In May 2023, the University of Oxford Bonavero Institute of Human Rights hosted an event to mark the publication of the book Structural Injustice and Workers’ Rights, by Virginia Mantouvalou. Speakers at the event were Bridget Anderson (University of Bristol), Shreya Atrey (University of Oxford), Samantha Currie (Liverpool University), Emily Kenway (Edinburgh University), Virginia Mantouvalou (UCL) and Maayan Niezna (University of Oxford), with Manoj Dias-Abey (University of Bristol) as chair. The recording of the event is available here.
This Blog symposium contains contributions by Bridget Anderson, Emily Kenway and Maayan Niezna.
The ambidextrous state: exclusion, care and deservingness
In her book Structural Injustice and Workers’ Rights (2023), Virginia Mantouvalou shows how the state and, more particularly, the law, can play a key role in certain injustices, and that this injustice is therefore structural. Bourdieu (1992) distinguished between the left and right hand of the state: support (the spending ministries) which is the left hand and the punitive justice, regulatory, and disciplinary right hand. The book argues that laws which may be ostensibly protective and associated with the left hand of the state, including labour and social security law, can in fact facilitate the exploitation of vulnerable people. It makes the case for paying more attention to the potential role of human rights laws in moving towards remedying structural injustice and holding states accountable. Human rights law alone is not the answer to structural injustice, but human rights rulings have, or could, instigate further legislative change, and importantly contribute to cultural change. So the book is theoretical but also offers concrete indications of the next steps. That’s what I like about lawyers!
One of the book’s important contributions is that it brings together groups who are excluded from labour market in different ways and whose exclusions are rarely looked at alongside each other: prison workers, migrant workers, welfare-to-work workers, and precaritised workers. The book opens with a description of Toni, who is ‘already precarious because of her gender, race and background of poverty’, which demonstrates how she is trapped by labour and social security law in a pattern of disadvantage from which she cannot escape. Given Toni’s circumstances, labour and social security law, which are supposed to protect people, in practice sustain structures of exploitation. However, arguably it is worth saying that the law is an important factor in the creation of vulnerability for people like Toni in the first place. How does Toni get to be disadvantaged and vulnerable? What is the role of the law in the distribution of property and entitlement behind her background of poverty, and in giving particular weight to socially-constructed characteristics such as gender and race?
These questions are directly pertinent to migration. As Torpey (1998) puts it, the control over legitimate mobility is fundamental to the state-ness of states. The contemporary nation state form requires immigration controls and citizenship regimes. The migrant, like the prisoner, does not pre-exist the law but is made by law, and so too is the citizen and the worker. Structural Injustice and Workers’ Rights shows the importance of looking at how these multiple constructions are imbricated. For example, the non-citizen does not automatically have a ‘right to work’. Immigration law represents this as the prerogative of the citizen. However, social security/welfare laws often treat work as a duty rather than a right of the citizen. Access to the social safety net may be the apogee of Marshallian citizenship, but in practice claiming certain state benefits is accompanied by suspicion, surveillance, and stigma. The ‘right to work’ is not synonymous with the right to have a job and the ‘right to work’ of citizens does not, in contemporary liberal democracies, mean that the state has a duty to provide work. The ‘right to work’ is only made visible through its denial to migrants rather than through its enjoyment by citizens, and, as the book discusses, marginalised citizens such as benefit claimants and prisoners can find that they can work without being given workers’ rights. Thinking the welfare state and immigration policy together exposes the sleight of hand that turns a citizen’s duty to work into a migrant’s (lack of) right to work.
Using the same lens to look at what are imagined as different categories means that we can catch connections between them, but also better understand the underpinning structural principles. We move away from individual actors and interactions to regimes and rationalities – to institutions and ways of apprehending the world. For example, the situations described in the book raise pressing questions about coercion, autonomy, and the social relations of employment. Since the abolition of slavery and its replacement by the so-called ‘coolie system’, liberal states and employers have been faced with the challenge of how to render highly coercive labour relations compatible with ideas of free labour. We see the contradictions this gives rise to in state claims that enforcement and illegalisation are necessary to prevent migrants being subject to modern slavery. But most migrants, even those who are illegalised, are not physically forced onto boats to by a legalised trade – they decide to cross borders in an illegalised journey. Rather than having a left and right hand, perhaps it is more helpful to think of the state as ambidextrous. The disabled people’s movement has long argued that caring can be used to legitimise domination and this is manifest in many of the book’s examples: people are pressured into jobs because work is a route out of poverty; prison labour is preparation for future participation in the labour market; victims of trafficking are deported as part of the process of rescuing them from exploitation.
