadin, para 44.

36

Siliadin, para 111.

37

Van der Mussele v Belgium, App No. 8919/80, Judgment of 23 November 1983, para 32.

38

Siliadin, para 120.

39

From the Commission's decision in Van Droogenbroeck v Belgium, App No 7906/77, Report of 9 July 1980, Series B, No
44, cited in Siliadin, para 123.

40

Siliadin, para 129.

41

On this see S. Fredman, 'Scepticism under Scrutiny: Labour Law and Human Rights' in Campbell, Ewing, Tomkins (eds),
Sceptical Essays on Human Rights (OUP, 2001) p 197.
42

Council of Civil Service Unions and Others v UK, App No 11603/85, Admissibility decision of 20 January 1987.

43

ILO Convention 87, Article 2: 'Workers and employers, without distinction whatsoever, shall have the right to establish and,
subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation'.
44

See, among others, G. Morris, 'Freedom of Association and the Interests of the State' in Ewing, Gearty and Hepple (eds),
Human Rights and Labour Law (Mansell, 1994) p 29; and K.D. Ewing 'Freedom of Association and Trade Union Rights' in Harris and Joseph (eds), The International Covenant on Civil and Political Rights and United Kingdom Law (Clarendon Press,
1995) p 465.
45

See for instance X v Ireland, App No 4125/69, Admissibility decision of 1 February 1971, Cheall v UK, App No 15550/83,
Admissibility decision of 13 May 1985, (1985) 28 YB of the ECHR 105 at 111. On this see T. Novitz, International and European
Protection of the Right to Strike (OUP, 2003) p 224 ff. See also Van der Mussele, above, n 35, para 32 ff.
46

Wilson and Others v UK, App Nos 30668/96, 30671/76, 30678/96, Judgment of 2 July 2002. On this see K.D. Ewing, 'The
Implications of Wilson and Palmer' (2003) 32 ILJ 1 at 16.
47

H. Collins, Employment Law (OUP, 2003) p 235.

48

Sidabras and Dziautas v Lithuania, App Nos 55480/00 and 59330/00, Judgment of 27 July 2004, para 47. On this decision
and the 'integrated approach' to the interpretation of the EHCR, see V. Mantouvalou, 'Work and Private Life: Sidabras and
Dziautas v Lithuania' (2005) 30 European Law Review 573.
49

The non-derogable provisions of the ECHR are set down in Article 15.

50

See the landmark Velasquez-Rodriguez v Honduras, Judgment of 29 July 1998, Inter-American Court of Human Rights
(Ser C) No 4 (1988) para 172. On article 8 and positive action see X and Y v Netherlands, App No 8978/80, judgment of 26
March 1985, para 23.
51

Siliadin, para 89. This duty to intervene in relations between individuals in the context of employment was also recognised
in Wilson, above, n 44, para 41.
52

For a criticism of the idea of consensus see G. Letsas, 'The Truth in Autonomous Concepts: How to Interpret the ECHR'
(2004) 15 European Journal of International Law 279.
53

Siliadin, paras 51, 85-6.

54

Inter-American Court of Human Rights, Advisory Opinion OC-18/03, 17 September 2003, Series A, No 18(2003). In November 2003, the ILO Committee on Freedom of Association found in Case No 2227 that the Supreme Court's decision in
Hoffman does not protect adequately undocumented workers' right to organise.
55

Inter-American Court of Human Rights, Advisory Opinion, para 160.

56

At http://www.corteidh.or.cr/serieapdf_ing/seriea_18_ing.pdf p 25.

57

Ibid at 36.

58

See, for instance, p 62, p 95 n 33.

59

L. Helfer, and A-M. Slaughter, 'Toward a Theory of Effective Supranational Adjudication' (1997-1998) 107 Yale Law Journal 273 at 323.
60

Ibid at 325.

