Forced Labor
WebMILS uses the central definition of forced labor found in ILO Convention No. 29: all work or service that is exacted from any person under the menace of any penalty and for which the said person has not offered himself or herself voluntarily. Underlying this definition there are seven major categories of forced labor, detailed below:
- Slavery and Abductions
- Compulsory Participation in Public Works Projects
- Mandatory Forced Labor in Remote Areas
- Bonded labor
- Involuntary Labor Resulting from Trafficking in Persons
- Domestic Workers in Involuntary Labor Situations
- Prison Labor and Rehabilitation Through Work
- Other Forms of Forced Labor
Slavery and Abductions
There is no one universal definition of slavery, even though the proscription of slavery is a peremptory norm in international law for which there are no derogations. At one end of the spectrum is chattel slavery (ownership) and the other end is freedom. In its worst form, slaves are possessions whose bondage is life long. They can be bought, sold, given away, inherited, paid as a tax, and otherwise used by their owners as they wish. They have no separate social identity and no political rights. They are totally dependent on their owners, who usually are private individuals. As defined by Bales (2002, p. 4), slavery is: 'A social and economic relationship marked by the loss of free will where a person is forced through violence or threat of violence to give up the ability to sell freely his/her own labor power.' This definition is especially applicable to slavery and 'practices similar to slavery,' such as debt bondage and serfdom.
ILO definitions take a different approach and are primarily concerned with economic exploitation, although Convention No. 182 (on the worst forms of child labor) does prohibit 'all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom, and forced or compulsory labour, including forced or compulsory recruitment of children for use in armed conflict.' 'Clearly, when experts and multilateral agencies find it a challenge to arrive at any uniform definition of an activity that they all agree exists, and that they all agree should be eradicated, it is not surprising that researchers face a similar challenge in developing measures of forced labor or slavery (Bales, 2002, p. 6).'
Contemporary forms of slavery include a wide range of exploitative practices, including compulsory participation in public works, mandatory labor in remote rural areas, bonded labor, domestic workers in involuntary labor situations, and involuntary labor resulting from trafficking. In many parts of the world, slavery may be overt in the community because it is tacitly accepted and managed by community leaders, but relegated to a status of invisibility. Counting the number of slaves is difficult because they cannot be surveyed in any reliable way.
Compulsory Participation in Public Works Projects
In a number of societies, particularly within Asia and Africa, individuals are required to participate in aspects of community and national development. Many communities have a long-standing tradition of participatory, voluntary labor, including arrangements in which families assist each other in agriculture and other activities. The definitional and resulting measurement challenge is to differentiate between practices that are 'minor communal services' or 'normal civic obligations,' which are exempt from the ILO forced labor prohibition, from situations that are in fact forced labor. These differentiations are often difficult to make.
Convention No. 29 exempts any work or service that forms part of the normal civic obligations of the citizens of a fully self-governing country (ILO Convention 29, Article 2(2)(b)). As noted above, the exemption includes military service (ILO Convention 29, Article 2(2)(a)), work in case of emergencies (ILO Convention 29, Article 2(2)(d)), and minor communal services. Other examples may include compulsory jury service and the duty to assist a person in danger or to assist in the enforcement of law and order (International Labour Organization, 1979).
The exception for military service is based on the necessity for national defense. It is not intended for public works projects. Similarly, the exception for emergencies is intended to apply to genuine emergencies and not to public works projects. The emergency exception encompasses any circumstance that would endanger the existence or the well-being of the whole or part of the population, including war or a calamity, such as fire, flood, famine, earthquake, violent epidemic or epizootic diseases, invasion by animal, insect or vegetable pests (ILO Convention 29, Article 2(2)(d)). Moreover, the nature and duration of the compulsory labor must have a direct correlation to the nature of the event and be limited to what is strictly required by the situation (International Labour Organization, 1979).
Similarly, the ILO supervisory bodies that monitor compliance with ratified ILO forced labor conventions consider minor communal services to be minor services relating primarily to maintenance work and, in exceptional cases, to the erection of buildings intended to improve the social conditions of the community, e.g., building a small school or a medical treatment room. Such services must be of direct interest to the community and not relate to the execution of works intended to benefit a specific group (International Labour Organization, 1979).
These exceptions are narrow. Although there are a number of examples of compulsory participation in public works, perhaps the most dramatic example has been the situation in Myanmar (Burma) that led to a commission of inquiry and the invoking of Article 33 economic sanctions for the first time in ILO history. Specifically, the commission found (International Labour Organization, 1998, para. 528):
There is abundant evidence before the Commission showing the pervasive use of forced labour imposed on the civilian population throughout Myanmar by the authorities and the military for portering, the construction, maintenance and servicing of military camps, other work in support of the military, work on agriculture, logging and other production projects undertaken by the authorities or the military, sometimes for the profit of private individuals, the construction and maintenance of roads, railways and bridges, other infrastructure work and a range of other tasks, none of which comes under any of the exceptions listed in Article 2(2) of the Convention.
