1 forced labour convention (no. 29), 1930 and abolition of forced labour convention (no. 105), 1957...

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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 [email protected] seifert @ ilo.org

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Page 1: 1 Forced Labour Convention (No. 29), 1930 and Abolition of Forced Labour Convention (No. 105), 1957 Tim De Meyer Specialist on International Labour Standards

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

Forced Labour Convention (No. 105),

1957Tim De Meyer

Specialist on International Labour Standards & Labour Law, Subregional Office for East Asia (SRO Bangkok),

[email protected]

[email protected]

Page 2: 1 Forced Labour Convention (No. 29), 1930 and Abolition of Forced Labour Convention (No. 105), 1957 Tim De Meyer Specialist on International Labour Standards

FORCED LABOUR –THE CONCEPT

Page 3: 1 Forced Labour Convention (No. 29), 1930 and Abolition of Forced Labour Convention (No. 105), 1957 Tim De Meyer Specialist on International Labour Standards

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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

Page 4: 1 Forced Labour Convention (No. 29), 1930 and Abolition of Forced Labour Convention (No. 105), 1957 Tim De Meyer Specialist on International Labour Standards

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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

Page 5: 1 Forced Labour Convention (No. 29), 1930 and Abolition of Forced Labour Convention (No. 105), 1957 Tim De Meyer Specialist on International Labour Standards

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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

Page 6: 1 Forced Labour Convention (No. 29), 1930 and Abolition of Forced Labour Convention (No. 105), 1957 Tim De Meyer Specialist on International Labour Standards

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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)

Page 7: 1 Forced Labour Convention (No. 29), 1930 and Abolition of Forced Labour Convention (No. 105), 1957 Tim De Meyer Specialist on International Labour Standards

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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

Page 8: 1 Forced Labour Convention (No. 29), 1930 and Abolition of Forced Labour Convention (No. 105), 1957 Tim De Meyer Specialist on International Labour Standards

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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

Page 9: 1 Forced Labour Convention (No. 29), 1930 and Abolition of Forced Labour Convention (No. 105), 1957 Tim De Meyer Specialist on International Labour Standards

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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 economyEx. 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

Page 10: 1 Forced Labour Convention (No. 29), 1930 and Abolition of Forced Labour Convention (No. 105), 1957 Tim De Meyer Specialist on International Labour Standards

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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

Page 11: 1 Forced Labour Convention (No. 29), 1930 and Abolition of Forced Labour Convention (No. 105), 1957 Tim De Meyer Specialist on International Labour Standards

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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

Page 12: 1 Forced Labour Convention (No. 29), 1930 and Abolition of Forced Labour Convention (No. 105), 1957 Tim De Meyer Specialist on International Labour Standards

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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)

Page 13: 1 Forced Labour Convention (No. 29), 1930 and Abolition of Forced Labour Convention (No. 105), 1957 Tim De Meyer Specialist on International Labour Standards

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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)

Page 14: 1 Forced Labour Convention (No. 29), 1930 and Abolition of Forced Labour Convention (No. 105), 1957 Tim De Meyer Specialist on International Labour Standards

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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)

Page 15: 1 Forced Labour Convention (No. 29), 1930 and Abolition of Forced Labour Convention (No. 105), 1957 Tim De Meyer Specialist on International Labour Standards

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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)”

Page 16: 1 Forced Labour Convention (No. 29), 1930 and Abolition of Forced Labour Convention (No. 105), 1957 Tim De Meyer Specialist on International Labour Standards

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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

Page 17: 1 Forced Labour Convention (No. 29), 1930 and Abolition of Forced Labour Convention (No. 105), 1957 Tim De Meyer Specialist on International Labour Standards

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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

Page 18: 1 Forced Labour Convention (No. 29), 1930 and Abolition of Forced Labour Convention (No. 105), 1957 Tim De Meyer Specialist on International Labour Standards

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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

Page 19: 1 Forced Labour Convention (No. 29), 1930 and Abolition of Forced Labour Convention (No. 105), 1957 Tim De Meyer Specialist on International Labour Standards

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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.”

