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ISSUE PAPER 2 • FEBRUARY 2011

SLAVERY, FORCED LABOR, BONDAGE, AND ISSUE PAPER 1 • OCTOBER 2010 TRAFFICKING : FROM CONCEPTIONAL CONFUSION TO TARGET ED SOLUTIONS Ann Jordan Program on and Forced Labor Center for Human & Humanitarian

INTRODUCTION between forced labor, , and human trafficking. The terms are used Human trafficking has grabbed the headlines interchangeably and sometimes they are around the world but what is human trafficking collectively called ‘a new form of slavery.’ This and what is its relationship to forced labor, debt confusion has had negative and sometimes bondage and slavery? Has the focus on human harmful consequences on the ground. trafficking and particularly trafficking into forced , undermined or Third, the Issue Paper concludes with a call for marginalized efforts to address forced labor, conceptual clarity, verifiable data and targeted debt bondage and slavery? The answer to the responses, domestic legislation and first question is that, although they are enforcement of international standards, better interconnected, they are not the same in labor and , use of documented or in practice, which has led to successes and responsible . much confusion and misinformation. The BACKGROUND answer to the second question is yes, global mobilization to counter ‘trafficking’ has diverted The International Labor (ILO) attention away from the great number of claims there are at least 12.3 million in who are in forced labor, debt bondage forced labor, debt bondage and slavery, and slavery but who were not trafficked into including people who have been trafficked into these situations. So, the purpose of this paper is these conditions (ILO 2005, 10). To gain a bit of to provide some conceptual clarity to the perspective on the scope of the problem, 12.3 current confused and to issue a call for million is about equal to the population of governments and civil society to address the or Senegal (UNDESA, Annex, p. 2). A suffered by victims of all of definitive calculation on the global scope of the these . problem will never be possible, but the ILO number is the best estimate available to date as First, the Paper discusses the international law it is the only estimate that is based on a instruments on forced labor, debt bondage, systematic (however imperfect) slavery and trafficking to demonstrate that 1 that can be checked and replicated. these four abuses are not the same, although they all contain elements of forced labor. 1 Second, the Paper addresses the pervasive lack “[T]he ILO methodology relies on a particular of conceptual clarity about the relationship statistical method described as double sampling of reported cases of . This sampling

SLAVERY, FORCED LABOR, DEBT BONDAGE, AND HUMAN TRAFFICKING ISSUE PAPER 2 • FEBRUARY

Yet, surprisingly, the outrage that one would for days, weeks, or years – until they expect to exist in the face of such a horrific are freed or die. violation of fundamental rights is not present. Forced labor, debt bondage, slavery and human Global outrage is focused almost exclusively on trafficking have an enormous financial cost for 20% of the 12.3 million – on the 2.45 people victims and society. The ILO estimates that who the ILO estimates are trafficked into forced 2 victims lose approximately U.S. $21 billion a labor, debt bondage and perhaps slavery (ILO year in unpaid earnings (ILO 2009(a), 32). It also 2005, 14). The horrors endured by the other estimates that criminals earn $32 billion a year 80% - who were not trafficked - are rarely from the forced labor of trafficked persons mentioned in public debates or political alone (ILO 2005, 55). These lost billions discourse and, surprisingly, not even in contribute to the of the workers, their discussions about trafficking despite the and communities. These are not just that trafficking always involves some form of losses; they are losses that forced labor, debt bondage and/or slavery. contribute to poverty and the harmful The costs of these abuses to the 12.3 million consequences of poverty. victims are extensive and shocking. As well as LAVERY forced to , victims will have S restrictions placed on their of Slavery is the of UN conventions and is movement, may be beaten, killed, denied defined as: access to care, fed a starvation diet, “the or condition of a over deprived of an and/or forced to live whom any or all of the powers attaching in filthy and dangerous conditions. Many also to the right of are exercised” face the possibility of . They often (UN Slavery , . 1(1)). suffer from that could have been prevented with adequate , sleep and Slavery is much more than forced labor. All access to . For some victims, the slavery involves forced labor but not all forced amounts to inhuman and degrading labor involves slavery. The international treatment and . In sum, victims are prohibition on slavery is absolute; there are no deprived of all of their basic human rights and exceptions (as there are for forced labor). Slavery is an in which the slave master’s of the rights of ownership destroys the human personality - the person as procedure, called “capture–recapture” in the a bearer of rights - and reduces the slave to statistical literature, was originally designed for chattel, without rights. estimating the abundance of wildlife, but is now also being applied to many types of elusive human Slavery is a complete system of ownership. It is populations, including numbers of victims of a social institution in which the community crimes. In its simplest form, the method consists of recognizes slaves as a separate category of drawing two independent lists (capture and recapture), each representing a random sample of the without rights and as legally inferior to population to be estimated. The number of persons in non-slaves. Slaves are born as slaves; they do each of the two lists is then counted, as well as the not become slaves because the status of slavery number of persons found in both lists. The resulting is inherited at birth. Slaves have no expectation three numbers provide the basis for estimating the of freedom, although this is changing as local size of the target population as a whole” (ILO 2005, NGOs become more active in raising awareness 11). 2 There is no available on cases of of the illegality of slavery and the fact that all trafficking people into slavery, as defined in human beings are born with inalienable human international law. rights.

