5
Forced or Compulsory Labor

The elimination of one form offorced labor, slavery, was “the first human rights issue to arouse wide international concern” (U.N. Office of the High Commissioner for Human Rights, 1991). Despite universal condemnation, however, eradicating forced labor’s “numerous forms—old and new, ranging from slavery and debt bondage to trafficking in human beings—remains one of the most complex challenges facing local communities, national governments, employers’ and workers’ organizations and the international community” (International Labour Organization, 2001b, p. vii).

For much of the history of mankind, forced labor has been easier to monitor and measure than it is today. Before the twentieth century, forced labor was accepted in many countries as the natural order of economic and social relationships, and governments kept detailed records of slaves and their treatment (Bales, 2002). In the 1900s, forced labor was generally criminalized and, as a result, it went underground (Bales, 2002).

Today, its hidden nature makes it difficult to identify and quantify, making monitoring of forced labor with any degree of precision difficult. Furthermore, in some places where forced labor occurs, it is not thought of as a crime. In India, for example, bonded workers who have no freedom to walk away and are not paid for their work are often referred to as “attached workers,” thereby concealing their forced labor status (Bales, 2002).

Although this chapter relies on the International Labour Organization (ILO) definition of forced labor, there are numerous multilateral defini-



The National Academies | 500 Fifth St. N.W. | Washington, D.C. 20001
Copyright © National Academy of Sciences. All rights reserved.
Terms of Use and Privacy Statement



Below are the first 10 and last 10 pages of uncorrected machine-read text (when available) of this chapter, followed by the top 30 algorithmically extracted key phrases from the chapter as a whole.
Intended to provide our own search engines and external engines with highly rich, chapter-representative searchable text on the opening pages of each chapter. Because it is UNCORRECTED material, please consider the following text as a useful but insufficient proxy for the authoritative book pages.

Do not use for reproduction, copying, pasting, or reading; exclusively for search engines.

OCR for page 135
Monitoring International Labor Standards: Techniques and Sources of Information 5 Forced or Compulsory Labor The elimination of one form offorced labor, slavery, was “the first human rights issue to arouse wide international concern” (U.N. Office of the High Commissioner for Human Rights, 1991). Despite universal condemnation, however, eradicating forced labor’s “numerous forms—old and new, ranging from slavery and debt bondage to trafficking in human beings—remains one of the most complex challenges facing local communities, national governments, employers’ and workers’ organizations and the international community” (International Labour Organization, 2001b, p. vii). For much of the history of mankind, forced labor has been easier to monitor and measure than it is today. Before the twentieth century, forced labor was accepted in many countries as the natural order of economic and social relationships, and governments kept detailed records of slaves and their treatment (Bales, 2002). In the 1900s, forced labor was generally criminalized and, as a result, it went underground (Bales, 2002). Today, its hidden nature makes it difficult to identify and quantify, making monitoring of forced labor with any degree of precision difficult. Furthermore, in some places where forced labor occurs, it is not thought of as a crime. In India, for example, bonded workers who have no freedom to walk away and are not paid for their work are often referred to as “attached workers,” thereby concealing their forced labor status (Bales, 2002). Although this chapter relies on the International Labour Organization (ILO) definition of forced labor, there are numerous multilateral defini-

OCR for page 135
Monitoring International Labor Standards: Techniques and Sources of Information tions of forced labor and slavery with slightly different degrees of emphasis, which compound monitoring issues. Consequently, apart from the limited circumstances where forced labor is overt, identification of economic and social indicators that point to a greater or lesser likelihood of forced labor is important. The first section of this chapter describes the history of the ILO standards on forced labor over the past 70 years and notes some of the complexities in defining forced and compulsory labor. The next section then explores in more detail the definitional problems that surround this topic. The remaining three sections follow the pattern of the previous and subsequent two chapters: assessing compliance, sources of information, and conclusions and recommendations. ILO CONVENTIONS AND DECLARATION The development of international labor standards on forced labor in the ILO have evolved over time and have been influenced by other instruments developed in the United Nations. Not surprisingly, the instruments have focused on the prevailing forms of forced labor at the time, and their scope continues to evolve as do contemporary forms of forced labor, many resulting from globalization. Convention No. 29 on Forced Labor In 1930, following a 2-year negotiation, the ILO adopted Convention No. 29 concerning forced labor.1 The convention was directed specifically against the conscription of workers by the colonial powers for public and private enterprises for the development of communications and economic infrastructure, mining, and the forced production of crops on plantations and other export goods. As such, the convention’s primary purpose was to 1   The content of Convention No. 29 was influenced by Article 5 of the Slavery Convention of 1926 that was adopted by the League of Nations. In addition to requiring the prevention and suppression of slavery and the slave trade, the Slavery Convention called on states to “take all necessary measures to prevent compulsory or forced labour to develop into conditions analogous to slavery.” Furthermore, it stated that forced labor could only be “exacted for public purposes,” “shall always be of an exceptional nature, shall always receive adequate compensation, and shall not involve the removal of the labourers from their usual place of residence.”

