INTERNATIONAL TRAINING CENTER OF THE ILO - TURIN (ITALY)INTERNATIONAL TRAINING CENTER OF THE ILO - TURIN (ITALY)

STATE SPONSORED FORMS

OF FORCED LABOUR

2

- C. 29 and C.105 apply to both State and private actors.

- FL “all work or service which is exacted from any person under the menace of any penaltyunder the menace of any penalty and for whichthe said person has not offered himself voluntarilythe said person has not offered himself voluntarily”

(C. 29 Art. 2.1)Two elements:

- work or service exacted under the menace of a penalty, that does not need to be in the form of penal sanctions, but might take the form also of a loss of rights or privileges. The menace might adopt many different forms.

- lack of consent, the convention does not prescribe neither the modalities of expressing agreement to work, nor the object of the consent.

(Nevertheless, the ILO supervisory bodies have touched on range of aspects including: the form and subject matter of consent; the role of external constrains or indirect coercion; the possibility for a minor to give a valid consent; and the possibility of revoking a freely given consent.)

FORCED OR COMPULSARY LABOUR (FCL)FORCED OR COMPULSARY LABOUR (FCL)

3

IDENTIFYING FL IN PRACTICEIDENTIFYING FL IN PRACTICE

4

IDENTIFYING FL IN PRACTICEIDENTIFYING FL IN PRACTICE

5

(a) any work or service exacted in virtue of compulsory military service laws for work of a purely military character;

(b) any work or service which forms part of the normal civic obligations of the citizens of a fully self-governing country;

(c) Prison labour: 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;

PRACTICES NOT TO BE CONSIDERED FLPRACTICES NOT TO BE CONSIDERED FL

6

(d) 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;

(e) 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.

PRACTICES NOT TO BE CONSIDERED FLPRACTICES NOT TO BE CONSIDERED FL

7

FORCED LABOUR (FL)FORCED LABOUR (FL)

C.105 Abolition of Forced Labour Convention, 1957

Complements C.29 by specifying 5 circumstances under which forced labour may not be imposed under any circumstances – even by a court of law.

(a) 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;

(b) as a method of mobilising and using labour for purposes of economic development;

(c) as a means of labour discipline;

(d) as a punishment for having participated in strikes;

(e) as a means of racial, social, national or religious discrimination.

8

TIPOLOGY OF FLTIPOLOGY OF FL

9

FL IMPOSED DIRECTLY BY THE STATEFL IMPOSED DIRECTLY BY THE STATE

• Currently it is not the largest problem in numeric terms

• In fact, the systematic state practice of compelling free citizens to work for economic or political purposes is, with some exceptions, on decline worldwide

• However, where it remains it is a cause of serious concern

• Two main forms:

- compelling free citizens to work for either economic or political purposes

- prison-linked forced labour

10

FL IMPOSED DIRECTLY BY THE STATEFL IMPOSED DIRECTLY BY THE STATECOMPELLING FREE CITIZENS TO WORKCOMPELLING FREE CITIZENS TO WORK

(for either economic or political purposes)

Past

- Colonial regimes- Authoritarian regimes

Today

- Labour mobilization campaigns still detected in certain countries, as a remnant of practices widespread during the Soviet / Iron Curtain era

- Context of armed conflict, in some African countries: widespread campaigns of forced abduction and conscription into government and government supported military groups and into insurgent forces, together with the use of adult and child forced labour

- Myanmar

11

CEACR: Individual Observation concerning Convention No. 29, Forced Labour, 1930 Myanmar (ratification: 1955) Published: 2005

Concluding comments. The Committee notes with grave concern, that

- the recommendations of the Commission of Inquiry have still not been implemented: the provisions of the Towns Act, 1907, and the Village Act, 1908, allowing requisition of labour in violation of the Convention, have not been repealed;

- forced labour continues to be exacted in many areas of the country, in circumstances of severe cruelty and brutality; and

- no person responsible for the exaction of forced labour has been prosecuted or convicted under the relevant provisions of the Penal Code.

