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Definition & Legal Instruments
The term “forced labour” is defined in the ILO Forced Labour Convention, 1930 (No. 29) as any work or service that is exacted from any person under the menace or threat of a penalty, and which the person has not entered into of their own free will. Three elements of forced or compulsory labour are considered below:
- Work or service should be distinguished from “education or training”. The principle of compulsory education is recognized in various international instruments as a means of securing the right to education. This includes a compulsory scheme of vocational training, which does not constitute forced labour. With regards to work or service, this includes all types of work and employment, regardless of the industry or sector within which it is found, including the informal sector.
- Threat of penalty should be understood in a broad sense: it covers penal sanctions, as well as various forms of coercion, such as arrest or jail, refusal to pay wages or forbidding a worker from travelling freely. Threats of retaliation can take different forms, including the threat or use of violence, physical obligations or even death threats, to psychological threats, such as denouncing an illegal worker to the authorities. The penalty might also take the form of a loss of rights or privileges.
- Work or service is undertaken involuntarily. Involuntariness refers to the notion of consent, which is the key element. Free and informed consent must exist throughout the labour relationship and the worker must be able to withdraw their consent at any time. Involuntary work involves external and indirect pressures, such as partially withholding a worker’s salary as a condition of loan repayment, the absence of wages or remuneration, or the seizure of the worker’s identity documents. Workers may also find themselves in the situation of forced labour because of fraudulent, deceptive employment practices, where workers (often migrant) are hired for a specific job and terms (voluntarily) but are then forced to do a different job, under exploitative conditions (involuntarily).
The hidden nature of forced labour and its many forms can add to the difficulty that companies face in addressing this issue. Forced labour can take several different forms, including the following:
- Debt bondage occurs where a borrower uses the promise of future labour (their own and possibly their family) as surety to secure a loan. Debts can arise from several sources, including debt to pay for weddings, secure a loan for a house, cover costs of migrant workers needing to travel to secure a job elsewhere within the country or abroad, etc. Debt bondage also occurs when workers’ wages are forcibly channelled into paying for work-related goods and services, such as transportation, food and shelter. As a result, workers are “locked” into accumulating debt by their employers and are forbidden from leaving the workplace.
- Compulsory work occurs where people are legally required, often by the Government, to work on certain projects, and it is prohibited under the ILO Convention No. 105. This includes the use of forced labour as a punishment for the expression of political views, for the purposes of economic development, as a means of labour discipline, as a punishment for participation in strikes and as a means of racial, religious or other discrimination.
- Prison labour constitutes forced labour when undertaken for private entities without the free and informed consent of the prisoner and when the conditions of work do not approximate those of a free labour relationship. For instance, prisoners engaging in such work receive little or no compensation or are unable to withdraw their consent at any time. ILO Convention No. 105 prohibits the use of compulsory prison labour. Individuals in this category may include prisoners of conscience or prisoners being “re-educated” to manufacture garments or components for electronic goods.
- Trafficking occurs where individuals are forced or tricked into going somewhere, often to other countries, by exploitative recruiters or companies with the promise of work. Once out of the country, they may either find themselves working in a completely different job or with altered contract terms.
According to the ILO, indicators that can help identify persons who are possibly trapped in a forced labour situation and who may require urgent assistance include:
- Abuse of vulnerability
- Restriction of movement
- Physical and sexual violence
- Intimidation and threats
- Retention of identity documents
- Withholding of wages
- Debt bondage
- Abusive working and living conditions
- Excessive overtime
The presence of a single indicator in a given situation may in some cases imply the existence of forced labour. However, in other cases, businesses may need to look for several indicators which, taken together, point to a forced labour case.
The terms “modern slavery” and “forced labour” are often used interchangeably and have considerable overlap. The key distinction is that modern slavery is generally defined as including forced marriage, which is not addressed in this issue. Furthermore, modern slavery is not defined in international law. It generally refers to a wider range of situations of severe exploitation where a person is heavily dependent on another and cannot escape because of mechanisms of control and coercion, violence, deception or abuse of power.