OCR for page 135
Monitoring International Labor Standards: Techniques and Sources of Information protect “native labor” from exploitation. Today, more than 160 countries have ratified the treaty. The convention requires ratifying countries to suppress the use of forced or compulsory labor in the shortest period of time (ILO Convention No. 29, Article 1, para. 1). “Forced or compulsory labor” 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” (ILO Convention No. 29, Article 2, para. 2). In particular, governments were prohibited from imposing or permitting imposition of forced or compulsory labor for the benefit of private individuals, companies, or associations (ILO Convention No. 29, Article 4), including any concession for the production or the collection of products they use or in which they trade (ILO Convention No. 29, Article 5, para. 1). For purposes of the convention, five kinds of work or service are exempted from this definition (ILO Convention No. 29, Article 2, para. 2): compulsory military service—any work or service exacted in virtue of compulsory military service laws for work of a purely military character; normal civic obligations—any work or service which forms part of the normal civic obligations of the citizens of a fully self-governing country; prison labor under governmental supervision and control—any work or service exacted from any person as a consequence of a conviction in a court of law, provided that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals, companies, or associations; work in cases of emergencies—any work or service exacted in cases of emergency, that is to say, in the event of war or of a calamity or threatened calamity, such as fire, flood, famine, earthquake, violent epidemic or epizootic diseases, invasion by animal, insect or vegetable pests, and in general any circumstance that would endanger the existence or the well-being of the whole or part of the population; and minor communal work—minor communal services of a kind which, being performed by the members of the community in the direct interest of the said community, can therefore be considered as normal civic obligations incumbent upon the members of the community, provided that the members of the community or their direct representatives shall have the right to be consulted in regard to the need for such services.

OCR for page 135
Monitoring International Labor Standards: Techniques and Sources of Information Convention No. 29 laid down rules limiting forced labor to essential public works, specifying that it must be paid at prevailing wage rates in cash (ILO Convention No. 29, Article 14), must not exceed 60 days (ILO Convention No. 29, Article 12, para. 1), must involve normal working hours (ILO Convention No. 29, Article 13), and must take place near home and be for the benefit of the community performing it (ILO Convention No. 29, Article 10). Under Article 25 of Convention No. 29, both public and private forced or compulsory labor was a penal offense, and ratifying countries have an obligation to ensure that the penalties are adequate and strictly enforced. Convention No. 105 on Forced Labor With the end of the colonial period and the onset of the Cold War following the end of World War II, it became evident that forced labor was also occurring on a mass scale outside the colonial setting, particularly in the political and economic use of labor camps for the dual purpose of quelling opposition and providing cheap labor by the Soviet bloc countries. As a result, in 1957, the ILO adopted Convention No. 105 as a supplement to Convention No. 29. It specifically requires the abolition of forced labor in five circumstances where it occurs (Article 1): as a means of political coercion or education or as a punishment for holding or expressing political views or views ideologically opposed to the established political, social, or economic system; as a method of mobilizing and using labor for purposes of economic development; as a means of labor discipline; as a punishment for having participated in strikes; and as a means of racial, social, national, or religious discrimination.2 The treaty has been ratified by more than 155 countries. 2   The substance of Convention No. 105 was influenced by a U.N. treaty adopted in 1956. In the 1950s, as countries in Asia and Latin America began to undertake agrarian and land tenancy reforms, the Supplementary Slavery Convention in 1956 set out specific forms of forced labor that were to be abolished by states’ parties : (a) debt bondage, (b) serfdom, and (c) any institution whereby a child or young person under the age of 18 years is delivered by either or both of his natural parents or by his guardian to another person, whether for reward or not, with a view to the exploitation of the child or young person or of his labor.

OCR for page 135
Monitoring International Labor Standards: Techniques and Sources of Information Convention No. 182 on the Worst Forms of Child Labor Inherent in compulsory and forced labor is compulsory child labor, especially bonded child labor. Although the U.N. Supplementary Convention on the Abolition of the Slave Trade addressed bonded child labor in 1956 (ILO Convention No. 29, Article 5, para. 1), the international community did not specifically and comprehensively address the situation of children in forced labor until the ILO adopted Convention No. 182 on the worst forms of child labor in 1999. The definitional, monitoring, and assessment questions surrounding child labor in forced labor circumstances are addressed in Chapter 6. Declaration on the Fundamental Principles and Rights at Work In 1998, the ILO adopted the Declaration on Fundamental Principles and Rights at Work. By virtue of their membership in the ILO, each of the 175 member countries is committed to realize the principles of the eight fundamental conventions (see Chapter 1), which include Convention Nos. 29, 105, and 182 concerning abolition of forced and child labor, regardless of whether they have ratified these conventions. Thus, the declaration is an international commitment of human rights decency in the workplace. Although the Declaration does not encompass the more detailed legal obligations that come when conventions are ratified, with respect to compulsory and forced labor, each country commits to promote under the Declaration, “the elimination of all forms of forced and compulsory labor” and “the effective elimination of child labor” (ILO Declaration, 1998, Article 2(b) and (c)). The first global report on forced labor under the declaration’s follow-up procedures identified seven major categories of forced labor that constitute pervasive failures to achieve the elimination of forced labor (International Labour Organization, 2001b): slavery and abductions, compulsory participation in public works projects, mandatory forced labor in remote rural areas, bonded labor, involuntary labor resulting from trafficking in persons, domestic workers in involuntary labor situations, and prison labor and rehabilitation through work.

