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TACKLING THE RISE OF CHILD LABOUR IN EUROPE: HOMEWORK FOR THE EUROPEAN COURT OF HUMAN RIGHTS

Published online by Cambridge University Press:  15 June 2015

Suzanne Egan
Suzanne Egan*
Affiliation:
University College Dublin School of Law, [email protected].
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Abstract

The phenomenon of child labour is on the rise in Europe in the wake of the economic crisis. Specific action in tackling this practice faces a range of challenges including the often hidden nature of the work, cultural attitudes and gendered constructions of the role of children especially in domestic settings. This article explores the range of international standards and efforts made by numerous human rights tribunals aimed at combating the practice, with particular emphasis on the jurisprudence of the European Court of Human Rights. It concludes that the Court has drawn erratically on its standard methodologies (including the comparative technique) in interpreting Article 4 of the ECHR, thus providing limited guidance to European States in getting to grips with child labour.

Keywords

child labourEuropean Convention on Human Rightsforced labourInternational Human RightsInternational Labour Organisationservitudeslavery
Type
Articles
Information
International & Comparative Law Quarterly , Volume 64 , Issue 3 , July 2015 , pp. 601 - 630
Copyright
Copyright © British Institute of International and Comparative Law 2015 

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References

1 See Council of Europe,’ Building a Europe for and with Children’ available at <http://www.coe.int/t/dg3/children/StrategyAdopted_en.asp>.

2 Council of Europe ‘Strategy for the Rights of the Child’ (2012–2015) at <http://www.coe.int/t/dg3/children/StrategySept2012_en.pdf>.

3 G Brown (UN Special Envoy for Global Education), ‘Child Labour and Educational Disadvantage: Breaking the Link, Building Opportunity’ (2011) 17–18, available at <http://educationenvoy.org/wp-content/uploads/2013/10/child_labour_and_education_UK.pdf>.

4 N Muižnieks, ‘Child Labour in Europe: A Persisting Challenge’ (20 August 2013) at < http://www.coe.int/en/web/commissioner/-/child-labour-in-europe-a-persisting-challen-1>.

5 See ILO Conventions 138 and 182, Section 3(A) below.

6 Brown (n 3) 26–31.

7 ‘Global Child Labour Trends 2008 to 2012’ (ILO and International Programme on the Elimination of Child Labour (IPEC), 2013), available at <http://www.ilo.org/ipec/Informationresources/WCMS_IPEC_PUB_23015/lang--en/index.htm>.

8 Brown (n 3) 17–20.

9 ibid 16.

10 In its most recent global survey of child labour trends, the ILO was unable to generate specific data on Eastern Europe and Central Asian countries nor for industrialized economies generally: ‘Marking Progress Against Child Labour: Global Estimates and Trends 2000–2012’ (ILO and IPEC 2013) 5 at  <http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---ipec/documents/publication/wcms_221513.pdf>.

11 R Rodríguez, H Hägele, H Katteler, G Paone and R Pond, ‘Study on Child Labour and Protection of Young Workers in the European Union’, Report prepared for the European Commission, DG Employment, Social Affairs and Equal Opportunities,  5–6 (Labour Asociados Consultores 2007), available at <http://ec.europa.eu/social/main.jsp?catId=706andlangId=enandintPageId=209>.

12 ibid 6.

13 See ‘Targeting the Intolerable: A New International Convention to Eliminate the Worst Forms of Child Labour’ (ILO 1999), available at <http://info.worldbank.org/etools/docs/library/237384/toolkitfr/pdf/facts.pdf>.

14 Rodríguez et al. (n 11) 91.

15 ibid.

16 On the connection between migration and child labour, see H van den Glind, ‘Migration and Child Labour: Exploring Child Migrant Vulnerabilities and Those of Children Left-Behind’ (ILO and IPEC 2010) available at <http://www.ilo.org/ipecinfo/product/viewProduct.do?productId=14313>. On the linkage between child trafficking and forced labour, see Vinković, M, ‘The ‘Unbroken Marriage’: Trafficking and Child Labour in Europe’ (2010) 13(2) Journal of Money Laundering Control 87–102CrossRefGoogle Scholar.

