Improving National and Transnational Coordination and Cooperation in Preventing and Combating all Forms of Human Trafficking; Developing and Strengthening National and Transnational Networks and Partnerships - Implementation of the Master Plan 2010-2013 Regional Implementation Initiative supported by the Austrian Chancellery and the Government Ministers for Labour, Social Affairs and Consumer Protection, for Women and Public Administration, and of Health - with the Austrian Institute for International Affairs (oiip) as the lead organization Round Table Preventing & Combating Trafficking for Labour Exploitation From Theory to Practice Tackling the Missing Components Under the Auspices of the Austrian Federal Minister for Labour, Social Affairs and Consumer Protection Federal Ministry for Labour, Social Affairs and Consumer Protection, Marmorsaal, Stubenring 1, Vienna 20 September 2013 What to Criminalise? Forced Labour, Trafficking, and Labour exploitation as Competing Concepts Ladies and gentlemen, by Albin Dearing 1 What I plan to do is to analyse and compare to one another three concepts, namely the terms forced labour, trafficking for labour exploitation, and severe labour exploitation. The underlying question is in what way these concepts differ from one another. And the main measure to assert any differences is human rights. Hence, the primary question is which fundamental rights are violated in cases relating to these three concepts. What is the wrong captured by each of the three concepts? 1) Forced labour A) Definition of the term The Forced Labour Convention of 1930 (ILO Convention No. 29) states in Article 2 (1): For the purposes of this Convention the term forced or compulsory labour shall mean 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. One will readily admit that this is a relatively simple and clear definition. As can be expected it focusses on the notions of force or coercion and labour. The core element of coercion is captured by the verb exact. The means of coercion are specified as the threat of a sanction. Hence, what defines the victim of forced labour is the fact that a person is compelled to perform work or services for which this person has not offered him- or herself voluntarily. B) Forced labour as a human rights violation 1 This paper represents nothing but the personal opinion of its author. 1
From a human rights perspective, what is concerned here is the general freedom of action or, in the terms of the European Court of Human Rights, the right to personal autonomy under Article 8 of the European Human Rights Convention (hereafter the ECHR). 2 Of course, forced labour is expressly and specifically prohibited by Article 4 of the ECHR as it constitutes a particularly severe violation of human rights. However, from a systematic point of view it is worth recalling that what Article 4 protects is vocational autonomy or freedom in the sphere of work as one of the many freedoms protected by the ECHR, which all contain specific aspects of the general freedom of action captured by the term private life in Article 8 of the ECHR. In other words: If Article 4 would not exist, forced labour would still violate Article 8 ECHR. 3 2) Trafficking for labour exploitation A) Definition of the term It should first be remembered that the concept of trafficking for labour exploitation is fairly new. For most of the 20 th century, the concept of trafficking was restricted to cover only the sexual exploitation of women and girls. The International Convention for the Suppression of the White Slave Traffic of 1910 obliged States to punish: Whoever, in order to gratify the passions of another person, has, by fraud, or by means of violence, threats, abuse of authority, or any other method of compulsion, procured, enticed, or led away a woman or girl over age, for immoral purposes. At a Ministerial conference, that gathered representatives of EU Member States to The Hague in April 1997, a Ministerial Declaration was passed which still held that trafficking in women relates to any behaviour which facilitates the legal or illegal entry into, transit through, residence in or exit from the territory of a country, of women for the purpose of gainful sexual exploitation by means of coercion, in particular violence or threats, or deceit, abuse of authority or other pressure which is such that the person has no real and acceptable choice but to submit to the pressure or abuse involved. These traditional definitions have three elements in common: Firstly, moving a woman or a girl to another country; By, secondly, means of coercion; For the purpose, thirdly, of her sexual exploitation. 2 See ECtHR, A, B and C v. Ireland [GC], 16 December 2010, para. 212: the notion of private life within the meaning of Article 8 of the Convention is a broad concept which encompasses, inter alia, the right to personal autonomy and personal development 3 In the discussion following this presentation the question was raised whether the assumption that the victim is acting involuntarily holds with regard to all cases of bonded labour. In this respect it should be pointed out that the lack of a valid consent can result from the fact that a certain type of transaction is invalidated as contrary to public policy or ordre public. If a legal order prohibits debt bondage (as should be the case under international law) it cannot at the same time acknowledge and validate such a transaction. This shows that the term voluntariness is not naturalistic but normative: It refers to private, personal autonomy in the limits respected and protected by law. 2