OCR for page 135
Monitoring International Labor Standards: Techniques and Sources of Information The rest of this chapter uses these seven forms of forced labor to analyze and discuss forced labor definitions, direct and indirect forced labor indicators, legal framework, government performance, and outcomes assessment issues. The discussion makes clear that these broad categories overlap, and there is frequently an absence of bright lines between acceptable and illegal forced labor. DEFINITIONS We use as the central definition of forced labor the one found in ILO Convention No. 29: all work or service that is exacted from any person under the menace of any penalty and for which the said person has not offered himself or herself voluntarily. Underlying this definition there are seven major categories of forced labor, detailed below. Slavery and Abductions There is no one universal definition of slavery, even though the proscription of slavery is a peremptory norm in international law for which there are no derogations. At one end of the spectrum is chattel slavery (ownership) and the other end is freedom. In its worst form, slaves are possessions whose bondage is lifelong. They can be bought, sold, given away, inherited, paid as a tax, and otherwise used by their owners as they wish. They have no separate social identity and no political rights. They are totally dependent on their owners, who usually are private individuals. As defined by Bales (2002, p. 4), slavery is: “A social and economic relationship marked by the loss of free will where a person is forced through violence or threat of violence to give up the ability to sell freely his/her own labor power.” This definition is especially applicable to slavery and “practices similar to slavery,” such as debt bondage3 and serfdom.4 3   Debt bondage is defined in Article 1(a) of the Supplementary Convention on the Abolition of Slavery as “the status or condition arising from a pledge by a debtor of his personal services or of those of a person under his control as security for a debt, if the value of those services as reasonably assessed is not applied towards the liquidation of the debt or the length and nature of those services are not respectively limited and defined.” 4   Serfdom is defined in Article 1(b) of the Supplementary Convention on the Abolition of Slavery as “the condition or status of a tenant who is by law, custom or agreement bound to live and labor on land belonging to another person and to render some determinate service to such other person, whether for reward or not, and is not free to change his status.”

OCR for page 135
Monitoring International Labor Standards: Techniques and Sources of Information ILO definitions take a different approach and are primarily concerned with economic exploitation, although Convention No. 182 (on the worst forms of child labor) does prohibit “all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom, and forced or compulsory labour, including forced or compulsory recruitment of children for use in armed conflict.” “Clearly, when experts and multilateral agencies find it a challenge to arrive at any uniform definition of an activity that they all agree exists, and that they all agree should be eradicated, it is not surprising that researchers face a similar challenge in developing measures of forced labor or slavery (Bales, 2002, p. 6).” Contemporary forms of slavery include a wide range of exploitative practices, including compulsory participation in public works, mandatory labor in remote rural areas, bonded labor, domestic workers in involuntary labor situations, and involuntary labor resulting from trafficking. In many parts of the world, slavery may be overt in the community because it is tacitly accepted and managed by community leaders but relegated to a status of invisibility. Counting the number of slaves is difficult because they cannot be surveyed in any reliable way. Compulsory Participation in Public Works Projects In a number of societies, particularly within Asia and Africa, individuals are required to participate in aspects of community and national development. Many communities have a long-standing tradition of participatory, voluntary labor, including arrangements in which families assist each other in agriculture and other activities. The definitional and resulting measurement challenge is to differentiate between practices that are “minor communal services” or “normal civic obligations,” which are exempt from the ILO forced labor prohibition, from situations that are in fact forced labor. These differentiations are often difficult to make. Convention No. 29 exempts any work or service that forms part of the normal civic obligations of the citizens of a fully self-governing country (ILO Convention No. 29, Article 2(2)(b)). As noted above, the exemption includes military service (ILO Convention No. 29, Article 2(2)(a)), work in case of emergencies (ILO Convention No. 29, Article 2(2)(d)), and minor communal services. Other examples may include compulsory jury service and the duty to assist a person in danger or to assist in the enforcement of law and order (International Labour Organization, 1979). The exception for military service is based on the necessity for national

