Frames version

CHAPTER VI
Substantive provisions of labour legislation:
The Elimination of All Forms of Forced or Compulsory Labour

• Introduction 
  • International instruments on forced or compulsory labour
  • The role of legislation in eliminating forced or compulsory labour
• General legislative prohibitions of forced or compulsory labour
• Debt bondage: prevention and elimination
  • Legislation prohibiting the use of bonded labour
  • Enforcement of laws prohibiting bonded labour
   
• Trafficking in persons and forced labour: Prevention and elimination of trafficking and exploitation of migrants
  • Legislation prohibiting trafficking in persons
  • Legislation to combat migration in abusive conditions
  • Regulation of the activities of recruiters in countries of emigration
  • Minimum standards of protection for migrant workers and the application of labour laws in the country of immigration and of emigration
  • Enforcement of legislation concerning trafficking and the exploitation of migrants
• Domestic workers: prevention of abuse
  • Legislation on domestic workers
  • Enforcement of legislation on domestic work
• Commercial sexual exploitation of adults and children
• Legislation and the enforcement of laws and regulations on the commercial sexual exploitation of adults and children
• Special provisions for child victims of commercial sexual exploitation
• Social and economic programmes for the eradication of the sexual exploitation of adults and children
• Enforcement provisions for legislation on forced labour
  • Inspection of workplaces
  • Supervision of the activities of authorities responsible for the application of legislation on forced labour
  • Complaints procedures
  • Information and awareness campaigns

Introduction

Forced or compulsory labour is an ancient practice akin to slavery that has no place in the modern world. It runs completely counter to all the underlying principles of democracy, which is based on the freedom and equality of all citizens, and of free choice in a market economy. Indeed, it is the very antithesis of the ideal form of employment, namely full, productive and freely chosen employment, as set out in the the ILO’s Employment Policy Convention, 1964 (No. 122).

The issue of forced or compulsory labour has been the subject of universal condemnation, particularly as from the 19th century, with renewed interest at various periods, including in the late 1920s in connection with certain practices in colonial territories and once again in recent years. Attention over the past few years has focused on with the trafficking of persons in relation to compulsory labour in domestic service, agriculture and the sex trade. Its continuing occurrence in the forms of debt bondage and coercive recruitment for agricultural work in some countries hs also met with renewed efforts at eradication. The ILO Global Report, Stopping forced labour¹, submitted to the ILO Conference in June 2001, reviews the prevalence of these different forms of forced labour, the measures that are being taken to combat them and the further action that is required.

[top of the page]

International instruments on forced or compulsory labour

The Forced Labour Convention, 1930 (No. 29) and the Abolition of Forced Labour Convention, 1957 (No. 105) are the primary ILO instruments aimed at the prohibition and elimination of forced or compulsory labour. The United Nations Slavery Convention, 1927, and the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, 1956, also deal with the forms of forced labour that amount to slavery, as well as other forms of forced labour similar to slavery, such as debt bondage, serfdom and the exploitation of child labour.²

According to the ILO Declaration on Fundamental Principles and Rights at Work of 1998, all the ILO’s Members have an obligation, even if they have not ratified the ILO Conventions in question, to respect, promote and realize the principle of the elimination of all forms of forced or compulsory labour. The ILO Declaration of 1998 also places a duty on the ILO to assist member States in their efforts to do so.

[top of the page]

The role of legislation in eliminating forced or compulsory labour

The elimination of forced or compulsory labour in countries in which it has been found to occur in one form or another, requires a combination of efforts, including legislative prohibition, the regulation of certain activities that may lend themselves to being used to impose forced labour and measures by governments and civil society to combat the practice.

This Chapter reviews the implications for governments of the obligation to eliminate forced labour pursuant to the ILO Declaration of 1998, both with regards legislation to prohibit forced labour in general, as well as legislation aimed specifically at prohibiting or regulating certain kinds of labour or practices, that often entail, or could lead to forms of forced labour, including:

• bonded labour;
• trafficking in persons and migrant workers and the exploitation of the workers concerned;
• commercial sexual exploitation, which is typically non-voluntary; and
• domestic work involving elements of coercion.

It also contains guidance on how to ensure that training and apprenticeship programmes do not develop into situations of forced labour, as this may be a risk in some contexts.

It should be noted in this regard that Convention No. 29 defines forced labour in the following terms:

For the purposes of this Convention the term "forced or compulsory labour" shall mean 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 (Article 2, paragraph 1).

The Convention nevertheless excludes from this definition several forms of forced labour which were recognized at the time as normal obligations in a variety of countries. These are:

• any work or service exacted in virtue of compulsory military service laws for work of a purely military character;
• any work or service which forms part of the normal civic obligations of citizens of a fully self-governing country;
• 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;
• 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;
• 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 (Article 2, paragraph 2).

Experience has shown that, in formulating proposals for legislative provisions to eliminate forced or compulsory labour, the following should be considered:

• an assessment of the kinds of practices in the country that might lend themselves to abuse resulting in forced labour;
• existing constitutional principals that provide protection and the extent to which legislative implementation would increase their effectiveness, having regard to the problems met in the country;
• whether there is a need for legislative prohibition or regulation of certain forms of labour or practices that do not themselves amount to forced labour, but which lend themselves to use by those seeking to exploit workers through compulsory labour;
• the need to back legislative prohibition or regulation by adequate penalties.

