Slavery in The 21st Century

Forms of Slavery 17
57. Migrants seeking to enter a new country without authorization are particularly vulnerable to
exploitation. It is increasingly common for a person, after receiving the assistance of a smuggler
or similar third party in illegally entering a new country, to be forced into an exploitative relationship
that may include debt bondage, prostitution or other forms of slavery or slavery-like practices.
73 The Migrant Smuggling Protocol 74 covers “the procurement, in order to obtain, directly
or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party
of which the person is not a national or a permanent resident” and requires States parties to criminalize
the smuggling of migrants and other related offences. The protection offered by the Migrant
Smuggling Protocol is limited in two ways: first, it is only applicable in cases of international smuggling
involving an organized crime group, and second, victims are afforded very few protections
or remedies. The Migrant Smuggling Protocol does include, however, a number of provisions that
seek to protect the rights of smuggled migrants, including safeguards found in international
humanitarian law, human rights law and refugee law, as well as to prevent the worst forms of
exploitation that often accompany the migrant smuggling process. 75
58. Employers of migrant workers acquire a significant degree of control over their employees
by offering to look after their wages. This practice is usually justified by the employer on the
grounds that it will ensure earnings are not lost, or that they are invested to give the employee
some extra benefit. Because of the migrant worker’s vulnerable position, s/he is often unable to
refuse an employer’s offer or is unaware that it would be prudent to do so. Once the employer has
accumulated the equivalent of several months wages, the employee is at a grave disadvantage,
and if s/he wishes to depart must consequently put up with a significant level of abuse in an effort
to retrieve his/her earnings. Such abuse sometimes involves physical assault and rape. The withholding
of wages contravenes ILO Convention No. 95 concerning the Protection of Wages,
1949, 76 which requires wages to be paid regularly by employers and prohibits methods of payment
that deprive workers of the genuine possibility of terminating their employment. Although
international standards on slavery do not specify that withholding wages or failing to pay an
employee is a form of slavery, the practice is clearly a violation of basic human rights, notably the
guarantee in the International Covenant on Economic, Social and Cultural Rights of “remuneration
which provides all workers, as a minimum, with . . . (i) fair wages and equal remuneration for work
of equal value without distinction of any kind,” 77 and may contribute to forced labour or other
exploitative employment conditions.
59. The Working Group on Contemporary Forms of Slavery observed at its April 1995 session
that “foreign migrant workers are frequently subject to discriminatory rules and regulations which
undermine human dignity”. 78 At its June 1996 session the Working Group heard evidence that the
confiscation of passports by employers was a significant way of imposing control on migrant workers
and urged States “to take necessary measures to sanction employers for the confiscation of
passports belonging to migrant workers, in particular, migrant domestic workers”. 79 In a report to
the 2000 session of the Commission on Human Rights, the High Commissioner for Human Rights
stated: “Governments should enforce the call of the Working Group on Contemporary Forms of
73 For a further related discussion see the section on Debt Bondage, supra, and on Trafficking and Prostitution,
infra.
74 Protocol Against the Smuggling of Migrants by Land, Sea, and Air, Supplementing the United Nations Convention
Against Transnational Organized Crime (Migrant Smuggling Protocol); adopted by General Assembly resolution 55/
25 on 15 November 2000, Official Records of the General Assembly, Fifty-fifth Session, Supplement No. 49 (A/45/49),
vol. I; not yet entered into force.
75 Migrant Smuggling Protocol, supra note 74, arts. 4.4, 5, 9.1, 16.1, 16.2, 16.3, 16.4, 19.1.
76 ILO Convention No. 95, supra note 62.
77 International Covenant on Economic, Social and Cultural Rights, adopted by General Assembly resolution
2200A (XXI) of 16 December 1966, art. 7(a), United Nations Treaty Series, vol. 993, p. 3, entered into force on 3 January
1976.
78 Report of the Working Group on Contemporary Forms of Slavery on its twentieth session, recommendation 8,
United Nations document E/CN.4/Sub.2/1995/28 (1995).
79 Report of the Working Group on Contemporary Forms of Slavery on its twenty-first session, recommendation
9, United Nations document E/CN.4/Sub.2/1996/24 (1996).