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

266 | PRACTITIONERS GUIDE No. 6not offered himself voluntarily.” 1110 The use of forced and compulsorylabour by private parties is absolutely prohibited 1111 and “[n]o concessiongranted to private individuals, companies or associations shallinvolve any form of forced or compulsory labour for the production orthe collection of products which such private individuals, companiesor associations utilise or in which they trade”. 1112 The Committee onMigrant Workers held that forced and compulsory labour “includes debtbondage, passport retention, and illegal confinement”. 1113The Inter-American Court of Human Rights has interpreted the ILO definition,specifying that “the ‘menace of a penalty’ can consist in thereal and actual presence of a threat, which can assume different formsand degrees”, and the “‘[u]nwillingness to perform the work or service’consists in the absence of consent or free choice when the situation offorced labour begins or continues. This can occur for different reasons,such as illegal deprivation of liberty, deception or psychological coercion.”1114The European Court has held that, for there to be forced or compulsorylabour, there must be some physical or mental constraint, as well assome overriding of the person’s will. 1115Forced labour may also arise in some situations when a worker hasvoluntarily agreed to perform work, but under economic constraint.The ILO Committee of Experts on the Application of Conventions andRecommendations has found that labour exacted under economic con-1110 Article 2, Forced Labour Convention (C29), ILO, adopted on 28 June 1930. See, 4 th GeneralSurvey on Eradication of Forced Labour, ILO, op. cit., fn. 1108, para. 10; Representation(article 24)—2007—Chile—C029 — Report of the committee set up to examine therepresentation alleging non-observance by Chile of the Forced Labour Convention, 1930(No. 29), submitted under article 24 of the ILO Constitution by the Colegio de Abogados deChile, AG, Document No. (ilolex): 162007CHL029, Geneva, 11 November 2008, para. 28(Colegio de Abogados v. Chile, ILO). The definition has been explicitly picked up in Van derMussele v. Belgium, ECtHR, Plenary, Application No. 8919/80, Judgment of 23 November1983, para. 32; Case of the Ituango Massacres v. Colombia, IACtHR, Series C No.148, Judgmentof 1 July 2006, paras. 157-160; CESCR, General Comment No. 18, op. cit., fn. 1109,para. 9. The Human Rights Committee recognizes the ILO definition but advances its own:“the term “forced or compulsory labour” covers a range of conduct extending from, on theone hand, labour imposed on an individual by way of criminal sanction, notably in particularlycoercive, exploitative or otherwise egregious conditions, through, on the other hand,to lesser forms of labour in circumstances where punishment as a comparable sanction isthreatened if the labour directed is not performed”, Faure v. Australia, CCPR, CommunicationNo. 1036/2001, Views of 23 November 2005, para. 7.5.1111 See, Articles 4, Forced Labour Convention (C29), ILO. See also, for forced labour as consequenceof conviction, Article 6.3(a) ACHR.1112 Articles 5.1, Forced Labour Convention (C29), ILO.1113 CMW, General Comment No. 2, op. cit., fn. 2, para. 60.1114 Case of the Ituango Massacres v. Colombia, IACtHR, op. cit., fn. 1110, paras. 161 and 164.1115 Rantsev v. Cyprus and Russia, ECtHR, op. cit., fn. 236, para. 276. See also, Van Droogenbroeckv. Belgium, ECtHR, op. cit., fn. 1107, para. 58.