Two ILO conventions and one protocol form the international legal framework on the prohibition of forced labour and are used by most countries as guidance to their own national laws. These instruments define the conditions and circumstances that amount to forced labour and serve as a point of reference for national legislation that conforms to international standards.
- ILO Forced Labour Convention, No. 29 (1930): The convention sets the general obligation to suppress the use of forced labour in all its forms and provides the definition of forced labour.
- ILO Convention on the Abolition of Forced Labour, No. 105 (1957): The convention prohibits certain forms of forced labour that were allowed under the ILO Convention No. 29, including punishment for strikes and holding particular political views.
- ILO Protocol of 2014 to the Forced Labour Convention, No. 29 (2014): The Protocol supplements Convention No. 29 to address implementation gaps to effectively eradicate forced labour.
In March 2021, the 50 for Freedom campaign, led by the ILO, ITUC and IOE, met its goal of having 50 countries ratify the Protocol. The Protocol encourages Governments to support due diligence by public and private sectors to prevent forced labour. The Protocol is of particular relevance for businesses since it contains specific provisions referring to enterprises and employers. For example, Article 2 on prevention measures refers to:
- “Educating and informing employers, in order to prevent their becoming involved in forced or compulsory labour practices”
- “Supporting due diligence by both the public and private sectors to prevent and respond to risks of forced or compulsory labour”
ILO instruments on forced labour are almost universally ratified. The ILO supervisory bodies, especially the Committee of Experts on the Application of Conventions and Recommendations (CEACR) and the Committee on the Application of Standards (CAS), regularly assess the manner in which ratifying States implement their obligations under these conventions.
However, ratification does not guarantee that these countries are free from forced labour, as the existence and enforcement of national laws to address forced labour varies. In due diligence, it is, therefore, important to check the ratification status for particular countries as an indicator of potentially more limited state protections against forced labour.
The fight against forced labour is included as one of the Ten Principles of the UN Global Compact: “Principle 4: Businesses should uphold the elimination of all forms of forced and compulsory labour”. The four labour principles of the UN Global Compact are derived from the ILO Declaration on Fundamental Principles and Rights at Work.
These fundamental principles and rights at work have been affirmed and developed in the form of specific rights and obligations in International Labour Conventions and Recommendations and cover issues related to child labour, discrimination at work, forced labour and freedom of association and the right to collective bargaining.
Member States of the ILO have an obligation to promote the effective abolition of forced labour, even if they have not ratified the Conventions in question.
Gaps in National Laws
A 2018 ILO review found that a total of 135 countries have laws that define, criminalize and assign penalties for forced labour, but in the remaining countries, the issue of forced labour is covered only partially or not at all. In addition, where laws against forced labour exist, they have not kept pace with recent mutations of forced labour linked to trafficking, recruitment debt and other developments. Although national laws defining and criminalizing forced labour are essential, many countries with advanced forced labour laws still have forced labour issues.
Other Legal Instruments
The UN Guiding Principles on Business and Human Rights (UNGPs) set the global standard regarding the responsibility of business to respect human rights in their operations and across their value chains. The Guiding Principles call upon States to consider a smart mix of measures — national and international, mandatory and voluntary — to foster business respect for human rights.
Companies are increasingly subject to non-financial reporting obligations in the jurisdictions in which they operate, which often include disclosures on their performance. There are several high-profile examples of national legislation that specifically mandate human rights-related reporting and other positive legal duties, including the United Kingdom Modern Slavery Act 2015, Australian Modern Slavery Act 2018, the California Transparency in Supply Chains Act, the French Corporate Duty of Vigilance Law and the German Act on Corporate Due Diligence Obligations in Supply Chains. Also, the European Commission is working on legislation to make human rights and environmental due diligence mandatory for companies. These mandatory disclosure laws require companies to publicly communicate their efforts to address actual and potential human rights impacts, including forced labour. Failure to comply with these obligations leads to real legal risk for companies.