A Global Alliance Against Forced Labour - International Labour ...

UNDERSTANDING AND MEASURING FORCED LABOUR TODAYof traffi cking from that of smuggling. Trafficking refersto the recruitment, transport, transfer, harbouring orreceipt of a person by such means as threat or useof force or other forms of coercion, of abduction, offraud or deception “for the purpose of exploitation”.Exploitation includes, as a minimum, “the exploitationof the prostitution of others or other forms ofsexual exploitation, forced labour or services, slaveryor practices similar to slavery, servitude or the removalof organs” (Article 3(a) of the Protocol). EachState Party is required to adopt such legislative andother measures as may be necessary to establish ascriminal offences the conduct set forth in this definitionalArticle (Article 5(1)).19. The entry into force of the Trafficking Protocol,in December 2003, has posed some important challengesfor national governments and legislatures.While the vast majority of ILO member States haveratified one or both of the ILO’s Conventions onforced labour, many have not provided for the specificoffence of forced labour in their criminal law, althoughmany have included it in their labour law. Thelaw may also be couched in very general terms ratherthan identifying the various ways in which forced labourcould be exacted by private actors, or it may failto provide for appropriate penalties for using differentforms of forced labour. In some cases this may reflecta continued tendency to equate forced labour with apractice imposed by the State, rather than addressingcontemporary situations where most forced labour isin the private economy.20. These developments thus pose conceptualchallenges, as well as challenges for law enforcement.They introduce into international law the concept ofexploitation – broken down broadly into labour andsexual exploitation – regarding which there has beenlimited juridical precedent. And they require StatesParties, several of which have hitherto adopted antitraffickinglaws which cover only the sexual exploitationof women and children, to adopt or amend theirlaws in order to have a broader concept of traffickingand exploitation.21. The implications will be examined further insubsequent chapters. Suffice it to say here, first, thatthe global movement against trafficking has certainlygiven an impetus to the understanding of, and actionagainst, forced labour; and second, that it maypotentially present law- and policy-makers with anoption. Are the abusive recruitment and employmentpractices to which migrant workers are particularlyvulnerable best dealt with through providing for theoffence of forced labour or that of traffi cking in domesticlegislation? And when, in fact, does a worksituation come within the scope of these concepts?22. These are not merely academic questions,and they can have a significant impact on the wayin which States identify and protect the victims ofabusive coercion, punish offenders, and deal withstructural factors necessary for effective preventionand eradication of forced labour. Indeed, the reportof an Experts Group on Trafficking in HumanBeings, convened by the European Union in 2003,has identified forced labour exploitation as the “crucialelement” of the Trafficking Protocol. To countertrafficking effectively, as this group observes, “policyinterventions should focus on the forced labour andservices, including forced sexual services, slavery andslavery-like outcomes of trafficking – no matter howpeople arrive in these conditions – rather than (orin addition to) the mechanisms of trafficking itself.States should criminalize any exploitation of humanbeings under forced labour, slavery or slavery-likeconditions, in line with the major human rights treatiesthat prohibit [their] use”. 323. At the present time the global momentum isapparently towards establishing the criminal offenceof trafficking, making provision under such laws foridentifying and prosecuting the offence of exactingforced labour, among others. This can have a positiveimpact in combating the coercive exploitation of migrantworkers, provided that member States legislateagainst trafficking in its broadest sense, first givingfull attention to the forced labour dimensions in additionto sexual exploitation and, second, allocatingsufficient resources to law enforcement measures inthis regard. At the same time the impetus for newanti-trafficking laws should not be a reason for notlegislating against forced labour as a specific criminaloffence. As will be shown later, by no means all theforced labour practices to which even migrant workersare subjected in destination countries are necessarilya result of trafficking. And not only migrants are thevictims of forced labour in the destination countries.There is therefore a need for laws against both forcedlabour and trafficking.24. While the Trafficking Protocol draws certaindistinctions between traffi cking for sexual exploitationon the one hand, and traffi cking for forced labour orservices (and also slavery, slavery-like practices andservitude) on the other, this should not be taken toimply that coercive sexual exploitation does not constituteforced labour. Indeed, the ILO supervisorybodies have regularly dealt with forced prostitutionand sexual exploitation under Convention No. 29.Forced labour and slavery25. What are the linkages between forced labour,slavery and slavery-like practices, and servitude? Towhat extent are these the same or different formsof human rights abuse? Our first Global Report onforced labour reviewed in some detail the historicalcircumstances in which the ILO’s two main instrumentson forced labour, and the main United Nations3. European Commission: Report of the Experts Group on Traffi cking in Human Beings (Brussels, 22 Dec. 2004), p. 53.7