A group of inmates work in a vegetable garden at Arizona state prison. Jeff Robbins/AP/Press Association Images. All rights reserved.

The 21st century has witnessed the fervour of neo-abolitionism hitting the mainstream. The fight against human trafficking and modern slavery that now pervades the airwaves and social media appears to have provided cover for governments to quietly solidify and expand their right to use forced labour.

How could this be? Hasn’t slavery been abolished? The first part of the answer lies in the distinction drawn between forced labour and slavery in national and international law. The International Labour Organisation’s (ILO) 1930 Forced Labour Convention established the legal definition of forced labour as “all work or services which is exacted from any person under the menace of a penalty and for which the said person has not offered himself voluntarily”. Slavery, by contrast revolves around control; the type of control that people have over the things they own.  In law, this is expressed as “the powers attaching to the right of ownership”.

Although forced or compulsory labour is often equated with slavery, in law they are fundamentally different – most significantly, because slavery has been abolished while forced labour is not. Rather, it continues to be regulated. Put differently, while slavery is outlawed in absolute terms, forced labour remains allowed though controlled by law. In recent years, abolitionist movements, international organisations, and others have focused more and more attention on the use of forced labour by businesses, while the use of forced labour by governments (such as in prison labour or mandatory conscription) has gone relatively unnoticed. In this context, the regulations regarding permitted use of forced labour have quietly been relaxed, affording states expanded powers to impose forced labour upon those residing in their territory.

The abolition of slavery and legalisation of forced labour

The legal regime that permits certain uses of forced labour today emerged from the colonial context in which it was originally conceived and developed. While enslavement as a means of compelling labour was abolished, the use of colonial forced labour was seen as fundamental to the European ‘civilising mission’ of imposing modernity through the exploitation of the inhabitants of conquered lands.

With the headlong scramble for Africa of the late nineteenth century and the horrors of the ghost of King Leopold’s private venture in the Congo Free State still fresh in their minds, members of the League of Nations sought in the 1920s to take forced labour out of the private realm and limit it exclusively to use for public purposes. This approach was given its fullest expression in the 1930 Forced Labour Convention, which regulated such labour with the understanding that countries would ultimately end all forced labour within the shortest possible time.

Yet, during the drafting of that instrument, the body representing workers before the ILO walked away from the negotiations in objection to its substance, which instead of requiring abolition in absolute terms, tended “towards a kind of codification of forced labour”. Indeed, the bulk of the convention focused on regulating the use of forced labour for public purposes, setting age and gender restrictions, determining maximum days per year, wages and hours to be worked, etc.

But what few recognise is that the convention also allowed certain types of forced labour. It did so by permitting governments to compel certain types of forced labour by excluding them from the protection of law. Thus, compelled military service, penal labour, emergency assistance, civic obligations, and communal services are all denied the legal protection of being considered forced labour, despite being work which is both involuntary and exacted under the menace of penalty.

ILO as the protector of workers’ rights?

Now the ILO, which considers itself at the vanguard of the protection of the rights of workers, has slowly allowed the scope of forced labour to expand through the reach of those exceptions. A general principle of law, which carries more weight in human rights law, requires that exceptions found in treaties be construed in the most restrictive terms, to maximise individuals’ protection. In accordance with this principle, the ILO should interpret exceptions to forced labour in the narrowest possible terms. Yet, the ILO Committee of Experts on the Application of the Conventions and Recommendations, which provides guidance to countries regarding their obligations under ILO instruments, has interpreted these exceptions in broad terms, thus increasingly their scope of application.

To begin, this Committee of Experts has expanded the remit of forced labour where military service is concerned, despite such labour being allowed only “for work of a purely military character”. The committee has read into that exception that countries can compel conscientious objectors to labour as ‘alternative service’. With regard to penal labour, up until 2007 the committee had ruled that forced penal labour was not allowed against those imprisoned for expressing views in opposition to the established political, social, or economic order. Yet it has backtracked to allow forced labour for ‘terrorists’, that is: those who espouse views though violence. These interpretations both solidify and expand the exceptions allowing governments to impose forced labour despite legal obligations to narrow the field of application with an aim to the eventual elimination of all forced labour.

Opening session of the 103rd Session of the International Labour Conference. International Labor Organisation/Flickr. (CC 2.0 by-nc-nd)

If the ILO was truly at the forefront of workers’ rights, it could have sought to capture the neo-abolitionist Zeitgeist and mobilised efforts to end all forced labour. This would have been consistent with the ILO’s mission to uphold workers’ rights, as well as calls to end forced labour put forward by social movements. Instead, in 2014, the ILO rushed head-long into solidifying the right of countries to use forced labour – putting any attempts to end all forced labour beyond the reach of this generation.

They achieved this by pushing through the 2014 Protocol to the 1930 Forced Labour Convention. On the face of it, the protocol provides added protection for those covered by the colonial instrument. But it also institutionalises the blind-spot with regard to the right of countries to force labour by maintaining the exceptions found in the 1930 Convention.

This blind-spot allows the ILO to claim that it has succeeded in eradicating much state-sanctioned forced labour and that it must now focus on private actors as the culprits. Thus, the ILO estimates of 2012 have 18.7 million of 20.9 million victims of forced labour being exploited in the private economy. The rest “work in state-imposed forms of forced labour, for example in prisons under conditions which violate ILO standards”. As for those conscripts and inmates who are legally held in forced labour – and thus do not violated ILO standards –the ILO falls silent. Genevieve LeBaron and Alex Lichtenstein have both written on this site about the expanding use of prisoners for all manner of production specific to the United States. As for the unaccounted forced labourers, no statistics are available, but a simple consideration of mandatory conscription in Egypt, Iran, and Russia puts the numbers easily into the millions.

The European Court of Human Rights?

The European Court of Human Rights is the only international court that allows individuals to bring claims of human rights violations directly to its door. While the European Court protects people within the jurisdiction of the Council of Europe, its pronouncements often have far-reaching effects, finding voice in decisions of domestic courts all over the world. Yet, the ILO has not given this court any reason to deviate from its established case law that the exceptions allowing states to force labour are “grounded on the governing ideas of the general interest, social solidarity and what is normal in the ordinary course of affairs”. Thus, the court endorses the normalcy of state enforced forced labour. Three cheers for the European Court of Human Rights!

The court recently confirmed its position in its 6 February 2016 judgement in Meier v Switzerland. Here, the European Court of Human rights considered it normal to subject a person to forced labour who, were he not in prison, could retire. In doing so, court accepted the Swiss argument that such involuntary labour reduces the harmful effects of detention and thus one can never retire from forced labour. Another cheer for the European Court!

For the foreseeable future, the rhetoric and reality of forced labour appear to be rowing in different directions: states are very much against forced labour, as long as it does not apply to them. For their part, the International Labour Organisation and the European Court of Human Rights remain handmaidens to a country’s right to utilise forced labour, this despite their avowed mandate to protect the rights of workers and human rights.