17 ‘Ending Child Labour in Domestic Work and Protecting Young Workers from Abusive Working Conditions (ILO and International Programme on the Elimination of Child Labour’ (IPEC) 2013), available at <http://www.ilo.org/ipec/Informationresources/WCMS_207656/lang--en/index.htm>.

18 In this respect, the ILO estimates that the number of children in child domestic labour increased by nine per cent between 2008 and 2012: ‘Marking Progress against Child Labour’ (n 10) 8.

19 White, B, ‘Defining the Intolerable: Child Work, Global Standards and Cultural Relativism’ (1999) 6(1) Childhood 133CrossRefGoogle Scholar.

20 ‘Child Domestic Work’, (UNICEF, Innocenti Digest, 2005) available at <http://www.unicef-irc.org/publications/pdf/digest5e.pdf>.

21 ‘Claiming Rights: Domestic Workers’ Movements and Global Advances for Labor Reform’, Human Rights Watch (28 October 2013) 5, available at <http://www.hrw.org/reports/2013/10/27/claiming-rights>.

22 Blagbrough, J, ‘Child Domestic Labour: A Modern Form of Slavery’ (2008) Children and Society 179, 180CrossRefGoogle Scholar.

23 ‘Helping Hands or Shackled Lives: Understanding Child Domestic Labour and Responses to It’ (ILO and IPEC 2004) 5, available at <http://www.ilo.org/ipecinfo/product/viewProduct.do?productId=348>.

24 ibid 9–10. See further for a description of the life of a child domestic worker: ‘Lonely Servitude: Child Domestic Labour in Morocco’ (Human Rights Watch 2012) available at <http://www.hrw.org/reports/2012/11/15/lonely-servitude>.

25 ibid 50–7.

26 ‘Ending Child Labour in Domestic Work and Protecting Young Workers from Abusive Working Conditions’ (n 17) 37–8.

27 ‘Helping Hands or Shackled Lives: Understanding Child Domestic Labour and Responses to It’ (n 23) 50.

28 See ILO, ‘Decent Work Agenda: Promoting Decent Work for All: <http://www.ilo.org/global/about-the-ilo/decent-work-agenda/lang--en/index.htm>. As part of this agenda, the ILO has established a specific International Programme on the Elimination of Child Labour (IPEC);  see <http://www.ilo.org/ipec/lang--en/index.htm>.

29 Slavery, as an institution, was abolished by the 1926 Slavery Convention, available at <http://www.ohchr.org/EN/ProfessionalInterest/Pages/SlaveryConvention.aspx>.

30 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, ECOSOC Res 608(XXI) of 30 April 1956, available at <http://www.ohchr.org/EN/ProfessionalInterest/Pages/SupplementaryConventionAbolitionOfSlavery.aspx>.

31 Art 1 defined child labour as including: ‘Any institution or practice whereby a child or young person under the age of 18 years, is delivered by either or both of his natural parents or by his guardian to another person, whether for reward or not, with a view to the exploitation of the child or young person or of his labour.’ For critique of this provision, see K Bales and P Robbins, ‘No One Shall be Held in Slavery or Servitude: A Critical Analysis of International Slavery Agreements and Concepts of Slavery’ in Bales, K, Understanding Global Slavery: A Reader (University of California Press 2005) 40, 48Google Scholar.

32 Art 1(1) of the 1926 Slavery Convention defines ‘slavery’ as ‘the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised’; while the Supplementary Convention itself defined ‘serfdom’ as ‘the condition or status of a tenant who is by law, custom or agreement bound to live and labour on land belonging to another person and to render some determinate service to such other person, whether for reward or not, and is not free to change his status’.

33 See, for example, the International Labour Organization (ILO), Minimum Age Convention, C138 (26 June 19) available at <http://www.refworld.org/docid/421216a34.html>.

34 International Labour Organization (ILO), Worst Forms of Child Labour Convention, C182 (17 June 1999) available at <http://www.refworld.org/docid/3ddb6e0c4.html>. See Kooijmans, J and van de Glind, H, ‘Child Slavery Today’ in Craig, G, Child Slavery Now: A Contemporary Reader (The Policy Press 2010) 21Google Scholar.

35 This category of work is also prohibited under art 3(1) of ILO, C138.

36 Art 7(2). See generally Noguchi, Y, ‘ILO Convention No 182 on the Worst Forms of Child Labor and the Convention on the Rights of the Child’ (2002) 10(4) IntlJChildren'sRts 355, 360Google Scholar.

