Forced Labour

Forced or compulsory labour is any work or service that is exacted from a person under the threat of penalty, and for which that person has not offered himself or herself voluntarily, according to the International Labour Organization (ILO). The notion of “threat of penalty” should be understood broadly. Penalties may comprise sanctions, including imprisonment, the threat or use of physical violence, psychological coercion, restrictions on the freedom of a worker, including preventing them from moving freely outside the work site. There may also be threats to harm a victim’s family, threats to denounce an illegal worker to the authorities, withholding identity documents, or withholding wages to compel a worker to stay in hopes of eventually being paid.

The terms “forced labour” and “modern slavery” are often used interchangeably as they have significant overlap. The key distinction is that modern slavery is generally defined as including forced marriage,[1] which is not addressed in this issue.

Forced labour is a truly global problem. Whilst there is a higher prevalence in the Global South, it is also present in the Global North, particularly amongst migrant and other vulnerable workers. While most global companies will take steps to ensure that they are not directly employing forced labour, they may be linked to such practices through their business relationships, including agency workers, contractors or suppliers.

2022 data from the ILO indicates that:

• 49.6 million people were living in modern slavery in 2021, of which 27.6 million were in forced labour and 22 million in forced marriage.
• Most cases of forced labour (86 per cent) are found in the private sector. Of the 27.6 million people in forced labour, 17.3 million are exploited in the private sector; 6.3 million in forced commercial sexual exploitation, and 3.9 million in forced labour imposed by state.
• Women and girls account for 4.9 million of those in forced commercial sexual exploitation, and for 6 million of those in forced labour in other economic sectors.
• Almost one in eight of all those in forced labour are children (3.3 million). More than half of these children are in commercial sexual exploitation.
• The Asia and the Pacific region has the highest number of people in forced labour (15.1 million) and the Arab States the highest prevalence (5.3 per thousand people).
• Migrant workers are more than three times more likely to be in forced labour than non-migrant adult workers.

The Global Slavery Index has been developed by the Walk Free Foundation, the ILO and the International Organisation for Migration (IOM). Their 2023 report highlights several key trends. The prevalence of modern slavery in high-GDP countries is higher than previously understood. This underscores that even in countries with seemingly strong legislation against modern slavery, such as G20 countries, there continue to be critical gaps in the protection of vulnerable groups.

There has been an increase in the severity and frequency of labour rights violations in key Asian manufacturing hubs over the last few years (Verisk Maplecroft).

Forced labour risks have increased as a result of the COVID-19 pandemic. As millions of workers have been left without an income due to the pandemic, and without any savings or social protection to fall back on, this increases the pool of workers vulnerable to debt bondage and other forms of forced labour (ILO).

Reports of forced labour in the Xinjiang region of China have resulted in multiple countries escalating pressure against the Chinese Government. The US has passed the Uyghur Forced Labour Prevention Act (UFLPA), which creates a rebuttable presumption that all goods made in whole or in part in Xinjiang are made with forced labour and thus denied entry into the US. The EU has also announced a forced labour ban, which applies globally but which is also likely to use risk-based enforcement to target products from Xinjiang. The US, UK, the European Union and Canada have also imposed sanctions on officials in China over human rights abuses against Uyghur and other Muslim minorities. These measures by multiple Governments are likely to have wide-ranging implications for companies across multiple sectors, with cotton, polysilicon, tomatoes all likely to be impacted. Moreover, several key elements required to power the transition to green energy are impacted, with the majority of the world’s solar PV supply chains linked to China in general and Xinjiang in particular. (Also see paragraph 78 of the ILO’s Application of International Labour Standards 2021 report.)

In March 2021, fifty countries have shown their commitment to eradicate modern slavery by ratifying the ILO Forced Labour Protocol (P29). The ratifications have met an initial target set by the 50 for Freedom campaign, led by the ILO, International Trade Union Confederation (ITUC) and the International Organisation of Employers (IOE), which urges Governments to take action on forced labour.