A State which supports, instigates, accepts or tolerates forced labour on its territory commits a wrongful act and engages its responsibility for the violation of a peremptory norm in international law. Whatever may be the position in national law with regard to the exaction of forced or compulsory labour and the punishment of those responsible for it, any person who violates the prohibition of recourse to forced labour under the Convention is guilty of an international crime that is also, if committed in a widespread or systematic manner, a crime against humanity.
Mandatory Forced Labor in Remote Areas
Although traditional systems of peonage (coerced labor in payment of a debt created by a contract between two individuals) and serfdom have been significantly reduced in recent decades, coercion and compulsion of agricultural workers continues, primarily through monetary advances to workers that result in a debt that compels their future labor. In remote areas, workers have no choice but to incur further debt for food and other necessities supplied by the landowner or contractor or to accept goods in lieu of wages. After money has been advanced, there can be varying kinds of restriction on the freedom of the worker to terminate employment, or even to leave the workplace, that can be difficult to discern.
Problems of coercion are often connected with seasonal migration within countries and across national borders. There is no well-accepted international standard regarding who pays recruitment fees --
the employer or the employee --
or the level of those fees in relation to the worker's wages. Seasonal workers are often far from home and in inhospitable and inaccessible tropical areas. This isolation increases their vulnerability to abuse and lessens the prospect of effective enforcement of conventions on forced labor.
Bonded labor
Of all the contemporary forms of forced labor, bonded labor is the most widespread, although precise estimates of its dimensions are hard to determine. The precise meaning of the term 'bonded labor' and whether this phenomenon is distinct from debt bondage can also be difficult to discern. Moreover, not all debt bondage is forced labor. In some instances, the issue may be not about whether the debtor entered into bondage voluntarily but over the terms of the bond. This issue is often a reflection of the borrower's being illiterate, with little understanding of the nature of the bond.
As defined by the ILO, 'bonded laborer' refers to a worker who renders service under conditions of bondage arising from economic considerations, notably indebtedness through a loan or advance. When debt is the root cause of the bondage, the implication is that the worker (or dependents or heirs) is tied to a particular creditor for a specified or unspecified period until the loan is repaid (International Labour Organization, 2001). Debt bondage may be distinguished by a relatively short duration of obligation, while bonded labor is a derivation of traditional forms of agricultural serfdom.
The variety of practices and relationships that could appear as amounting to conditions of bonded labor does not lead easily to measuring its prevalence or the efficacy of a state's efforts to eradicate it. The ILO has noted several difficulties in accurately estimating the number of bonded laborers in a particular country or region. The first difficulty is determining the population to be measured because land-holding and land-use patterns tend to be common to both bonded and nonbonded labor. For example, the exchange of services in lieu of pay is fairly common among sharecropping tenant farmers. Such work, however, in turn involves both those workers who are indebted, in the sense of bonded labor to the landowner, and those who are not. The matter is further complicated by the fact that being indebted to a landowner does not automatically imply bondage, nor does noninstitutional debt (International Labour Organization, 2001).
Involuntary Labor Resulting from Trafficking in Persons
With the emergence of the global economy, trafficking of women and children, primarily for prostitution, domestic service, and sweatshops, has increased dramatically over the past two decades. The points of origin are poorer nations, especially the most economically deprived rural areas of those countries; the destination countries are among the wealthiest countries; in between are transit countries.
Trafficking involves domestic and international networks and conspiracies. Consequently, effective enforcement can be hampered by prohibitions on undercover investigation and surveillance, as is the case under the Macedonian Constitution, for example. In Macedonia, law enforcement is further complicated by the lack of conspiracy laws. In other countries, effective enforcement of anti-trafficking laws, if they exist, may be hampered by provisions that also criminalize the acts of the victim. Trafficking victims are often perceived by public authorities as illegal aliens rather than as victims of organized crime. Victims' fears of the exploiters' reprisals against them or their family members back home, coupled with such constraints as physical confinement and the retention of victims' identity documents, are factors that contribute to the relatively few prosecutions of exploiters. As a consequence, a generally recognized serious problem continues essentially unabated.
Although not as widespread as bonded labor, trafficking in persons is a global problem found in no less than 60 countries, including developed economies. Trafficking in persons exists within individual countries as well as across international borders and is broader in scope than the particular form that often receives the most attention -- the movement of women and girls engaged in the sex sector. Workers are also frequently trafficked for the exploitation of their labor on rural farms or in urban households.
The Protocol to Prevent, Suppress and Punish Trafficking of Persons, Especially Women and Children, adopted in December 2000, provided the first agreed-on definition of trafficking. Article 3(a) of the Protocol defines 'trafficking in persons' to 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.