37 Available at <http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C189>.

38 Available at <http://www.ilo.org/dyn/normlex/en/f?p=1000:12100:0::NO::P12100_INSTRUMENT_ID,P12100_LANG_CODE:2551502,en:NO>. The Convention was adopted 16 June 2011 and entered into force 5 September 2013. As regards ratification by European States, Italy and Germany have ratified the Convention. Ireland and Belgium have declared their intention to ratify.  The United Kingdom (which abstained from the vote adopting the Convention) rejected a recommendation to consider ratifying it during its UPR: ‘Claiming Rights: Domestic Workers’ Movements and Global Advances for Labor Reform’, Human Rights Watch, 28 October 2013) 7–8. In July 2013, the Council of the European Union adopted a draft decision authorizing EU Member States to ratify C189 which was subsequently endorsed by the European Parliament in November 2013. This development will help ‘to pre-empt arguments by member States on potential conflicts between EU Directives and ratification of 189’: ibid 7.

39 Preamble, para 4.

40 Art 3(c).

41 Art 13(1).

42 Art 6.

43 See Vinkovic, M, ‘The ‘Unbroken Marriage’ – Trafficking and Child Labour in Europe’ (2010) 13(2) Journal of Money Laundering Control 87, 87CrossRefGoogle Scholar.

44 UN General Assembly, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime, 15 November 2000, available at <http://www.ohchr.org/EN/ProfessionalInterest/Pages/ProtocolTraffickingInPersons.aspx>.

45 See art 3(a).

46 See art 3(c), ibid.

47 Art 3(a) of the Palermo Protocol thus defines ‘exploitation’ as including ‘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’.

48 Art 5.

49 Art 9.

50 Arts 6(3) and (5).

51 ‘Supervisory bodies of international instruments … can play a valuable role in more effective law enforcement, pointing at weaknesses in legislation, application and enforcement. They give guidance to governments, but also provide a list of ‘‘what is to be done’’ for international agencies and NGOs’: J Kooijmans and Van de Glind, H, ‘Child Slavery Today’ in Craig, G (ed), Child Slavery Now: A Reader (The Policy Press 2010) 21, 35Google Scholar.

52 UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty Series, vol 1577, 3, available at <http://www.refworld.org/docid/3ae6b38f0.html>. On the Convention's role and contribution to the protection of children's rights generally, see Kilkelly, U, ‘The CRC at 21: Assessing the Legal Impact’ (2011) 62 NILQ 143–52CrossRefGoogle Scholar.

53 Art 34 enjoins the States parties to protect children from all forms of economic exploitation, sexual exploitation and sexual abuse; while art 36 enjoins them to protect the child against all other forms of exploitation prejudicial to any aspects of the child's welfare.

54 Art 19(2).

55 Art 3(1) provides that: ‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.’. See generally, Freeman, M, The Best Interests of the Child (Martinus Nijhoff 2007)Google Scholar.

56 UNICEF, Implementation Handbook for the Convention on the Rights of the Child (3rd rev edn, UNICEF 2007) 38Google Scholar.

57 Committee on the Rights of the Child, General Comment No 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art 3, para 1), UN Doc CRC/C/GC/14, para 18.

58 CRC General Comment No 13 on the right of the child to freedom from all forms of violence: UN Doc CRC/C/GC/13, 18 April 2011, para 76.

59 CEDAW is responsible for monitoring the implementation by States parties of the Convention on the Elimination of All Forms of Discrimination of Women, 18th December 1979, UNTS vol 1249, 13, available at <http://www.ohchr.org/EN/ProfessionalInterest/Pages/CEDAW.aspx>. Arts 2, 5, 6 and 11 of the Convention are of relevance to this issue.

60 See, for example, Concluding Observations of CEDAW on Togo's sixth and seventh periodic reports, UN Doc CEDAW/C/TGO/CO/6-7, 8 November 2013, paras 32–33; and Concluding Observations on Paraguay's sixth periodic report, UN Doc CEDAW/C/PRY/CO/6, 8 November 2011, paras 28–29.