[top of the page]

General legislative prohibitions of forced or compulsory labour

In many countries, forced labour is prohibited by constitutional provisions or principles. In some countries where the constitution is directly enforceable, this may be sufficient protection, particularly if there is no recent tradition of practices resembling forced labour. However, in others it may well be necessary to adopt a legislative prohibition of forced labour. The respective provisions may take the form of a general prohibition with or without a specific definition of forced labour.

In addition to setting out a general prohibition of forced labour, legislation should pay particular attention to forced labour situations involving debt bondage, trafficking and commercial sexual exploitation, as discussed below.

[top of the page]

Debt bondage: prevention and elimination

Bonded labourers are trapped in situations in which they are forced to work in order to pay off a debt owed to an employer. Such conditions may arise in situations of economic dependence when landowners or other employers give workers loans or advances for food, lodging, seeds, tools or other purposes, which must be repaid by work or the proceeds of work. In cases in which the worker has no alternative to accepting such loans or advances from the landowner or some other employer, the interest charged for the loan or advance and the low value placed on the worker's labour, service or produce (or the indefinite length of time during which the worker must work to pay of the debt) are such that the worker has great difficulty in paying off the debt, which may be inherited, with the debt bondage therefore extending over generations.³ With income that is too low to pay off their debt, and often too low to provide for their basic subsistence, bonded labourers are often forced to take out further loans from the employer, putting them even further in debt. Some bonded labourers  work to pay off debts acquired by previous generations. It is not unusual for parents to bond their children in exchange for loans.⁴ Bonded labour is found mainly in the agricultural sector, but also in mines, brick kilns, leather, fish processing and carpet factories.  Workers who have been trafficked, those involved in the commercial sex industry and domestic workers are also often victims of bonded labour (ILO Global Report: Stopping forced labour, Chapter 6: "Bonded labour and its eradication").

Legislation that is intended to prohibite and eliminate debt bondage should:

• prohibit all forms of bonded labour; and
• establish effective enforcement mechanisms for the elimination of bonded labour, including penal sanctions.

[top of the page]

Legislation prohibiting the use of bonded labour

Where bonded labour exists, governments should adopt, publicize and enforce effective legislation that abolishes bonded labour systems and discharges all bonded labourers from any obligation and debt. This legislation should be based on a thorough study of the practice of bonded labour in the country, with a view to ensuring that it is formulated in a way allows its effective enforcement. The legislation should:

• state that anyone working as a bonded labourer is no longer under an obligation to repay any part of their bonded debt;
• discharge workers from all bonded labour situations;
• limit the amount of pay employers may advance to employees to avoid subsequent debt bondage;⁵
• require employers to keep a register of advances made to employees; and
• ensure the payment of minimum wages.⁶

[top of the page]

Enforcement of laws prohibiting bonded labour

To enforce the prohibition of bonded labour, legislation should:

• establish administrative and penal sanctions for employers or other persons who keep workers in debt bondage;
• adopt regulations to control the use of intermediaries in contracting labour, notably in the recruitment of workers (see Prevention of trafficking and exploitation of migrants below).

• establishes local committees to advise authorities on the situation of bonded labour in their localities, suggest measures to be taken to implement the law, and monitor the locality for instances of bonded labour;
• provides for administrative and penal sanctions for public agents who fail to enforce laws on bonded labour;
• disqualifies employers found to have used bonded labour from fiscal incentives and participation in government credit schemes;⁷
• provides for free legal aid for victims of debt bondage;⁸
• provides for rehabilitation and counselling services for former bonded labourers.⁹

Example

[top of the page]

Trafficking in persons and forced labour: Prevention and elimination of trafficking and exploitation of migrants

While trafficking in persons does not in itself amount to forced labour, it often acts as a means of obtaining workers who are to be subject to forced labour or results in forced labour being exacted to pay off debt. It has been defined in one study as including "all acts involving the capture, acquisition, recruitment and transportation [of persons] within and across national borders with the intent to sell, exchange or use [them] for illegal purposes […]".¹⁰ Individuals who have been trafficked are often caught up in situations of forced labour, such as debt bondage, domestic work under harsh conditions, and circumstances involving forced sexual exploitation. The ILO Global Report on forced labour states that, "In practical terms traffickers end up using people to generate income from forced labour exacted from them" (Global Report: Stopping forced labour, p. 48).

Trafficking in persons is now covered by an agreed international definition. Under the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, opened for signature in December 2000, "trafficking in persons" is defined as:

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 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. (Article 3(a)).

ILO Conventions related to the trafficking of labour include Conventions Nos. 29 and 105, the Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143), the Migration for Employment Convention (Revised), 1949 (No. 97), and the Private Employment Agencies Convention, 1997 (No. 181). Other international instruments relating to trafficking, in addition to the Protocol mentioned above, include the United Nations Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, 1949,¹¹ and the United Nations Convention on the Protection of All Migrant Workers and their Families, 1990.

In order to combat trafficking of labour, legislation first has to prohibit and penalize trafficking in persons. It also needs to also address certain issues relating to recruitment for work abroad and migration, as migrant workers in general are vulnerable vis-à-vis their employer or recruiter, especially if they have entered or are staying in a country illegally. This vulnerability exposes them to the risk of having to work in abusive conditions, including entrapment in trafficking leading to forced labour situations. The ILO Declaration of 1998, in its Preamble, refers to the need to give special attention to the problems of migrant workers. The ILO’s Committee of Experts on the Appliction of Conventions and Recommendations has also requested certain governments to address issues concerning migrant workers in dealing with labour trafficking.¹² The United Nations Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others also emphasizes the need to protect migrants when confronting the issue of trafficking.