With the UK Government’s Illegal Migration Bill, these contradictions have reached a new nadir. The Government claims: “The protections that the NRM provide are open to misuse and could act as an incentive for those making dangerous journeys”. We have gone beyond ‘bogus asylum seekers’ to ‘bogus slaves’. It would be absurd if it wasn’t so horrific. It has become normalised that migrants can be excluded from some labour protections, and that asylum seekers can be denied both the right to work and the right to a liveable allowance from the state, but the imposition of a duty on the Home Secretary to rule as inadmissible the asylum and certain human rights claims of those who do not arrive via state-approved routes is breath-taking. This is the contextual challenge that the book’s remedies are facing. For some non-citizens, human rights are suspended. The Bill deems them an “ineligible person” meaning they will never be eligible for any form of legal status or citizenship, or legal entry to the UK and neither will their family members including children yet to be born.
As the book makes clear, it is not only the law but social and cultural institutions that produce injustice. In European countries welfare is an important way that the nation is put into the nation state. That is, while the legal status of citizenship is the key that unlocks access to the welfare state, it is the normative national community who are imagined as the rightful recipients. This national community is racialised. But as Bhambra has demonstrated, the welfare state has deeply colonial roots even though it is a national welfare state. Despite this, migration is presented as undermining the social solidarity that welfare states depend on. However, as John Holmwood trenchantly observes: ‘The point is not that immigration has now begun to undermine solidarities, but that solidarities were formed on a racialized politics of colonial encounters’ (Holmwood 2016).
One of the rationalities that this book drew my attention is deservingness. Deservingness is prominent in welfare state justifications and restrictions, in penal policies and community service penalties and also in migration and asylum policies. In this sense, deservingness is what Ashiagbor describes as a rationality, an idea that sets the standards that inform our belief-oriented actions, and it is a rationality that underpins all of the different groups Virginia describes. It sits with the personal responsibility that is claimed in benefit-sanctioning and punitive criminal justice approaches, and with the ideas about who is and is not allowed entry to the UK. In work I’ve done on justice I’ve found that deservingness in the sense of ideas of appropriateness or fittingness of treatment permeate everyday ideas of justice. But deservingness, which is a moral and hierarchised criterion for allocating both resources and recognition, is very far from demands for justice which turn on equality and rights. Virginia’s recommendation that we attend to human rights law offers an important baseline protection against the imposition of deservingness criteria, which are a poor replacement for the politics of justice.
Finding hope, directing anger: a vital contribution to hold the state accountable for exploitation
There can be few things we need more at this moment in history than hope. But for those of us whose work focuses on exposing the socio-economic structures that generate injustice, this resource is often in short supply. In the field of exploitation (or ‘modern slavery’) studies, progressive practitioners and academics alike have forgone interpersonal explanations of how and why these harms occur – an individual criminal exploited a vulnerable victim – in favour of systemic explanations. A fulsome body of work shows how the causes and experiences of exploitation require a complex and nuanced understanding. Examples include Peter Olayiwola’s research in Nigeria which examined the alleged ‘modern slavery’ of children who move from rural to urban areas to be domestic workers, often in harsh and exploitative conditions. He found a story less of the villainous trafficker and gullible poor than of the constrained choices of poverty, of culturally specific approaches to social mobility, and of exploitation as a relative concept, dependent on wider factors. In a different permutation, Genevieve LeBaron has demonstrated how corporate power and its precondition – state practices and permissions – has enabled and encouraged exploitation in global supply chains. Many more examples abound. But learning how to think about exploitation as systemically produced has an unhappy by-product: helplessness and, in its worst moments, hopelessness too. How do we make change when the problem is so vast and interdependent? Where do we target our energies when everything seems to be both relevant and relative? Understanding the painful truth of our broken socio-economic system leaves us flailing.
