The Legacy of Slavery in Brazil: Interpreting Article 6 of the American Convention on Human Rights

In: International Labor Rights Case Law
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  • 1 Legal Director, Solidarity Center, United States


For decades, poor rural workers, primarily of African descent, were lured by unscrupulous recruitment agents to work on plantations on the promise of good wages. On arrival, workers discovered that they had been deceived as to the terms and conditions of work. They were in deep debt to the plantation for transportation, food, and lodging. The wages paid, if paid, were minimal. Workers were trapped by physical isolation and constant armed surveillance. The punishment for attempted escape was severe.

The authorities were first alerted to the situation at Fazenda Brazil Verde in 1988. In 1989, the police visited the plantation and were told by workers that illegal labor recruitment was common, that two workers had fled and were missing, and that attempts to escape were common because of high levels of indebtedness to the plantation. The police noted labor law infractions but reported no acts of slavery. In 1992, a complaint was filed with Office of the Attorney General. In 1993, the Regional Delegation of Labor investigated but found no evidence of slavery. In 1996, the Mobile Unit of the Ministry of Labor inspected the plantation and likewise found several labor law violations, but no slavery.

In 1997, two escaped workers complained to the federal police in Marabá about the conditions on the plantation, leading to another visit by the Mobile Unit. This time, the unit’s investigation led to criminal charges against two recruitment agents for slavery and against the owner for frustrating labor rights. The federal and state courts each denied having jurisdiction to hear the cases and proceeded to pass them back and forth for several years. The charges were then dropped. In 1998, the Ministry of Labor requested another inspection of the plantation, but in 1999 was informed that the resources to do so were inadequate and the request was withdrawn.

In 2000, after two other workers escaped from the plantation and reached the police in Marabá, the Ministry of Labor conducted another investigation. This time, eighty-five workers were rescued and permitted to leave the plantation. In May 2000, the Labor Ministry filed civil charges against the owner, claiming that the plantation “kept workers in a private prison system,” that the work was “slave labor,” and that the workers had been submitted to “degrading living conditions.” The owner promised to not use slave labor and agreed to pay fines, among other commitments. Criminal charges were also filed. The federal court, however, declined to assert jurisdiction and sent the case to the state court in 2001. The case was later dropped. In 2002, an inspection found that the owner had complied with the agreement.

The Court’s decision is noteworthy in several respects and deserves a more complete analysis than the length of this commentary permits. It is the first case to investigate the scope of the prohibition on slavery under Article 6 as well as to establish a prohibition on human trafficking.

Slavery Examined

The Court conducted a lengthy survey of the development of the law of slavery and, based on more recent instruments and jurisprudence, determined that the law had evolved beyond traditional concepts of chattel slavery under which one person owned another.1 The Court explained that

the ‘exercise of ownership’ must be understood today as control exercised over a person who is restricted in or significantly deprived of his or her individual liberty. . . with the intention of exploitation through using, managing, profiting from or transferring a person to another, or of deprivation of a person’s liberty. In general, this exercise relies on attaining such a result through means such as violence, deceit or coercion.2

The Court adopted elements which indicate “powers attaching to the right of ownership” which were drawn from the Court of Justice of the West African States.3 It had no problem determining that, as to the eighty-five workers rescued in 2000, the government had violated a person’s right not to be subject to slavery.4 The Court also examined the issue of structural discrimination in Brazil. It found that the workers were made vulnerable to recruitment through deception because they had lived in poverty, had poor prospects for employment and were illiterate. The Court took note that by 1995, the government had acknowledged the existence of slave labor among persons in the same circumstances and in the same region.5 It thus also found that the failure of the government to account for the economic position of the workers constituted a violation of Article 6.

The Court also considered the question as to whether the 85 workers were victims of forced labor. The Court found that the workers were “in a situation of debt bondage and were subjected to forced labor.”6 It also found, however, that the situation of the workers “went beyond extreme forms of debt bondage and forced labor to constitute a situation in which the strictest elements of the Court’s definition of slavery were met.”7 No doubt future cases will explore the point at which forced labor becomes slavery for the purposes of Article 6.

