ILO Conventions Nos. 29 and 105 Forced labour and Human Trafficking for Labour Exploitation What it is and why to bother Tim De Meyer Senior Specialist on International Labour Standards and Labour Law, International Labour Office, DWT Bangkok
Introduction (1) Forced Labour Convention No. 29 and Abolition of Forced Labour Convention No.105 were adopted in 1930 and 1957 respectively. Since that time, older forms of coercion and compulsion have evolved into newer ones, and contemporary forms of forced labour have emerged in the private economy and global supply chains: Coercive employment practices. Debt induced forced labour. Trafficking into forced labour. 2
Introduction (2) In March 2013, the ILO Governing Body selected supplementing Convention No. 29 as a standard setting item for the International Labour Conference in 2014 leading to a new Protocol and/or Recommendation. Forced labour is an undisputed unacceptable form of work and UFWs are an Area of Critical Importance (ACI) in which the ILO is asked to concentrate resources. Why bother? Growth. Trade. Development. Transition to a market economy. Fundamental Principle. 3
Outline Linkages between forced labour and human trafficking. Identification of contemporary forms of forced labour: ILO indicators of forced labour. 4
ILO global estimate on forced labour 2012 20.9 million people in forced labour 5
What is forced labour? State imposed Private sector Arising from laws, policies or simply State authority practice E.g. forced portering or forced cropping Arising from State authority but benefiting a private interest short term Any work situation in which a combination of INDICATORS suggest that the worker s performance is driven by coercion 6
What is forced labour? the farmer trapped in debt bondage to the landlord because of lack of alternative job opportunities, failing credit system, age old patterns of discrimination, failing property protection the undocumented (trafficked?) migrant worker toiling in sugar cane fields, on fishing boats, in private households the documented migrant worker working endless hours in industry with little or no pay to pay back the sum (s)he borrowed to get a job abroad the woman or child lured away from home by promises of a bright future that evaporate in the commercial sex industry the mentally disabled who gets picked up and put to work in a brick kiln the young farmer who finds a job in the city, is initially not paid for months on end so that a deposit builds up with the unscrupulous employer who uses it to extract excessive overtime at will and gets away with it because the law is vague, unions are absent and labour inspections are a virtual concept 7
But also Employment of military conscripts in state enterprises or private companies Laws authorizing local authorities to mobilize villagers to construct new roads or bridges (outside a defined period of emergency) to mobilize villagers over a protracted period of time to harvest a critical export crop Laws or policies authorizing authorities to impose labour on sex workers without sex work being an offence that is well defined in law without a body independent from the prosecuting authority establishing that the legal parameters of the offence are met Laws or policies authorizing authorities to impose labour on drug abusers for the benefit of private interests Laws or policies authorizing authorities to impose labour on participants of an unlawful but peaceful assembly EVEN IF the labour has been imposed as a sanction for a well defined offence and pronounced by a court (C. 105) Laws or policies authorizing authorities to force peacefully striking workers in non essential services back to work (C. 105) Any type of (legitimate or illegitimate) forced labour weighing disproportionately on a particular ethnic, national, social or religious group (C. 105) 8
Economic sectors at risk Construction, including brick kilns. Agriculture and horticulture. Fisheries and transportation. Mining and logging. Food processing and packaging. Domestic service. Factory work, mainly textiles and garments. Restaurants and catering. Sex and entertainment industry. Informal economic activities, such as begging or hawking. 9
Vulnerable groups of workers Workers in informal enterprises. (International) migrant workers, especially those with irregular status. Indigenous and tribal peoples. Persons with intellectual disabilities. Groups with low education. Women and youth in each of these categories! 10
Definition of forced labour all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily. (ILO Convention No. 29) 11
Unpacking the definition of forced labour All work or service All types of work, service and employment Regardless of industry, sector or occupation Encompassing legal/formal as well as illegal/ informal employment Any person Adults and children Regardless of nationality, including irregular migrant workers Menace of any penalty Including sanctions, threats, violence, etc. Loss of rights or privileges Denunciation to authorities, e.g. immigration authorities Absence of voluntary offer Consent to enter into employment Freedom to leave employment at any time 12
Definition of human trafficking Trafficking in persons shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude, or the removal of organs. (Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the UN Convention against Transnational Organized Crime (2000)) 13