Page 20: 1 Forced Labour Convention (No. 29), 1930 and Abolition of Forced Labour Convention (No. 105), 1957 Tim De Meyer Specialist on International Labour Standards

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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.”

Page 21: 1 Forced Labour Convention (No. 29), 1930 and Abolition of Forced Labour Convention (No. 105), 1957 Tim De Meyer Specialist on International Labour Standards

FORCED LABOUR –ILO CONVENTIONS NOS. 29 & 105

Page 22: 1 Forced Labour Convention (No. 29), 1930 and Abolition of Forced Labour Convention (No. 105), 1957 Tim De Meyer Specialist on International Labour Standards

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Ratification Status of C. 29 92 % worldwide, 73 % in Asia Pacific Poor record in East Asia (incl. ASEAN) :

no ratification by China, 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

Page 23: 1 Forced Labour Convention (No. 29), 1930 and Abolition of Forced Labour Convention (No. 105), 1957 Tim De Meyer Specialist on International Labour Standards

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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

Page 24: 1 Forced Labour Convention (No. 29), 1930 and Abolition of Forced Labour Convention (No. 105), 1957 Tim De Meyer Specialist on International Labour Standards

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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)

Page 25: 1 Forced Labour Convention (No. 29), 1930 and Abolition of Forced Labour Convention (No. 105), 1957 Tim De Meyer Specialist on International Labour Standards

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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

Page 26: 1 Forced Labour Convention (No. 29), 1930 and Abolition of Forced Labour Convention (No. 105), 1957 Tim De Meyer Specialist on International Labour Standards

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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

Page 27: 1 Forced Labour Convention (No. 29), 1930 and Abolition of Forced Labour Convention (No. 105), 1957 Tim De Meyer Specialist on International Labour Standards

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C. 29/105 : Obligations State must refrain itself from exacting forced

labour repealing laws and regulations which provide 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

Page 28: 1 Forced Labour Convention (No. 29), 1930 and Abolition of Forced Labour Convention (No. 105), 1957 Tim De Meyer Specialist on International Labour Standards

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C. 29/105 : Obligations State must not tolerate the exaction of

forced labour by private (commercial or non-commercial) interests repealing laws & regulations which allow 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

Page 29: 1 Forced Labour Convention (No. 29), 1930 and Abolition of Forced Labour Convention (No. 105), 1957 Tim De Meyer Specialist on International Labour Standards

What C. 29 considers forced labour

Page 30: 1 Forced Labour Convention (No. 29), 1930 and Abolition of Forced Labour Convention (No. 105), 1957 Tim De Meyer Specialist on International Labour Standards

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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”

Page 31: 1 Forced Labour Convention (No. 29), 1930 and Abolition of Forced Labour Convention (No. 105), 1957 Tim De Meyer Specialist on International Labour Standards

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(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 FL is irrelevant i.e. employment contract, civil contract, or no

defined contract at all Does not, in principle, include compulsory

education nor training

Page 32: 1 Forced Labour Convention (No. 29), 1930 and Abolition of Forced Labour Convention (No. 105), 1957 Tim De Meyer Specialist on International Labour Standards

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(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)

Page 33: 1 Forced Labour Convention (No. 29), 1930 and Abolition of Forced Labour Convention (No. 105), 1957 Tim De Meyer Specialist on International Labour Standards

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(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

Page 34: 1 Forced Labour Convention (No. 29), 1930 and Abolition of Forced Labour Convention (No. 105), 1957 Tim De Meyer Specialist on International Labour Standards

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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

Page 35: 1 Forced Labour Convention (No. 29), 1930 and Abolition of Forced Labour Convention (No. 105), 1957 Tim De Meyer Specialist on International Labour Standards