The Committee of Experts, in its discussions of the protection of migrants for employment, particularly those in abusive situations, such as trafficking, notes that the protection of migrants is an important means of confronting trafficking in labour and protecting the fundamental rights enshrined in the ILO Declaration of 1998.¹³ The Preamble to Convention No. 143 states that standards are needed to eliminate trafficking. Indeed, Convention No. 143 largely deals with migration in abusive conditions, including trafficking as one of its most serious forms.¹⁴

Legislation should address all forms of labour trafficking resulting in forced labour, including trafficking for prostitution, agricultural work, construction and domestic work, where such work results in situations of forced labour. While legislation should deal with all types of labour trafficking, care should also be taken to address the special situation of these workers.

Overall, in aiming to eliminate the trafficking of persons and the exploitation of migrants, legislation should prohibit and penalize trafficking and should combat migration in abusive conditions. Regulation of the activities of recruiters in the country of emigration should be an important part of such legislation. Legislation should also ensure that national laws apply to migrants in the country of immigration and that migrant workers are afforded minimum standards of protection, including respect for their fundamental human rights. As with all legislation aimed at eliminating forced labour, effective enforcement mechanisms are necessary to combat trafficking and the exploitation of migrants.

[top of the page]

Legislation prohibiting trafficking in persons

Clearly, the legislation should prohibit and penalize trafficking in persons.

[top of the page]

Legislation to combat migration in abusive conditions

According to Article 2(1) of Convention No. 143, migration in abusive conditions includes situations in which migrants for employment are subjected during their journey, on arrival, or during their period of residence and employment to conditions prohibited by international instruments or national laws or regulations. Labour trafficking is a major form of migration in abusive conditions and Part I of Convention No. 143 is primarily aimed at traffickers of labour.¹⁶

In order to combat migration in abusive conditions, legislation should provide for the establishment of mechanisms to detect whether:

• there is illegal and abusive employment of migrant workers on the territory of the country in question and
• there are any movements of migrants for employment passing through or arriving in the territory of the country, in which the migrants are subjected during their journey, on arrival or during their period of residence and employment, to conditions contravening relevant international multilateral or bilateral instruments or agreements, or national laws or regulations;¹⁷

Measures for the detection of migration in abusive conditions could include:

• increasing police checks at borders;
• making transport companies responsible for verifying the travel documents and residence permits of passengers;
• establishing special counters at airports to detect clandestine departures for employment;
• establishing special units to combat illicit practices relating to the entry, residence, and exploitation of migrants;
• ensuring the cooperation of employment services which are required to check the validity of foreign workers' residence and work permits, and of workers organizations, hotels, and boarding houses.¹⁸

It should also provide for the establishment of mechanisms within the jurisdiction of the country in question and in collaboration with other states to prevent or suppress clandestine movements of migrants for employment and the illegal employment of migrants;¹⁹

Measures to prevent or suppress clandestine migration for abusive work could include:

• ensuring strict compliance with measures governing recruitment of migrant workers;²⁰
• the establishment of employment authorization systems in which would-be emigrants go through a system of over-seas recruitment organized by the public authorities of the sending country or obtain authorization to leave the territory to seek employment.²¹

[top of the page]

Regulation of the activities of recruiters in countries of emigration

To prevent migration from becoming abusive, legislation should provide that recruitment agencies and other organizers of migration for employment (whether public or private):

• have to be regulated, authorized and supervised by a public authority;²²
• are prohibited from supplying or using child labour;²³
• are prohibited from engaging in unfair advertising practices or providing misleading or false information, including the solicitation of applications for workplaces that do not exist in reality;²⁴
• are prohibited from knowingly recruiting, placing or employing a migrant worker in a job involving unacceptable hazards or risks, or where he or she may be subjected to abuse or discriminatory treatment of any kind;²⁵
• have to provide a copy of the employment contract to the migrant worker, indicating the conditions of work and the remuneration offered;²⁶
• are prohibited from charging recruitment fees to migrant workers;²⁷
• are required to simplify administrative formalities, provide interpretation services, help safeguard the migrant's welfare during the journey, and provide any necessary assistance during an initial period in the settlement of migrant workers and their families;²⁸
• have to cooperate in appropriate cases with the corresponding services of other countries;²⁹
• are forbidden from withholding or confiscating, even temporarily, a migrant worker's passport or travel documents and are forbidden from using forged travel documents or misrepresenting a migrant worker's personal details.³⁰

[top of the page]

Minimum standards of protection for migrant workers and the application of labour laws in the country of immigration and of emigration

In order to ensure minimum standards for the protection of migrant workers regardless of immigration status, legislation in the country of immigration should:

• require that the basic human rights³¹ of all migrant workers are respected, regardless of their legal status in the country of immigration;³²
• require that migrant workers, in cases in which laws and regulations regarding migration and entry into employment have not been respected, enjoy equality of treatment for themselves and their families in respect of rights arising out of past employment as regards remuneration, social security and other benefits;³³
• allow migrant workers to present their case to a competent body in the event of a dispute over rights arising out of past employment;³⁴
• ensure that in case of the expulsion of a worker whose immigration status or that of her/his family is illegal, the cost is not borne by them;³⁵
• ensure that migrant workers who entered the host country illegally, but whose immigration status has been regularized, benefit from all the rights that are provided for migrant workers who have been lawfully admitted;³⁶
• ensure that, if a migrant for employment fails, for a reason for which he or she is not responsible, to secure the employment for which he or she has been recruited, or if this employment has been found to be unsuitable, the migrant is given assistance in finding suitable employment and that the cost, if she or he chooses to return to the country of origin, does not fall upon the migrant worker;³⁷
• provide for an expeditious determination of whether an illegal worker's status is to be regularized, and ensure that a worker whose status has been regularized benefits from all the rights provided to migrant workers lawfully admitted to the country;³⁸
• ensure that migrant workers are provided with sufficient information on the essential elements of laws and regulations and on the provisions of collective agreements concerning the protection of workers and the prevention of accidents as well as on safety regulations and procedures particular to the nature of the work;³⁹
• ensure that employers are forbidden from withholding or confiscating, even temporarily, a migrant worker's passport or travel documents and are forbidden from using forged travel documents or misrepresenting a migrant worker's personal details;⁴⁰
• provide for psychological and medical assistance for victims of trafficking.⁴¹