Virginia Mantouvalou’s new book, Structural Injustice and Workers’ Rights, offers firmer footing. We need a tool by which we can break apart and analyse the unwieldy notion of systemic and relative injustice, and Mantouvalou provides a diagnostic framework for that purpose. She takes the work of the late philosopher, Iris Marion Young, as her starting point. Young drew attention to what she termed ‘structural injustice’, a harm that occurs when people are suffering ‘as a consequence of many individuals and institutions acting to pursue their particular goals and interests, for the most part within the limits of accepted rules and norms’. There is no obvious and intentionally harmful act, either from an individual or at a legal and policy level; nonetheless, harm occurs. Mantouvalou moves this thinking forward, showing how the absence of intentional and direct harm is not synonymous with an absence of culpability. The law may not intend to harm people, and may align with established values and goals, but still create vulnerability. For that, it should be held to account. Mantouvalou writes that ‘because of identifiable legal rules, large numbers of people are placed in a position of vulnerability of which others take advantage systematically’. It’s these identifiable legal rules at which she takes aim, showing how we can find specific targets without jettisoning our systemic analysis.
In articulating this approach, Mantouvalou provides intellectual undergirding for the many practitioners and academics challenging specific laws and policies today on the grounds that they construct vulnerability in various populations. These include Focus on Labour Exploitation which has worked extensively to demonstrate how immigration policies are constructing vulnerability among low-paid migrant workers, Kalayaan which focuses specifically on domestic worker policies and their harmful effects, and indeed my own current PhD research which explores how a wide array of policy factors shape the likelihood of exploitation among people experiencing homelessness. None of us needed Mantouvalou’s book to take this approach but we will surely be grateful for it, because it provides a rigorous academic and legal rationale for our strategy. Take the illegal working offence which criminalises undocumented migrants in the labour market. Few people who care about migrants’ rights would consider it just, and indeed many of us consider it deliberately harmful – the hostile environment was an explicit attempt to make life miserable for people with insecure status. Despite this, politicians have framed the offence as legitimate, using the phrase ‘illegal working exploits labour’ throughout government communications to suggest that the offence is preventative of harm. Using Mantouvalou’s approach, we can avoid having to dally with such Orwellian messaging, side-stepping allegedly justifiable intentions and instead focusing on outcomes. In this way, her framework is of significant practical use for everything from funding bids to government consultation submissions, because it helps to articulate why the solutions to exploitation are less in a policeman’s handcuffs than at the seat of government.
Applying this theoretical framework to real stories demonstrates its utility. The participants in my PhD research are currently or recently homeless and in the Edinburgh area. I’ve undertaken in-depth qualitative interviews to learn about their experiences of ‘work’ (understood broadly as money-making activities, regardless of sector or legality) while homeless. The sample includes many instances of labour abuse and exploitation (including instances that would fall under the Modern Slavery Act 2015), as well as abortive attempts to recruit them into such circumstances. Almost all the participants also experienced male-perpetrated domestic violence as children. Today’s suffering is not a new event during their lives, but merely another episode in a life-long movie of harm. This history seems to run through participants’ choices about money-making options – the disadvantages of childhood, its norms and expectations, are shaping the probabilities of today and what seems to be acceptable treatment. If I want to use this insight to create change, I will need to know where to aim my energy. Taking the approach offered by Mantouvalou, I can unhitch myself from the specificity of individual stories and the morass of long-standing historical trauma, and instead identify laws and policies which should be changed, regardless of whether their intent was justifiable or not. In this instance, we might suggest that while domestic violence (DV) laws and policies are ‘legitimate’, they are also constructing vulnerabilities in their weaknesses.
