JURIST Guest Columnist Susan H. Bitensky of the Michigan State University College of Law says that the International Labor Organization's recent report addressing gaps in the current legal regime erected against forced labor is commendable but unsatisfying, arguing that it only superficially touches upon forced labor's root causes: poverty and profit...
magine that you are coerced into drudgery that you do not want to do, all day long, day after miserable day, without end. Such is forced labor
, an utter negation of personal autonomy and human dignity. It should, therefore, come as no surprise that this brutal form of "employment" has been directly or indirectly prohibited by at least 24 international human rights law instruments, many of which originated with the International Labor Organization (ILO).
One of the ILO's foundational prohibitory treaties on the subject is the Forced Labor Convention of 1930 (No. 29) ("Convention No. 29"). It provides a legal definition of forced labor 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." Authoritative interpretation holds that the phrase "all work or service" means that Convention No. 29's provisions apply to all types of work, service and employment, regardless of the industry or sector where it occurs; the phrase is also said to cover trafficking in persons for forced labor purposes.
The ILO has set itself the ambitious goal of abolishing forced labor by 2015. There is no mission more urgent, for forced labor exists in the twenty-first century on a truly epic scale:
- Internationally, at least 20.9 million men, women and children are victims of forced labor and, of these, 26 percent are under 18 years of age.
- Out of the total 20.9 million victims, 90 percent (18.7 million) are subjected to forced labor by private individuals or enterprises, while the remaining 10 percent (2.2 million) are compelled to work by governments or rebel military groups.
- Among those people subjected to forced labor by the private sector, 68 percent (14.2 million) undergo "forced labor exploitation," in contradistinction to another 22 percent (4.5 million) who undergo forced sexual exploitation in particular.
These hardest and coldest of facts reveal not only the overwhelming presence of forced labor, but also that private enterprise is overwhelmingly its perpetrator. Consequently, the latter revelation should figure prominently in any ILO calculations respecting where best to aim its regulatory and programmatic firepower.
In February 2013, the ILO issued its "Report for discussion at the Tripartite Meeting of Experts concerning the possible adoption of an ILO instrument to supplement the Forced Labour Convention, 1930 (No.29)" ("2013 report" or "report"). One of the report's major conclusions is that forced labor's continuing robustness largely results from gaps in the current international legal regime that has been erected against the practice, as well as from various nations' flawed domestic integration of the regime's human rights standards. The report's authors find the most worrisome gaps with respect to prevention, victim protection and trafficking in persons (as these matters relate to forced labor specifically).
To deal with the law-gap problem, the report calls for a protocol to amend Convention No. 29 or for the adoption a new convention. The report advises that the instrument should embrace comprehensive and/or integrated approaches, including guidelines for frameworks to fill the identified lacunae, compensation for victims and punishment of perpetrators. The report especially urges that such a protocol or convention should "be complemented by detailed provisions [for implementation] that could be contained in a Recommendation adopted at the same time." Though the details of implementation are supposed to be discretionary for those states party to the instrument, the burden would be on a state party to justify any deviation from them.
The 2013 report is commendable. It highlights the scourge of forced labor, something we should never lose sight of. The report's call for a protocol or new convention, one that would make private perpetrators (and their public brethren) subject to damages and prosecution, is right on target. The proposed implementation scheme is equally praiseworthy. While it may be weak tea when compared to typical domestically prescribed criminal law penalties of fines or incarceration, the scheme can only be fairly evaluated in the context of international human rights law's less demanding enforcement measures.
Nevertheless, there is something unsatisfying in an ILO narrative that is confined to remedying the vast, intractable problem of forced labor exclusively by filling law-gaps and with a treaty of this ilk. The trouble may be that the 2013 report only superficially touches upon forced labor's root causes of, on the one hand, pandemic and profound poverty, and, on the other hand, rapacious greed engendered by a profit motive gone haywire. (Incidentally, the report's downplaying of this linkage is apparently not aberrational. There is, for instance, no mention whatsoever of forced labor in that portion of the ILO website devoted to the role of poverty in economic and social development.) These dual dynamics of poverty and profit are critically important inasmuch as they create the supply and demand the very lifeblood of forced labor.
It is no secret that poverty afflicts massive numbers of people around the world. In 2008, 1.29 billion people were living in extreme poverty (i.e., subsisting on less than $1.25 a day) and another 1.18 billion people were struggling to eke out a living on $1.25 to $2.00 per day a range described by The World Bank as leaving this cohort "vulnerable and poor." It requires no great insight to realize that if so many were not so desperately poor, there would be far, far fewer falling into forced labor's toils.
On the other side of the forced labor relationship is the hunger for profits that undergirds most countries' economic systems to one degree or another. With some real restraints on business' frequently overactive appetite, there probably would be a much lower incidence of the profit motive carried to its ugliest extreme forced labor, the ne plus ultra of cheap labor. It should be recalled in this connection that the private sector is responsible for 90 percent of all forced labor. The ILO further has opined that "[c]oncerns are ... increasing ... relating to forced labor in global supply chains." We are, it appears, awash in more private perpetrators than we ever conceived of. Indeed, the cotton in your clothing and the gold in your jewelry, sold by "reputable" retailors, may well have been produced [PDF] via forced labor at the bottom link of the chain.
Because the report gives short shrift to the operation of poverty and profit, it is hardly noticeable that the report issues no complementary call for reforms that, in tandem with curing law-gaps, could jump start the process of arresting these underlying causes. The report could have proposed, say, collaborative lawmaking and action between the ILO and other inter-governmental agencies with expertise in ameliorating poverty or reining in abusive business practices. The report's silence in this regard turns thunderous when one pauses to remember that forced labor is a widespread human rights transgression of the first magnitude and that the transgression will certainly persist as long as its first causes do.
These deficiencies in the 2013 report additionally put the ILO at cross-purposes with some of the very principles it has laid down for itself to follow. For example, the ILO has committed [PDF] to judging unacceptable any national or international economic policies that impede the individual's right to pursue his or her material well-being "in conditions of freedom and dignity, of economic security and equal opportunity." Might not this principle be broad enough to induce ILO determinations about the unacceptability of policies permitting or encouraging the poverty-profit matrix? Moreover, should not the ILO collaboratively take on poverty and profit in accordance with its own constitutional requirement of cooperation "with public international organizations having specialized responsibilities in related fields"?
Unless and until the ILO seriously addresses forced labor's socio-economic sine qua non, the organization should at least assume and fulfill the moral duty of making its reports more forthright. That is, the ILO's future reports on forced labor should put poverty and injurious profit-making in the spotlight and thoroughly explain what these root causes are and how they inevitably lead to forced labor. Furthermore, future reports should candidly acknowledge any shortcomings in the ILO's efforts to extirpate these causes. Otherwise, the general public, including those unfortunates wearing their lives away in forced labor, may falsely think there is hope for abolition sometime soon.
Susan Bitensky is the Alan S. Zekelman Professor of International Human Rights Law and Director of the Lori E. Talsky Center for Human Rights of Women and Children, at Michigan State University College of Law. Her scholarship focuses on international human rights law and children's rights under the federal Constitution.
Suggested citation: Susan Bitensky, The ILO and Forced Labor: Ameliorating Poverty and the Hunger for Profits, JURIST - Forum, Apr. 1, 2013, http://jurist.org/forum/2013/04/susan-bitensky-ilo-labor.php
This article was prepared for publication by Michael Kalis, an associate editor for JURIST's academic commentary service. Please direct any questions or comments to him at firstname.lastname@example.org