To prevent migration from becoming abusive, labour laws should apply without discrimination to immigrants lawfully within a member state's territory and should provide for treatment no less favourable than that which it applies to its own nationals, particularly in matters of:⁴²

• remuneration;
• family allowances where these form part of remuneration;
• hours of work;
• overtime arrangements;
• holidays with pay;
• fair remuneration for home work (see Home Work Convention, 1996 (No. 177);
• apprenticeship and training;
• equitable remuneration for women;
• the work of young persons;
• the restriction of any advances to workers to a small proportion of their monthly remuneration, the excess of which should not be legally recoverable to avoid situations of debt bondage;⁴³
• minimum age for employment; (see Chapter VIII);
• membership of trade unions and enjoyment of the benefits of collective bargaining;
• accommodation;
• employment services, such as vocational guidance and placement services;
• social security benefits in case of injury in the course of employment, maternity, sickness, invalidity, retirement, death, unemployment, family responsibilities, and any other contingency that is covered by national social security laws and regulations;
• legal proceedings relating to matters concerning migration and labour.

Legislation in the country of emigration could:

• ensure that recruiters only send migrant workers to countries where their human rights are respected;
• require that its embassies and consulates in the country of immigration are aware of the condition of its migrant workers in the receiving country and are equipped to provide assistance to such workers.

[top of the page]

Enforcement of legislation concerning trafficking and the exploitation of migrants

With a view to the effective enforcement of laws addressing trafficking and the exploitation of migrant workers:

(a)   Legislation regarding trafficking and migration in abusive conditions should:

• establish administrative, civil and penal sanctions (including imprisonment) against organizers of labour trafficking and those who knowingly assist such movements, whether for profit or otherwise;⁴⁴
• provide for administrative sanctions, which may include administrative fines, withdrawal or suspension of the license to act as an emigration agent, temporary or permanent closure of offices or enterprises of the offenders, temporary or permanent withdrawal of the authorization to carry on international transport operations, the blacklisting of traffickers and employers, etc;⁴⁵
• provide that the authors of labour trafficking can be prosecuted in the country in question, whatever the country from which they operate;⁴⁶
• ensure that trafficked persons have a legal right to seek reparations from traffickers, as well as assistance in bringing such actions;⁴⁷
• protect the privacy of the victims of trafficking in the context of legal proceedings;⁴⁸
• ensure that immigration laws permit victims of trafficking to remain in the territory of the country, at least while legal proceedings are pending;⁴⁹
• provide for the consultation of employers' and workers' organizations in combating migration in abusive conditions;⁵⁰
• establish mechanisms for the systematic exchange of information on the subject of migration in abusive conditions at the national and international levels;⁵¹
• provide for the conclusion of agreements between sending and receiving countries on a standard contract containing basic provisions to govern the recruitment of migrants⁵² (see Migration for Employment Recommendation (Revised), 1949 (No. 86), Annex: "Model Agreement on temporary and permanent migration for employment, including migration of refugees and displaced persons");
• adopt regulations to protect migrants at places of arrival and departure and while en route;⁵³
• arrange for publicity warning the public of the dangers of trafficking;⁵⁴
• ensure the supervision of railway stations, airports, seaports and en route, and of other public places, in order to prevent the international trafficking of persons;⁵⁵
• establish mechanisms through which the appropriate authorities are informed of the arrival of persons who appear, prima facie, to be the principals and accomplices in or victims of trafficking.⁵⁶

(b)   Legislation providing for the application to migrant workers of national labour laws and minimum standards of protection should:

• promote educational programmes to secure the acceptance and observance of policies of equality of opportunity and treatment and to ensure that lawfully admitted migrants are aware of their rights under national law;
• develop programmes to acquaint migrant workers with policies of equality of opportunity and treatment, their rights and services designed to afford them assistance  in the exercise of their rights and for their protection;⁵⁷
• establish mechanisms to examine complaints that minimum standards are not being observed and secure the correction of such situations, by conciliation or other means;⁵⁸
• provide that administrative, civil and penal sanctions are to be imposed where employers or others fail to observe laws or regulations concerning the application to migrant workers of national labour laws and minimum standards of protection;⁵⁹
• provide that all measures are to be taken in collaboration with employers' and workers' organizations.

