ILO adopts new treaty on forced labour

On 11 June 2014, the International Labour Organisation ("ILO") adopted a Protocol ("Protocol") to the 1930 Forced Labour Convention No. 29 ("Convention"). The Protocol is intended to update the 84 year old Convention and to address gaps in its implementation.

The Protocol calls for governments to pursue a range of measures in order to prevent and eliminate forced labour, including by ensuring that the coverage and enforcement of legislation relevant to the prevention of forced labour applies to all workers and sectors of the economy and by strengthening labour inspection services.

The Protocol will enter into force one year after it has been ratified by at least two member States of the ILO.

Background

The Convention was adopted in 1930 and has subsequently been ratified by 177 States. The Convention prohibits all forms of forced labour which is defined as "all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily" (Article 2). There are a number of exceptions to this prohibition, including for compulsory military service and prison labour. Article 25 requires ratifying States to make forced labour a criminal offence.

Although the definition of forced labour used in the Convention encompasses forced labour in the private sector, most of the other provisions of the Convention deal with forms of forced labour imposed by governments. This feature of the Convention reflects the fact that State-sanctioned forced labour was widespread in the early 20^th century, particularly in territories under colonial administration.

Today, the ILO estimates that 90% of forced labour occurs in the private sector and that there are 21 million victims of forced labour worldwide. The Protocol is intended to address the challenges of so-called "modern day slavery", in particular forced labour in the private sector and enabling activities such as human trafficking.

437 delegates at the ILO Conference, including member States, employer and worker representatives, voted in favour of the Protocol. Thailand was the only country to vote against the Protocol and, following international criticism, has subsequently reversed its decision. A number of countries including Bahrain, Brunei, Iran, Kuwait, Oman, Qatar, Saudi Arabia and Yemen abstained from voting.

Contents of the Protocol

According to the Protocol, Governments must take effective measures to identify, release, protect and rehabilitate victims of forced labour. Significantly, the Protocol provides that all victims of forced labour, regardless of their legal status or presence in a country, should have access to appropriate and effective remedies, such as compensation. In addition, competent authorities must have discretion not to prosecute victims for being involved in unlawful activities which they were compelled to commit as a direct consequence of being subjected to forced labour. The Protocol also operates to repeal certain out-dated provisions of the Convention (Articles 3 to 24).

The Protocol details a range of new measures which governments must take to prevent and eliminate forced labour, including:

1. the development of national plans of action for the effective and sustained suppression of forced labour;
2. educating and informing employers to prevent them becoming involved in forced labour practices;
3. ensuring that the coverage and enforcement of legislation relevant to the prevention of forced labour applies to all workers and sectors of the economy;
4. strengthening labour inspection services;
5. protecting migrant workers from abusive and fraudulent practices during recruitment; and
6. supporting due diligence by both the public and private sectors to prevent and respond to risks of forced labour.

A non-binding recommendation provides technical guidance to States on the implementation of Protocol. A key recommendation in this document is that governments should provide guidance and support to businesses to take effective measures to identify and prevent the risk of forced labour being used in their operations or in operations to which they may be directly linked. In addition, governments are encouraged to take action to strengthen enforcement by providing for the imposition of penalties, in addition to criminal sanctions, including asset confiscation.

Implications

The Protocol will enter into force one year after it has been ratified by two member States of the ILO.

All States ratifying ILO treaties pledge to “take such action as may be necessary to make effective” its provisions (ILO Constitution, Article 19(5)). In order to monitor compliance, member States must submit reports on the application of the Conventions they have ratified to the International Labour Office and complaints may be filed against a member State which has allegedly failed to secure the observance of a Convention it has ratified.

It is likely that States ratifying the Protocol will need to introduce new legislation to effectively implement its provisions.

Although the United Kingdom has not yet ratified the Protocol, a Modern Day Slavery Bill is currently being considered by Parliament. If adopted, the legislation would operate to consolidate existing slavery and trafficking offences and introduce provisions regarding treatment of victims. The legislation also envisages the appointment of an Anti-Slavery Commissioner to encourage good practice on the prevention of modern slavery offences and the identification of victims.

New legislation relating to forced labour has also been proposed in the United States. We will be closely monitoring debates regarding the UK and US legislation as well as developments in other jurisdictions.

As noted above, the recommendation accompanying the Protocol encourages States to ensure that companies address the risk that forced labour is used in their operations or in operations to which they are directly linked (for example, by suppliers). In this respect, the Protocol may result in States adopting legislation requiring companies to undertake due diligence in order to ensure that forced labour is not used anywhere in their supply chain.

A range of existing international standards (including the OECD Guidelines and the UN Guiding Principles on Business and Human Rights) emphasise the role of due diligence in identifying and avoiding risks to human rights, including the risk of forced labour. These standards are likely to influence the content of new legislation in this area, meaning that companies which have already taken steps to establish robust due diligence procedures will have a head start if and when new legal requirements are introduced.

In the meantime, private and public sector organisations with established policies or codes of conduct which refer to the Convention should also consider whether those policies or codes need to be updated in order to reflect the contents of the Protocol.

For further information, please contact Antony Crockett, Senior Associate, Emily Soothill, Associate, or your usual Herbert Smith Freehills contact.