Will the new ILO Protocol and Recommendation make a difference?
Policy Advisor and Project Co-ordinator
International Trade Union Confederation
At the International Labour Conference in June this year, governments, workers and employers adopted a new Protocol against forced labour, supplemented by a Recommendation, which has been hailed around the world as a landmark treaty to protect human rights. This recent development in the treaty-making is worth noting, since some of other key multilateral negotiations appear stalled.
The new Protocol confirms that obligations existing under Convention No. 29 (1930) to supress forced or compulsory labour, including if as an end result of human trafficking, include obligation of prevention, protection of victims, providing with access to appropriate and effective remedies, such as compensation, and effective sanctioning of perpetrators (Articles 1-4). The accompanying Recommendation No. 203 on supplementary measures for the effective suppression of forced or compulsory labour provides further normative guidance on how to give effect to obligations under Convention No. 29.
How does this relate to addressing demand of employers and recruiters for cheap, exploitative labour?
The Protocol added a badly needed labour dimension to the way in which such demand is dealt with at the national and international levels. For example, the EU Employers Sanctions Directive attempted to address demand for exploitative migrant labour by establishing minimum standards across the EU on sanctions and measures against employers of irregular migrant workers. The Directive also made a break-through in recognizing some fundamental rights of irregular migrants, such as the right to pursue unpaid wages. But the Directive focuses exclusively on remuneration issues.
By contrast, the ILO Protocol takes a broader approach to addressing demand for cheap labour. Article 2(f) requires addressing root causes and factors that heighten the risk of forced or compulsory labour. Article 2(d) points at the obligation to protect against abusive and fraudulent recruitment and placement processes – particularly protection for migrant workers. This obligation is further explained in Paragraph 8 of the Recommendation No. 203 – States should take measures to eliminate abuses and fraudulent practices by labour recruiters and employment agencies, such as eliminating the charging of recruitment fees to workers, requiring transparent contracts that clearly explain terms of employment and conditions of work, as well as establishing adequate and accessible complaint mechanisms, imposing adequate penalties and regulating or licencing these services.
Further, demand should be addressed by involvement of labour enforcement actors in actions against forced labour. Paragraph 1(b) of the Recommendation follows Article 1(2) of the Protocol in calling for the involvement of labour actors in order to bring in other bodies that the police and immigration authorities that often are exclusively responsible for dealing with trafficking. Accordingly, obligation of proper identification of victims (Article 3 of the Protocol) includes efforts to developing indicators of forced labour and labour trafficking for the use of both labour as well as criminal law enforcement (Paragraphs 2 and 13 of the Recommendation).
Addressing demand by requiring due diligence of business
Also, the Article 2(e) of the Protocol requires States to support due diligence in the public and private sector. Following explanation given in Paragraph 4(j) of the Recommendation, in giving effect to their obligations under the Convention to suppress forced or compulsory labour, Members should provide guidance and support to employers and businesses to identify, prevent, mitigate and account for how they address the risks of forced or compulsory labour in their operations or in products, services or operations to which they may be directly linked. Accordingly, the ILO standard has provided with the first reflection of the language of the 2nd pillar of the Ruggie’s principles - UN Guiding Principles on Business and Human Rights (Protect-Respect-Remedy) - by the norm of international law. Accordingly, the Protocol establishes the obligation to ensure access to appropriate and effective remedies, such as compensation, to victims of forced labour and trafficking (Article 4), reflecting of the 3rd pillar of the Principles.
Protection and remedies for all victims
What is remarkable is that States have pledged to extend rights to all victims, regardless of immigration status or presence in the national territory (Article 4.1 of the Protocol and Paragraphs 11 and 12 of the Recommendation). The authorities should be entitled not to prosecute victims for unlawful acts they may have committed as a consequence of being in forced labour, such as violation of laws on prostitution or immigration (Article 4.2 of the Protocol and Paragraph 7 of the Recommendation). This is a positive development from the perspective of the protection of human rights of workers, considering that movements to establish legal protections that apply to undocumented migrants at the international level have not been successful so far, best exemplified by a non-binding character of protection provisions in the Palermo Protocol or low level of ratifications of the UN Convention on Migrant Workers and their Families (1990) as well as ILO Migrant Rights Conventions Nos. 97 (1947) and 143 (173).
What are the next steps?
To be legally binding – the new Protocol needs to come into force (fortunately, only two ratifications are required). To be legally binding on a State – the Protocol needs to be ratified by a State that is also a party to the Convention No. 29. However, based on the ILO Constitution, even non-ratified ILO instruments impose obligations. Non-ratifying States are asked to periodically report on non-ratified Conventions and on Recommendations - on the status of the relevant rights and principles within their borders, noting impediments to ratification (Article 19 of the ILO Constitution). In case of core instruments – ILO fundamental Conventions (such as the Convention No. 29) additional obligations have been accepted, based on the Declaration on Fundamental Principles and Rights at Work. Adopted in 1998, the Declaration commits Member States to respect and promote principles and rights in four categories, on basis of the ILO Constitution, whether or not they have ratified the relevant Conventions, and regardless of the level of economic development.
Obviously, much will depend on whether countries ratify the Protocol and whether policymakers and other stakeholders will take the new standards on board. International Trade Union Confederation, a global representation of the trade union movement from 151 countries and territories worldwide, is making the ratification campaign for the Protocol a priority. Importantly, it is not only States, but also workers’ and employers’ organizations that share the responsibility for supervising the implementation of the Protocol. Article 6 stipulates that the measures taken to apply the provisions of the Protocol shall be determined by national laws or regulation or by competent authority, after consultation with the organizations of employers and workers concerned. In present times, where forced labour occurs overwhelmingly (90%) at the hands of private actors, a global grassroots movement against modern slavery is badly needed.
The views expressed in this blog post do not necessarily express the views of the DemandAT project consortium as whole.