Much changed with the Palermo Protocol. While the basic structure, consisting of the action of movement, the means of coercion and the purpose of exploitation, was maintained under the Palermo Protocol, what changed in 2000 is: Firstly, that the sex of the victim is no longer relevant male and female persons are protected on an equal footing, and that, Secondly, the term exploitation is no longer restricted to sexual exploitation. 4 a) Action In order to cover the contributions of all actors cooperating in the trafficking process, the action of movement of the victim is broken down into four elements by the Palermo Protocol recruitment, transportation, transfer, and harbouring or receipt of persons. However, this list of components in the trafficking process should not be misunderstood. What all actors share is their understanding that they all are part and parcel of a trafficking process. To house a person is one thing; to accommodate a person who is being trafficked is something quite different. This is to say: the contribution of an actor would be misinterpreted if looked at in isolation, detached from its context. What all traffickers have in common is their intention to contribute in one way or the other to the trafficking of a person. b) Internal trafficking By the way: sometimes the question is raised whether the definition provided by Article 3 of the Palermo Protocol also covers internal trafficking, happening within one state. I believe that the answer should be: Yes, as long as the offence is transnational in nature. What do I mean by this? According to its Article 1, the Protocol supplements the Convention against Transnational Organized Crime (hereafter the Convention). It shall be interpreted together with this Convention. The provisions of the Convention shall apply, mutatis mutandis, to the Protocol unless otherwise provided in the Protocol. Article 3 of the Convention defines the scope of application of the Convention and also of the Protocol. According to that provision the Convention and the Protocol shall apply under two conditions, namely that the offence is transnational in nature and involves an organized criminal group. According to the following paragraph an offence is transnational in nature if it is committed in more than one state; but it is also transnational if it is committed only in one state but a substantial part of its preparation, planning, direction or control takes place in another state. It is also transnational if it is committed in only one state but involves an organised criminal group that engages in criminal activities in more than one state. Therefore, trafficking is about moving persons from one place to another but not necessarily about a transborder movement by/ or of the victim. c) Means The means by which the transfer of the victim are achieved are as the following: 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 4 For a very rich account of the historical development see Anne T. Gallagher, The International Law of Human Trafficking, Cambridge University Press 2010. 3
payments or benefits to achieve the consent of a person having control over another person. What these various means all rule out is voluntariness in the sense of a valid consent by the victim. Acts and means read together add up to, as a first component, an involuntary transfer of the victim. d) Purpose The second element of the trafficking definition is contained in the words: for the purpose of exploitation, meaning the exploitation of the victim. The term exploitation is not defined by the Protocol. All the Protocol states is that this term has to be interpreted to include at least sexual exploitation, labour exploitation and the removal of organs. One could wonder whether exploitation of the victim presupposes a lack of consent on the victim s side as concerns the provision of labour or services which the traffickers aim to exploit. This question should be answered in the affirmative. As regards labour exploitation, the Protocol lists forced labour or services, slavery or practices similar to slavery and servitude. What these forms have in common is the lack of voluntariness of the victim. Therefore the concept of trafficking for labour exploitation combines two components, firstly the involuntary transfer of a person for, secondly, the exploitation of the labour of that person again on an involuntary basis. B) Trafficking for labour exploitation as a human rights violation It is this combination of an involuntary transfer with the involuntary end practice of exploitation that makes trafficking a human rights violation that is distinct from its component parts. In this sense trafficking goes