Forced Labour Convention (No. 29), 1930 and Abolition of Forced Labour Convention (No. 105), 1957

1. Forced Labour Convention (No. 29), 1930 and Abolition of Forced Labour Convention (No. 105), 1957 Tim De Meyer Specialist on International Labour Standards & Labour Law, Subregional Office for East Asia (SRO Bangkok), Thailand demeyer@ilo.org seifert@ilo.org

2. FORCED LABOUR– THE CONCEPT

3. What is forced labour ? • A person working, not because (s)he sees a material / immaterial benefit to it, but because another person or institution leaves him/her no choice than to work in pursuit of an economic/political/religious benefit for itself

4. Forced labour exists ! • Traditional forms of slavery (trokosi (Ghana), deuki (Nepal), slave trade (Sudan, Mauritania)) • Women and children sold/trafficked into sexual or labour exploitation • Captive, unremunerated and unprotected labour, such as detainees working without being convicted or for private interests

5. Forced labour exists ! • Lawfully striking workers being forcibly returned to their jobs • Political dissidents subject to work to « reform » their (peacefully expressed) convictions • Child domestic workers (qualified) • Sections of the population mobilized for large-scale infrastructure development (e.g. roads, pipelines, hotels) • Forced prostitution

6. Forced labour exists ! • Legal provisions according to which civil servants or army officers cannot terminate their employment, not even upon serving a reasonable period of notice • Child labour in conditions where the child cannot be presumed to have offered itself voluntarily (hazardous, long hours, starved, locked up, sexually abused etc)

7. Forced labour exists ! • Bonded labour (debt bondage) : a worker pledges his personal services or those of his family as a security for a debt incurred • Performance of overtime which is imposed (as opposed to negotiated) • systematic performance which is well beyond normal working hours and not or barely compensated may serve as a presumption of absence of free will

8. Forced labour exists ! • A 16-year old forced to fight or serve in another capacity in armed conflict • A migrant worker working to pay off a debt with his or her employer, incurred because the employer advanced the workers’ recruitment fee to the recruiter • A young person working to reimburse training costs over a period of several years

9. FL is a fundamental principle • FL, not being based on incentive, does not serve • person’s legitimate interest in pursuing « material well-being and spiritual development » • the development of a productive economy • Protection against FL is an « enabling » right, i.e. vital to workers to reap the fruits of economic growth fostered by the global economy Ex. overtime under threat of dismissal instead of incentive will prevent reward for productive input from being passed on to the worker • FL is an ILO Constitutional principle to be observed even in the absence of ratification

10. Forced Labour … • assaults human dignity, particularly in the more violent aspects of coercion (e.g. physical confinement, abuse …) • stifles personal development and thus breeds poverty : reduces rather than enhances “human capital” • is economically undesirable • sale of future labour at a fixed price, or at least one which is unilaterally determined, irrespective of productivity improvement • unproductive, also in the sense that it does not lead to higher standards of living

11. Forced Labour … • impedes the best allocation of human resources on the labour market (“occupational mobility”) • breeds poverty and thus instability • often results from/goes together with : • discrimination - reduced work opportunities for reasons alien to actual or potential work performance • deficient freedom of association - reduced opportunities to represent interests • child labour

12. Glossary • Slavery : “the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised” (Slavery Convention, 1926) • Slavery-related practices : debt bondage, serfdom, forced marriage, sale/disposal/transfer/pledging of women and children, trafficking of persons, (other or related) forms of forced labour, ... • Debt bondage : “the status or condition arising from a pledge by a debtor of his personal services or of those of a person under his control as security for a debt, if the value of those services as reasonably assessed is not applied towards the liquidation of the debt or the length and nature of those services are not respectively limited and defined” (Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, 1956)

13. Glossary • Serfdom : “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” (Supp. Conv. 1956) • “Forced marriage” : “any institution or practice whereby: • (i) A woman, without the right to refuse, is promised or given in marriage on payment of a consideration in money or in kind to her parents, guardian, family or any other person or group; • (ii) The husband of a woman, his family, or his clan, has the right to transfer her to another person for value received or otherwise; • (iii) A woman on the death of her husband is liable to be inherited by another person” (Supp. Conv. 1956)

14. Glossary • “Pledging of children” : “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” • Sale of children : “any act or transaction whereby a child is transferred by any person or group of persons to another for remuneration or any other consideration” (Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, 2000)

15. Glossary • Trafficking of (adult) persons : “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 vulnerability12 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 ( Un Protocol To Prevent, Suppress And Punish Trafficking In Persons, Especially Women And Children to the UN Convention Against Transnational Organized Crime)”

16. Slavery and Forced Labour • It is now a well-established principle of international law that the “prohibition against slavery and slavery-related practices have achieved the level of customary international law and have attained jus cogens status”, i.e. that States cannot lawfully agree to digress from the principle