OCR for page 135
Monitoring International Labor Standards: Techniques and Sources of Information defense. It is not intended for public works projects. Similarly, the exception for emergencies is intended to apply to genuine emergencies and not to public works projects. The emergency exception encompasses any circumstance that would endanger the existence or the well-being of the whole or part of the population, including war or a calamity, such as fire, flood, famine, earthquake, violent epidemic or epizootic diseases, invasion by animal, insect or vegetable pests (ILO Convention No. 29, Article 2(2)(d)). Moreover, the nature and duration of the compulsory labor must have a direct correlation to the nature of the event and be limited to what is strictly required by the situation (International Labour Organization, 1979). Similarly, the ILO supervisory bodies that monitor compliance with ratified ILO forced labor conventions consider minor communal services to be minor services relating primarily to maintenance work and, in exceptional cases, to the erection of buildings intended to improve the social conditions of the community, for example, building a small school or a medical treatment room. Such services must be of direct interest to the community and not relate to the execution of works intended to benefit a specific group (International Labour Organization, 1979). These exceptions are narrow. Although there are a number of examples of compulsory participation in public works, perhaps the most dramatic example has been the situation in Myanmar (Burma) that led to a commission of inquiry and the invoking of Article 33 economic sanctions for the first time in ILO history. Specifically, the commission found (International Labour Organization, 1998, para. 528): There is abundant evidence before the Commission showing the pervasive use of forced labour imposed on the civilian population throughout Myanmar by the authorities and the military for portering, the construction, maintenance and servicing of military camps, other work in support of the military, work on agriculture, logging and other production projects undertaken by the authorities or the military, sometimes for the profit of private individuals, the construction and maintenance of roads, railways and bridges, other infrastructure work and a range of other tasks, none of which comes under any of the exceptions listed in Article 2(2) of the Convention. A State which supports, instigates, accepts or tolerates forced labour on its territory commits a wrongful act and engages its responsibility for the violation of a peremptory norm in international law. Whatever may be the position in national law with

OCR for page 135
Monitoring International Labor Standards: Techniques and Sources of Information regard to the exaction of forced or compulsory labour and the punishment of those responsible for it, any person who violates the prohibition of recourse to forced labour under the Convention is guilty of an international crime that is also, if committed in a widespread or systematic manner, a crime against humanity. Mandatory Forced Labor in Remote Areas Although traditional systems of peonage (coerced labor in payment of a debt created by a contract between two individuals) and serfdom have been significantly reduced in recent decades, coercion and compulsion of agricultural workers continues, primarily through monetary advances to workers that result in a debt that compels their future labor. In remote areas, workers have no choice but to incur further debt for food and other necessities supplied by the landowner or contractor or to accept goods in lieu of wages. After money has been advanced, there can be varying kinds of restriction on the freedom of the worker to terminate employment, or even to leave the workplace, that can be difficult to discern. Problems of coercion are often connected with seasonal migration within countries and across national borders. There is no well-accepted international standard regarding who pays recruitment fees—the employer or the employee—or the level of those fees in relation to the worker’s wages. Seasonal workers are often far from home and in inhospitable and inaccessible tropical areas. This isolation increases their vulnerability to abuse and lessens the prospect of effective enforcement of conventions on forced labor. Bonded Labor Of all the contemporary forms of forced labor, bonded labor is the most widespread, although precise estimates of its dimensions are hard to determine. The precise meaning of the term “bonded labor” and whether this phenomenon is distinct from debt bondage can also be difficult to discern. Moreover, not all debt bondage is forced labor. In some instances, the issue may be not about whether the debtor entered into bondage voluntarily but over the terms of the bond. This issue is often a reflection of the borrower’s being illiterate, with little understanding of the nature of the bond. As defined by the ILO, “bonded laborer” refers to a worker who ren-

OCR for page 135
Monitoring International Labor Standards: Techniques and Sources of Information ders service under conditions of bondage arising from economic considerations, notably indebtedness through a loan or advance. When debt is the root cause of the bondage, the implication is that the worker (or dependents or heirs) is tied to a particular creditor for a specified or unspecified period until the loan is repaid (International Labour Organization, 2001a). Debt bondage may be distinguished by a relatively short duration of obligation, while bonded labor is a derivation of traditional forms of agricultural serfdom. The variety of practices and relationships that could appear as amounting to conditions of bonded labor does not lead easily to measuring its prevalence or the efficacy of a state’s efforts to eradicate it. The ILO has noted several difficulties in accurately estimating the number of bonded laborers in a particular country or region. The first difficulty is determining the population to be measured because land-holding and land-use patterns tend to be common to both bonded and nonbonded labor. For example, the exchange of services in lieu of pay is fairly common among sharecropping tenant farmers.5 Such work, however, in turn involves both those workers who are indebted, in the sense of bonded labor to the landowner, and those who are not. The matter is further complicated by the fact that being indebted to a landowner does not automatically imply bondage, nor does noninstitutional debt (International Labour Organization, 2001a). Involuntary Labor Resulting from Trafficking in Persons With the emergence of the global economy, trafficking of women and children, primarily for prostitution, domestic service, and sweatshops, has increased dramatically over the past two decades. The points of origin are poorer nations, especially the most economically deprived rural areas of those countries; the destination countries are among the wealthiest countries; in between are transit countries. Trafficking involves domestic and international networks and conspiracies. Consequently, effective enforcement can be hampered by prohibitions on undercover investigation and surveillance, as is the case under the Macedonian Constitution, for example. In Macedonia, law enforcement is further complicated by the lack of conspiracy laws. In other countries, effective enforcement of anti-trafficking laws, if they exist, may be hampered 5   Other industries in which bonded labor exists are quarrying, carpet making, fishery, and brick kiln industries.