[top of the page]

Domestic workers: prevention of abuse

While domestic work per se is not forced labour, domestic workers are very vulnerable as they tend to work in isolation and are frequently excluded from the coverage of labour legislation. Under certain conditions, domestic work can therefore degenerate into forced labour.⁶⁰

[top of the page]

Legislation on domestic workers

With a view to providing them with more effective protection and thereby endeavouring to prevent the possibility of domestic work degenerating into forced labour, legislation on domestic workers should:

• ensure respect of freedom of association for domestic workers (see Chapter II);
• prohibit and take measures to eliminate child domestic work (see Chapter VIII);
• limit the hours of domestic workers by specifying:
  • a forty hour work week,⁶¹ with adequate remuneration for overtime work;⁶²
  • the specification of the maximum hours of work permitted per day;⁶³
  • a fixed uninterrupted rest period of eight hours per day;⁶⁴
  • a limition on the hours spent "on call" and adequate remuneration for those hours;⁶⁵
• ensure that minimum wage laws and regulations apply to domestic workers and that domestic workers are included within the minimum wage fixing system, having due regard to the general level of wages in the country, the cost of living, social security benefits, the relative living standards of other social groups and economic factors;⁶⁶
• provide for proper procedures for termination of employment, including:
  • ensuring that employers do not terminate the employment of domestic workers without a valid reason relating to the capacity or conduct of the worker or based on the operational requirements of the employer;⁶⁷
  • providing that a domestic worker whose employment is to be terminated is entitled to a reasonable period of notice or compensation in lieu thereof, unless he/she is guilty of  misconduct of such a nature that it would be unreasonable to require the employer to continue his/her employment during the notice period;⁶⁸
• ensure that domestic workers are entitled to a wide range of employment benefits such as maternity leave and annual holidays.

[top of the page]

Enforcement of legislation on domestic work

Enforcement mechanisms for legislation regarding domestic work include those adopted to address the trafficking and exploitation of migrant workers (see Trafficking in persons and forced labour: prevention and elimination of trafficking and exploitation of migrants above), forced labour (see Enforcement provisions for legislation on forced labour below) and, in the case of child domestic workers, enforcement provisions dealing with the worst forms of child labour and the elimination of child labour in general (see Chapter VIII).

[top of the page]

Commercial sexual exploitation of adults and children

For the purposes of the present text, commercial sexual exploitation involves the use, procuring or offering of a person for prostitution or the production of pornography through the use of force or coercion and/or for financial or material gain. While  some adults can be said to freely choose to work as a prostitute or as the subject of pornography, others are coerced or forced into such work through deception, violence and/or debt bondage.⁶⁹ This discussion draws extensively from the study by Lin Lean Lim. Although the study is limited to prostitution in parts of South East Asia, many of its findings and recommendations can be applied to all forms of sexual exploitation in any country. Frequently, those involved are the victims of trafficking and are forced to work in slave-like conditions, virtually owned by their employers and without any choice over their customers, the numbers served, acts performed or hours worked. Working conditions in such cases are clearly exploitative and the victims are subject to various forms of physical and psychological abuse. The guidance provided focuses on these forms of sexual exploitation, rather than voluntary forms of prostitution and pornography.

Child prostitution and pornography is always considered to constitute forced labour and a modern form of slavery,⁷⁰ and is one of the worst forms of child labour⁷¹ (see Chapter VIII). Children are not considered to be capable of making a voluntary decision to engage in such work. Because of their immaturity and relative helplessness compared to adults, they are often the targets of trafficking, force and coercion.  In some cases, it is even the parents even sell their children into sexual slavery. The working conditions of child sex workers are also known to be even more abusive than those of adults engaged in the same work.  Furthermore, children in such situations are more susceptible to disease, psychological trauma and stunted development.⁷² Consequently, the commercial sexual exploitation of children is both a form of forced labour and one of the worst forms of child labour and should be specifically addressed by national legislation.

Commercial sexual exploitation has been found to be an outgrowth of poverty, underdevelopment and other economic factors, as well as the social mores that dictate gender relations and relations between parents and children.⁷³ As a result, the exploitation of such labour must not only be prohibited and punished but the need also has to be recognized of establishing social and economic programmes to prevent commercial sexual exploitation in the future and to rehabilitate the victims of such abusive work.

[top of the page]

Legislation and the enforcement of laws and regulations on the commercial sexual exploitation of adults and children

Legislation addressing the commercial sexual exploitation of adults and children should:

• ensure that provisions for the protection of victims of commercial sexual exploitation cover women and men, girls and boys;
• punish any person who, to gratify the passions of another;
  • procures, entices or leads away for purposes of prostitution, another person, even with the consent of that person;⁷⁴
  • exploits the prostitution of another person, even with the consent of that person;⁷⁵
  • keeps, manages, or knowingly finances a brothel;⁷⁶
  • knowingly lets or rents a building or other place for the purpose of the prostitution of others;⁷⁷
  • attempts to commit any of these offences or who has engaged in acts preparatory to the commission of such offences;⁷⁸
  • intentionally participates in any such offences;⁷⁹
  • has returned to his/her State after the commission abroad of any such offences.
• provide for penal provisions against corrupt enforcement authorities;⁸⁰
• ensure strict enforcement of criminal sanctions against those trafficking in, exploiting or abusing others for purposes of sexual gratification;⁸¹
• provide that offences relating to trafficking and the exploitation of prostitution are extraditable;⁸²
• ensure cooperation and coordination at the international level or on a bilateral basis.⁸³

Enforcement measures might also include:⁸⁴

• provisions for the extraterritorial application of laws so that perpetrators from other countries can be brought to justice;
• improving the training and awareness of law enforcement officials;
• setting up a special task force within the police to deal with commercial sexual exploitation;
• involving the police, immigration authorities, social welfare authorities, education and health departments in enforcement strategies;
• ensuring broad media coverage of the problems of commercial sexual exploitation and violations in this respect.

