Condensed: Forced labour is all work or service by a person under the menace of any penalty for which a person has not offered voluntarily.Involuntariness has to be determined on a case by case basis to establish whether the person had no real alternative but to keep working. A worker has the right to leave employment at any time with reasonable notice. The menace of penalty does not have to be in the form of penal sanction, but may take the form of loss of rights and privileges; or coercion such as threats, violence, retention of identity documents, confinement, or non-payment of wages. Exceptions to the prohibition of forced labour include military service, work in detention, work to alleviate emergencies and civil obligations. Comprehensive: Forced labour is defined as ‘all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily’.[1] The definition has four key elements which the ILO has defined as follows:[2]
All work or service:This includes all types of work, service and employment, regardless of the industry, sector or occupation within which it is found, and encompasses legal and formal employment as well as illegal and informal employment.
Any person:This refers to adults as well as children, regardless of their nationality …
Menace of any penalty:This can refer to criminal sanctions as well as various forms of coercion such as threats, violence, the retention of identity documents, confinement, or non-payment of wages. The penalty may also take the form of a loss of rights or privileges.
Voluntary:This refers to workers' consent to enter into employment and to their freedom to leave the employment at any time, with reasonable notice in accordance with national law or collective agreements.
Forced labour is prohibited in article 8(3)(a) of the ICCPR and other international labour law and regional human rights instruments.[3] The ICTY held in Prosecutor vKrnojelac that ‘involuntariness’ is a ‘factual question which has to be considered in light of all the relevant circumstances on a case by case basis. What must be established is that the relevant persons had no real choice as to whether they would work’.[4] Forced labour is a type of servitude; it can encompass a large spectrum of activities. At one end of the scale, paying lower wages than agreed can constitute a menace of a penalty, which if exacted from a worker without their consent would constitute forced labour. For example the ITF in 2008 reported a case where Indonesian fishers received less than one-third of the wage agreed after first having paid a recruitment fee.[5] Other examples of menace of penalty are threat of dismissal of workers for not working overtime[6] or prospect of being rejected for professional licence.[7] At the other end of the spectrum, the 1926 Slavery Convention recognises that forced labour could develop ‘into conditions analogous to slavery’. Where forced labour manifest the exercise of ‘any or all the powers attaching to ownership’ it will, in fact, constitute slavery.(See *slavery and servitude*). [THIS PARAGRAPH IS CONFUSING - THE RELATION BETWEEN FORCED LABOUR, SERVITUDE AND SLAVERY SHOULD BE CLARIFIED IN A LITTLE MORE SIMPLY.] Article 8(3)(b) and (c) the ICCPR sets out work that is exempted from the prohibition against forced labour or which is not considered to constitute forced labour. This includes labour or service while lawfully imprisoned (see *appropriate work in detention*); military service or, where it is recognised, alternative service for conscientious objectors; labour in cases of emergency threatening the life or well-being of the community; and labour or service which forms part of normal civil obligations.[8] In a number of cases the HRC has confirmed that military service and alternative service for conscientious objectors do not constitute a violation of the prohibition of forced labour in the ICCPR. (See *conscientious objection*). The HRC has held that to ‘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 …’.[9] In Faure v Australia, the HRC thus held that to require persons receiving unemployment benefits to perform labour, which was not degrading or dehumanizing, fell within the scope of ‘normal civil obligations’.[10] However, the legislation violated the ICCPR as the substance of the scheme could not be challenged.[11] (See *access to judicial, administrative and other mechanisms*). The provision on normal civil obligations cannot be extended to mobilising labour for economic development.[12] In the European context, in Van der Mussele v Belgium, a Belgian lawyer argued that his unremunerated pro bono service – required as part of his training as a lawyer – violated the prohibition on forced labour in the ECHR. Referring to the ‘normal civic obligation’ exception in the ECHR, the ECtHR held that requirements that formed part of professional training which ‘imposed a burden which was so excessive or disproportionate to the advantages attached to the future exercise of that professionthat it ‘could not be treated as having been voluntarily accepted beforehand’ would not constitute a ‘normal civic obligation’.However, because the services did not ’fall outside the ambit of the normal activities of an avocat’, contributed to the applicant’s own professional training and were not disproportionate, the ECtHR held that the burden was not excessive.[13]
[1] ILO Forced Labour Convention 1930 art 2(1); Eradication of forced labour, General Survey of 2007, para 35-41;The HRC has also stated that the ILO definition is relevant in clarifying the meaning of ‘forced and compulsory labour’, see Faure v Australia communication 1036/2001 (HRC 2005) para 7.5. [2] ILO Combating forced labour – A handbook for employers and businesses (2008) [3] CMW art 11(2); Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour No. 182 arts 1 and 3(a); ECHR art 4(2); Revised European Social Charter art 1(2); ILO Forced Labour Convention art 2(1); Abolition of Forced Labour Convention (1957) art 1; ACHR art 6(2) and (3); ACHPR art 5. [4]Prosecutor v Krnojelac, case IT-97-25 (ICTY 2002)para 359. [5] ILO The cost of coercion (2009) para 138. [6] ILO The cost of coercion (2009) para 89. [7]Van der Mussele v Belgium, application 8919/90 (ECtHR 1983). [8] See also ECHR art 4. [9] Faure v Australia communication 1036/2001 (HRC 2005) para 7.5. [10] As above. [11] Faure v Australia para 7.4. [12] ILO Abolition of Forced Labour Convention, 1957, art 1(b). [13] Van der Mussele v Belgium paras 37 and 39.