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SLAVERY, FORCED LABOR, DEBT BONDAGE, AND HUMAN TRAFFICKING ISSUE PAPER 2 • FEBRUARY

illiteracy, limited information, combined with Slavery is a permanent situation. The slave master has complete control over all aspects of the separation of families, and methods of the life of the slave including who a slave control used by masters that include the use of marries, what the slave eats and wears, when have resulted in a deep–rooted the slave sleeps, whether the slave is educated acceptance of their inherited slavery status. In or provided medical treatment, and whether addition, there is resistance from masters to the slave can practice religion. Traditionally, a change this way of life. Consequently, de facto slave master can sell, exchange or lend or slavery in continues to be a slow, slaves to anyone with impunity. Notions invisible process which results in the “social of ownership are complete. Thus, slavery ” of many thousands of women and men” involves much more than simple control over (UN Special Rapporteur, 1-2). In January 2011, another person. human rights activists were prosecuted for demonstrating in Mauritania over the failure of Slavery is now prohibited around the world, authorities to investigate and prosecute except in . Nonetheless, the practice – allegations of the enslavement and exploitation though illegal – of slavery continues to exist in of two young girls (ASI 2011). several countries where governments choose to ignore its presence. For example, although Only Mali has failed to enact a law forbidding Sudan outlawed slavery, it persists (Human slavery. Anti-Slavery International relates the Rights Watch 2002). recent case of Iddar who "[l]ike his before him, … was born a slave, a status It persists also in , which abolished slavery ascribed to him at birth, and grew up under the in 1960 and made it a until 2003; Anti- total control of a master who exacted labour Slavery International estimates that at least from him for no " (IRIN 2008). The 43,000 people remain enslaved (The Guardian article goes on to observe that “[i]t is not clear 2008). Hadijatou Mani Koraou was born into an what the state could do in cases such as Iddar's, established slave class and was inherited, sold, as Mali has no law formally forbidding slavery. made to work without pay and was sexually Although Mali's constitution states all people abused. This lasted for nine years. The 24-year- are equal, and the country has signed up to the old former slave sued the government and won. major international conventions banning In 2008, the Community Court of of the slavery, including the UN supplementary Economic Community of West convention on abolishing slavery (1956)…” (IRIN (Community Court) found Niger in breach of its 2008). own laws and international to protect citizens from slavery and awarded Other practices may evolve to something similar damages to Koraou (Hadijatou Mani Koraou to slavery. International law recognizes that 2008). Whether this decision leads to true forced labor can develop “into conditions freedom for Niger’s slaves is yet unclear. analogous to slavery” (UN Slavery Convention, art. 5). The international community also Mauritania criminalized slavery in 2007 (ASI adopted the UN Supplementary Convention on 2009) but slavery continues. The UN Special the Abolition of Slavery, the Slave , and Rapporteur on Contemporary Forms of Slavery, and Practices Similar to Slavery in following a 2009 mission to Mauritania, stated order to address practices that are not slavery that she “met with victims of slavery who had but are similarly heinous offenses. This been utterly deprived of their basic human Convention includes, for example, debt rights. These victims had recently fled from their bondage and forced as “practices masters and reported that they had left similar to slavery” (UN Supplementary members behind. The absence of alternative Convention, art. 1). livelihoods and protection from high levels of

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SLAVERY, FORCED LABOR, DEBT BONDAGE, AND HUMAN TRAFFICKING ISSUE PAPER 2 • FEBRUARY