Relationship between forced labour and human trafficking Human trafficking Forced labour Trafficking into forced marriage Trafficking into adoption Trafficking for organ removal Trafficking into labour exploitation Trafficking into forced prostitution State imposed forced labour Involuntary work under the menace of a penalty, which involves no trafficking 14
Different legislative approaches Trafficking into labour exploitation as a form of forced labour: In Brazil, the Forced Labour Act addresses trafficking for forced labour as a form of forced labour. Trafficking for sexual exploitation is dealt with separately. Forced labour as a form of human trafficking: The US Victims of Trafficking and Violence Protection Act, 2000 establishes criminal sanctions for slavery, peonage, human trafficking, sex trafficking, forced labour and servitude. In Viet Nam, the Penal Code includes no stand alone provision on forced labour, but a Circular issued in 2013 clarifies that Articles 119 and 120 penalizing trading in persons and children shall be interpreted to cover trading for labour exploitation and forced labour. 15
ILO indicators of forced labour 1. Abuse of vulnerability 2. Deception 3. Restriction of movement 4. Isolation 5. Physical and sexual violence 6. Intimidation and threats 7. Retention of identity documents 8. Withholding of wages 9. Debt bondage 10. Abusive working and living conditions 11. Excessive overtime Key questions: Have the workers entered into employment voluntarily? Are they free to leave employment if they like? Are penalties or threats used to keep workers from leaving employment? 16
What is NOT Forced Labour? C. 29 a)compulsory military service for work of a purely military character. b)minor communal services. c)normal civic obligations. d)emergency. e) Prison labour.
Prison labour Any work or service exacted from any person as a consequence of a conviction in a court of law, provided that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals, companies or associations. Conversely, convicts can work for private interests if they freely consent and enjoy (approximately) regular working conditions.
Even when exempted under C. 29, forced labour must NEVER be used... C. 105 a) as a means of political coercion or education or as a punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system; b) as a method of mobilising and using labour for purposes of economic development; c) as a means of labour discipline; d) as a punishment for having participated in strikes; e) as a means of racial, social, national or religious discrimination.
Continuum of exploitation Bad working conditions / Labour law violations Civil or administrative sanctions (or criminal sanctions) Forced labour crime Criminal sanctions under penal law Need to ensure better integration of labour and criminal justice to capture the continuum of exploitation! 20
Contemporary challenges New standard as a response The International Labour Conference (ILC) held its first recurrent discussion on fundamental principles and rights at work in June 2012. In November 2012, the ILO Governing Body decided to convene a meeting of experts on forced labour and trafficking. The expert meeting concluded in February 2013 that there was an added value in the adoption of supplementary measures to address remaining implementation gaps to effectively eradicate forced labour. In March 2013, the Governing Body selected supplementing Convention No. 29 as a standard setting, single discussion item for the ILC in June 2014. Law and practice report titled Strengthening action to end forced labour was drafted as a preparatory stage of the single discussion procedure. Deadline for submission of the questionnaire attached to the report is 31 December 2013. 21
Single Discussion Adoption The Governing Body places the question on the Conference Agenda The Office circulates a law and practice report with questionnaire Replies by Governments (after consultation with & W International Labour Conference E G W Discussion by a special tripartite Committee Adoption by the Conference with a two third majrity
Why bother? Growth The bottom half of the labour market needs inclusion To get rid of working poverty To keep inequality manageable To sustain long term growth To rebalance the world economy 23
Why bother? Trade Trans Pacific Partnership Agreement Global supply chains Disruptive human rights claims Applying for General System of Preferences Completing commitments in respect of market economy status under WTO 24
Why bother? Development Countries that do not want to get caught in the middleincome trap should Invest in innovation (C. 105) Pursue a well educated, informed and empowered citizenry Avoid undermining improved standards of living by condoning imported cheap labour Avoid practices that tarnish image 25
Why bother? Fundamental Principle or part of the Social Floor to globalization 7 of 8 ratifications of C. 29 needed for universal ratification are in the region, i.e. Afghanistan, China, Republic of Korea, Brunei, Palau, Tuvalu and Marshall Islands All 11 ratifications of C. 105 needed for universal ratification are in the region, i.e. China, Brunei, Timor Leste, Republic of Korea, Japan, Lao PDR, Myanmar, Viet Nam, Palau, Tuvalu and Marshall Islands 26
Thank you! 27