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Regulating forced labour and combating human trafficking: the relevance of historical definitions in a contemporary perspective

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Abstract

Forced labour has been regulated since 1930 on the basis of the ILO Convention on Forced Labour, and since 1957 on the basis of the ILO Abolition of Forced Labour Convention. In 2000 forced labour was included as one form of exploitation covered by the UN Trafficking Protocol, which situated trafficking into a context of transnational organised crime. In 2014 the ILO adopted a Protocol on Forced Labour, making a link between trafficking and forced labour. The aim of this article is to explore how forced labour came to be regulated and defined in these four treaties. The 1930 ILO Convention came about in a specific historical and political context, yet the 1930 definition remains in use even though the interpretation of forced labour, particularly as it relates to trafficking, has changed. This article focuses on the issue of trafficking for the purpose of forced labour within the context of migration and labour exploitation, and discusses the relevance of historical definitions of forced labour in the current discourse that sees human trafficking mainly as a security threat. It argues that a rigid interpretation of forced labour is not always useful in understanding forms of labour exploitation, at least in a contemporary European migratory perspective. The article calls for a broad interpretation of forced labour, which takes into account also subtle forms of control and coercion.

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Notes

  1. The distinction between the different forms of exploitation is not necessarily clear-cut, for instance when a victim of labour exploitation is exploited also sexually. An additional subject of debate is whether sexual exploitation or forced prostitution should be regarded as a form of forced labour. For the purposes of this paper, trafficking for the purpose of forced labour excludes forms of sexual exploitation and prostitution although it is recognized that sexual exploitation may feature in situations of forced labour, and that coerced prostitution may be defined as forced labour. For a discussion of different views on prostitution, see e.g., [68]: 20–37; [54]; [64].

  2. In several European countries there has been a rising trend in trafficking for labour exploitation and growing awareness of this phenomenon, as is also indicated by increasing research into the topic (e.g., [3, 10, 15, 55, 59, 60, 65, 71, 76, 77, 87, 63]).

  3. The so-called 3 P’s of prevention, protection and prosecution, with partnerships added later on as a fourth P.

  4. Haynes argues that the original intent of the Trafficking Protocol was to protect and prioritise victims, but it mutated into one on crime prevention, with a focus on the exploiter ([19]: 42). Howard and Lalani see that the Protocol frames trafficking as a “problem of boundaries and state sovereignty, in spite of the human rights content of the Protocol itself” ([21]: 9).

  5. “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 (Art. 3a).

  6. 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” (Art. 2.1).

  7. The analysis only focuses on the discussion on the definition of the terms, and thus does not cover an analysis of the complete treaties. The materials consist of selected official documents from the negotiations on the 1930 and 1957 Forced Labour Conventions and the 2000 Trafficking Protocol as well as the 2014 ILO Forced Labour Protocol. The materials include e.g., the treaty texts, meeting reports, reports from working groups, and explanatory reports. The main materials total about 1200 pages. All documents are available online at the ILO and UNODC websites.

  8. There are of course also numerous other manifestations of contemporary forced labour and trafficking. In-country trafficking accounts for 34 % of trafficking flows world-wide ([85]: 8). Globally most victims of forced labour are exploited in the location where they usually live, indicating that movement can be an important vulnerability factor for certain groups of workers, but not for others ([36]: 17).

  9. A supplementary convention on slavery was adopted in 1956, which broadened the understanding of slavery from more traditional notions of slavery to include also analogous practices and institutions, such as debt-bondage and serfdom ([66]: 151–2). The prohibition of slavery also became a key feature of international human rights law (Art. 4 of the 1948 Universal Declaration on Human Rights and Art. 8 of the 1966 International Covenant on Civil and Political Rights).

  10. Already the founding document of the League of Nations (the Covenant of the League of Nations), although not prohibiting forced labour, called on its Members to secure and maintain fair and humane conditions of labour for men, women, and children (Art. 23). Forced labour was, however, explicitly prohibited in areas still under colonial rule (the so-called Mandates B and C) “except for essential public works and services” and then only for adequate remuneration (Covenant of the League of Nations; [22, 57, 79]). The Slavery Convention of 1926 outlined additional important principles regarding the use of forced labour.

  11. Compulsory military service; normal civic obligations; prison work; work in cases of emergency; and minor communal services that are considered part of normal civic obligations (Art. 2.2).

  12. Private forced labour, however, is not allowed: the Convention prohibits all forced or compulsory labour for the benefit of private individuals, companies or associations (Art. 4).

  13. The ILO Forced Labour Protocol of 2014 notes that the transitional period during which forced labour could be applied in line with the 1930 Convention has expired.

  14. At the time it was agreed that forced labour and compulsory labour would not be separated, as already the Slavery Convention used both terms ([23]: 134).

  15. The original texts only refer to men but for the purposes of this article both genders have been included.

  16. The Committee on Forced Labour was established to discuss the Report on Forced Labour which had been prepared by the ILO with the assistance of the Committee of Experts on Native Labour ([24]: 3).

  17. Author’s emphasis.

  18. These include the 1904 International Agreement for the Suppression of the White Slave Traffic, the 1910 International Convention for the Suppression of the White Slave Trade, the 1921 International Convention for the Suppression of the Traffic in Women and Children, the 1933 International Convention for the Suppression of the Traffic in Women of the Full Age, and the 1949 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others.

