Universal-MigrationHRlaw-PG-no-6-Publications-PractitionersGuide-2014-eng

MIGRATION AND INTERNATIONAL HUMAN RIGHTS LAW | 267
straint will amount to forced labour when the economic constraint has
been created by the government; or when the government, although not
creating the situation itself, exploits the situation by offering excessively
low levels of remuneration. Even when it has not created the economic
constraint itself, the government “might be held responsible for organizing
or exacerbating economic constraints if the number of people hired
by the Government at excessively low rates of pay and the quantity of
work done by such employees had a knock-on effect on the situation of
other people, causing them to lose their normal jobs and face identical
economic constraints.” 1116 Work experience in the context of education
or training is generally considered not to constitute forced labour. 1117
It must also be noted that the prohibition of forced labour is connected
to the right to freely choose one’s occupation. As the European
Committee on Social Rights remarked, the prohibition of forced labour
implies “the freedom of workers to terminate employment”. 1118
Certain specific kinds of compulsory labour exacted by the State are
excluded from the definition of forced and compulsory labour by international
human rights treaties as well as the ILO Forced Labour
Convention. These include:
• any work or service required by compulsory military service laws
for work of a purely military character, and, in countries where
conscientious objection is recognised, any national service required
by law of conscientious objectors;
• any work or service which forms part of the normal civic obligations
of members of the community as long as it is not applied
discriminatorily and it is proportionally imposed in regard to volume
and frequency of work; 1119
• any work or service that is a consequence of a criminal conviction,
or of detention or conditional release on the order of a court;
1116 Representation (article 24)—1995—Senegal—C105—Report of the Committee set up to
examine the representation made by the Senegal Teachers’ Single and Democratic Trade
Union (SUDES) under article 24 of the ILO Constitution alleging non-observance by Senegal
of the Abolition of Forced Labour Convention, 1957 (No. 105), Document No. (ilolex):
161997SEN105 (SUDES v. Senegal, ILO), para. 30.
1117 Colegio de Abogados v. Chile, ILO, op. cit., fn. 1110, para. 28.
1118 FIDH v. Greece, ECSR, op. cit., fn. 1109, para. 17. It found in the impossibility to terminate
employment a violation of Article 1.2 ESC(r), i.e. freedom of choice of employment.
1119 Colegio de Abogados v. Chile, ILO, op. cit., fn. 1110, paras. 33–38. The European Court
of Human Rights adopts the same criteria in Van der Mussele v. Belgium, ECtHR, op. cit.,
fn. 1110, paras. 32–46; Zarb Adami v. Malta, ECtHR, op. cit., fn. 1108; Schmidt v. Germany,
ECtHR, Application No. 13580/88, Judgment of 18 July 1994. See also, Faure v. Australia,
CCPR, op. cit., fn. 1110, para. 7.5: “to so qualify as a normal civil obligation, the labour in
question must, at a minimum, not be an exceptional measure; it must not possess a punitive
purpose or effect; and it must be provided for by law in order to serve a legitimate purpose
under the Covenant.”