OCR for page 135
Monitoring International Labor Standards: Techniques and Sources of Information by provisions that also criminalize the acts of the victim. Trafficking victims are often perceived by public authorities as illegal aliens rather than as victims of organized crime. Victims’ fears of the exploiters’ reprisals against them or their family members back home, coupled with such constraints as physical confinement and the retention of victims’ identity documents, are factors that contribute to the relatively few prosecutions of exploiters. As a consequence, a generally recognized serious problem continues essentially unabated. Although not as widespread as bonded labor, trafficking in persons is a global problem found in no less than 60 countries, including developed economies. Trafficking in persons exists within individual countries as well as across international borders and is broader in scope than the particular form that often receives the most attention—the movement of women and girls engaged in the sex sector. Workers are also frequently trafficked for the exploitation of their labor on rural farms or in urban households. The Protocol to Prevent, Suppress and Punish Trafficking of Persons, Especially Women and Children, adopted in December 2000, provided the first agreed-on definition of trafficking. Article 3(a) of the Protocol defines “trafficking in persons” to mean: … the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs. By including all stages of the process, including “receipt of persons,” the definition of trafficking covers issues beyond being an illegal form of migration. But the frequent transnational aspect of the crime creates complications, requiring examination not only of the manner in which migrants entered the country but also of their working conditions, and whether the migrants consented to the irregular entry or these working conditions. Trafficking and more voluntary forms of undocumented migration are best thought of as “a continuum, with room for considerable variation between the extremes” (Salt and Hogarth, 2000). Illicit trafficking involves

OCR for page 135
Monitoring International Labor Standards: Techniques and Sources of Information Ratification of ILO conventions abolishing forced labor and enactment of relevant laws is, at best, a commitment to observe their provisions. Elimination of forced labor requires, at minimum, a national will to eliminate it, an effective system of labor administration, an adequate number of labor inspectors, an independent judiciary, authority for courts to order fines, incarceration and penal sanctions, community awareness including local vigilance committees, an effective system of rehabilitation, development of a functioning labor market, and the existence of credit institutions and a growing economy. Government Performance The committee proposes eight indicators of government performances to eliminate forced labor: B-1. an effective system of labor inspection with responsibility for identifying, remedying, and enforcing forced labor prohibitions; B-2. an independent judiciary to redress forced labor violations; B-3. courts with authority to order fines and penal sanctions, including incarceration, for forced labor violations; B-4. community awareness and use of local vigilance committees to identify and monitor forced labor situations; B-5. government-sponsored credit institutions; and B-6. national, state, and local resources devoted to identification, remediation, and enforcement, measured by: the percentage of labor department budget devoted to enforcement of forced labor prohibition; the number of labor inspectors per 100,000 workers in the formal and informal sectors; and annual arrests, prosecutions, and penalties for crimes related to forced labor; B-7. receipt of technical assistance from the ILO, U.S. government, or other sources for: establishing statutory and regulatory schemes, establishing a system of labor inspection, and establishing rehabilitation systems;

OCR for page 135
Monitoring International Labor Standards: Techniques and Sources of Information B-8. government support of NGO activities related to forced labor, such as victim rehabilitation services, advocacy and awareness-raising programs, and microcredit lending practices. Overall Outcomes The committee proposes four indicators of the overall outcomes of governmental policies abolishing forced labor: C-1. statistics and reports on the number of persons that have been taken out of forced labor; C-2. statistics and reports of persons who have been rehabilitated from forced labor; C-3. statistics and reports of persons who have returned to forced labor; and C-4. statistics on the number of workers still in the prohibited forms of forced labor: slavery and abductions; compulsory participation in public works projects; coercive recruitment systems, particularly in rural areas; bonded labor, including bonded child labor; trafficking in persons; domestic workers in forced labor situations; and prison labor and rehabilitation through work. These statistics need to be assessed with caution. As discussed above, obtaining precise, reliable statistics on outcomes is difficult for a number of reasons. With the criminalization of forced labor, the perpetrators operate in an underground economy that escapes national statistical data gathering. Even if forced labor is occurring in plain view in many societies, it is either relabeled as something else or so accepted that it is not noticed. If forced labor practices are invisible in certain communities, they are not amenable to reliable surveys and measurement. As a consequence, estimates of the magnitude of forced labor can vary widely even when the government openly acknowledges that there is a serious problem. For example, in 1999, India reported that its state governments had identified 280,340 cases of bonded labor and that 243,375 had been rehabilitated. The Study Group on Bonded Labor of the National Commission