  19. The first exclusive treaty on women’s human rights, the 1979 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), included the suppression of “all forms of traffic in women and exploitation of the prostitution of women” (Art. 6). The reference to all forms of trafficking has been interpreted to also include forced labour ([14]: 65). The Convention on the Rights of the Child (CRC) of 1989 is the only contemporary international human rights treaty in addition to CEDAW that refers explicitly to trafficking (ibid.). The CRC covers trafficking in children for any purposes or forms (Art. 35).

  20. The World Ministerial Conference on Organized Crime was held in Naples in November 1994. Trafficking in human beings for the purposes of both sexual and labour exploitation was raised in the general debate. While the focus was still on sexual exploitation and minors, coerced labour was also mentioned ([80]: paragraph 33). One of the recommendations of the conference was the initiation of a process to develop an international instrument against organized transnational crime (ibid.). As a parallel process, Argentina had been pushing for the inclusion of trafficking in minors into the negotiations on an additional protocol to the Convention on the Rights of the Child in Geneva, but was dissatisfied with the slow progress. Argentina succeeded in raising the issue also in Vienna, and the annual session of the United Nations Commission on Crime Prevention and Criminal Justice in Vienna discussed a proposal for a separate Convention on the issue of trafficking in minors [81]. The Argentine proposal was eventually merged with other proposals to include trafficking in women. The United Nations General Assembly established an ad hoc Committee in 1998 with the aim of drafting a Convention against transnational organised crime, including an instrument addressing trafficking in women and children [82].

  21. The parallel UN Protocol on Smuggling of Migrants focuses on strengthening border measures and enforcement for the prevention of smuggling of migrants.

  22. This section only focuses on the definition of trafficking for the purpose of forced labour. The scope and definition of trafficking for sexual exploitation were the subjects of lengthy negotiations (see e.g., [14, 68]).

  23. In the documentation, brackets were used by the UN Secretariat to identify language that had been questioned by one or more of the negotiators, and that thus required further consideration.

  24. The same exceptions as in the 1930 ILO Convention (prison labour, military service, emergencies, normal civic obligations and minor communal services) were initially included in the definition.

  25. ‘Forced labour’ shall mean labour or services obtained through force or the threat of force, or the use of coercion, or through any scheme or artifice to defraud, including one where the status or condition results from a debt or contract made by that person and the value of the labour or services as reasonably assessed is not applied towards the liquidation of the debt or the fulfilment of the contract (i.e., debt bondage), or by any means or plan or pattern, including but not limited to false and fraudulent pretences and misrepresentations, such that the person reasonably believes that he or she has no alternative but to perform the service ([83]: 342).

  26. See e.g., [14, 68] for a detailed account of the issues relating to consent.

  27. The ILO Committee of Experts was set up in 1926 to examine the growing number of government reports on ratified conventions. It is composed of 20 eminent jurists appointed by the ILO Governing Body for three-year terms. The Committee’s role is to provide an impartial and technical evaluation of the state of application of international labour standards. (http://www.ilo.org/global/standards/applying-and-promoting-international-labour-standards/committee-of-experts-on-the-application-of-conventions-and-recommendations/lang--it/index.htm).

  28. “The measures referred to in this Article shall include specific action against trafficking in persons for the purposes of labour or sexual exploitation.”

  29. The ILO has a tripartite structure with government, employer, and worker representatives participating in deliberations and negotiations.

  30. “Confirming the definition of forced or compulsory labour contained in Convention No. 29, the measures referred to in this Article shall include specific action against trafficking in persons for the purposes of forced or compulsory labour.”

  31. “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.”

  32. With trafficking for the purpose of organ removal being the exception ([41]: 4).

  33. In 1979 the ILO Committee of Experts reaffirmed that the penalty does not need to be in the form of penal sanctions, but might also take the form of a loss of rights or privileges ([28]: 19 paragraph 21). In 2005, the ILO elaborated on the meaning of extracting labour “under the menace of a penalty”, and listed six elements that point to a forced labour situation. These include physical or sexual violence, restriction of movement of the worker, debt bondage or bonded labour, withholding wages or refusing to pay the worker at all, retention of passports and identity documents, and threat of denunciation to the authorities ([32]: 20–1).

  34. Ninety percent of the forced labourers are exploited in the private economy, by individuals or enterprises ([36]: 13).

  35. For a further discussion on trafficking in persons and the theory of securitisation, see e.g., [44].

  36. In later reports by the ILO Committee of Experts, it has been noted that one cannot offer oneself voluntarily under threat, and the constraints to a voluntary offer may result also from an employer’s practice, e.g., where migrant workers are induced by deceit, false promises and retention of identity documents or forced to remain at the disposal of an employer ([33]: 20, paragraphs 38–39).

  37. The continuum can also be visualized as a continuum of ideal conditions versus exploitation, with decent work at one end, and forced labour at the other [75]. Such a continuum portrays free will and voluntary labour at one end, and coercion and force at the other [59].

  38. In order to identify forced labour, it is important to see the totality of the situation of the exploited worker. Often only separate indicators of exploitation are seen. In identifying the different forms of abuse, concrete indicators that in detail outline the elements of exploitation may be helpful (see [32, 35, 38]).

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Ollus, N. Regulating forced labour and combating human trafficking: the relevance of historical definitions in a contemporary perspective. Crime Law Soc Change 63, 221–246 (2015). https://doi.org/10.1007/s10611-015-9566-6

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