17. Slavery and Forced Labour • The International Court of Justice (Barcelona Traction case, 1971) has identified the protection from slavery and slavery-related practices as one of two examples of “obligations erga omnes arising out of human rights law”, or obligations owed by a State to the international community as a whole

18. Slavery and Forced Labour • League of Nations Slavery Convention of 1926 recognized forced labour as a form of slavery, but allowed it for public purposes • “forced labour may only be exacted for public purposes” and requiring States parties “to prevent compulsory or forced labour from developing into conditions analogous to slavery” (art. 5) • Temporary Slavery Commission of 1924 described various forms of slavery, and distinguished the “system of compulsory labour, public or private, paid or unpaid.” • C. 29 restricts the use of forced labour for public purposes to a few exceptions mentioned in Art. 2

19. Practices « similar » to Slavery • “19. The circumstances of the enslaved person are crucial to identifying what practices constitute slavery, including: • (i) the degree of restriction of the individual’s inherent right to freedom of movement; • (ii) the degree of control of the individual’s personal belongings; and • (iii) the existence of informed consent and a full understanding of the nature of the relationship between the parties.”

20. Slavery and Forced Labour • “20. It will become apparent that these elements of control and ownership, often accompanied by the threat of violence, are central to identifying the existence of slavery. The migrant worker whose passport has been confiscated by his or her employer, the child sold into prostitution, or the “comfort woman” forced into sexual slavery - all have the element of choice and control of their lives taken from them and passed to a third party, either an individual or a State.”

21. FORCED LABOUR – ILO CONVENTIONS NOS. 29 & 105

22. Ratification Status of C. 29 • 92 % worldwide, 73 % in Asia Pacific • Poor record in East Asia (incl. ASEAN) : no ratification byChina, RoKorea, Mongolia, Philippines, Viet Nam, (Brunei) • Applicable to Hong Kong and Macau SAR • Transition economies lag behind, but work in progress China, Mongolia & Viet Nam

23. Ratification Status of C. 105 • 91 % worldwide (including US), 57 % in Asia Pacific • Poor ratification record in East Asia (incl. ASEAN) : no ratification in China,Japan, RoKorea, Lao PDR, Mongolia, Myanmar, Viet Nam, (Brunei) • Denunciation by Malaysia and Singapore • Transition economies lag behind, but work in progress in China, Mongolia & Viet Nam

24. C. 29 & 105 : Same Objective • To abolish forced or compulsory labour in all its forms, i.e. • Paid and unpaid • For public and private purposes • Imposed by individuals as well as by the State • Resulting from law (e.g. general obligation to work) or practice (e.g. employer’s practice) • To have perpetrators punished with penal sanctions (to mark public condemnation)

25. C. 29/105 : Different context • C. 29 : abolishing FL practised for economic purposes (under colonial rules before Second World War) • from there : all forms of coercion in service relations with an economic objective • C. 105 : abolishing FL imposed by state as a means of stemming political (authoritarian regimes) or economic (industrial relations) dissidence, i.e. aimed at changing dissident opinions, convictions and even mental attitudes

26. C. 29 : what is left of it ! • C. 29 - in 1930 - allowed certain forms of FL during a transitional period, under the conditions laid down in Art. 4 – 24 of the C. • ILO considers that the transitional period has expired since long • Art. 4 – 24 are no longer valid ... • .. but the absolute prohibitions contained in these articles remain binding • Up-to-date character of C. 29 and C. 105 has otherwise repeatedly been confirmed

27. C. 29/105 : Obligations • State must refrain itself from exacting forced labour • repealing laws and regulations whichprovide for forced labour (e.g. using conscripts for harvesting, allowing FL in detention without conviction) • State must ensure that the exaction of forced labour by non-State actors is illegal, i.e. in particular • is made a penal offence • is punished with adequate and strictly enforced penalties

28. C. 29/105 : Obligations • State must not tolerate the exaction of forced labour by private (commercial or non-commercial) interests • repealing laws & regulations whichallow FL • remove any ambiguity as to whether FL is illegal under national law • take the required measures for court proceedings to be initiated and completed • encourage victims to turn to authorities • strengthen the investigation of FL • seek cooperation of E + W + NGOs

29. What C. 29 considers forced labour

30. Forced Labour – Def. (cont’d) • Set out in C. 29, but identical for C. 29 and C. 105 • Contains three elements • “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”

31. (1) Work or service • « Work » may be defined as any activity which the human being normally pursues in pursuit of material well-being and spiritual development (cfr. Decl’n of Philadelphia) • Legal nature of the relationship between victim and user of FLis irrelevant • i.e. employment contract, civil contract, or no defined contract at all • Does not, in principle, include compulsory education nor training