beyond the forms of involuntary work covered by Article 4 of the ECHR. While the purpose-element violates the spirit of Article 4 ECHR, in addition, the first element of an involuntary transfer of the victim per se violates either Article 5 or Article 8 ECHR. On the other hand, it must be considered that the result of an involuntary exploitation must not necessarily be achieved by the offenders. It is sufficient that a person is recruited or transferred for the purpose of that person s later exploitation. This is why the protection by criminal definitions of trafficking starts long before a person is actually victimised by practices of forced labour or slavery. Still, the aim of criminalising trafficking for labour exploitation is to prevent violations of Article 4 of the European Human Rights Convention by intervening at an early stage. In short: from a human rights perspective the wrong captured by the concept of trafficking for labour exploitation comprises two severe human rights violations, the first relating to the involuntary transfer, the second to the intended exploitation of involuntary labour of the victim. 3) Severe labour exploitation While the two concepts of forced labour and of trafficking for labour exploitation are closely interlinked and overlap, the term severe labour exploitation belongs to a different world, certainly at least to a different paradigm. The border-line between these two territories is marked by one word: consent. Forced labour as well as trafficking for labour exploitation precludes legally valid consent by the victim. Labour exploitation does not. 4
How can this difference be explained? From the perspective of the underlying human rights the explanation is simple: forced labour and trafficking for labour exploitation mark human rights violations that are covered by the paradigm of liberties or freedoms, which all relate to the wider concept of individual autonomy. However, labour exploitation relates to social rights, such as Article 31 of the Charter of Fundamental Rights of the European Union (hereafter the Charter). Article 31 of the Charter safeguards Fair and just working conditions. According to its first paragraph, every worker has the right to working conditions which respect his or her health, safety and dignity. The second paragraph lists some elements of fair working conditions stating that: Every worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave. If an employer violates a worker s rights under Article 31 of the Charter, e.g. by requiring the worker to work beyond maximum working hours, then this constitutes a violation of the worker s fundamental rights independently of whether the worker has or has not agreed to work to that extent. And it is easy to see why that is the case: work happens in employment situations which are normally shaped by a powerimbalance in favour of the employer. The essential feature of an employment relationship is that for a certain period of time a person performs work for and under the direction and control of another person in return for which the employee receives or at least should receive remuneration, irrespective of the legal nature of the employment relationship. 5 The worker must be regarded as the weaker party to the employment relationship. 6 Therefore employers must be prevented from exploiting the worker s position. This is even more the case concerning migrant workers who in many respects will often lack certain social resources and therefore are, on average, in an even more vulnerable position. And again, illegally staying migrant workers will be in a more vulnerable situation yet, given that, when their rights are violated, they cannot turn to the police, they are cut off from regular channels of advice and support and they will often feel to be at their employer s mercy. The rights of workers under Article 31 of the Charter should not be only theoretical or illusory but practical and effective. And when it comes to ensuring effective protection against grave violations of fundamental rights criminal law provisions are indispensable. Resolute condemnation of and deterrence against severe human rights violations requires clear criminal law provisions, backed up by law enforcement machinery for the prevention, suppression and punishment of breaches of such provisions. 7 This is where the Employer Sanctions Directive 8 comes in. Recital 21 of this Directive states: Experience has shown that the existing systems of sanctions have not been sufficient to achieve complete compliance with prohibitions against the employment of illegally staying third-country nationals. One of the reasons is that administrative sanctions alone are likely not to be enough to deter certain unscrupulous employers. Compliance can and should be strengthened by the application of criminal penalties. Recitals 22 to 24 go on to consider that there is a particular need for more dissuasive sanctions in serious cases, including particularly exploitative working conditions. The Directive obliges Member States to provide for criminal penalties in their national 5 CJEU, case C-66/85, Lawrie Blum v. Land Baden-Württemberg, 3 July 1986; see also the very similar definition given in recital (7) of the Employers sanctions directive. 5