A second useful application of the framework concerns a knotty problem in exploitation studies: how do we deal with circumstances which are exploitative according to law, and perhaps according to our own opinion too, but that are not exploitative from the perspective of the individual experiencing them? This problem crops up repeatedly and internationally, from EU-wide studies that term it the ‘no-name problem’ to the UK’s hand car wash sector and parts of the sex sector in which, for some workers, exploitative work is their best available option. For some people, there is no conundrum – if it’s illegal, it’s illegal, regardless of the position of the person being labelled a victim. But this stance has caused much harm to marginalised communities, most notably those in the full-service sex sector whose workers are assumed to be exploited and treated as victims with little regard for their agency or, indeed, the realities of their material condition. For those of us concerned with justice and agency, it’s not so straightforward. This is an issue of the multi-dimensionality of exploitation, articulated by Siobhán Mcgrath in 2013 when she wrote that, ‘workers may be more or less free in different ways, and…the resulting conditions of employment can be characterized as more or less degrading, in different ways’.
This same issue is present in my own research. Bob (not his real name) was street homeless for around three years. During that time, and while he was unable to access benefits, he did what he could to get money. He doesn’t agree with begging, stealing, or the drugs industry, so he was mainly reliant on people offering him odd jobs. These varied in type and frequency, but litter picking at a cemetery was a more regular engagement. In return, he would be paid around £10 by the vicar. £10 for several hours work is, obviously, not legal, although the line between charity and work is unclear and I suspect few would begrudge the vicar. Notwithstanding that we may consider this acceptable as a charitable act, it raises some useful questions. Bob is an alcoholic and this was known to the vicar. Indeed, he was allowed to go off during his litter-picking day to get a drink if he was ‘rattling’. In trafficking law, ‘abuse of a position of vulnerability’, such as alcoholism, is a means by which someone is considered trafficked if they are then placed into exploitative labour. In Bob’s case, however, he is vehemently positive about the experience. He takes a moral position on work in general – that it is a good thing in itself, and that effort is commensurate with dignity. He describes needing those odd jobs to feel like he was part of the world, not just ‘wasting’ on the streets. How should we understand his circumstances?
Or consider Jack (not his real name). Jack was addicted to heroin for many years. During his addiction, and while homeless, he worked as a drug runner for a drug dealer. The dealer would intimidate him, escalating to violence on occasion. He wasn’t allowed to work for other dealers and when he tried once, he was intimidated back into the control of the original dealer. He was, as he puts it, ‘in the pocket’ of this person. He was paid in the drugs he needed to feed his addiction, a physical and mental necessity, and the cost of those drugs was also added to an ongoing bill so that he remained in the debt of the dealer. This is plainly a case of debt bondage, a form of ‘modern slavery’ under the 2015 UK Act. But for Jack, at the time this was occurring, it worked for him. He got what he needed – heroin – when he needed it. He also got some street kudos which felt important and meaningful. He wouldn’t have constructed this working situation as especially harmful, and nor would it have been, compared to traumatic things that have happened in his life previously.
Bob’s and Jack’s experiences are very different in type and extremity, but both pose the same question: how do we handle circumstances deemed beneficial, or at least acceptable, by those experiencing them, but considered victimisation by law? Mantouvalou’s approach avoids the need to ascribe legal accountability to individuals by bringing into view the ‘state-mediated structures of exploitation’ instead. Bob and Jack are in these positions, in which exploitation or under-payment feel beneficial, because of various laws and policies. We can pinpoint those state-mediated structures as ultimately accountable.
Although Mantouvalou does not describe this, I see these structures operating in two dimensions: first, laws are actively causing these harms. For example, the criminalisation of Class A drugs means Jack can’t access the chemicals on which his body is physically dependent without being under the abusive control of the dealer. In Bob’s case, rules restricting him from accessing benefits were directly responsible for his need to undertake odd jobs for meagre remuneration. Neither of those laws are explicitly unjust according to some political positions – many would support drug criminalisation and benefits restrictions. Despite this, they are constructing vulnerability to exploitation and thus constitute Mantouvalou’s ‘state-mediated structures of injustice’. Second, laws and policies act upon them passively, by virtue of their absence or under-implementation – here we return to domestic violence which Jack had experienced throughout his life, making violence perpetrated by the dealer painful but normal – a comfort zone of sorts. Bob ended up homeless because he was cuckooed out of his flat, so in his case we can choose from the absence of effective policing and law on cuckooing or, to take an anti-carceral approach, the policy factors that have shaped the psyches and behaviours of those men who did the cuckooing (likely again to include drug policy and domestic violence policy, an abject cycle prevalent in most of the participants’ lives).