OCR for page 135
Monitoring International Labor Standards: Techniques and Sources of Information on Rural Labor later reported that there had been wrongful identification of bonded laborers in order to gain access to rehabilitation funds (International Labour Organization, 2001a). In contrast, Anti-Slavery International estimated in 1999 that there were 10 million bonded laborers in India. Twenty years earlier, the Gandhi Peace Foundation and the National Labour Institute placed the number of bonded laborers at 2.6 million. In 2000, the U.N.’s Working Group on Contemporary Forms of Slavery found that most of the nongovernmental organizations agreed that it was difficult to obtain reliable figures concerning the number of bonded laborers in India or in any other country. Estimates varied from 44 to 100 million people in bondage in India, and some organizations said there were an estimated 65 million children in a similar condition, of which 92 percent lived in rural areas (U.N. Commission on Human Rights, 2000). When assessing the effectiveness of enforcement of forced labor prohibitions, the illegal and underground nature of the practices requires information from many sources outside of the labor inspectorate, which may only cover regulated labor market activities. Although strengthened labor inspectorates can improve a nation’s capacity to enforce its forced labor prohibitions, the violent, corrupt nature of forced labor practices frequently exceeds the capacity of national labor departments by themselves (International Labour Organization, 2001b, para. 38). Measuring positive enforcement efforts can include statistics on arrests and prosecutions where available, but factors such as the reluctance of the victim to report may be as serious a hindrance as a lack of political will. Where forced labor is pervasive, regional variations of enforcement effort make it difficult to assess overall national compliance. Significantly, the effectiveness of enforcement may have to be measured relative to an uncertain determination of the extent of forced labor. Associated Factors Poverty Forced labor, in whatever form, is in part a product of poverty, in which individuals’ circumstances result in insufficient economic power to avoid being placed in forced labor. The percentage of population in poverty is therefore an important descriptive indicator of whether the economic circumstances of the population is improving or getting worse at the lowest end of society. Employment-Population Ratio The employment-population ratio measures the proportion of the working-age population that is employed in

OCR for page 135
Monitoring International Labor Standards: Techniques and Sources of Information the regular labor market. It provides information on the extent to which an economy generates work in the formal sector. Empirical evidence suggests that the employment-population ratio has a higher correlation with economic development and legal work activity (measured by gross domestic product [GDP] per capita) than the labor force participation rate.6 Percentage of Population Located in Rural Areas With so much forced labor originating or taking place in rural areas—e.g., trafficking, slavery, or bonded labor—knowing the percentage of the population located in rural areas will spotlight populations where forced labor may be more likely to occur. Percentage of Children Under 14 Not in School Regrettably, children, especially in poor countries, are highly susceptible to forced labor, as they are frequently the primary breadwinner for their families. ILO research has shown that there is a strong correlation between nonenrollment in school and economic activity of children.7 Percentage of Children Under 14 in Wage Employment Children under 14 who are reported to be working full-time or are self-employed are an indication of forced labor.8 Percentage of Labor Force Earning Less Than 50 Percent of the Me-dian Wage Low pay or no pay increases the propensity of falling into forced labor or being unable to get out from under this status. Hourly earnings below half of the median wage are considered to be low and approximates where the minimum is set in the 30 developed countries of the Organisation for Economic Co-operation and Development (1997). As a percentage of 6   The correlation between the employment-population ratio and economic development as measured by GDP per capita is stronger when the employment-population ratio is calculated for the prime-age population, 25-54 years old, and restricted to civilian employees (Akyeampong, 1996). 7   Data for 14 developing countries from Africa, Asia, and Latin America compiled by the ILO/IPEC shows that that the primary school nonenrollment rate and the economic activity rate of children aged 10-14 are strongly related. A similar positive relationship is found for some 25 African countries, based on unpublished UNICEF data from their multi-purpose indicators cluster survey (MICS). It should be recognized that school enrollment is not the same as school attendance, but nonetheless it provides valuable information for assessing child labor in potential forced labor circumstances. 8   Existing national labor force surveys that collect data for persons less than 15 years of age could be used for this purpose to collect data on this topic, recognizing there would be systematic underreporting of children’s economic activity.

OCR for page 135
Monitoring International Labor Standards: Techniques and Sources of Information the median wage in a particular country, it is independent of currency fluctuations, which facilitates international comparisons. Percentage of Labor Force Working 60 or More Hours a Week Excessive hours of work can signal low pay rates and conditions susceptible to forced labor. By any international measure, a work week of 60 hours or more constitutes extreme hours of work if performed on a regular basis. Percentage of the Population in the Informal Sector A large, unregulated, underground informal sector is an important indirect indicator of the likelihood of forced labor. For example, in India, where bonded forced labor exists on a large scale, at least 40 percent of the population is in the informal sector. Informal Economy Employment as a Percent of Employment The relative size of the formal and informal labor markets is an important barometer of legal and illegal activity. In particular, informal economy employment is most often associated with low pay and absence of social protection and benefits. SOURCES OF INFORMATION Follow-Up to the ILO Declaration on Fundamental Principles and Rights The promotional follow-up procedures under the ILO Declaration on the Fundamental Principles and Rights at Work includes the Annual Review; it is composed of reports from governments describing the efforts made to respect the principles and rights relating to all unratified fundamental ILO conventions and comments from workers’ and employers’ organizations. The Annual Review report contains a commentary by a group of independent expert-advisers who comment specifically on the forced labor circumstances found in countries that have not ratified the ILO’s forced labor conventions. Every 4 years, there is a global report on forced labor, submitted by the ILO director-general. The first report in 2001—Stopping Forced Labor—described on a country basis the pervasiveness of forced labor in the world today.