What C. 29 does not consider to be forced labour

Page 36: 1 Forced Labour Convention (No. 29), 1930 and Abolition of Forced Labour Convention (No. 105), 1957 Tim De Meyer Specialist on International Labour Standards

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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

Page 37: 1 Forced Labour Convention (No. 29), 1930 and Abolition of Forced Labour Convention (No. 105), 1957 Tim De Meyer Specialist on International Labour Standards

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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

Page 38: 1 Forced Labour Convention (No. 29), 1930 and Abolition of Forced Labour Convention (No. 105), 1957 Tim De Meyer Specialist on International Labour Standards

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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.

Page 39: 1 Forced Labour Convention (No. 29), 1930 and Abolition of Forced Labour Convention (No. 105), 1957 Tim De Meyer Specialist on International Labour Standards

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Emergency a sudden, unforeseeable circumstance of

limited duration that 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

Page 40: 1 Forced Labour Convention (No. 29), 1930 and Abolition of Forced Labour Convention (No. 105), 1957 Tim De Meyer Specialist on International Labour Standards

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“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

Page 41: 1 Forced Labour Convention (No. 29), 1930 and Abolition of Forced Labour Convention (No. 105), 1957 Tim De Meyer Specialist on International Labour Standards

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(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

Page 42: 1 Forced Labour Convention (No. 29), 1930 and Abolition of Forced Labour Convention (No. 105), 1957 Tim De Meyer Specialist on International Labour Standards

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(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

Page 43: 1 Forced Labour Convention (No. 29), 1930 and Abolition of Forced Labour Convention (No. 105), 1957 Tim De Meyer Specialist on International Labour Standards

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(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

Page 44: 1 Forced Labour Convention (No. 29), 1930 and Abolition of Forced Labour Convention (No. 105), 1957 Tim De Meyer Specialist on International Labour Standards

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(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

Page 45: 1 Forced Labour Convention (No. 29), 1930 and Abolition of Forced Labour Convention (No. 105), 1957 Tim De Meyer Specialist on International Labour Standards

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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

Page 46: 1 Forced Labour Convention (No. 29), 1930 and Abolition of Forced Labour Convention (No. 105), 1957 Tim De Meyer Specialist on International Labour Standards

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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

Page 47: 1 Forced Labour Convention (No. 29), 1930 and Abolition of Forced Labour Convention (No. 105), 1957 Tim De Meyer Specialist on International Labour Standards

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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

Page 48: 1 Forced Labour Convention (No. 29), 1930 and Abolition of Forced Labour Convention (No. 105), 1957 Tim De Meyer Specialist on International Labour Standards

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Difference between local public works and minor communal services

Public Works MCS

Interest Wider public Local residents

Scale Medium/Large Small

Performed by Wider public Local residents

Duration Days, months, years

Hours, days

Page 49: 1 Forced Labour Convention (No. 29), 1930 and Abolition of Forced Labour Convention (No. 105), 1957 Tim De Meyer Specialist on International Labour Standards

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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

Page 50: 1 Forced Labour Convention (No. 29), 1930 and Abolition of Forced Labour Convention (No. 105), 1957 Tim De Meyer Specialist on International Labour Standards

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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

Page 51: 1 Forced Labour Convention (No. 29), 1930 and Abolition of Forced Labour Convention (No. 105), 1957 Tim De Meyer Specialist on International Labour Standards

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Types of Permitted Compulsory Schemes

Youth schemes should be voluntary, but may exceptionally be compulsory in two cases : (a) schemes of education and training involving

obligatory enrolment of unemployed young people within a definite period after the age limit of regular school attendance;

(b) schemes for young people who have previously accepted an obligation to serve for a definite period as a condition of being enabled to acquire education or technical qualifications of special value to the community for development

Page 52: 1 Forced Labour Convention (No. 29), 1930 and Abolition of Forced Labour Convention (No. 105), 1957 Tim De Meyer Specialist on International Labour Standards