61 Art 10(3) provides that: ‘Special measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions. Children and young persons should be protected from economic and social exploitation. Their employment in work harmful to their morals or health or dangerous to life or likely to hamper their normal development should be punishable by law. States should also set age limits below which the paid employment of child labour should be prohibited and punishable by law.’

62 See, for example, Concluding Observations of the Committee on Economic, Social and Cultural Rights (CESCR) on Bulgaria's 4th and 5th periodic reports, UN Doc E/C.12/BGR/CO/4-5, 11 December 2012, para 10; El Salvador's 2nd periodic report, UN Doc E/C.12/SLV/CO/2, 24 June 2007, para 23; and Rwanda's second to fourth periodic reports, UN Doc E/C.12/RWA/CO/2-4, 10 June 2013.

63 See, for example, Concluding Observations of CESCR on Iran's second periodic report, UN Doc E/C.12/IRN/CO/2, 10 June 2013, para 20; and on Chad's initial, second and third periodic reports, UN Doc E/C.12/TCD/CO/3, 16 December 2009, para 21.

64 Bernadette Faure v Australia, Comm No. 1036/2001, UN Doc CCPR/C/85/D/1036/2001 (2005) para 7.5.

65 In its General Comment 28, for example, it has called on States to inform it of measures taken to eliminate trafficking of women and children, to protect them from slavery, disguised inter alia as domestic or other kinds of personal service and on measures of prevention: Human Rights Committee, General Comment 28, Equality of rights between men and women (art 3), UN Doc CCPR/C/21/Rev.1/Add.10 (2000) para 12.

66 For an early review of the applicable standards, see U Kilkelly, ‘Economic Exploitation of Children: A European Perspective’ (2003) 22 StLouisUPubLRev 321, 329.

67 Accessible at <http://conventions.coe.int/Treaty/en/Treaties/Html/163.htm>.

68 The European Social Charter 1961 is the Council of Europe's foundational treaty binding Contracting States to guarantee a range of socio-economic rights. The European Social Charter (Revised) 1991 augments the original instrument by providing for further rights, as well as establishing a periodic reporting mechanism and an optional collective complaints system. Thirty-three Member States of the Council of Europe have ratified the Revised Charter and are thus subject to the reporting mechanism, while ten further States are parties to the original Charter. Fifteen States have accepted the collective complaints mechanism set provided for in the Revised Charter: <http://www.coe.int/t/dghl/monitoring/socialcharter/presentation/Overview_en.asp>.

69 The Revised Charter is configured in such a way as to oblige States parties to guarantee a range at least six out of nine core rights (of which art 7 is one), while allowing them to ‘pick and choose’ to be bound by at least 16 further rights provided for in Part II of the Charter (of which art 17 is one); see Part III, art A(1) of the Revised Charter. Thus, the specific rights in art 7 are supplemented in art 17(1)(b) by positive obligations on self-selecting States parties: ‘to ensure the effective exercise of the right of children and young persons to grow up in an environment which encourages the full development of their personality and of their physical and mental capacities’. This shall include the obligation, either directly or in cooperation with public and private organizations, to take all appropriate and necessary measures designed ‘to protect children and young persons against negligence, violence or exploitation’.

70 Complaint No 1/1998, International Commission of Jurists v Portugal, para 26: <https://www.coe.int/t/dghl/monitoring/socialcharter/Complaints/CC1Merits_en.pdf>.

71 ibid para 29.

72 ibid para 30.

73 ibid para 31.

74 ibid paras 30–32.

75 ibid at para 28: ‘Although the performance of such work by children may be considered normal and even forming part of their education, it may nevertheless entail, if abused, the risks that Art 7 para 1 is intended to eliminate. The supervision required of States must, in such cases … not just the Labour Inspectorate but also the educational and social services.’

76 See Committee of Social Rights, European Social Charter (Revised) Conclusions (2006) 16, para 39: <http://www.coe.int/t/dghl/monitoring/socialcharter/conclusions/year/2006Vol1_en.pdf>.

77 Council of Europe, Council of Europe Convention on Action against Trafficking in Human Beings, 16 May 2005, CETS 197, available at <http://conventions.coe.int/Treaty/en/Treaties/Html/197.htm>. See generally, A Gallagher, The International Law of Trafficking (OUP 2010) 110–27.