5 6 FORCED LABOR rare today, with , and North Korea7 being the exceptions. also The international instrument addressing forced continues to use forced labor in its (U.S. labor is within the ILO, which is a specialized 3 State Department 2009(d); ILO 2005, 27). And, of the UN. The ILO Forced Labour some questions have been raised about the use Convention No. 29 contains the following of labor elsewhere when the definition: ‘voluntariness’ of prison labor is questioned as, [F]orced or compulsory labour shall mean for example, in the U.S. (Blustein 1997; Pelaez all work or which is exacted from 2008). any person under the menace of any A person is typically a victim of forced labor for penalty and for which the said person has not offered himself voluntarily (ILO a limited period of , as forced labor is not a 4 permanent condition. The employer/enforcer Convention No. 29, art. 2.1) relies on or the threat of violence to A menace of penalty includes threats of physical coerce labor and almost always the violence against a worker or relatives, physical worker’s documents so (s)he cannot leave. The confinement and of rights (ILO 2005, 5). employer/enforcer does not exercise the rights The Convention’s prohibition on forced labor is of ownership of the worker or the worker’s not absolute (whereas the prohibition on children. Nonetheless, forced labor situations slavery is absolute) because certain forms of can be extremely violent and deadly. forced labor are permitted for (a) “We were beat frequently by the Thai service, (b) when it is part of the “normal civic crew, on the back of the head and across obligations of the citizens,” (c) labor the back. The captain had a gun. On performed for a public authority, (d) when shore [on Sarawak] we saw a Thai captain necessary in “cases of emergency” and (e) decapitate a Vietnamese fisherman, and “ communal services” by members of the another Thai captain decapitate a Thai community for the community (ILO Convention fisherman.” - 19-year-old victim from No. 29, art. 2.2). Banteay Meanchey, (UNIAP 2009, 5). A later ILO Convention also prohibits the use of forced labor for political and economic Forced labor often occurs when people are told purposes or as a means of labor discipline, or they will have one of working conditions and for (ILO Convention then are forced to work under completely No. 105, art. 1). It is important to note, different conditions for little or no pay. If however, that the two Conventions do not prohibit the use of prison labor; they only place 5 Burmese (Myanmar) “[m]ilitary and restrictions on its use. Historically, governments officials remained directly involved in forced labor have used forced labor for public works projects and the unlawful of child soldiers.... The like road building. military forcibly recruited thousands of children and to serve as civilian and uniformed Government sanctioned forced labor that does soldiers” (U.S. State Department 2009(a); see also not fall into one of the above categories is quite ILO 2005, 25-26). 6 In Uzbekistan, there is reportedly “government- compelled forced labor in harvesting” (U.S. 3 There is no UN convention on forced labor but the State Department 2009(b)); see also ILRF Cotton UN Covenant on Civil and Political Rights prohibits Campaign; ILO 2005, 25). forms of ‘forced labour’ (UN ICCPR, art. 8.3). 7 In North , “sentences at forced labor camps, 4 For case law on the meaning of forced labor, see was a common punishment” (U.S. State Department ILO 2009(b). 2009(c)).

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SLAVERY, FORCED LABOR, DEBT BONDAGE, AND HUMAN TRAFFICKING ISSUE PAPER 2 • FEBRUARY