OCR for page 135
Monitoring International Labor Standards: Techniques and Sources of Information U.S. Department of State Country Reports on Human Rights Practices The prohibition of forced or bonded labor is discussed in Section 6(c) of the Department of State’s annual human rights reports. Instructions for U.S. embassy staff assigned to complete these sections of the annual country reports on human rights practices include the following questions (U.S. Department of State, Bureau of Democracy, Labor, and Human Rights, 2002): “Is forced labor or bonded labor, including by children, prohibited by law? Is the law effectively enforced? If not, why not?” “Are there national obligations or instances of government required work without compensation?” “Is prison labor imposed by administrative or legislative authority (rather than by a court of law pursuant to conviction for a crime)?” “Does slavery exist? If so, how extensive is it? Who does it affect? Describe the mechanism used to practice slavery.” “Does the government tolerate or support forced, bonded, or indentured labor?” Trafficking in persons is discussed in Section 6(f). The instructions for embassy personnel are more detailed for this section, including more than 20 questions in the following categories: law and prosecution—“Provide details on whether the law specifically prohibits all forms of trafficking in persons and, if not, whether traffickers could be prosecuted under other statutes.” extent of the problem—“Note whether the country was a source, transit point, or destination for trafficked men, women, and/or children and whether internal trafficking was a problem.” methods—“Describe how victims were obtained/recruited and transported and the methods used, such as force, fraud, or coercion.” traffickers—“Describe who was responsible for trafficking, for example organized criminals, employment agencies, or marriage brokers.” official involvement—“Provide details on any reports that government officials participated in, facilitated, or condoned trafficking.” assistance and protection of victims, and prevention.

OCR for page 135
Monitoring International Labor Standards: Techniques and Sources of Information Report on Trafficking in Persons The first annual Trafficking in Persons Report was released by the Department of State in June 2001. As one of the requirements of the Trafficking Victims Protection Act of 2000, the report is to address “severe forms of trafficking in persons,” defined as sex trafficking in which a commercial act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age; or the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of fraud or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery. The report is described as “a major diplomatic tool for the U.S. government, which hopes that other governments will view this as an instrument for continued dialogue, encouragement for their current work, and an instrument to help them focus their future work on prosecution, protection, and prevention programs and policies” (U.S. Department of State, 2002, p. 7). The report includes countries of origin, transit, or destination for a significant number of victims of trafficking. The threshold for “significant” is 100 or more victims in the reporting period. These countries are then placed in one of three “tiers” depending on their efforts to meet four minimum standards for the elimination of trafficking: The government should prohibit trafficking and punish acts of trafficking. The government should prescribe punishment commensurate with that for grave crimes, such as forcible sexual assault, for the knowing commission of trafficking in some of its most reprehensible forms (trafficking for sexual purposes, trafficking involving rape or kidnapping, or trafficking that causes a death). For knowing commission of any act of trafficking, the government should prescribe punishment that is sufficiently stringent to deter and that adequately reflects the offense’s heinous nature. The government should make serious and sustained efforts to eliminate trafficking. The 2000 act also sets out seven criteria that should be considered as indicators of the fourth standard: serious and sustained efforts to eliminate trafficking:

OCR for page 135
Monitoring International Labor Standards: Techniques and Sources of Information whether the government vigorously investigates and prosecutes acts of trafficking within its territory; whether the government protects victims of trafficking, encourages victims’ assistance in investigation and prosecution, provides victims with legal alternatives to their removal to countries where they would face retribution or hardship, and ensures that victims are not inappropriately penalized solely for unlawful acts as a direct result of being trafficked; whether the government has adopted measures, such as public education, to prevent trafficking; whether the government cooperates with other governments in investigating and prosecuting trafficking; whether the government extradites persons charged with trafficking as it does with other serious crimes; whether the government monitors immigration and emigration patterns for evidence of trafficking, and whether law enforcement agencies respond appropriately to such evidence; and whether the government vigorously investigates and prosecutes public officials who participate in or facilitate trafficking, and takes all appropriate measures against officials who condone trafficking. Tier placement is intended to indicate the following: Tier 1: The governments of countries in Tier 1 fully comply with the act’s minimum standards. Such governments criminalize and have successfully prosecuted trafficking and have provided a wide range of protective services to victims. Victims are not jailed or otherwise punished solely as a result of being trafficked, and they are not summarily returned to a country where they may face hardship as a result of being trafficked. In addition, these governments sponsor or coordinate prevention campaigns aimed at stemming the flow of trafficking. Tier 2: The governments of countries in Tier 2 do not fully comply with the act’s minimum standards but are making significant efforts to bring themselves into compliance. Some are strong in the prosecution of traffickers but provide little or no assistance to victims. Others work to assist victims and punish traffickers but have not yet taken any significant steps to prevent trafficking. Tier 3: The governments of countries in Tier 3 do not fully comply with the minimum standards and are not making significant efforts to bring themselves into compliance. Some of these governments refuse to acknowledge the trafficking problem within their territory.