78 ‘Trafficking’ is defined in art 4(a) of the Convention in substantially the same terms as art 1 of the Palermo Protocol. Likewise, in regard to child victims under the age of 18 years, the recruitment, transportation, transfer, harbouring or receipt of a child for the purposes of exploitation shall be deemed sufficient to constitute ‘trafficking’ even if this does not involve any of the means set forth in the definition (art4(c)).

79 Art 4(e) of the Convention defines the term ‘victim’ as any natural person who is subject to trafficking in human beings as defined in art 4(a).

80 Council of Europe Convention against Trafficking in Human Beings art 12(1)(a).

81 ibid art 12(1)(d).

82 ibid art 12(1)(f).

83 Art 36 provides for the establishment of GRETA. It is composed of a minimum of 10 members and a maximum of 15, taking into account gender and geographical balance, as well as multi-disciplinary expertise, chosen from the nationals of the States parties to the Convention. For the work of GRETA, see <http://www.coe.int/t/dghl/monitoring/trafficking/Docs/Monitoring/GRETA_en.asp>.

84 Council of Europe Convention against Trafficking in Human Beings art 38 sets out the procedure.

85 Report Concerning the Implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by Ireland para 73 (26 September 2013) COE: GRETA (2013) 15 available at <http://www.coe.int/t/dghl/monitoring/trafficking/Docs/Reports/GRETA_2013_15_FGR_IRL_public_en.pdf>.

86 Directive 2011/36/EU of the European Parliament and of the Council of April 5, 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA, OJ L 101/1, 15.4.2011.

87 See Mullally, S, ‘Combating Trafficking in Human Beings and Protecting its Victims: Limited Progress in the Adoption of a Human Rights-Based Approach’ (2012) 30(7) Irish Law Times 102–7Google Scholar.

88 Recital, para 8.

89 Art 14(2).

90 Art 13(1). Although as noted by Mullally, this formulation is obviously weaker than one which would make the best interests of the child the primary consideration (n 117).

91 Art 13(2). Further safeguards are built into art 15 of the Directive as regards the conduct of investigations and trial procedures where child victims are concerned.

92 European Union, Charter of Fundamental Rights of the European Union, 26 October 2012, 2012/C 326/02, available at <http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:12012P/TXT&from=EN>.

93 For a broad overview of the provisions of the Charter, see Scott, S Douglas, ‘The European Union and Human Rights after the Treaty of Lisbon’ (2011) HRLR 645, 650–3Google Scholar.

94 ibid art 5.

95 ibid art 24(2).

96 Art 32.

97 See Stalford, H, ‘Article 32 – Prohibition of Child Labour and Protection of Young People at Work’ in Peers, S, Hervey, T, Renner, J and Ward, A (eds), The EU Charter of Fundamental Rights: A Commentary (Hart 2014) 869, 874–6Google Scholar.

98 Alston has made this point regarding the European Social Charter generally: Alston, P, ‘Assessing the Strengths and Weaknesses of the European Social Charter's Supervisory System’ in de Búrca, G, Social Rights in Europe (OUP 2005) 45–69CrossRefGoogle Scholar.

99 ibid 16–18,

100 Gromek-Broc, K, ‘EU Directive on Preventing and Combating Trafficking in Human Beings and Protecting Victims: Will It Be Effective?’ (2011) 20(64) Nova et Vetera 227–38CrossRefGoogle Scholar, available at <http://revistas.esap.edu.co/nova/wp-content/uploads/2012/03/art15-64.pdf>.

101 Stalford (n 97) 879–82.

102 Stummer v Austria (2012) 54 EHRR 11, para 116.

103 Bates, E, The Evolution of the European Convention on Human Rights (OUP 2010) 110CrossRefGoogle Scholar.

104 Simpson, AW Brian, Human Rights and the End of the Empire: Britain and the Genesis of the European Convention (OUP 2001) 157Google Scholar. Indeed, so entrenched was this rationale that in the case of Iversen v Norway, the Norwegian government sought to rely on the argument that because of its historic context, as a provision which envisaged the suppression of concentration and labour camps, art 4 ‘… was never meant to apply to reasonable steps taken by democratic governments to solve pressing humanitarian and social needs’: European Commission on Human Rights, Admissibility Decision, No 1468/62, 6 YB 278 (1963), noted in Bates (n 103) 219.