Additional enforcement measures include those relating to forced labour in general (see Enforcement provisions for legislation on forced labour below).

[top of the page]

Special provisions for child victims of commercial sexual exploitation

Legislation should provide children with special protections against commercial sexual exploitation. Above all, it should criminalize all forms of child prostitution and pornography.⁸⁵

Legislation could also:

• provide for heavier penalties the younger the victim;⁸⁶
• ensure that parents, guardians and law enforcement agents are also held responsible for the commercial sexual exploitation of children;⁸⁷
• penalize organizers of child sex tours;
• eliminate inconsistencies between legal ages of consent to sexual relations, prostitution, and marriage;⁸⁸
• ensure that legal procedures for obtaining evidence protect children;⁸⁹
• provide for a review of adoption laws since paedophiles and intermediaries sometimes "adopt" children from poor families for purposes of commercial sexual exploitation;⁹⁰
• ensure effective procedures for the verification of ages;⁹¹
• establish policies to train community leaders, teachers, health workers, religious leaders, etc., to set up community watch groups, carry out surveillance, report crimes against children and seek assistance for children whom they consider to be at high risk of being drawn into the sex sector.⁹²

Other means of protecting children against commercial sexual exploitation include measures to address the worst forms of child labour (see Chapter VIII).

[top of the page]

Social and economic programmes for the eradication of the sexual exploitation of adults and children

The adoption and enforcement of legislation needs to be supplemented by social and economic programmes to prevent commercial sexual exploitation and rehabilitate adult and child victims of such exploitation. Such programmes should reflect a multi-pronged approach to the elimination of commercial sexual exploitation, involving, inter alia, measures promoting economic development, health services, education and legal aid.⁹³

Legislation should support social and economic programmes and policies such as:

• developmental efforts to provide women and children and their families with alternative sources of income, tackle poverty, socio-cultural traditions, and other root causes of sexual exploitation;⁹⁴
• education, awareness-raising and advocacy, especially involving poor families and women and children who are especially at risk, law enforcers, government officials, community leaders, teachers, and religious leaders;⁹⁵
• health programmes covering the provision of information and advice on the health risks involved in sex work;⁹⁶
• rehabilitation, including:
  • training in alternative job skills for former sex workers;
  • counselling to address the psychological issues facing sex workers;⁹⁷
  • programmes promoting the enhancement of family support and community-based services in addition to institutional rehabilitation;⁹⁸
• legal aid for victims of commercial sexual exploitation.⁹⁹

Experience shows that effective programmes often provide for close cooperation and coordination among government agencies, NGO's, women, youth and child groups, former sex workers, the media and other groups concerned with the elimination of commercial sexual exploitation.¹⁰⁰

Examples of social and economic programmes addressing commercial sexual exploitation can be found in Lin Lean Lim, The Sex Sector: The economic and social bases of prostitution in Southeast Asia. See pp. 61-65 for programmes implemented in Indonesia, pp. 93-98 for Malaysia, pp. 124-128 for the Philippines and pp. 165-169 for Thailand.

For social and economic programmes geared more specifically towards the elimination of the commercial sexual exploitation of children and other worst forms of child labour, see the section on child labour (see Chapter VIII).

[top of the page]

Enforcement provisions for legislation on forced labour

One of the first requirements in relation to enforcement provisions for legislation on forced labour is the need to ensure that forced or compulsory labour is punishable as a penal offence.¹⁰¹

In addition, enforcement mechanisms common to all forms of forced labour should include:

• the creation of special teams for the inspection of work places;
• the supervision of authorities responsible for the application of legislation on forced labour;
• the establishment of adequate complaints procedures; and
• information and awareness campaigns.

These mechanisms should be established in addition to those indicated under the specific types of forced labour, namely debt bondage, the trafficking and exploitation of migrants and commercial sexual exploitation.

[top of the page]

Inspection of workplaces

Legislation on the abolition of forced or compulsory labour should support the extension of the duties of any existing labour inspectorate to cover activities for the detection and elimination of forced or compulsory labour.¹⁰² Thise provisions adopted in this respect should be in conformity with the requirements of the Labour Inspection Convention, 1947 (No. 81), and should therefore:

• ensure that inspection teams are composed of public officials whose status and conditions of service are such that they are assured of stability of employment, are independent of changes of government and of improper external influences;¹⁰³
• prohibit inspectors from having any direct or indirect interest in the establishments under their supervision;
• prohibit inspectors from revealing the source of any complaint and from giving any intimation to the employer or the employer's representative that a visit of inspection was made in consequence of the receipt of such a complaint;¹⁰⁴
• recruit inspectors with sole regard to their qualifications for the performance of their duties and provide them with adequate training;¹⁰⁵
• provide for sufficient inspectors to secure the effective discharge of their duties, taking into account the number, nature, size and situation of the workplaces to be inspected, the number and classes of workers employed, the material means placed at the disposal of the inspectors, and the practical conditions of their work;¹⁰⁶
• ensure that inspectors are furnished with local offices and transport facilities;¹⁰⁷
• empower inspectors to enter freely and without previous notice at any hour of the day or night any workplace liable to inspection; to enter by day any premises which they may have reasonable cause to believe to be liable to inspection and to carry out any examination, test or enquiry which they may consider necessary in order to satisfy themselves that the legal provisions are being strictly observed, and in particular: to interrogate the employer or the staff, to require the production of or copy any books, registers or other documents which are prescribed by national laws, to enforce the posting of notices and to take or remove for purposes of analysis samples of materials and substances used or handled;¹⁰⁸
• empower inspectors to take steps with a view to remedying defects (that is, putting an end to any instances of forced labour) observed at the working place;¹⁰⁹
• require inspectors to submit periodical reports on the results of their inspection activities; and¹¹⁰
• ensure that workers and employers organizations are involved in establishing inspection mechanisms.