people are subjected to physical and No. 138) and the worst forms of child labor (ILO psychological violence, and have restrictions Convention No. 182). placed on their they are An unknown number of people voluntarily experiencing forced labor. enter into in farms, factories and Two employers “had a of over homes and, once in the door, are unable to 400 men and women in Florida and South leave because the employer/enforcer holds Carolina, harvesting vegetables and citrus. them in forced labor. They may work alongside The workers, mostly indigenous persons who were recruited and brought into and Guatemalans, were forced to work the same situation (i.e., trafficked). But, they 10-12 days, 6 days per week, for as are not defined as ‘trafficked’ and so are not little as $20 per week, under the watch of eligible for the legal protections offered to armed guards. Those who attempted trafficked workers. escape were assaulted, pistol-whipped, and even shot.” – Coalition of Immokalee Many governments are aware of the Workers (CIW 2010).8 of forced labor by or businesses and Children are particularly vulnerable to forced do little to stop it. Officials may have ties to the labor around the world, especially children people using forced labor and turn a blind eye whose families send them away as domestic to the of vulnerable groups. Thus, workers: governments may be passively complicit in the practice. “I worked [there] for three months. Sometimes I did not get any food. I It is important to note that forced labor is not 9 up at 4:30 a.m. and slept at 10 p.m. … the same as worker exploitation. People who [My employer] shouted at me, ‘You are a work in exploitative conditions and receive poor person. You have to know your extremely low but who are not subject to position, you are here to work.’ I was not physical or are not victims allowed to go out of the house. I had not of forced labor. Although they might not want seen my family since I left home. I was to leave the due to lack of alternatives, they not paid any .… [My employer] hit are not prevented by the employer/enforcer me when she was angry. … She laughed from leaving. when I asked that I wanted to see the doctor.” - Asma, child , On a scale of 1 to 10, conditions at the extremes age sixteen, Medan, , December of forced labor and good labor conditions are 13, 2004 ( 2006, 1). clear: Children are treated differently in international 1-2 3-5 6-8 9-10 law and thus advocates should also be aware of Forced Exploitation Some Fair wages, two important ILO Conventions that address labor regarding safety safe minimum ages for child labor (ILO Convention wages and/or or conditions working conditions issues 8 The case of U.S. v. Flores was brought to federal authorities after five years of investigation by escaped workers and Coalition of Immokalee 9 As the ILO observes, “Forced labour cannot be Workers members. Miguel Flores and associate equated simply with low wages or poor working sentenced to 15 years for enslaving migrant conditions. Nor does it cover situations of pure workers, U.S. Department of Justice, economic necessity, as when a worker feels unable to http://www.justice.gov/opa/pr/1997/November97/482 leave a job because of the real or perceived absence cr.htm.html of employment alternatives” (ILO 2005, 5).

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However, at the lower end of the scale, An example of a debt bondage situation is a between 2 and 3, the difference between person who agrees to repay a debt of $5000 for forced labor and exploitative conditions is not fees and travel costs allegedly paid as clear-cut. It is even possible for workers in by the employer/enforcer. The worker agrees to exploitative working conditions to be paid high sew clothes until this ‘debt’ is repaid. The . Ultimately, the decision about where market wage for the work is $50 per day but the to draw the line is up to the courts. employer/enforcer only deducts $20 a day from the debt and also asks the person to do other Often, worker exploitation and forced labor are work and to work longer . The worker is only different by degrees and so eliminating not paid for the extra hours and the of the conditions that permit forced labor to exist also extra labor is not deducted from the debt. contributes to the elimination of the exploitative working conditions. Advocates The employer/enforcer also insists that the need to keep a focus both on forced labor and debt has increased to cover the ‘costs’ for the poor working conditions in order to help worker’s room, food, illness and other protect the of all workers. expenses. The worker is unable to pay off the ever-increasing debt. When the worker dies, EBT BONDAGE OR BONDED LABOR D ( ) the employer/enforcer may add costs. The UN Supplementary Convention on the Invariably, the worker dies before the debt is Abolition of Slavery, the Slave Trade, and paid and so the employer/enforcer insists that Institutions and Practices Similar to Slavery the worker’s children must also work to pay the includes debt bondage as a practice similar to unfair and unreasonable debt. This cycle of debt slavery: bondage may continue through . For this , it is a ‘slavery-like practice’ “Debt bondage, that is to say, the status since it becomes permanent and is inherited by or condition arising from a pledge by a debtor of his personal services or of those the worker’s children. of a person under his control as security Not all people who must repay a debt to their for a debt, if the value of those services employer/enforcers are in debt bondage. If the as reasonably assessed is not applied employer/enforcer deducts the reasonable towards the liquidation of the debt or the value of the labor from the debt, does not length and of those services are artificially increase the amount of the debt and not respectively limited and defined” (UN does not extend the contract length of time, Supplementary Convention, art. then it is not a debt bondage situation. Many 1)(emphasis added). migrants pay for their travel expenses this way Debt bondage is identified as a “practice similar and are able to change employer/enforcers to slavery” but it is not actual slavery. It is a once the debt is paid. Even though it is not debt practice similar to slavery because it involves a bondage, it may still be illegal since it requires a debt that cannot be paid off in a reasonable person to work for a specific employer to pay time. The employer/enforcer who engages in off a debt. this criminal practice artificially inflates the Debt bondage is a common practice in many amount of debt, often by adding exorbitant parts of the world and most people in those , deducting little or from the areas do not consider it to be a crime because debt and increasing the amount of time the so- the practice is part of the and the called debtor must work. The labor is not . While there are no good estimates on necessarily forced by violence or threats; the extent of debt bondage worldwide, the ILO instead it is enforced by the worker’s forced estimates that the majority of the 9.5 million acceptance of the to repay the artificial debt.