105 In Stummer v Austria, the Court explained in this respect the specific structure of art 4 as follows: Paragraph 3 is not intended to ‘limit’ the exercise of the right guaranteed by paragraph 2, but to ‘delimit’ the very content of that right, for it forms a whole with paragraph 2 and indicates what the term ‘forced or compulsory labour’ is not to include (‘n'est pas consideré comme “travail forcé ou obligatoire”’): (n 102) at para 120.

106 See, in particular, art 31 of the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, 12 March 1986, available at <http://legal.un.org/ilc/texts/instruments/english/conventions/1_2_1986.pdf>.

107 Sometimes referred to as the teleological approach, its deployment was at the heart, for example, of the Court's famous extrapolation of the principle of non-refoulement from the bare bones provision of art 3 of the Convention. See, for example, Soering v United Kingdom (1989) 11 EHRR 439 at para 87.

108 See generally Prebensen, S, ‘Evolutive Interpretation of the European Convention on Human Rights’ in Mahoney, P and Others, Protecting Human Rights: The European Perspective. Studies in Memory of Rolv Ryssdal (Carl Heymanns 2000) 1136Google Scholar.

109 (1979) 2 EHRR 1 at para 31. See further Vo v France (2005) 40 EHRR 12 at [82] and Mamatkulov and Askarov v Turkey (2005) 41 EHRR 25 at 121.

110 As one former judge of the Court has observed: ‘It is evident that evolutive interpretation is the appropriate method for interpreting a Convention which deals with situations in society that are subject to constant development … Moreover, a multilateral Convention is a cumbersome instrument whose continual adjustment is a complicated matters, or at least takes a long time: Matscher, F, ‘Methods of Interpretation of the Convention’ in Macdonald, RStJet al. (eds), The European System for the Protection of Human Rights (Kluwer 1963) 63, 69Google Scholar.

111 (1979–80) 2 EHRR 25 at para 162.

112 (2000) 30 EHRR 121 at 86.

113 Kilkelly, U, The Child and the European Convention on Human Rights (Ashgate 2000) 2–4Google Scholar.

114 See A v United Kingdom (1999) 27 EHRR 611, para 22.

115 Helfer, L and Slaughter, A, ‘Towards a Theory of Effective Supranational Adjudication’ (1997) 107 YaleLJ 273, 312Google Scholar.

116 Z and Others v United Kingdom, (2002) 34 EHRR 3 para 73.

117 See generally Popovic, D, ‘Prevailing of Judicial Activism over Judicial Self-Restraint in the Jurisprudence of the European Court of Human Rights’ (2009) 42 CreightonLRev 361Google Scholar.

118 Koopmans, T, ‘The Roots of Judicial Activism’ in Matscher, F and Petzhold, H (eds), Protecting Human Rights: The European Dimension, Studies in Honor of Gerard Wiarda (Heymanns 1988) 318Google Scholar.

119 See for example the joint dissenting opinion of Judges Wildhaber, Costa, Lorenzen, Kovler and Jebens in the controversial Grand Chamber Judgment of the Court in Hirst v United Kingdom (2006) 42 EHRR 41 in which the majority found a violation of art 3, Protocol 1 of the Convention to exist in refusing the applicant prisoner the right to vote: ‘We do not dispute that it is an important task for the Court to ensure that the rights guaranteed by the Convention system comply with ‘‘present-day conditions’’, and that accordingly a ‘‘dynamic and evolutive’’ approach may in certain situations be justified. However, it is essential to bear in mind that the Court is not a legislator and should be careful not to assume legislative functions. An ‘‘evolutive’’ or ‘‘dynamic’’ interpretation should have a sufficient basis in changing conditions in the societies of the Contracting States, including an emerging consensus as to the standards to be achieved. We fail to see that this is so in the present case’.

120 See, for example, the critique of the case of Marckx v Belgium in Merrills, JG, The Development of International Law by the European Court of Human Rights (2nd edn, Manchester University Press 1993) 74Google Scholar. See the account given by Robin White during interviews with the Strasbourg Judges of attitudes to the ‘living instrument’ concept: ‘All agreed that the rights protected were not static, but not all agreed about the right time to move forward, or to pull back’: R White, ‘Judgments in the Strasbourg Court: Some Reflections’ available at SSRN: <http://ssrn.com/abstract=1435197> or <http://dx.doi.org/10.2139/ssrn.1435197>.