[top of the page]

Supervision of the activities of authorities responsible for the application of legislation on forced labour

The respective legislation should support the organization of a system of supervision of the activities of the authorities responsible for ensuring the application of the legislation on forced labour. This system should:

• ensure the training of police officers, magistrates and civil servants whose duties bring them into contact with cases of forced labour;
• establish an independent mechanism through which individuals or non-governmental organizations can lodge complaints against any police, state authorities or magistrates who refuse to investigate complaints relating to forced labour or who cooperate with employers that use forced labour;¹¹¹
• allow for the prosecution of government officials and police officers who fail to enforce the prohibition of bonded labour or who cooperate with employers to keep workers in servitude and/or take punitive measures against labourers for seeking legal redress against employers holding them in bonded labour.¹¹²

[top of the page]

Complaints procedures

It is of particular importance for the legislation to ensure that victims of forced labour are able to submit complaints to the authorities and that such complaints are examined.¹¹³

[top of the page]

Information and awareness campaigns

The legislation on forced labour should support the organization of public information campaigns in conjunction with workers' representatives, the media, NGOs, human rights organizations, religious organizations and community groups to inform workers of their rights and to raise public awareness of forced labour.¹¹⁴

Information Campaign Against Trafficking in Women from Ukraine

1. Stopping forced labour, Global Report under the Follow-up to the ILO Declaration on Fundamental Principles and Rights at Work, International Labour Conference, 89^th Session 2001, Report I(B), (ILO, Geneva, 2001).

2. The United Nations Slavery Convention, 1926, defines slavery as "The status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised." (Article 1(1)). While slavery is a type of forced labour, the term forced labour is broad enough to cover other forms of forced or coerced labour in which the exercise of ownership over the worker is not present and which do not necessarily amount to slavery or practices similar to slavery.

3. See United Nations Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, Article 1(a).

4. Anti-Slavery International, This menace of bonded labour; Debt bondage in Pakistan (London, 1996), p. 14.

5. The Social Policy (Basic Aims and Standards) Convention, 1962 (No. 117), addresses forms of wage payment that may result in indebtedness. It requires the payment of wages at regular intervals and states that payment should normally be in legal tender. See also the Protection of Wages Convention (No. 95) and Recommendation (No. 85), 1949.

6. See the Minimum Wage Fixing Convention, 1970 (No. 131).

7. Committee of Experts on the Application of Conventions and Recommendation, 1993 (India) and (Pakistan). See also a programme presented by Anti-Slavery International, Slavery in Brazil, A link in the chain of modernisation (London, 1994), p. 145.

8. A. Bequele and W. Myers, First things first in child labour: Eliminating work detrimental to children (United Nations Childrens Fund and ILO, Geneva, 1995), p.109.

9. Ibid.

10. Lin Lean Lim, The sex sector: The economic and social bases of prostitution in Southeast Asia (ILO, Geneva, 1998), p. 179. For other attempts at defining trafficking, see the Global Alliance Against Traffic in Women, Human Rights Standards for the Treatment of Trafficked Persons, 1999 and the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime, 2001. The growing trend is to recognize that trafficking can be internal as well as transnational and that it does not require the consent of the would-be migrant.

11. This Convention has been criticized for being limited to trafficking for the purposes of sexual exploitation.

12. See, e.g., individual observation concerning Convention No. 105, Dominican Republic, Committee of Experts on the Application of Conventions and Recommendations, 1991; individual observation concerning Convention No. 29, Thailand, Committee of Experts on the Application of Conventions and Recommendations, 1990.

13. See General Survey on Migrant Workers, Report III (Part 4B), ILC, 66th Session, Geneva, 1999, Chapter 4.

14. Ibid., para. 289.

15. The examples concerning penal legislation are not meant to be interpreted as the promotion of good criminal legislation, but rather should be viewed as examples of how some governments have decided to address the need to enforce prohibitions relating to forced labour.

16. General Survey, op. cit., para. 187.

17. Convention No. 143, Article 2, paragraph 1.

18. General Survey, op. cit., para. 324.

19. Convention No. 143, Article 3(a).

20. General Survey, op. cit., paras. 325-326.

21. Ibid., para. 328.

22. Conventions Nos. 181 and 97. For a more detailed discussion of public and private recruitment bodies, see General Survey, op. cit., paras. 161-189.

23. Convention No. 181, Article 9.

24. Convention No. 97, Articles 2 and 3.

25. W.-R. Böhning, Workshop on Overseas Employment Institutions (Preparatory text), 1998.

26. Convention No. 97, Annex I, Article 5, and Annex II, Article 6.

27. Convention No. 181, Article 7; Convention No. 97, Article 7, Annex I, Article 4, and Annex II, Article 4.

28. Convention No. 97, Annex I, Article 6, and Annex II, Article 7.

29. Convention No. 97, Article 7, and Protection of Migrant Workers (Underdeveloped Countries) Recommendation, 1995 (No. 100), Part II, Paragraph 15(2)(b).

30. W.-R. Böhning, op. cit., 1998.

31. This refers to the fundamental human rights contained in international instruments adopted by the United Nations, including the Universal Declaration of Human Rights (1948), the International Covenant on Civil and Political Rights (1966), the International Covenant of Economic, Social and Cultural Rights (1966) and the rights enshrined in the ILO Declaration on Fundamental Principles and Rights at Work, 1998. See also, General Survey, op. cit., para. 296.