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Conditions as regards (b) free choice among different available forms of activity

and different regions and due account should be taken in their assignment of their qualifications and aptitudes

service should not be used for private interests service should not normally exceed two years

account may be taken of the length of the studies and the sacrifice they represent for the community

participants agree to the service prior to undertaking study

the degree of “free will” depends on whether the choice of careers that do not entail an obligation to serve is limited, and on the sanctions for not serving afterwards

training must be of special value to the community e.g. ability to provide essential services to the rural poor

compulsory service : interim character to meet current, pressing needs

Page 53: 1 Forced Labour Convention (No. 29), 1930 and Abolition of Forced Labour Convention (No. 105), 1957 Tim De Meyer Specialist on International Labour Standards

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Trafficking of persons Is an emerging phenomenon fueled by a

number of factors globalization, particularly improved means of

transport and open borders international organized crime inequality within and between countries poverty of income & opportunity in home

communities limited law enforcement capacity

Is not forced labour, but rather the process that leads up to it

Page 54: 1 Forced Labour Convention (No. 29), 1930 and Abolition of Forced Labour Convention (No. 105), 1957 Tim De Meyer Specialist on International Labour Standards

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Palermo Protocol Definition

“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.

Page 55: 1 Forced Labour Convention (No. 29), 1930 and Abolition of Forced Labour Convention (No. 105), 1957 Tim De Meyer Specialist on International Labour Standards

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Trafficking involves … a transaction or operation which exerts

control over the person (recruitment, transport etc)

“Trafficking of persons” contains an element of deliberate separation of a person from a familiar environment, but not necessarily the crossing of international borders : trafficking also occurs within state boundaries

Page 56: 1 Forced Labour Convention (No. 29), 1930 and Abolition of Forced Labour Convention (No. 105), 1957 Tim De Meyer Specialist on International Labour Standards

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Trafficking … consent of the person is irrelevant as long as

any of the following means is used : the threat or use of force other forms of coercion abduction fraud deception abuse of power abuse of a position of vulnerability giving or receiving of payments or benefits to

achieve consent of a person having control over another person

Page 57: 1 Forced Labour Convention (No. 29), 1930 and Abolition of Forced Labour Convention (No. 105), 1957 Tim De Meyer Specialist on International Labour Standards

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Traff. – Definition Elements

many types exploitation may be recognized as giving rise to trafficking, but any of the following four forms, must be recognized as exploitation in the context of trafficking exploitation of the prostitution of others other forms of sexual exploitation (e.g. use of

children for pornography) forced labour or services, slavery or practices

similar to slavery, servitude (“labour exploitation”)

the removal of organs

Page 58: 1 Forced Labour Convention (No. 29), 1930 and Abolition of Forced Labour Convention (No. 105), 1957 Tim De Meyer Specialist on International Labour Standards

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Trafficking - Exploitation Exploitation can be usefully

understood as the systematic extraction of a disproportionate advantage from the work of another person, de facto frustrating the benefit which the worker legitimately expects from his / her work

Page 59: 1 Forced Labour Convention (No. 29), 1930 and Abolition of Forced Labour Convention (No. 105), 1957 Tim De Meyer Specialist on International Labour Standards

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Forced Overtime (CEX) imposition of overtime is no FL

“so long as it is within the limits permitted by the national legislation or collective agreements”

legitimate expectations from employer that he/she can require

overtime when needed (e.g. unforeseen orders, production peaks …)

from worker that overtime will be limited, subject to incentive and (possible) procedure

Page 60: 1 Forced Labour Convention (No. 29), 1930 and Abolition of Forced Labour Convention (No. 105), 1957 Tim De Meyer Specialist on International Labour Standards