Prohibition on Human Trafficking Established 8

The Court established in this case that Article 6(1) of the American Convention on Human Rights prohibits human trafficking. Article 6(1) does refer to trafficking though in a much narrower context, namely the “slave trade and traffic in women” in “all its forms.” The Court used this text as the point of departure for its investigation into the development of international law on human trafficking since 1969, the year the American Convention was adopted.

The Court took note of the recent international instruments that prohibit trafficking in persons, including the 2000 Protocol to Prevent, Suppress and Punish Trafficking in Persons (the Palermo Protocol) and the 2005 Council of Europe Convention on Trafficking in Human Beings.9

Citing the findings of several un Special Procedures, the Court appears to initially suggest that the offense of trafficking is rooted in the prohibition on slavery.10 Although slavery would fulfill the exploitation element of the offense of trafficking, slavery and trafficking are not identical offenses. The Court also cited the controversial decision of the European Court of Human Rights (ECtHR) in Rantsev v Cyprus and Russia The ECtHR ruled that a prohibition of human trafficking is encompassed by the European Convention on Human Rights (echr), in line with the “spirit and purpose” of Article 4. Like Article 6 of the American Convention, Article 4 prohibits the exaction of slavery, servitude, and forced labor. It is silent, however, on the issue of human trafficking. The ECtHR explained that “trafficking in human beings, by its very nature and aim of exploitation, is based on the exercise of powers attaching to the right of ownership . . . [and treating] human beings as commodities.”12 Although appearing at first to root the prohibition on human trafficking in the offense of slavery, the ECtHR concluded that the violation of human trafficking was delinked from any of the specific prohibitions in Article 4,13 points on which the decision has been criticized as having muddied the law and distracted from developing the underlying violations under Article 4.14 The Court here cites the Rantsev decision more loosely for the proposition that trafficking in persons is “included within the prohibition on slavery, servitude and forced labour.”15

The Inter-American Court thus concluded that

in light of the development in international law over recent decades, the expression “the slave trade and traffic in women” in Article 6.1 of the American Convention must be interpreted in a broad manner to refer to “trafficking in persons.” Since slave trading and trafficking in women have the exploitation of human beings as their aim, the Court cannot limit the protection conferred by this Article solely to women or to “slaves,” taking into account the interpretation most favorable to human beings and the pro persona principle. This is important in order to make the prohibition foreseen in the American Convention effective, in line with the evolution of the phenomenon of trafficking in human beings in our societies. [footnotes omitted]16

The eighty-five workers rescued by the Mobile Unit were no doubt victims of human trafficking as they were recruited and transported on the basis of fraud and deceit for the purposes of exploitation – here slavery. However, the forms of exploitation recognized under Article 3 of the Palermo Protocol also include forced labor and servitude. The Court’s rooting of the offense of human trafficking predominantly on slavery, and in Article 6(1) specifically, would appear too limiting.

Of note, the Court failed to take notice of the relevant instruments and developing jurisprudence of the International Labor Organization (ilo) related to trafficking in persons. In 1930, the ilo promulgated the Forced Labor Convention (No. 29), which provides at Article 1(1) that “Each Member of the International Labour Organization which ratifies this Convention undertakes to suppress the use of forced or compulsory labour in all its forms within the shortest possible period.”17 The Convention now enjoys near universal ratification, including among States in the Americas.18 Although Convention No. 29 makes no explicit reference to the offense of human trafficking, the ilo Committee of Experts on the Application of Conventions and Recommendations has recognized that trafficking in persons for the purpose of exploitation (here, forced labor) is encompassed by Article 2(1).19

In 2001, the Committee drew specific attention to the issue of trafficking in persons for forced labor in its General Report and has since then systematically examined the issue of trafficking in its comments under Convention No. 29.20 In 2007 and 2012, the Committee had the opportunity to again underscore the linkage between the Palermo Protocol and Convention No. 29.21 In 2014, the ilo adopted a Protocol to Convention No. 29 that reaffirmed the definition of forced labor and that requires, inter alia, that ratifying States take specific action against trafficking in persons for the purposes of forced or compulsory labor (Article 1(3)).22

What Next for Brazil?