OCR for page 135
Monitoring International Labor Standards: Techniques and Sources of Information Placement in one of the three tiers is based on the information relating to the four minimum standards and seven indicators. Starting in 2003, countries in Tier 3 are subject to certain penalties, “principally termination of non-humanitarian, non-trade-related assistance. Consistent with the Act, such countries also would face U.S. opposition to assistance (except for humanitarian, trade-related, and certain development-related assistance) from international financial institutions, specifically the International Monetary Fund and multilateral development banks such as the World Bank” (U.S. Department of State, 2002, p. 10). Some human rights groups have criticized the Trafficking Report, including Human Rights Watch, which claims that the report “falls short as a rigorous tool to assess a country’s efforts to combat trafficking” (Human Rights Watch, 2002). The organization states that the reports lack basic facts on the numbers of trafficking victims, the types of forced labor for which they are trafficked, and the actual number of prosecutions and convictions for these crimes. Furthermore, it criticizes the lack of assessment of government programs and the inconsistencies among the State Department’s own reports. Pakistan is cited as an example, since it moved from Tier 3 to Tier 2 in the 2001 Trafficking Report, while the Department of State’s country human rights report indicates that Pakistan “has done little to stem the flow of women trafficked into the country or to help victims of trafficking” (Human Rights Watch, 2002). The specific numbers of victims or prosecutions are not generally included in the report even though this information can sometimes be found in the cables that are sent from the embassies. However, these cables are not available to the public. International Organization for Migration The International Organization for Migration addresses trafficking as a subset of migration, implementing programs for the return and rehabilitation of victims, conducting a series of major research projects, and producing a quarterly bulletin, “Trafficking in Migrants.” A recent bulletin focuses on Europe and includes articles prepared by international organizations and field offices illustrating progress in prevention efforts, prosecution of perpetrators, and protection of victims.9 9   See http://www.iom.int/iomwebsite/Publication/ServletSearchPublication?event=detail&id=1694 [November 24, 2003].

OCR for page 135
Monitoring International Labor Standards: Techniques and Sources of Information Nongovernmental Organizations There are a variety of NGOs that address issues related to forced labor. Reporting by these organizations can be sporadic, without detailed documentation, and geared toward moving public opinion. Anti-Slavery International and Human Rights Watch have good overall records on reporting. RECOMMENDATION Unlike the other core labor standards, there has been relatively little empirical research on forced labor and the conditions that support it. 5-2 The committee recommends that systematic in-depth national studies of the kind that the ILO has conducted with respect to child labor be conducted on forced labor by the ILO, with support by the U.S. government, as a priority, taking into account a variety of labor market factors that bear on the economic environment in which forced labor takes place. REFERENCES Akyeampong, E.B. (1996). Another measure of employment. Perspectives, statistics. Ottawa, Canada: Wileter. Bales, K. (2002, July). International labor standards: Quality of information and measures in progress in combating forced labor. Paper prepared for the National Research Council Workshop on International Labor Standards: Quality of Information and Measures of Progress. Washington, DC. Human Rights Watch. (2002). U.S. State Department trafficking report missing key data, credits uneven efforts. Available: http://www.hrw.org./press/2002/06/us-report0606.htm [November 20, 2003]. International Labour Organization. (1979). Abolition of forced labour. General Survey by the Committee of Experts on the Application of Conventions and Recommendations. Geneva: International Labour Office. International Labour Organization. (1998). Forced labour in Myanmar (Burma). Report of the Commission of Inquiry. Geneva: International Labour Office. International Labour Organization. (2001a). Report of the committee of experts on the application of conventions and recommendations. Geneva: International Labour Office. International Labour Organization. (2001b). Stopping forced labor. Global Report under the Follow-up to the ILO Declaration on Fundamental Principles and Rights at Work. Geneva: International Labour Office. Organisation for Economic Co-operation and Development. (1997). Employment outlook. Paris: Author.

OCR for page 135
Monitoring International Labor Standards: Techniques and Sources of Information Salt, J., and Hogarth, J. (2000). Migrant trafficking and human smuggling in Europe: A review of the evidence. Geneva: International Organization of Migration. U.N. Commission on Human Rights. (2000, July 21). Contemporary forms of slavery: Report of the working group on contemporary forms of slavery on its twenty-fifth session. Geneva: Author, Sub-Commission on the Promotion and Protection of Human Rights. U.N. Office of the High Commissioner for Human Rights. (1991). Contemporary forms of slavery. (Fact Sheet No. 14). Geneva: Author. Available: http://www.unhchr.ch/html/menu6/2/fs14.htm [June 25, 2003]. U.S. Department of State. (2002). Trafficking in persons report.Washington, DC: Author. U.S. Department of State, Bureau of Democracy, Labor and Human Rights. (2002). Human rights instruction package. Washington, DC: Author.