61

On the importance of the ILO as a standard-setting body, and its relation with other supranational bodies and organisations
see P. O'Higgins, 'The Interaction of the ILO, the Council of Europe and European Union Labour Standards' in Hepple (ed), Social and Labour Rights in a Global Context, (Cambridge University Press, 2002) p 55 ff. On the potential relation between the
ILO and human rights treaties see also C.W. Jenks, 'Human Rights, Social Justice and Peace' in International Protection of
Human Rights (Interscience, 1968) p 227 at 248 ff. On the ILO and the Council of Europe in particular see 254-5.
62

Van Droogenbroeck v Belgium, above, n 37, p 12.

63

Ibid, p 30.

64

De Wilde, Ooms and Versyp v Belgium, App Nos 2832/66, 2835/66, 2899/66, Judgment of 18 June 1971, para 90.

65

W, X, Y and Z v UK, App Nos 3435-3438/67, Admissibility Decision of 19 July 1968.

66

Iversen v Norway, App No 1468/62, Admissibility Decision of 17 December 1963, Yearbook, Vol VII, p 278.

67

X v Germany, App No 4673/70, Admissibility Decision of 1 April 1974. See also Van der Mussele, above, n 35.

68

Talmon v Netherlands, App No 30300/96, Admissibility Decision of 26 February 1997.

69

See, among others, Iversen, p 328.

70

See Ould Barar v Sweden, App No 42367/98, Admissibility Decision of 19 January 1999.

71

As described by the psychotherapist Xiomara Salgado, Human Rights Watch Report available at
http://www.hrw.org/reports/2001/usadom/usadom0501.pdf, p 21.
72

Siliadin, para 95.

73

Recommendation 1523 (2001), para 7.

74

See, for instance, the Convention on the Participation of Foreigners in Public Life at Local Level, ETS 144, and its Explanatory Report that emphasises the importance of foreigners' economic and cultural participation. See also the numerous initiatives
on Social Cohesion at http://www.coe.int/T/E/Social_cohesion/.
75

W, X, Y and Z v UK, App Nos 3435-3438/67, Admissibility decision of 19 July 1968. See generally C. Ovey and R.C.A.
White, Jacobs & White: The European Convention on Human Rights, 4th edn (OUP, 2006) pp 120-1.
76

Van der Mussele, above, n 35, para 34.

77

De Wilde, Ooms and Versyp v Belgium, App Nos 2832/66, 2835/66, 2899/66, Judgment of 18 June 1971, para 65.

78

Bales, above, n 3, p 3.

79

J. Waldron, 'Homelessness and the Issue of Freedom' in Liberal Rights (Cambridge University Press, 1993) p 309 at 330.

80

B. Anderson and B. Rogaly, 'Forced Labour and Migration to the UK' available at http://www.tuc.org.uk/international/tuc9317-f0.pdf, p 53.
81

Anderson, Doing the Dirty Work?, above, n 4, p 121.

82

Above, n 68.

83

See, for instance, Immigration Appeal Tribunal, DJ v SSHD, Somalia CG [2005] UKIAT 00089, para 43 ff, and YS and HA
v SSHD, Somalia CG [2005] UKIAT 00088, para 54.
84

Council of Europe, Parliamentary Assembly, Doc 9102, Report to the Committee on Equal Opportunities for Women and
Men, 17 May 2001, paras 12-14, and Doc 9136, 25 June 2001, paras 20-1, B. Herzfeld, 'Everywhere In Chains', Guardian, 23
August 2004, A. Travis, 'Blunkett Law Will Free UK's Domestic Slaves', Guardian, 11 November 2004, O. Bowcott, 'Gang Master Convicted Over "Slave" Workers', Guardian, 4 February 2005. See also B. Anderson, Britain's Secret Slaves: An Investigation into the Plight of Overseas Domestic Workers (Anti-Slavery International Human Rights Series No 5, 1993).
85

Above, n 78, p 36 ff.

86

Ibid, p 21, n 28.

87

Bales, above, n 3, p 32.

88

See HL Debs, 7 July 2005, Col 747.

89

I wish to thank Chaloka Beyani for a clarification on this point.

90

Anderson, Rogaly, above, n 78, pp 8-9.

91

HL Debs, 7 July 2005, Col 766.

92

See, among other authorities, Airey v Ireland, App. No. 6289/73, Judgment of 9 October 1979, para 24.