For a time, Brazil had taken steps to distinguish itself as a frontrunner in the fight against forced labor. As explained in Fighting Forced Labour: The Example of Brazil, the government took several measures including the creation of the National Commission to Eradicate Slave Labor, the adoption of two national plans, the creation of the Special Mobile Inspection Group and the establishment of a “dirty list.”23 Those listed face important financial consequences, including the loss of access to credit and restrictions on the sale of their goods. The ilo explained that the First National Plan to Eradicate Slave Labor, launched in 2003 by President Lula da Silva, “served as a model for similar initiatives throughout the world.”24

Unfortunately, the government’s commitment to combating slavery appears to be waning. In December 2014, the Supreme Court issued an injunction suspending the publication of the dirty list following a lawsuit by an association of real estate developers claiming that the list violated its members due process rights.25 In April 2016, the Rousseff administration amended the dirty list regulation to provide employers an opportunity to enter into an agreement to correct the violations within a year: if they failed to correct violations in that time, they would be placed on the list.26 Its publication remained suspended until May 2016.27

President Temer, who assumed office in August 2016 following the controversial impeachment of President Rousseff, did not publish the dirty list for the remainder of 2016. Further, the government sought to block its publication, which proved successful, albeit briefly, when the High Labor Court sided with the Ministry of Labor and suspended its publication on 7 March 2017. This ruling was annulled a week later.28 On 23 March 2017, the Labor Ministry finally issued a list with eighty-five names but then immediately withdrew it and reissued a new one hours later with only sixty-eight names.29

Antislavery advocates have also voiced concern over additional measures that appear intended to weaken the government’s capacity to protect workers from slave labor, including the reduction of the number of mobile inspection units to four units from nine.30 A proposed bill would narrow Article 149 of the Penal Code, which now broadly defines slavery to include forced labor, excessive work, degrading conditions of work, and debt servitude.31 The bill would remove “excessive work” and “degrading conditions of work” from the definition.32 Another bill, enacted on 31 March 2017, would allow companies to outsource core functions of their work to contractors.33 This could insulate companies from appearing on the dirty list, given that they could blame the contractor even though the work being done is for the sole benefit of the principal company.34


The Court’s decision in Workers of the Fazenda Brasil Verde v Brazil is important because it places a positive obligation on all States that have ratified the American Convention to take measures to prevent slavery, forced labor, and trafficking in persons. According to the ilo’s 2012 estimate, 1.8 million workers are trapped in conditions of forced labor in Latin America and the Caribbean,35 and the estimate is higher when the United States and Canada are included. Thus a very large population in the Americas will be able to turn to the Commission and the Court to redress acts these acts of exploitation.


For the Court’s reasoning on this issue, see Inter-American Court of Human Rights, Workers of the Fazenda Brasil Verde v Brazil, Preliminary Objections, Merits, Reparations and Costs (2016), Series C No. 318, 20 October 2016, paras. 248–73.


Ibid., para. 271.


These include: (a) restriction or control of individual autonomy; (b) loss of restriction of a person’s freedom of movement; (c) receipt of a benefit by the perpetrator; (d) absence of the victims consent or free will, or its impossibility or irrelevance owing to the threat of the use of violence or other forms or coercion, fear of violence, deceit or false promises; (e) the use of physical or psychological violence, (f) the victim’s vulnerable position; (g) detention or captivity; and (h) exploitation.


Workers of the Fazenda Brasil Verde v Brazil, para. 343.


Ibid., paras. 339, 343.


Ibid., para. 304.




For the Court’s reasoning on this issue, see paras. 281–90.


Brazil ratified the Palermo Protocol on 29 January 2004. For the text, see is available at The definition of trafficking in persons is found at Article 4. The text of the Council of Europe Convention is available at


Workers of the Fazenda Brasil Verde v Brazil, para. 286.


Rantsev v Cyprus and Russia, Application No. 25965/04, Judgment of 7 January 2010,


Ibid., paras. 281, 282.


Ibid., para. 279. The ECtHR declined to find trafficking as derivative of any other prohibition in Article 4 but found instead it stood on its own as a separate violation: “the Court considers it unnecessary to identify whether the treatment about which the applicant complains constitutes ‘slavery’, ‘servitude’ or ‘forced and compulsory labour’. Instead, the Court concluded that trafficking itself, within the meaning of Article 3(a) of the Palermo Protocol and Article 4(a) of the Anti-Trafficking Convention, falls within the scope of Article 4 of the Convention” (para. 282).