legislation in respect of those serious infringements. In all cases deemed to be serious according to the Directive the infringement should be considered a criminal offence throughout the Union when committed intentionally and should be punishable by effective, proportionate and dissuasive criminal penalties. In accordance with these recitals, Article 9 of the Directive obliges Member States to create criminal offences covering, inter alia, situations where the employment of an illegally staying third country national is accompanied by particularly exploitative working conditions. The next and complex question is how to define particularly exploitative working conditions. According to the Directive, this demarcation line is characterised by a marked distance to regular terms of employment. The Directive defines in Article 2 point (i) the term particularly exploitative working conditions by reference to a striking disproportion compared with the terms of employment of legally employed workers which, for example, affects workers health and safety, and which offends against human dignity. The term working conditions, as used by the Employers Sanctions Directive, covers all essential aspects of the employment relationship including remuneration and other returns on the employee s work, working hours, paid annual leave, and occupational health and safety. In this sense Article 16 (1) of the Commission s proposal for a directive on seasonal employment also refers to working conditions, including pay and dismissal as well as health and safety requirements at the workplace. What follows from this analysis in practical terms? Due to the collusiveness of labour exploitation an effective implementation cannot wait for victims to report to the police. In order to meet standards of due diligence Member States have to implement a proactive approach in terms of a comprehensive risk management. For good reasons the Employer Sanctions Directive obliges Member States to set up an effective system of inspections with a view to control the employment of migrant workers. And Article 14 of the Directive specifies that these inspections need to be based primarily on a risk assessment to be drawn up by the competent authorities in the Member States. The same Article provides that with a view to increasing the effectiveness of inspections, Member States shall, on the basis of a risk assessment, regularly identify the sectors of activity in which the employment of illegally staying third-country nationals is concentrated on their territory. In respect of each of those sectors, Member States are obliged to regularly communicate to the Commission the number of inspections carried out and their results, as well as the percentage of employers in each sector. The fact that exploited migrant workers will often not perceive themselves as victims of crime does not mean that they are not victims. They are; and as such they have rights, including importantly the right to have access to justice under the terms and conditions of criminal and civil law. To make this a reality exploited migrant workers 6 CJEU, joined cases C-397/01 to C-403/01, Pfeiffer and Others v. Deutsches Rotes Kreuz, 5 October 2004. 7 ECtHR, X and Y v. the Netherlands, No. 8978/80, 26 March 1985, para. 27; Osman v. the United Kingdom, No. 87/1997/871/1083, 28 October 1998, para. 115; Mastromatteo v. Italy [GC], No. 37703/97, 24 October 2002, para. 67; Alex Menson and Others v. the United Kingdom, No. 47916/99, Decision of 6 May 2003; M.C. v. Bulgaria, No. 39272/98, 4 December 2003, para. 150. 8 Directive 2009/52/EC of the European Parliament and of the Council of 18 June 2009 providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals, OJ 2009 L 168, p. 24. 6
have to be made aware of their rights (under the Employer s Sanctions Directive and national legislation), such as the right to back payment from the side of employers, including back payment from contractors to which the employer is a direct subcontractor. In the end, the effectiveness of the law s implementation may depend on whether or not it is possible to win over victims as allies in investigations and proceedings. Everything must be done to encourage exploited migrant workers to come forward and to report to the authorities: to labour inspectors, the financial police, regular law enforcement services, labour unions or others. In this respect, regularising the residency status of illegally staying migrant workers can be a particularly effective tool to encourage reporting. Very often it is the fear of deportation that prevents victims of exploitation from speaking up. One last observation: compared to forced labour and trafficking, the offenders of labour exploitation will often act through companies. Counter-acting labour exploitation therefore depends on an effective mechanism to enforce the criminal liability of legal persons, although the liability of legal persons should never exclude parallel criminal proceedings against natural persons. 7