32. (2) Penalty • Any coercion or threat which goes beyond non-fulfilment of mutual obligations and practically removes the ability of the worker to decide as to whether to continue work under the conditions offered, for example • Penal sanction (e.g. for unlawfully leaving service) or other action by the authorities (e.g. expulsion) • Loss of rights (e.g. welfare) or privileges (prisoners) • Act of physical violence • Threat of declaration to the authorities (e.g. irregular migrants who may then be deported)

33. (3) Free Will and Consent • FL can also exist if the worker has originally consented • If the consent is not informed (e.g. migrant worker recruited by deceit) • If the consent cannot be revoked (under certain conditions) • If the consent could not be lawfully given (e.g. parents pledging children’s services) • If the consent relates to limited choice of jobs within an overall obligation to work

34. Def. – Voluntary offer • External constraints (e.g. poverty) only give rise to forced labour • If actively exploited • If organized or exacerbated (e.g. Gov’t which maintains excessively low wages) • “Exploitation” may be defined as the systematic extraction of a disproportionate advantage from the work of another person, de facto reducing the work of that person to a disposable commodity

35. What C. 29 does not consider to be forced labour

36. 5 cases • compulsory military service for work of a purely military character • minor communal services • normal civic obligations • prison labour : work or service exacted as a consequence of a conviction in a court of law (provided …) • emergency

37. Compulsory military service • applies to conscripts for work of a purely military character, that means • Conscripts cannot be employed on public works as a rule, but their services can be used in the event of natural disasters (emergency) • Conscripts must be trained to defend their country in times of war, not be used for the purpose of economic development • “Engineer” conscripts can be involved in road construction as part of their military training • Career military personnel must be allowed to leave the service providing reasonable notice is given

38. Normal civic obligations • compulsory military service • work or service required in cases of emergency • minor communal services • compulsory jury service • duty to assist a person in danger etc.

39. Emergency • asudden, unforeseeablecircumstance of limited durationthat endangers the existence or well-being of whole or part of the population, and calls for instant counter-measures • earthquake • fire, flood • violent epidemic diseases • famine • invasion by animal pest

40. “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

41. (1) Conviction • FL must result from conduct which is recognized and established as an “offence” • NOT persons awaiting trial • NOT persons detained without trial • NO “minor offences” which are loosely defined and can be elaborated upon at the discretion of executive or judicial authorities • can only be exacted as a consequence of the finding of guilt

42. (2) Court of Law • NOT administrative or non-judicial bodies, unless they offer due process guarantees (general principles of law) • presumption of innocence • equality before the law • regularity and impartiality of the proceedings • independence and impartiality of the courts • access to legal counsel • right to appeal • acting only upon a clear legal definition of the offence • non-retroactivity of penal law

43. (3) Control of Public Authority • Forced prison labour must be carried out under the supervision and control of a public authority • Ability to control must be permanent, not be restricted to a general authority to inspect the premises periodically

44. (4) No Private Benefit • irrespective of the arrangement struck between the State / prison authority and the private operator • State manages prison, workshops are outside prison, operator hires labour from State • State manages prison, workshops are inside prison, operator hires labour from State • Private operator manages the prison and is subsidized by the State • irrespective of whether profit is intended or not, or of whether profit is made or not

45. Why no private interest ? • PL is meant to be part of the rehabilitation process of the convicted, and his/her reconciliation process with the community • Conviction is no excuse for exploitation, and captivity requires special protection against exploitation • Captive labour must NOT be used to undercut the working conditions in regular undertakings producing similar products according to market rules

46. Private Employment CAN • Convicted persons may agree to work for private interests as part of their rehabilitation process, if the normal labour market rules apply • employment is voluntarily accepted on the basis of freely given consent • normal wages are paid • social security is provided • conditions of employment are approximate to those of a free employment relationship

47. Minor communal services • by the members of the local community e.g. no coercion of the entire provincial population for maintenance of rural roads • in the interest of the community • labour must be a form of consideration for a direct benefit, and the obligation must be commensurate with the benefit e.g. maintenance of canals irrigating fields belonging to the community • comprising work for which the community has been consulted • consultation with those who are expected to do the work or their direct representatives • services must be minor

48. Difference between local public works and minor communal services

49. Minor communal services • Other services may, of course, be organized and carried out, provided workers are recruited according to normal labour market conditions, including voluntary participation • Even if compulsory labour does not occur in actual practice, authorizing legislation should be repealed

50. Special Youth Schemes Recommendation (No. 136), 1970 • Regulates schemes designed to tackle youth employment problems by giving young persons the necessary skills • to enable them to adapt to the pace of a changing society and • to take an active part in the development of their country