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SLAVERY, FORCED LABOR, DEBT BONDAGE, AND HUMAN TRAFFICKING ISSUE PAPER 2 • FEBRUARY

people in forced labor in the -Pacific region It is obvious from the above language that the are in debt bondage (ILO 2005, 1, 13). real abuses involved in trafficking are the crimes of forced labor, slavery and practices similar to Debt bondage continues to exist in Latin slavery (debt bondage and sometimes forced America, Africa and and in almost all labor).10 ‘Trafficking’ prosecutions require a sectors in (ILO 2005, 31-39, 45; conviction of at least one defendant for one of Upadhyaya 2008, 5). In 1976, abolished these crimes. bonded labor (India Act). Nonetheless, a court- appointed Commission found “over 1 million The ‘trafficking’ part of an episode ending in, for bonded labourers spread over 23 districts and example, forced labor is the manipulation and 20 occupations” (ILO 2005, 33). movement by someone of the victim into forced labor. Often the trafficking recruiter did not abolish the practice until 1992 to potential victims and then moves them away (Pakistan Act) but it remains a serious problem from home to a place where they cannot speak across at least ten sectors (ILO 2005, 23, 35-37). the local language and have no papers or In one sector, brick kiln workers are unable to friends. The trafficker then delivers the pay off their debt because they have to borrow unsuspecting person to another trafficker continually from the kiln owners for necessities, (employer) who profits from the forced labor. such as medicine. Abdul Sadiq, whose father did the same work, explained: If the potential adult victim is never placed in “You try to repay it, but the debt stays forced labor, slavery or debt bondage (or with you, sometimes for your whole life. similarly prohibited involuntary situation), then It’s like a pair of invisible handcuffs” there is no trafficking - only , (Constable 2009). document , assault, etc. Trafficking prosecutions always must involve more than has criminalized most debt bondage in simply recruiting, transferring, harboring or 2002 (Upadhyaya 2008, 22; Giri 2009). receipt of a person. They require the end crime HUMAN TRAFFICKING (or attempted crime). The UN Trafficking Protocol describes the Since the core abuses are forced labor, debt trafficking episode as: bondage or slavery and there are already international conventions prohibiting these Act: the recruitment, transportation, transfer, abuses, was it even necessary to adopt an harbouring or receipt of persons, international convention on ‘trafficking’? Would Means: by means of the threat or use of force it have been possible to accomplish much more or other forms of coercion, of abduction, of for all victims of forced labor, debt bondage and fraud, of deception, of the or of slavery if the international community had a position of vulnerability or of the giving or receiving of payments or benefits to achieve the 10 of a person having control over another The terms ‘exploitation of the prostitution of others’ and ‘other forms of sexual exploitation’ are person, not defined in the UN Trafficking Protocol. However, Purpose: for the purpose of exploitation. the ILO treats them as a form of forced labor. "While the Trafficking Protocol draws certain distinctions ‘Exploitation’ is defined as “at a minimum, the between trafficking for sexual exploitation on the one exploitation of the prostitution of others or hand, and trafficking for forced labour or services other forms of sexual exploitation, forced (and also slavery, slavery-like practices and labour or services, slavery or practices similar servitude) on the other, this should not be taken to imply that coercive sexual exploitation does not to slavery, servitude or the removal of organs” constitute forced labour " (ILO 2005, 7). (UN Trafficking Protocol, art 3(a)).

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SLAVERY, FORCED LABOR, DEBT BONDAGE, AND HUMAN TRAFFICKING ISSUE PAPER 2 • FEBRUARY