121 Merrills (n 120) 108.

122 (1997) 23 EHRR 513 at para 43.

123 Merrills (n 120) at 218 has identified three circumstances in which the Court tends to look to other international instruments: (i) when a provision needing interpretation was inspired by another instrument: (ii) when the Convention omits certain rights guaranteed in another treaty, in order to justify an interpretation that the ECHR does not protect such right: and (iii) to show that a particular interpretation is in harmony with other human rights obligations.

124 (2009) 48 EHRR 54 at para 85. See further Barrow, C, ‘Demir and Baykara v Turkey: Breathing Life into Article 11’ (2010) EHRLR 419–23Google Scholar.

125 Court Judgment, ibid para 76.

126 ibid para 86.

127 Unfortunately, in propounding it, the authority which the Court relied on is the case of Marckx v Belgium regarding the legal status of children born out of wedlock in which the Court based its interpretation of the meaning of ‘family life’ in art 8 of the Convention on two international conventions of 1962 and 1975 that Belgium, like other States’ parties to the Convention, had not yet ratified at the time: (1979–80) 2 EHRR 330 at [20] and [41]. As Merrills notes, the justification adopted by the Court for relying on the international instruments in question in that case (that their mere existence indicated ‘common ground’ between States on a principle of law that was widely accepted in the domestic law of many of the Contracting States) is less convincing than reliance in cases where the international instrument in question has been widely ratified by Council of Europe States:  (n 120) at 224–6.

128 Waldron, J, ‘Treating Like Cases Alike in the World: The Theoretical Basis of the Demand for Legal Unity’ in Muller, S and Richards, S (eds), Highest Courts and Globalisation (Hague Academic Press 2010) 109Google Scholar. See further Hol, A, ‘Highest Courts and Transnational Interaction: Introductory and Concluding Remarks’ (2012) 8 Utrecht Law Review 1CrossRefGoogle Scholar.

129 Bell, J, ‘The Argumentative Status of Foreign Legal Instruments’ (2012) 8 Utrecht Law Review 9, 14CrossRefGoogle Scholar. See further Neuman, GL, ‘Human Rights and Constitutions in a Complex World’ (2013) 50 Irish Jurist 1–10Google Scholar on the value of mutual dialogue between human rights tribunals at the national, regional and international level.

130 See in this context the discussion of the European Court of Human Rights' experience in regard to cross-fertilization with other expert human rights bodies in Mantouvalou, V, ‘Labour Rights in the European Convention on Human Rights: An Intellectual Justification for the Integrated Approach to Interpretation’ (2013) 13(3) HRLR 529, 538–41Google Scholar.

131 X v Latvia, Grand Chamber Judgment of the European Court of Human Rights, 26 November 2013, App No 2785309, para 93.

132 Helfer and Slaughter (n 115) 281.

133 ibid 282 and see generally 366ff.

134 The Court has regularly held that the positive obligations in art 8 of the ECHR regarding a parent's right to be reunited with his or her child must be interpreted in the light of the CRC and the Hague Convention of 25 October 1980 on the civil aspects of international child abduction: See, for example, Maire v Portugal (2006) 43 EHRR 13; Maumousseau and Washington v France (2010) 51 EHRR 35.

135 Neulinger and Shuruk v Switzerland, App No 41615/07, Grand Chamber Judgment of the European Court of Human Rights, 6 July 2010, para 135.

136 Van Beuren, G, Child Rights in Europe (Council of Europe Publishing 2007) 19Google Scholar.  See further Kilkelly, U, ‘The Best of Both Worlds for Children's Rights: Interpreting the European Convention on Human Rights in the light of the UN Convention on the Rights of the Child’ (2001) HumRtsQ 23(2), 308–26Google Scholar.

137 See the cases of Iversen v Norway, Admissibility Decision of 17 December 1963, A 1468/62 (1963) Yearbook of the European Convention on Human Rights 278; and Van der Mussele v Belgium, Admissibility Decision of 23 November 1983, Series A No 70 (1984) 6 EHRR 163.

138 (2006) 43 EHRR 16.