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Forced Overtime overtime becomes forced labour when

limits are consistently flouted penalties (e.g. dismissal) are imposed or

threatened and mandatory incentives denied

procedures, if any, (e.g. advance notice) are ignored

Page 61: 1 Forced Labour Convention (No. 29), 1930 and Abolition of Forced Labour Convention (No. 105), 1957 Tim De Meyer Specialist on International Labour Standards

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Reeducation through labour in China

sanction which is administrative and not criminal in nature, intended to be both preventive and educational

decision of a specific committee (committee on re-education through labour or CRL) on which officials representing civil affairs, public security and labour are sitting

an average of 240,000 persons are placed under this system in over 300 centres

involves detention of maximum 3 years with a possible extension of one year (i.e. a maximum of three years)

only "minor offences" : 20 % drug-related offences, 20 % prostitution, 40 % theft, 20 % “hooliganism” and “disrupting public order”

Page 62: 1 Forced Labour Convention (No. 29), 1930 and Abolition of Forced Labour Convention (No. 105), 1957 Tim De Meyer Specialist on International Labour Standards

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RETL – Potential comments

Use of RETL as a sanction for “political offences”, as a sanction against (peacefully) striking workers, or as a means of religious discrimination various provisions of C. 105, i.e. irrespective of

whether resulting work is for public or private purpose

Potential for arbitrary decisions by the CRETL : lack of independence of the Committees, absence of a formal criminal process (legal counsel, appeal, …), rules permitting a person to be detained are too broadly expressed to show afterwards they were incorrectly applied Art. 2, 2 (c) of C. 29, irrespective of whether resulting

work is for public or private purpose

Page 63: 1 Forced Labour Convention (No. 29), 1930 and Abolition of Forced Labour Convention (No. 105), 1957 Tim De Meyer Specialist on International Labour Standards

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RETL – Potential comments

To the extent that the work of the detainee serves a private purpose (inside or outside the institution), the detainee should give his or her free consent and working conditions should approximate

those prevailing on the free labour market

(Art. 2, 2 (c) of C. 29)

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RETL - Progress areas

state categorically in the law that RTL will not be applied to “political offenders” : persons peacefully exercising their fundamental freedoms as guaranteed by the Universal Declaration of Human Rights, particularly freedom of association and freedom of expression (and the civil liberties laid down in the ILO Conference Resolution of 1970) unlike common offenders (minor or major),

political offenders must not be subject to rehabilitation

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RETL - Progress areas Committee on RETL, if maintained, should offer the

same safeguards for independence / impartiality / regularity of proceedings as a judicial court

appeal proceedings must be available and accessible (e.g. time to consult a lawyer) and appeal should suspend the verdict

presumption of innocence equality before the law guarantees for defence clear definition of the offence non-retroactivity of penal law evidence : suspected offenders have the benefit of the

doubt (in dubio pro reo) judge intervenes before detention instead of after

detention

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RETL – Progress areas If (a) RETL is maintained for common offenders,

and (b) the potential for arbitrary decisions has been removed, the law should also provide that detainees who are forced to work (1) do so under

the permanent supervision of public authorities, and (2) are not hired to private interests

detainees who voluntarily work for private interests do so under conditions close to those prevailing on the regular labour market

Law should offer guarantees that authorities cannot use their discretion to cancel a prisoner’s registration with the effect that the detainee stays at the instution beyond his or her term

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What C. 105 considers forced labour, even if C. 29 does not

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Basic obligation 1 to undertake effective measures to

secure the immediate and complete abolition of forced or compulsory labour

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Basic obligation 2 to suppress and not make use of any form

of forced or compulsory labour in the five cases mentioned in the Convention …

… not even in the exceptions under C. 29e.g. - forced minor communal services do not

constitute forced labour under C. 29, but that does not mean they can justify social discrimination

- forced prison labour is no forced labour under C. 29, but that does not mean it may be required from political prisoners

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Prohibitions in shorthand

Forced or compulsory labour for political purposes

Forced or compulsory labour for purposes of economic development

"as a means of labour discipline” "as a punishment for having participated in

a strike” "as a means of racial, social, national or

religious discrimination"