instead adopted a binding commitment to This would mean that all forced labor and debt combat those human rights abuses and provide bondage are ‘slavery.’ However, Bales has not support and services for all victims, as well as created anything new since this definition is address the underlying social, economic and actually almost the same as the international legal impediments to their abolition? law definition of forced labor. It is unclear why anyone feels it necessary to re-label forced Such a comprehensive approach would have labor cases as slavery. However, as Gallagher prevented confusion and recognized all victims observes, “[m]oral and political crusaders such as equally in need of attention and protection. as Bales, who rail against the ‘sickness of Instead, the international community chose to slavery’ and the ‘human right to evil’, adopt a narrowly focused instrument - the UN understand the political and emotional Trafficking Protocol. On the positive side, this significance of the slavery label (particularly in international agreement requires governments the ) and have a vested interest in to prosecute traffickers and provides some expanding its reach” (Gallagher 2009, 798; also protections for over 2 million victims. These are Alain 2008, 228-232). important accomplishments. However, the question remains – what is the impact of this The requirement of ‘ownership’ as an element narrow focus on the approximately 10 million of slavery was affirmed in a recent case the victims who were not trafficked and what involving a provision in the European could have been accomplished for all victims if Convention on Human Rights on “forced or the same energies to counter ‘trafficking’ had compulsory labour” (ECHR, art. 4). The been applied to creating into a more universal European Court of Human Rights (European approach? Court) affirmed the requirement of ‘ownership’ in slavery and rejected the view that ownership ONCEPTUAL CLARITY UNDERMINED C is not required. It declared unanimously that Attempts to create a new ‘slavery’ or violence and even the lack of freedom are redefine ‘trafficking’ lead to confusion insufficient to constitute slavery. Legal ownership is required. “Although the applicant Despite the existence of separate international was… clearly deprived of her personal instruments for forced labor, debt bondage, , the does not suggest that slavery and human trafficking, many reports, she was held in slavery in the proper sense, in conferences, news articles and laws fail to other words that Mr. and Mrs. B exercised a differentiate between them. This confusion is genuine right of legal ownership over her, thus caused, in part, by the growing use of the label reducing her to the status of an ‘object’.” ‘slavery’ or a ‘modern form of slavery’ to (Siliadin v , para.122). include all four human rights abuses. For example, one proponent of a ‘new’ definition of Another source of confusion is the assertion by slavery defines a slave as “a person held by the U.S. State Department’s to Monitor violence or the threat of violence for economic exploitation” (Bales 1999, 280) and asserts that Bales conflates slavery, forced labor, debt bondage “[t]he key characteristics of slavery are not and trafficking under the term’ slavery’. Second, and about ownership but about how people are equally problematic, he did not use any replicable controlled” (Bales 2005, 3).11 methodology for arriving at this estimate. He simply gathered information and decided which estimates were valid and which were not (Bales 1999, 8). Consequently, 27 million is only an unreliable 11 Emphasis added. Bales also claims there are 27 personal ‘guesstimate’ that cannot be checked or million ‘slaves’ in the world today (Bales 1999, 8) replicated, yet has been recited as ‘fact’ by a myriad but this estimate is problematic on two counts. First, of sources.

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12 and Combat Trafficking in Persons (TIP Office) into , has really captured that ‘trafficking’ is the umbrella category for attention around the world. Notably absent slavery, debt bondage, and forced labor: “Over from all of these activities is any mention of the past 15 years, ‘trafficking in persons’ and forced labor, debt bondage or slavery - the ‘human trafficking’ have been used as umbrella crime is identified only as ‘trafficking’. terms for activities involved when someone This narrow focus on ‘trafficking,’ as though it is obtains or holds a person in compelled service,” something new and unrelated to forced labor, and defines ‘compelled service’ as “involuntary debt bondage or slavery, misleads the public. It servitude, slavery, debt bondage, and forced also elevates the situation of a minority (albeit labor” (U.S. State Department). an important one) of the millions of persons The TIP Office is using this new interpretation to held in forced labor, debt bondage and slavery expand its mandate to address the plight of all to a special protected status. At the same time, 12.3 million victims of forced labor, debt it ignores the plight of millions of people in bondage, slavery and trafficking. The scope of forced labor, debt bondage and slavery who are the TIP Office’s work is limited to ‘trafficking’ not trafficked. under U.S. law and so it has chosen to redefine It also creates the impression that the causes of ‘trafficking’ in a way that is contrary to trafficking are different from the causes of international law definitions. Some supporters forced labor, debt bondage or slavery. This is of this approach applaud the action because it simply not the case as , poverty, ensures that the annual TIP reports will cover all , corruption and other factors forced labor, slavery and debt bondage and not allow trafficking and forced labor, slavery and just cases of trafficking. Detractors, on the debt bondage to flourish. other hand, argue that it undermines international law and causes confusion. STRATEGIES TO ADDRESS SLAVERY, In sum, there are at least three sources of FORCED LABOR, DEBT BONDAGE AND conceptual confusion: (1) the ILO, which HUMAN TRAFFICKING maintains that forced labor is the umbrella Bring conceptual clarity to the issues category for slavery, debt bondage and human trafficking, (2) Bales and others who argue that Conceptual clarity is an essential for a ‘new slavery’ is the umbrella category for creating a shared about each forced labor, trafficking and debt bondage, and problem within its own legal, social, economic (3) the U.S. government, which asserts that and political context and for formulating trafficking is the umbrella category for forced solutions to combat systems of labor-related labor, debt bondage and slavery. No wonder abuses. Forced labor is not the same in every people are confused, research reports are country or even in every region of each country. unclear and laws are often problematic. Slavery has a specific and culture in each country where it still exists. Debt bondage Focus on trafficking ignores rights abuses of persons held in forced labor, debt differs from country to country and region to bondage and slavery region and each one requires a specific response. Human trafficking into these Problems also arise when people use the term conditions differs worldwide. This means that a ‘trafficking’ as a stand-alone phenomenon that is not related to forced labor, debt bondage or 12 The emphasis on trafficking into the sex sector has slavery. Anyone who has been paying attention led to misconception that trafficking equals to reports in the newspapers and watching TV prostitution. Some anti-prostitution groups have and movies, knows that human trafficking, promoted this erroneous viewpoint. especially the trafficking of women and children