139 H Cullen, ‘Siliadin v France: Positive Obligations under Article 4 of the European Convention on Human Rights’ (2006) HRLR 585, 589–91.

140 Siliadin (n 138) para 122.

141 ibid paras 124–125.

142 ibid paras 123–129.

143 ibid paras 118–20.

144 Cullen (n 139) 591.

145 In this respect, it has been criticized in particular for adopting a definition of slavery as involving ‘a genuine right of legal ownership’ which appears to be narrower than the definition supplied in the Slavery Convention and which bears no relationship with the reality of modern legal systems in Europe where no such right arises: see Allain, J, ‘Rantsev v Cyprus and Russia: The European Court of Human Rights and Trafficking as Slavery’ (2010) HRLR 546, 557Google Scholar.

146 28 July 1999, (2000) 29 EHRR 403, para 101.

147 ibid.

148 (2013) 56 EHRR 24.

149 ibid para 72.

150 (2010) 51 EHRR 1.

151 See generally Piotrowicz, R, ‘States’ Obligations under Human Rights Law towards Victims of Trafficking in Human Beings: Positive Developments in Positive Obligations’ (2012) 24 IJRL 181–201CrossRefGoogle Scholar.

152 Rantsev (n 150) paras 272–282.

153 Allain (n 145) 553–4.

154 The reluctance to do so may have been due to the paucity of factual evidence available in the case regarding the precise nature of the exploitation visited on the victim in this case.

155 See generally Pati, R, ‘States’ Positive Obligations with Respect to Human Trafficking: The European Court of Human Rights Breaks New Ground in Rantsev v. Cyprus and Russia’ (2011) 29 Boston University Law Journal 79Google Scholar.

156 Rantsev (n 150) para 286.

157 ibid.

158 ibid para 287.

159 ibid para 288.

160 ibid para 288.

161 ibid para 289.

162 ibid paras 307–309.

163 Stoyanova, V, ‘Dancing on the Borders of Article 4: Human Trafficking and the European Court of Human Rights in the Rantsev Case’ (2012) 30(2) Netherlands Quarterly of Human Rights 163CrossRefGoogle Scholar.

164 ibid 177–80.

165 ibid.

166 ibid 192–3.

167 Gallagher (n 77) 282–3.

168 See Goździak, E, ‘Identifying Child Victims of Trafficking: Towards Solutions and Resolutions’ (2010) 9(2) Criminology and Public Policy 245CrossRefGoogle Scholar.

169 App No 67724/09, Judgment of the European Court of Human Rights, 11/10/2012, available at <http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-114032#{“itemid”:[“001-114032”]}>.

170 This description comes from the Judgment of the Nantes Criminal Court which subsequently convicted the couple of having subjected the applicants to treatment contrary to human dignity: ibid para 44.

171 ibid.

172 ibid.

173 ibid para 82.

174 ibid para 16.

175 ibid paras 21 and 22.

176 ibid paras 46–47. The appeals were upheld on the basis that while the living conditions of the applicants were ‘poor, uncomfortable and blameworthy’ they did not reach the requisite criminal standard.

177 ibid para 83.

178 ibid.

179 ibid paras 75–79. The second requirement to show that the work was done ‘under threat of penalty’ was satisfied in the first applicant's case because of the constant threat made to the two applicants that they would be sent back to Burundi.

180 ibid para 91.

181 ibid paras 90–91.

182 ibid paras 92–93.

183 International Commission of Jurists v Portugal (n 70) para 30.

184 ibid paras 107–108.

185 ibid para 103.

186 ibid para 110.

187 See H Clawson, N Dutch, A Salomon and L Goldblatt Grace, ‘Study of HSS Programs Serving Human Trafficking Victims’ (US Department of Health and Human Services 2009)  18–22 available at <http://aspe.hhs.gov/hsp/07/humantrafficking/final/index.pdf>.

188 See the detailed case study referenced by Goździak (n 168) which bears a marked resemblance to the facts of CN and V v France.

189 See for example the Court's analysis in Opuz v Turkey in which it took account at the outset of the gravity of the general problem of domestic violence affecting all of the Member States of the Council of Europe: (2010) 50 EHRR 28, para 132.

190 See M.S.S. v Belgium and Greece (2011) 53 EHRR 2, para 255.

191 Ireland v United Kingdom (n 111) at 115–116.