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(1) Political purposes "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” e.g. forced labour as a sanction for the

free expression of opinions in a newspaper or as a sanction for peaceful assembly

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(2) Economic development “as a method of mobilising and using

labour for purposes of economic development”  e.g. national "civic service" regimes

imposing compulsory labour for a fixed period, usually on a segment of the population defined in terms of age and education and based on a general obligation to perform civic service

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(3)“as a means of labour discipline”

May be of two types measures to ensure the due performance by

a worker under compulsion of law e.g. penal sanctions involving forced

labour against employees not observing collective agreements

sanction for breach of labour discipline penalties to enforce labour discipline as suchbut penalties to punish breaches of labour

discipline threatening the operation of essential services (outside the scope of C. 105)

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(4) Participation in strike Participation in strike action which is lawful under

ILO principles (even if unlawful under national law) must not be punished with forced labour

OK = FL imposed as a penalty for participation in illegal or violent strikes (falls

outside the scope of the C. 105) to public servants exercising authority in the name of

the State to workers in essential services, i.e. whose interruption

would endanger the existence or well-being of the whole or part of the population and that compensatory guarantees are provided (same applies for seamen)

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(5) Discrimination “as a means of racial, social, national or

religious discrimination” 

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Slavery and Forced Labour -Main instruments

Slavery Convention of the League of Nations, 1926 (and Protocol of 1957) suppression of slave trade and abolition of

slavery in all forms adopt measures to prevent and eliminate

forced labour other than for public purposes UN Supplementary Convention on the

Abolition of Slavery, the Slave Trade, and Institutions and practices Similar to Slavery, 1957

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Main instruments (cont’d) Convention for the Suppression of the

Traffic in Persons and of the Exploitation of Prostitution of Others, 1951 makes it an offence to procure, entice or

lead away a person for the purposes of prostitution even with the consent of that person

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Main instruments (cont’d) UN Convention Against Transnational

Organised Crime and Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organised Crime (“Palermo Protocol”)

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Main instruments (cont’d) Protocol Against the Smuggling of

Migrants by Land , Sea and Air, Supplementing the United Nations Convention Against Transnational Organised Crime

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Main instruments (cont’d) International Convention on the Protection of

the Rights of All Migrant Workers and Members of their Families (1990) - Article 11 No migrant worker or member of his or her family

shall be held in slavery or servitude No migrant worker or member of his or her family

shall be required to perform forced or compulsory labour

States where imprisonment with hard labour may be imposed as a punishment for a crime, can impose the performance of hard labour in pursuance of a sentence to such punishment by a competent court.

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Migrant Convention (cont ’d)

For the purpose of the present article the term "forced or compulsory labour" shall not include :

(a) Any work or service not referred to in paragraph 3 of the present article normally required of a person who is under detention in consequence of a lawful order of a court or of a person during conditional release from such detention; (b) Any service exacted in cases of emergency or calamity threatening the life or well-being of the community; (c) Any work or service that forms part of normal civil obligations so far as it is imposed also on citizens of the State concerned

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Main instruments (cont’d) Universal Declaration of Human Rights : “No

one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms” (art. 4).

International Covenant on Economic, Social and Cultural Rights recognizes the right to work “which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts” (art. 6 (1)).

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Main instruments (cont’d) The International Covenant on Civil

and Political Rights, 1966 importance is emphasized by its status as

a non-derogable right under article 4 (2). Article 8 also contains a provision which

prohibits the use of forced or compulsory labour subject to certain limited exceptions.

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Main instruments (cont’d) Employment Policy Convention, 1964

(No. 122) full, productive and freely chosen

employment at the centre of State policy Rome Statute of the International

Criminal Court characterizes “enslavement” as a crime against humanity falling within the jurisdiction of the Court (article 7 (2)).