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‘one size fits all’ solution does not exist. A data (including the ILO data cited in this Paper). strategy to stop may not All experts, governments and agencies claiming be appropriate for Niger and a strategy to stop to ‘know’ the scope of the problem must be may not be appropriate able to support their claims with evidence and for Nepal. their data with a clear methodology. Conceptual clarity requires complex Although it may never be possible to collect understandings of historical, factual, legal, completely accurate global or regional data, it is social and economic differences between possible to collect data locally that can be used slavery, forced labor, debt bondage and to support targeted, effective, rights-based trafficking. It is essential for the development of responses. For example, the UN Inter-Agency targeted and effective, rights-protective Project on Human Trafficking conducted programs, laws, policies and services. Any foggy replicable research at the Thai-Cambodia thinking or confusing that are tossed border in which they interviewed people being out by experts, politicians, funders and NGOs deported to Cambodia. They developed a should be quickly met with requests for reliable estimate on the scope of trafficking backed up by reliable research from Cambodia into and identified and/or data. In other words, a healthy dose of routes, ‘hot spots’ and situations that differ skepticism is required at all levels. from previous anecdotal assessments of the problem (UNIAP 2008). Conceptual clarity and rigorous analyses of the problems and possible solutions can move Once the root causes, social, economic, cultural, programs beyond short-term and other factors are identified, as well as the initiatives that have no impact on root causes. ‘hot’ spots where the problems exist, then Long-term strategies must be grounded in local projects can be developed to address the local in order to address the local and global situation. For example, as a result of the UNIAP forces that render people vulnerable to research, governments, donors and NGOs can exploitation. Once everyone accepts that the more carefully tailor their programs to the solutions for forced labor, debt bondage, regions and the populations at risk in Cambodia slavery and trafficking differ and must be as well as the employer/enforcers abusing adjusted to the local context, then it will be workers in Thailand. possible to move beyond gross generalizations Adopt and enforce international and global confusions to work together at the standards local and regional levels on ways to reduce the vulnerability of people to these crimes. Most governments have signed and ratified the international conventions discussed in this Issue Insist upon accurate data and research Paper and also regional human rights Bad data makes it difficult for governments, conventions. Ratification status for all countries inter-governmental agencies (like the UN) and is available on the internet (see Ratifications NGOs to develop effective programs and links in References). All countries that have policies to address forced labor, debt bondage, ratified conventions must have national laws slavery and trafficking.13 At present, data is implementing convention provisions. rarely challenged and numbers are repeated as In particular, advocates should ensure that their though they are fact. So, it is important to governments have ratified these important all question the methodology and objectivity of conventions and adopted domestic laws criminalizing forced labor, debt bondage, 13 For more about inflated data, see Issue Paper 3 on slavery and trafficking. Most importantly, fact or . advocates could undertake campaigns to demand that governments actively enforce