By including all stages of the process, including 'receipt of persons,' the definition of trafficking covers issues beyond being an illegal form of migration. But the frequent transnational aspect of the crime creates complications, requiring examination not only of the manner in which a migrant entered the country but also of their working conditions, and whether the migrant consented to the irregular entry or these working conditions.
Trafficking and more voluntary forms of undocumented migration are best thought of as a continuum, with room for considerable variation between the extremes' (Salt and Hogarth, 2000). Illicit trafficking involves in most instances sending, transit, and receiving countries. At the most basic level, it involves the movement of persons for the purposes of performing labor that most likely involve illicit activities or under working conditions that are below statutory standards (International Labour Organization, 2001). Trafficking has been aided by globalization, opening of borders and improved, and low-cost transportation among nations; the social and cultural factors underlying labor trafficking include poverty and indebtedness, illiteracy and low levels of education, and gender-based discrimination.
Domestic Workers in Involuntary Labor Situations
Exploitation of domestic workers is not specifically defined as a separate violation of forced labor standards. 'Domestic work per se is not forced labor. But it can degenerate into forced labor when debt bondage or trafficking is involved -- or when the worker is physically restrained from leaving the employer's home or has his or her identity papers withheld' (International Labour Organization, 2001, para. 83). This vulnerability can also be exacerbated by their frequent exclusion from protections provided under national legislation. The isolation of these workers presents a challenge to recognizing abuses, a necessary precedent to eliminating illegal practices. Working largely in private households, domestic workers experience a degree of vulnerability that is unparalleled to that of other workers.
Prison Labor and Rehabilitation Through Work
Under ILO Convention No. 29, the definition of forced labor excludes: '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' (ILO Convention 29, Article 2(2)(c)). In the context of modern prison practices in developed countries, the precise contours of this exception continue to be debated.
Two forms of prison labor are at issue. The first involves government-driven prison rehabilitation programs involving the forced labor of prisoners who are viewed by the government as being antisocial or having engaged in such antisocial behavior as political speech, breach of labor discipline, or strike activity. Convention No. 105 specifically prohibits forced labor as a means of political coercion or education or punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system. Differentiating political coercion from forced labor punishments for violence or inciting violence, which is permitted, can be difficult. Similarly, distinguishing normal labor discipline for endangering the operation of essential services for which a forced labor punishment is authorized, from a more generalized labor discipline breaching a contract of employment can be difficult. As a general matter, workers have an unrestricted right to terminate their employment except in emergency situations.
The second category of prison labor relates to the exception that 'The competent authority shall not impose or permit the imposition of forced or compulsory labour for the benefit of private individuals, companies or associations' (ILO Convention 29, Article 4(1)). Seventy years after the adoption of Convention No. 29, which was adopted in a colonial era, the application of the exception has become more controversial when applied to modern-day prison practices in such countries as the United Kingdom, New Zealand, and the United States. It is clear that there is no forced labor when the prison labor has no connection with private enterprise and is performed within or outside prisons that are operated solely by a public authority and under the sole control and supervision of the public authority. Prison labor in those circumstances is exempted, and prisoners may be compelled to perform all types of work, including the functions needed to run the prisons, the production of goods or services that may be sold to market by the public authority, and public works (International Labour Organization, 2001, para.). But modern prison practices in some developed countries increasingly rely on private sector work programs, like those in New Zealand, the United Kingdom and the United States. In addition, some countries permit private-sector operation of prisons. Consequently, questions have been raised by a number of countries who ratified Convention No. 29 about the relevance of an absolute rule that forecloses privatization of prisons and private prison labor in circumstances when it is to be under the monitoring or supervision of a public authority.
Other Forms of Forced Labor
In addition to the seven major categories of forced labor just discussed, there are other circumstances in which potential questions concerning forced labor occur:
- requirements to work -- Statutory provisions that require citizens to work do not constitute forced labor conventions as long as they do not take the form of a legal obligation enforced by sanctions (International Labour Organization, 1979).
- forced overtime -- Imposition of overtime does not constitute forced labor so long as it is within the limits permitted by national legislation or collective agreements. This definition leaves the possibility for a wide variation among different nations and difficulty in monitoring compliance.
- strike activity -- The applicability of prohibition of forced labor for strike activity is subject to definitional issues. For example, there is no protection from forced prison labor for political strikes, illegal strikes, strikes involving violence or property damage, or strikes involving essential services. The absence of a clear blanket rule makes measurement difficult.
1. Debt bondage is defined in the Supplementary Convention on the Abolition of Slavery as "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."
2. Serfdom is defined in Article 1(b) of the Supplementary Convention on the Abolition of Slavery as 'the condition or status of a tenant who is by law, custom or agreement bound to live and labor 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.'
3. Other industries in which bonded labor exists are quarrying, carpet-making, fishery, and brick kiln industries.
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