Forced labour is all work or service by a person under the menace of any penalty for which a person has not offered voluntarily.Involuntariness has to be determined on a case by case basis to establish whether the person had no real alternative but to keep working. A worker has the right to leave employment at any time with reasonable notice. The menace of penalty does not have to be in the form of penal sanction, but may take the form of loss of rights and privileges; or coercion such as threats, violence, retention of identity documents, confinement, or non-payment of wages. Exceptions to the prohibition of forced labour include military service, work in detention, work to alleviate emergencies and civil obligations.
Comprehensive:
Forced labour is defined as ‘all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily’.[1]
The definition has four key elements which the ILO has defined as follows:[2]
Forced labour is prohibited in article 8(3)(a) of the ICCPR and other international labour law and regional human rights instruments.[3]
The ICTY held in Prosecutor v Krnojelac that ‘involuntariness’ is a ‘factual question which has to be considered in light of all the relevant circumstances on a case by case basis. What must be established is that the relevant persons had no real choice as to whether they would work’.[4]
Forced labour is a type of servitude; it can encompass a large spectrum of activities. At one end of the scale, paying lower wages than agreed can constitute a menace of a penalty, which if exacted from a worker without their consent would constitute forced labour. For example the ITF in 2008 reported a case where Indonesian fishers received less than one-third of the wage agreed after first having paid a recruitment fee.[5] Other examples of menace of penalty are threat of dismissal of workers for not working overtime[6] or prospect of being rejected for professional licence.[7] At the other end of the spectrum, the 1926 Slavery Convention recognises that forced labour could develop ‘into conditions analogous to slavery’. Where forced labour manifest the exercise of ‘any or all the powers attaching to ownership’ it will, in fact, constitute slavery.(See *slavery and servitude*). [THIS PARAGRAPH IS CONFUSING - THE RELATION BETWEEN FORCED LABOUR, SERVITUDE AND SLAVERY SHOULD BE CLARIFIED IN A LITTLE MORE SIMPLY.]
Article 8(3)(b) and (c) the ICCPR sets out work that is exempted from the prohibition against forced labour or which is not considered to constitute forced labour.
This includes labour or service while lawfully imprisoned (see *appropriate work in detention*); military service or, where it is recognised, alternative service for conscientious objectors; labour in cases of emergency threatening the life or well-being of the community; and labour or service which forms part of normal civil obligations.[8] In a number of cases the HRC has confirmed that military service and alternative service for conscientious objectors do not constitute a violation of the prohibition of forced labour in the ICCPR. (See *conscientious objection*).
The HRC has held that to ‘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 …’.[9] In Faure v Australia, the HRC thus held that to require persons receiving unemployment benefits to perform labour, which was not degrading or dehumanizing, fell within the scope of ‘normal civil obligations’.[10] However, the legislation violated the ICCPR as the substance of the scheme could not be challenged.[11] (See *access to judicial, administrative and other mechanisms*). The provision on normal civil obligations cannot be extended to mobilising labour for economic development.[12]
In the European context, in Van der Mussele v Belgium, a Belgian lawyer argued that his unremunerated pro bono service – required as part of his training as a lawyer – violated the prohibition on forced labour in the ECHR. Referring to the ‘normal civic obligation’ exception in the ECHR, the ECtHR held that requirements that formed part of professional training which ‘imposed a burden which was so excessive or disproportionate to the advantages attached to the future exercise of that professionthat it ‘could not be treated as having been voluntarily accepted beforehand’ would not constitute a ‘normal civic obligation’.However, because the services did not ’fall outside the ambit of the normal activities of an avocat’, contributed to the applicant’s own professional training and were not disproportionate, the ECtHR held that the burden was not excessive.[13]
[1] ILO Forced Labour Convention 1930 art 2(1); Eradication of forced labour, General Survey of 2007, para 35-41;The HRC has also stated that the ILO definition is relevant in clarifying the meaning of ‘forced and compulsory labour’, see Faure v Australia communication 1036/2001 (HRC 2005) para 7.5.
[2] ILO Combating forced labour – A handbook for employers and businesses (2008)
[3] CMW art 11(2); Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour No. 182 arts 1 and 3(a); ECHR art 4(2); Revised European Social Charter art 1(2); ILO Forced Labour Convention art 2(1); Abolition of Forced Labour Convention (1957) art 1; ACHR art 6(2) and (3); ACHPR art 5.
[4] Prosecutor v Krnojelac, case IT-97-25 (ICTY 2002)para 359.
[5] ILO The cost of coercion (2009) para 138.
[6] ILO The cost of coercion (2009) para 89.
[7] Van der Mussele v Belgium, application 8919/90 (ECtHR 1983).
[8] See also ECHR art 4.
[9] Faure v Australia communication 1036/2001 (HRC 2005) para 7.5.
[10] As above.
[11] Faure v Australia para 7.4.
[12] ILO Abolition of Forced Labour Convention, 1957, art 1(b).
[13] Van der Mussele v Belgium paras 37 and 39.