Finally, Mantouvalou’s chapter on incarcerated workers offers the potential for an interesting thought experiment. She writes that work undertaken while in prison is not ‘typically part of prisoners’ punishment. It is justified, instead, on the basis of other reasons. A key reason is that prison work can promote prisoners’ reintegration by teaching them new skills and improving their employability’. This ‘justifiable’ rationale for labour in prison is undermined by the legal rules that exclude prisoners from labour and social security rights; therein lies Mantouvalou’s ‘state-mediated structure of exploitation’, the government decisions by which people become exploitable. Her focus is on people who are literally captive – namely, those in prisons and migrants’ jails. But her analysis need not remain within these physical bounds. After all, it is not the prison walls causing the vulnerability, but the intangible walls of those legal decisions. From there, we can see how many groups are likewise ‘captive workers’, because they are subject to the deprivation of labour rights too. These are chiefly sex workers and undocumented migrants, both of which operate in semi or totally criminalised spaces of the economy, thereby caged into positions of exploitability. Perhaps we can move from Mantouvalou’s enlightening treatment of captive workers to consider the ‘captive economy’ all around us.
There is a heartening optimism running through Structural Injustice and Workers’ Rights, despite its thoughtful exploration of deep suffering and legal failures. Professor Mantouvalou shows how the diligent and justice-focused application of the law can tackle exploitation, twinning theoretical and practical arguments to great effect. I can’t say I share her optimism at this moment in history, although I do recognise that, around the world, lawyers and judges are holding the line admirably against increasingly regressive policy-making. But whether we take from Mantouvalou’s treatise a cause for hope, as I think she intends, or a map by which we can direct our anger, we will all certainly take something.
Structural Injustice and Workers’ Rights: understanding the state and the human rights framework
The dominant approach to trafficking in persons (or to ‘modern slavery’) frames it first and foremost as a crime committed by individuals. To address trafficking, the individual perpetrators must be stopped. Against this dominant approach, a growing body of literature moves from individual and exceptional crimes and draws attention to structures of coercion and exploitation, considering the role of labour law and a labour paradigm, the challenges of the postcolonial developmental state, migration policy and labour market regulation. Virginia Mantouvalou’s new book ‘Structural Injustice and Workers’ Rights’ is a great addition to this literature.
The book develops the concept of ‘state-mediated structural injustice at work’. Building on the work of Iris Marion Young, it analyses legislation that appears legitimate but results in large-scale labour exploitation. To demonstrate how state-mediated structural injustice works in practice, Mantouvalou examines four examples, focusing on the UK: migrant workers, captive workers, welfare-to-work schemes, and otherwise precarious workers: agency workers and workers on zero-hours contracts. The scope and breadth of examination of these examples makes the book valuable not just for scholars of the extreme forms of exploitation (such as trafficking and slavery), but also to labour law scholarship more broadly, and to human rights scholarship, especially that concerning social and economic rights.
Following the discussion of the four case studies, the book explores the potential of human rights law to assign responsibility for structures of injustice and exploitation to states, and provide remedy in the case studies examined. An important feature of the book that makes it particularly fit for the use of practitioners, activists, and judges is its accessible legal analysis and straightforward message. Legislation, policies, international instruments, and regional and domestic cases are analysed clearly, and the links between legal and political structures and concrete forms of exploitation demonstrated convincingly. This clarity makes this book a great introduction of the argument for those approaching labour exploitation primarily through the lens of criminal law, as well as to those first approaching the subject. Two important notions arising from the book are the understanding of the state, and the analysis of the human rights framework.
Understanding of the state
There is a clear thread, demonstrated through the different examples Mantouvalou explores – migrant labour, captive labour, welfare-to-work, and precarious work – of how the state, through its laws and policies, creates structures of coercion that enable private exploitation. The relationship is generally reflected in the book as one where the state creates forms of vulnerability, and these forms lead to abuse, that might be illegal but often is legal itself.