Target 8.7 of the Sustainable Development Goals sets out the ambition to end all forms of forced labour by 2030. Alliance 8.7, a multi-stakeholder partnership created in 2016, seeks to support the achievement of Target 8.7 through encouraging the alignment of global, regional and national efforts, and through sharing knowledge and driving innovation.

Businesses can be impacted by forced labour risks in their operations and supply chains in multiple ways:

• Reputational and brand risk: Campaigns by non-governmental organizations (NGOs), trade unions, consumers and other stakeholders against MNCs can result in reduced sales and brand erosion. This can also hurt employee retention and make a company less attractive to potential employees.
• Financial risk: Consumer boycotts against companies that are alleged or found to have forced labour in their supply chain can result in reduced sales. Divestment, avoidance or increased costs of finance by investors and finance providers (many of which are increasingly applying environmental, social and governance (ESG) criteria to their decision-making) can result in reduced or more expensive access to capital and reduced shareholder value.
• Legal risk: Modern slavery legislation, which may include mandatory due diligence and reporting, increases compliance risks as there may be a risk of significant penalties in the event of failure to meet these obligations. Several European countries and the EU itself have passed or are passing consequential, extra-territorial legislation targeting forced labour in global value chains. This increases the legal risks for offending companies who fail to ensure that their operations and value chains are slavery free. Such failures also carry with them additional financial and operational risks as a result of operational and supply chain disruption.
• Operational risk: Changes to companies’ supply chains made in response to the discovery of forced labour may result in disruption. For example, companies may feel the need to terminate supplier contracts (resulting in potentially higher costs and/or operational disruption) and direct sourcing activities to lower-risk locations. Additionally, internal resources will need to be dedicated to address any allegations, requiring commitment across the management and relevant teams. This is particularly the case if the company has not established proper due diligence procedures and systems.

Forced labour has the potential to impact a range of human rights,[2] including but not limited to:

• Right to freedom from forced labour (UDHR, Article 4; ICCPR, Article 8): Freedom from forced labour is a human right in and of itself. Freedom from forced or compulsory labour is a cornerstone of the ILO’s “decent work” concept and one of the most basic human rights. The prohibition of the use of forced or compulsory labour in all its forms is considered now as a peremptory norm of international law on human rights; this means that it is of an absolutely binding nature from which no exception is permitted.
• Right to work (UDHR, Article 23; ICESCR, Article 6): The right to work is considered a fundamental right. One of its essential components is the right to free choice of employment. This implies the right of everyone not to be forced to engage in employment or to be abused or exploited in that employment.
• Right not to be subjected to torture, cruel, inhuman and/or degrading treatment or punishment (ICCPR, Article 7): By its very nature, forced labour often involves the use of degrading treatment and the “menace of penalty” forcing people to work. For example, security forces may be employed to use abusive practices or threats to coerce people into undertaking forced labour.
• Rights of protection of the child (ICESR Article 10): Forced labour may involve entire families working to pay off a debt, or families of migrant workers denied remittances as a result of excessive recruitment fees or wage theft. Children may also be trafficked for the purpose of forced labour.
• Right to enjoy just and favourable conditions of work (UDHR, Article 23; ICESCR, Article 7): People working under conditions of forced labour regularly work excessive hours, often for little or no pay. They are also often forced to work under dangerous and unsafe conditions. Due to the very circumstances in which they are employed, their working conditions are unlikely to be just or favourable.
• Right to an adequate standard of living (including access to adequate food, clothing, housing and water) (ICESCR, Article 11): Workers who are victims of forced labour often encounter limited access to adequate food, clothing, housing and living conditions (including water and sanitation). This is particularly the case as workers are often kept in closed facilities subject to the control of the owners of the facility who may show little regard for their well-being.
• Right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay (UDHR, Article 24): Given the nature of forced labour, workers who are coerced into employment are often denied access to rest and leisure.