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these laws to ensure that all slaves, victims of , weekly day of rest, limited forced labor, debt bondage and trafficking are workday, rest periods during the day, a safe freed, and all slave holders, employer/enforcers and healthy , benefits, and and traffickers are prosecuted and required to effective penalties for violating the law, as pay damages to their victims. Advocates well as and the right should also demand that their governments to organize. provide some level of support to all victims for • Regulating and monitoring work sites to recovery and reintegration. ensure that laws are enforced. Government Improve labor laws failure to monitor labor sites allows While some people are forced into their employers to abuse with impunity and situations by organized criminal networks, it is failure to regulate some sectors facilitates more often the case that people are put into egregious abuse and exploitation. forced labor or debt bondage by small groups of • Direct appropriate agencies to ensure that unscrupulous employers, placement agencies, multinational headquartered or individuals. Moreover, some workers are at in one country and investing in another are extra risk for exploitation as a direct held accountable for trafficking and forced consequence of significant gaps in labor laws labor in their supply chains. Governments that leave them without key protections. can adopt laws regulating the trade in Employers take advantage of these legal gaps or made in violation of international lack of enforcement and rely on migrants’ fear human rights norms and support trade and of deportation to exploit them. Minimal steps frameworks that contain to address this problem include: measures to review the human rights • A guarantee of labor rights for all workers practices of corporations. (without regard to or Address harmful immigration laws immigration status) in all sectors - including Immigration policies may also increase the risk domestic, agricultural, contract and sex of abuse of migrant workers. Most work - and equal protection under the law. governments do not permit migrant workers a Even though governments have the right to legal means to take that cannot be filled determine which non-nationals can enter with the local labor force. Despite the the country, they should not claim the right widespread use of undocumented and to create a two-tiered system of justice for vulnerable migrant workers, governments people within the country. Undocumented simply refuse to develop humane, rights- immigrants can, of course, be deported but protective immigration policies permitting they cannot be denied their right to access migrants to work legally. Instead, most the system of justice and laws on the same governments have a ‘policy’ of ignoring basis as other persons in the country. The undocumented workers in order to provide labor rights of domestic, agricultural, businesses with cheap, exploitable labor. contract, sex and informal sector workers are not adequately covered by labor (and Even laws that permit a limited number of other laws) in many countries, leaving workers to enter a country can be harmful. “For workers without redress for unpaid wages, example, several countries impose ‘security , assault, unlawful and other bonds’ on employers, penalizing them if their abuses. migrant domestic worker runs away” (Varia 2007, 19). In order to avoid paying the , • Laws that are in compliance with some employers lock up legally employed international labor standards, including and reduce them to written contracts, ,

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forced laborers. Others simply hired employers without having to seek the undocumented workers. permission of the current employer.

In some countries, laws require workers to work • Reform immigration policies to ensure that only for one employer, which gives employers a migrants are able to access courts or great deal of power. For example, most migrant another mechanism for seeking justice. domestic workers who leave their employers • Develop guides for migrant workers about (even abusive or exploitative ones) lose their their rights and the legal responsibilities of legal right to remain in the country. In the employers and recruiters. Help United States, guest workers in certain governments launch informed public industries do not have the right to change jobs awareness campaigns, using all media to and, if they complain, they may be threatened disseminate the information. with deportation or some type of retaliation (SPLC 2007, 2). • Enact regulations to monitor labor recruitment agencies and eliminate Countries of destination should, at a minimum: recruitment fees for migrant workers. • Develop a rational immigration policy to Develop personal strategies or activities permit sufficient migrant workers to enter the country to meet the unmet demand for Be careful to purchase goods free from the taint labor. This will lower the risk of migrants of forced labor. Conscientious consumers can having to go underground to unlicensed be careful to purchase, for example, recruiters and smugglers. coffee, Rugmark rugs, and other products sold by companies ensuring fair labor conditions in • Ensure that migrant labor laws (a) require the factories and fields of production. employers to demonstrate the lack of local laborers before issuing visas for migrant workers and (b) allow workers to change

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REFERENCES

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Contact: Ann Jordan, Director, Program on Human Trafficking and Forced Labor

Center for Human Rights and Humanitarian Law Washington College of Law © Copyright 2011. American University 4801 Massachusetts Avenue, NW Washington College of Law. In the of the Washington, DC 20016 USA ’ encouragement of collective [email protected] efforts at the international level (Resolution www.rightswork.org 49/184), this document is placed in the public domain and put at the disposal of all interested This project was made possible with the persons to consult it or use it. Reproduction is generous support from Global Fund for Women authorized provided that: (1) the text is and the Foundation to Promote Open Society reproduced in its entirety without changes, (2) and two anonymous donors. reproduction is for educational ends and not for commercial use and (3) is given to The opinions, findings, and conclusions or Program on Human Trafficking and Forced recommendations expressed in this publication Labor, Center for Human Rights and are those of the Program on Human Trafficking Humanitarian Law, American University and Forced Labor and do not necessarily reflect Washington College of Law. the views of its funders.

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