MYANMARMYANMAR

12

MYANMARMYANMAR

ILC, June 2005: Special sitting of Committee on the Application of Standards:

- the “wait-and-see” attitude that prevailed among most members since 2001 had lost its raison d’être and could not continue. The Committee’s general view was that Governments, Employers and Workers, as well as other international organizations, should now activate and intensify the review of their relations with Myanmar that they were called upon to make under the 2000 resolution

- to urgently take the appropriate actions, including as regards foreign direct investment in all its various forms, relations with State- or military-owned enterprises in Myanmar

13

ILO Governing Body 294th session – November 2005

• expressed grave concern about the degradation of the situation in Myanmar

• firmly rejected attempts to influence the ILO's position through various

forms of pressures and intimidation, including threats against the Liaison Officer in Yangon as well as announcements that the country was preparing to withdraw from the ILO

• Affirmed that dialogue should be based on the mandate provided by the 2005 ILC. To be meaningful, it should also address the issues and cases raised in the debate

• expressed particular concern about recent cases where individuals had been charged and sentenced for seeking redress on behalf of victims of forced labour

• the authorities should cease prosecuting victims of forced labour and instead take action against those who perpetrated it.

MYANMARMYANMAR

14

C. 29 excepts prison labour from being considered FL, but subject to a number of important cumulative conditions:

- work or service exacted as a consequence of a conviction in a court of law,

- the work or service must be 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;

Remind that FL = involves a menace or penalty + lack of consent !!!

FL IMPOSED DIRECTLY BY THE STATEFL IMPOSED DIRECTLY BY THE STATEPRISON-LINKED FLPRISON-LINKED FL

15

FL IMPOSED DIRECTLY BY THE STATEFL IMPOSED DIRECTLY BY THE STATEPRISON-LINKED FLPRISON-LINKED FL

How prison labour is connected with private entities?

- through educational or training schemes

- prisoners works within the prison producing goods sold to private entities outside

- prisoners may work outside the prison for a private entity (pre-release scheme)

- prisoners may provide labour within prisons, contributing to the running of facilities managed by private entities

- prisoners may work with private firms outside the prison during the day, returning at night.

16

• Prison labour performed in the context of private enterprise is a growing trend (privatizations)

• Severe economic conditions are a push factor (more and more States face budgetary constrains for the care of prisoners), therefore prison labour is increasingly being seen as a means of defraying the cost of imprisonment

• C.29 refers to the need of supervision by a public authority and of prisoners not be placed at the service of private individuals, companies or associations. There is thus a need for appropriate safeguards to avoid economic exploitation of prisoners

• Prison labour without due sentence / administrative detention (?)

• Freedom of choice is a complex issue as far as prisoners are concerned. Prison labour can never be described as completely free or voluntary. CONSTRAINED CONSENT

FL IMPOSED DIRECTLY BY THE STATEFL IMPOSED DIRECTLY BY THE STATEPRISON-LINKED FLPRISON-LINKED FL

17

• Estimation of 8.000.000 recognized prisoners worldwide of which only 150.000 are in private prisons. There are no figures concerning those that might be working for private employers. However, private sector may in the future play a key role in providing employment and skills training for prisoners.

• Trade unions voice concerns: lost of rights if refusal to work –early release, deprivation of privileges and time outside cells, low wage rates, prisoners terms and conditions of work

• Employers group: prison work has many benefits for all; enterprises that hire prison labour run very high risks therefore such work can not be provided under the same conditions and paid at the same rate as in the free market. C.29 cannot be interpreted in an excessively strict way

• There is room for tripartite debate

FL IMPOSED DIRECTLY BY THE STATEFL IMPOSED DIRECTLY BY THE STATEPRISON-LINKED FLPRISON-LINKED FL