It is important in this context to go back to Mantouvalou’s own definition of exploitation in her earlier work, that included vulnerability ‘created or exacerbated by law’. This harmful impact of the law is made clear in ‘Structural Injustice and Workers’ Rights’. An additional element to highlight, that requires further attention, is that the state is not merely the facilitator of exploitation that leads to gain to private actors. The state is often itself the beneficiary of exploitation. If we look at the case of migrant workers, this could be seen in the distinction between two examples discussed in the book – that of Overseas Domestic Workers working in the households of affluent employers (many of whom are diplomats or investors), and that of seasonal workers in agriculture. There are strong similarities between the structures that render them vulnerable. Yes, there are important distinctions between the purposes of the different regimes. Domestic workers only benefit their employers, but cheap and flexible work in agriculture serve additional social interests of the national public as a whole. This example raises the question of not just how the state creates structural coercion abused by capital, but also how the state benefits from the exploitation of the workers it renders vulnerable. This question could be linked to other examples considered in the book – prison labour, work release, and some aspects of welfare to work – that either save the state money, or fulfil undesirable tasks.
Human rights framework
In part III of the book Mantouvalou poses the question: ‘is human rights law an effective tool to address aspects of the structures of exploitation discussed in this book?’
The book does not claim to give a definitive answer, applicable in all jurisdictions, to this question. There are simply too many contextual factors to address – different legal and political systems, different actors, and variation in the implementation of human rights standards. Mantouvalou offers, however, some arguments concerning the potential of the human rights framework to lead to improve structures of injustice. These include promoting legal reform, raising awareness of violations and drawing public attention, and adding new (or strengthened) motivations to address injustice. Courts are key actors for that. As Mantouvalou notes, courts may require the executive and legislator to revise laws and policies in order to effectively achieve these objectives. As legal response to structural injustice builds primarily on constitutional and administrative law, the demand for reform is generally negative: courts may reject some existing policies, but are not likely to be in the position to propose or promote concrete alternatives or best practices. The identification of desirable policies, their design and implementation, is left for political actors.
This limitation of the legal proceedings is expected, as are other limitations of court interventions. At least for the UK and European framework, the main examples discussed in the book, there is evidence for a limited potential of the human rights framework to address structural injustice. The limitations result from different reasons.
First, international and regional standards protecting human rights are hard to enforce, and progress is slow. Within the human rights framework, standards protecting socio-economic rights, such as the right to just and favourable conditions of work, social security, and the right to adequate standard of living, rights particularly relevant to the impact of structural injustice on workers, enjoy weaker protection.
Second, the nature of structural injustice poses additional challenges the bodies in charge of enforcing human rights standards, given the institutional politics of such bodies and their perceived role. It is common in the human rights discourse frame rights as a-political (or at least not partisan). The UN High Commissioner on Human Rights argued that:
‘The international human rights treaties neither require nor preclude any particular form of government or economic system—whether described as socialist, capitalist, mixed, centrally planned or laisser-faire. Human rights can be implemented in a wide variety of economic and political systems, provided that the system is democratic in character and properly recognizes and reflects the interdependence and indivisibility of all human rights.’
While human rights can be protected within different political systems, some violations are more likely under certain systems. This is true for some civil and political rights, and for various socio-economic rights, many of them workers’ rights or directly relevant to workers’ rights. The political left and right can agree that criminal gangs kidnapping innocent people (especially women and children, as emphasised in the Trafficking Protocol), holding them hostage and selling them to be exploited, is a severe crime violating human rights, and should be treated and punished as such. There would be little political disagreement that locking a teenage girl at home and requiring her to work 12 hours a day, without providing her proper food, healthcare and education, is a violation of her human rights. Politicians, the media, and the courts can agree on that.
Addressing structures of exploitation is a different task from holding to account the individuals violating victims’ rights in isolated incidents. Such structures inherently involve contested issues such as migration control, racism, neo-liberalism and privatisation, public spending on welfare, or prison reform and criminal law enforcement. These issues are inherently political, partisan, and controversial. Courts are a necessary component of the domestic and regional protection of human rights. One therefore must ask – when we expect courts to recognise how the law and the market combine to create vulnerability, and engage with these political and politicised questions, are we asking them too much?