32. Convention No. 143, Article 1. See also General Survey, op. cit., paras. 295-297, and the United Nations International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, 1990. The Constitutions of some countries guarantee respect for the basic freedoms and human rights of all persons within their territory. See e.g., the Constitution of the United Kingdom (Gibraltar).

33. Convention No. 143, Article 9, paragraph 1.

34. Ibid., Article 9, paragraph 2.

35. Ibid., Article 9, paragraph 3. See also General Survey, op. cit., para. 310, which states that in cases where the migrant is in an illegal situation for reasons which cannot be attributed to him or her, the costs of return to the country of origin should not be borne by the worker. However, in cases where the worker is in an illegal situation for reasons attributable to her/him, only the costs of expulsion may not fall on the migrant.

36. Migrant Workers' Recommendation, 1975 (No. 151).

37. Convention No. 97, Annex II, Articles 9 and 10.

38. Recommendation No. 151.

39. Ibid.

40. W.-R. Böhning, op. cit., 1998.

41. See, e.g., the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime, 2000.

42. Unless otherwise indicated, these recommendations are taken from Convention No. 97, Article 6. See also Convention No. 143, Part II; Recommendation No. 151, Part I, Paragraph 2; Recommendation No. 100, Part IV, Paragraphs 20–56. See also the United Nations International Convention on the Protection of the Rights of All Migrant Workers and their Families, 1990.

43. Recommendation No. 100, Part IV, Paragraphs 33 and 34.

44. Convention No. 143, Articles 3(b) and 6(1), and the United Nations Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, Article 1.

45. General Survey, op. cit., para 342.

46. Convention No. 143, Article 5.

47. Global Alliance Against Traffic in Women, Human Rights Standards for the Treatment of Trafficked Persons.

48. See, e.g., the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime, 2000.

49. See, e.g., ibid.

50. Convention No. 143, Articles 2, 4, and 7.

51. Ibid., Article 4.

52. General Survey, op. cit., para. 160.

53. Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, Art. 17(1).

54. Ibid., Article 17(2).

55. Ibid., Article 17(3). This provision relates specifically to trafficking for purposes of prostitution. However, it can be applied to all types of trafficking.

56. Ibid., Article 17(4).

56. Convention No. 143, Part II, Article 12(c).

58. Recommendation No. 151, Paragraph 4(b).

59. Ibid., Paragraph 22(3).

60. Global Report, op. cit., Chapter 5, and A. Blackett, Making domestic work visible: The case for specific regulation, Labour Law and Labour Relations Branch (ILO, Geneva, 1998), p.5.

61. Forty-Hour Week Convention, 1935 (No. 47), Article 1.

62. Reduction of Hours of Work Recommendation, 1962 (No. 116), Part II, Paragraph 11.

63. A. Blackett, op. cit., p. 18.

64. Ibid.

65. Ibid. In her text, the author shows three examples of good legislation on this matter.

66. Minimum Wages Fixing Convention, 1970 (No. 131); Recommendation No. 135.

67. Termination of Employment Convention, 1982 (No. 158), Article 4.   

68. Ibid., Article 11.

69. Lin Lean Lim, op. cit., p. 3. Some have argued that all forms of prostitution involve coercion and that there is never a free choice to enter this type of work. See, e.g., Lim, p. 173.

70. Ibid., p. 170, citing the World Congress against the Commercial Exploitation of Children, Draft Declaration and agenda for action, 1996, Stockholm.

71. Convention No. 182, Article 3(b).

72. For a more detailed discussion on how the sexual exploitation of children differs from that of adults, see Lim, op. cit., pp. 173-8.

73. Ibid., pp. 12-3.

74. United Nations Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, Article 1(1).  

75. Ibid., Article 1(2).

76. Ibid., Article 2(1).

77. Ibid., Article 2(2).

78. Ibid., Article 3.

79. Ibid., Article 4.

80. Lin Lean Lim, op. cit., p. 215.

81. Ibid., p. 215.

82. United Nations Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, Article 8.  

83. Convention on the Rights of the Child, Article 35.

84. These suggestions draw on recommendations proposed by Lin Lean Lim, op. cit., pp. 216-7.

85. Worst Forms of Child Labour Recommendation, 1999 (No. 190), Paragraph 12.

86. Lin Lean Lim, op. cit., p. 216.

87. Id.

88. Id.

89. Id.

90. Id.

91. Ibid., p. 193.

92. Ibid, p. 217.

93. Ibid., pp. 23-5, 211-4, 218-22.

94. Ibid., p. 218.

95. Id.

96. Id.

97. Ibid., p. 220. The Convention on the Rights of the Child, Article 39, requires States parties to promote the physical and psychological recovery of child victims of exploitation.

98. Lin Lean Lim, op. cit., p. 221.

99. Id.

100. Ibid., p. 219.

101. Convention No. 29, Art. 25.

102. Ibid., Article 24.

103. Ibid., Article 6.

104. Ibid., Article 15.

105. Ibid., Article 7.

106. Ibid., Article 10.

107. Ibid., Article 11.

108. Ibid., Article 12.

109. Ibid., Article 13.

110. Ibid., Article 19.

111. Human Rights Watch/Asia (1995), p. 68.

112. Ibid., p. 4.

113. Convention No. 29, Article 23.

114. Anti-slavery international (1994), Brazil, p. 145.