See, e.g., Jean Allain, Rantsev v Cyprus and Russia: The European Court of Human Rights and Trafficking as Slavery, Human Rights Law Review 10, No. 3 (2010); Vladislava Stoyanova, Dancing on the Borders of Article 4: Human Trafficking and the European Court of Human Rights in the Rantsev case, Netherlands Quarterly of Human Rights, No. 2 (2012): 163–94.


Workers of the Fazenda Brasil Verde v Brazil, para. 287.


Ibid., para. 289.


ilo Convention No. 29 (Forced Labor Convention), 39 unts 55,


Convention No. 29 was ratified by Brazil on 25 April 1957. The United States is the only ilo member in the Americas not to have ratified it.


ilo, “Report for discussion at the Tripartite Meeting of Experts concerning the possible adoption of an ilo instrument to supplement the Forced Labour Convention, 1930 (No. 29),” 2013, para. 54,


ilo, “Report of the Committee of Experts on the Application of Conventions and Recommendations, 2001,” Report iii, 1A, paras. 72–81 and p. 119: “Further to paragraphs 72–81 of its General Report, the Committee requests all governments to include in their next reports under the Convention [29] information on measures taken or contemplated to prevent, suppress and punish trafficking in persons for the purpose of exploitation,”


See, e.g., ilo, General Survey, “Giving Globalization a Human Face,” 101st ilc, 2012, para. 297, available at (“Referring to the definition of trafficking in persons in the Palermo Protocol, the Committee pointed out, in particular, that the notion of exploitation of labour inherent in this definition allows for a link to be established between the Palermo Protocol and Convention No. 29, and makes clear that trafficking in persons for the purpose of exploitation (which is specifically defined to include forced labour or services, slavery or similar practices, servitude and various forms of sexual exploitation) is encompassed by the definition of forced or compulsory labour provided under Article 2(1) of the Convention.”).


Article 1(3): “The definition of forced or compulsory labour contained in the Convention is reaffirmed, and therefore the measures referred to in this Protocol shall include specific action against trafficking in persons for the purposes of forced or compulsory labour.” The Protocol entered into force in 2016 and has been ratified by fourteen governments for the text, see "" In 2015, the Council of the European Union adopted decisions authorizing all member States to ratify the Protocol. See Council Decisions 6731/15 and 6732/15.


See Patricía Trindade Maranhão Costa, Fighting Forced Labour: the Example of Brazil (Geneva: ilo, 2009), p. v.,


Ibid., p. 2.


O Globo, “Liminar do stf suspende divulgação de ‘lista suja’ de trabalho escravo,” 1 January 2015,


“Portaria Interministerial mtps/mmirdh N° 4 de 11/05/2016,” LegisWeb, 13 May 2016,


The ngo Reporter Brasil continued to publish a dirty list based on information obtained using Freedom of Information Act in light of the failure of the government to do so. See Anastasia Moloney, “More than 300 Brazilian companies busted for modern-day slavery – campaigners,” Reuters, 15 February 2016,; see also Bruce Douglas, “Brazil: loss of ‘dirty list’ sparks fears of worker exploitation as Olympics near,” Guardian, 2 March 2016,


“Após denúncia, governo publica ‘lista suja’ de trabalho escravo,” Veja, 24 March 2017,


Renata Mariz, “Governo publica lista suja do trabalho escravo com 68 nomes,” O Globo, 23 March 2017,


Matt Sandy, “The World’s Most Celebrated Anti-Slavery Program Is Being Gutted,” Daily Dose, 28 April 2017,


Lucas Alves, “Governo se articula para barrar projeto que altera lei do trabalho escravo,” O Globo, 15 February 2016,


“Brazil’s Temer signs bill allowing outsourced jobs,” Reuters, March 31, 2017,


See Sandy, World’s Most Celebrated, n. 29.


ilo, ilo Global Estimate of Forced Labour, 2012, p. 16, available online at

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