From a legal realist perspective, this question requires us to consider the institutional politics of courts, as well as the personal politics of the judges. Judges differ, of course, in their background and their beliefs, as well as in the role (implicit or explicit) these beliefs play in their decisions. Some judges, and some courts, are clearly better at reflecting on social issues and structural injustice than others.
Yet, senior judges typically have little experience of living in the margins of society, and surviving on minimum wage; of depending on the state bureaucracy for their basic needs at every step; of fearing the power of the state and its agencies, such as police and border control. Some people can emphasise with and understand the position of a poor migrant or a single mother on Universal Credit, without themselves having this experience. This understanding may inform their assessment of how the law and the market combine to create precarity. But clearly, not all individual judges can do that. And beyond the individuals, lies the institution. The existing institutions of the courts rarely reject neo-liberalism, exclusionary migration control, and welfare cuts in isolated cases, let alone challenge these structures systematically. It is far from clear whether courts can bring about social justice.
Within the existing jurisprudence of the European Court of Human Rights (ECtHR), for example, the focus is still very much on individual criminals. Positive obligations were recognised primarily as the state’s duty to pass and enforce criminal standards. Even ‘good’ cases for structural assessment paid much attention to the criminal law enforcement model. Such was the case of Rantsev v Cyprus and Russia that recognised the problems of Cyprus’s tied-visa regime for so-called Cabaret Artistes visas, that were often used for employment in the sex industry. The language the Court applied to the need to reform the visa regime was weaker than that used to describe the state responsibility to criminalise trafficking and identify victims. In the case of Chowdury v Greece, that concerned the extreme exploitation of migrant workers in strawberry fields in Greece, the Court identified the vulnerability of workers resulting from their undocumented status, but similarly focused on state obligations concerning criminal law enforcement.
Past examples therefore raise doubt whether the courts are willing and able to address structural injustice. But this situation may still change. Courts may be willing to further engage with systematic violations of workers’ rights. To address structural injustice the ECtHR, or the UK courts, will have to time and again issue rulings seen as intervention in the core of migration, socio-economic policies and criminalisation and punishment. These issues are traditionally seen as outside the courts’ judicial review powers.
Backlash from the media and politicians will be likely. Judges ruling on contested political issues might face hostile campaigns seen in the past, and be described as ‘enemies of the people’ and having ‘declared war on democracy’. Judicial rulings against migration control measures resulted in politicians calling or threatening to leave the European Convention on Human Rights. Challenging structures of injustice may result in threats against the power of courts, and hostility towards the courts as institutions, or against individual judges. This may not always be the case, of course. Yet, for courts as institutions, the risks such responses pose to the status and public respect to the court cannot be dismissed. Even if the courts are willing and able to recognise structural injustice, they cannot ignore the potential consequences of doing so.
This is not to say the human rights framework is irrelevant or cannot be used. As Mantouvalou correctly notes, some cases were successful, and courts are not the only relevant actors. Trade unions and civil society organisations may use the human rights language to campaign against structural injustice, and some legal proceedings may work. The circumstances where legal proceedings, political pressure, and public campaigns are successful would vary between different legal, political and social contexts.
About the authors
Emily Kenway is Doctoral Scholar at the University of Edinburgh. She is the author of The Truth about Modern Slavery (Pluto Press 2021) and Who Cares? (Hachette, 2023), finalist for the Orwell Prize for Political Writing 2023.
Maayan Niezna is a Postdoctoral Research Fellow in Modern Slavery and Human Rights at the Bonavero Institute of Human Rights, University of Oxford. Her research focuses on trafficking for labour exploitation, the regulation of labour migration, and the rights of non-citizens.
(Suggested citation: B Anderson, E Kenway and M Niezna, ‘Book Symposium: Virginia Mantouvalou, Structural Injustice and Workers’ Rights (OUP 2023)’, UK Labour Law Blog, 12 July 2023 available at https://uklabourlawblog.com/)