Forced Labour, Child Employment, and Human Trafficking

The article is written by Matiha Khan, School of Legal Studies, Central University of Kashmir.

 ABSTRACT:

This paper mainly deals with the concept of certain forms of abuse, including Forced Labour, Child Employment and Human Trafficking, along with the legal analysis of International Conventions and Municipal laws of India. This paper also discusses the meaning and definitions of such abuses and international standards for the prevention of such abuses. It also highlights the relationship between Forced Labour, Child Employment and Human Trafficking in order to understand the origin of such abuses.

Keywords: abuse, forced labour, child employment, human trafficking, international conventions, prevention, relation, origin.

 INTRODUCTION:

When we talk of abuse, it involves anything which injures or harms the other person. The harm can be physical, emotional or social in nature. There are various forms of abuse against individuals, including rape, assault, violation, physical abuse etc. However, there are abuses wherein the persons are fraudulently or forcefully taken away and are made to work against their will and dignity, which not only affects them physically and morally but also deprives them of their basic human rights. Some of those abuses include Forced labour, Child Employment and Human Trafficking. In all these abuses, the victims are induced to work in a manner that goes against their integrity and development. They are taken away and used as objects in order to gain illegal profits. The trafficked persons, including the children, are forced to work against their will and are subjected to further abuse and violence.

The international regulations, as well as the domestic laws of various countries, including India, have adopted strict laws to prevent and abolish such forms of abuse.

FORCED LABOUR:

MEANING AND DEFINITION:

Forced labour is a form of abuse where a person is forced to do labour. It is also known as compulsory labour[1], whereby a person is compelled to work against his will[2]. This compulsion can be in the form of threat, force, fraud, or misrepresentation.

The International Labour Organisation (ILO) has defined the concept of forced labour in Article 2(1) of the ILO Forced Labour Convention, 1930, as follows:

 ‘All work or service which is exacted under the menace of any penalty for its non-performance and for which the worker concerned does not offer himself voluntarily.’

The above definition includes the following essential ingredients:

• ALL WORK OR SERVICE: the phrase ‘all work or service’ is an inclusive one wherein every sort of work or labour is included within the definition if that work is forced on someone against the will. The presence of work or service is essential to determine various forms of work relations.
• UNDER THE MENACE OF PENALTY: the ‘menace of penalty’ depicts a person’s use of violence or threat so that the other person is compelled to do the work. The threat may be direct, indirect, physical, or otherwise. The word ‘penalty’ under the said Article was regarded as an ambiguous term because of the scope of its broad interpretation. However, the Committee of Experts at ILO opined that the ‘penalty’ may include threat or force and a situation where a person loses any right or privilege when he refuses to do the work. For example, suppose there is a person A who refuses to do any work, due to which he loses his chance of promotion or any other benefit. In that case, the act shall be considered a penalty under Article 2(1).

The menace of penalty may also include a situation where an indirect threat is given to a person[3]. For example, if person A is an illegal immigrant and works as a domestic help in B’s house. And if B threats A to report him to the police if he refuses to do the work, it may come under the ‘menace of penalty.’

• INVOLUNTARY OFFER OF LABOUR: this refers to the consent of the worker/employee. The person who is a worker must refrain from voluntarily agreeing to do that work. To constitute the act of forced labour, the person must be forced to do the work.

Article 2(2) carved out exceptions to the work or service which does not constitute forced labour, which includes: military service, the civic obligation of citizens, work by a person under the conviction of a court, services in case of emergency, and minor communal services.

LAWS RELATING TO FORCED LABOUR:

The act of forced labour is prohibited under International Conventions as well as under the Municipal Law of India.

• INTERNATIONAL LABOUR ORGANISATION FORCED LABOUR CONVENTION, 1930:

Under Article 25 of the Convention, forced labour is prohibited on members who have ratified the convention. The member countries of the convention must ensure that forced labour is not in practice. The act of forced labour is punishable as a penal offence, and the member countries are supposed to impose adequate penalties on persons involved in such an act.

• PROTOCOL OF 2014 ON THE ILO FORCED LABOUR CONVENTION, 1930:

Under the protocol, all the member countries are required to take measures in order to eliminate the practice of forced labour in their respective states. The countries are supposed to take steps to prevent and control the practice, provide protection to the victims and ensure that the victims are fairly compensated. The countries have to punish the perpetrator adequately[4].

Every country has to develop a national policy to suppress forced labour[5].

• ABOLITION OF FORCED LABOUR CONVENTION, 1957:

The convention strictly prohibits the promotion of any forced labour,[6] as mentioned under Article 1[7]. It ensures that the member states must take steps to prevent and control forced labour and provide remedies to the victims.

• PROTECTION OF WAGES CONVENTION, 1949:

The prime objective of the Convention is to ensure that the worker is paid adequately according to his work. It ensures that the allowances are appropriate for the personal use of worker and his family. It highlights the importance of fair and reasonable wages. The Convention restricts employment where the worker is not paid reasonably. In other words, it limits the practice of forced labour wherein the worker is not only forced to do the work but also is deprived of reasonable wages.

Forced labour may also include employment or work where the person needs to be provided an adequate allowance. Thus, this convention ensures that every worker is paid for their work.

• SECTION 374 OF IPC, 1860:

Under Indian laws, the practice of forced labour is prohibited under Section 274 of the IPC, whereby a person who compels another person to do work against his will, the perpetrator, be punished with imprisonment that may extend to 1 year or a fine, or both.

CHILD EMPLOYMENT:

Child employment, also known as child labour, is a form of abuse where the needs of a child are ignored, and they are forced to do work.

MEANING AND DEFINITION:

The term ‘Child Employment’ is synonymously used with the term ‘Child Labour.’ It refers to the work that deprives the child of their childhood, including their potential and dignity, and the work which is harmful to the physical and the mental development of a child, which includes exposing a child to work which is physically, mentally, socially, or morally dangerous and harmful; and which deprives the children of their primary education including their health.

The test to determine whether work is a form of child labour depends on the child’s age and various other factors that affect the overall development of that child. However, United Nations International Children’s Emergency Fund (UNICEF) has provided an international standard to determine child labour[8]. The standard highlights the following elements to indicate child labour:

1. When a child is of the age group between 5-11 years and is subjected to work for at least one hour of economic work or twenty-one hours of unpaid household services per week.
2. Where a child is of the age group between 12-14 years and is subjected to at least fourteen hours of economic work or twenty-one hours of unpaid household services per week.
3. Where a child is of the age group between 15-17 years and is subjected to at least forty-three hours of economic work per week.

The International Labour Organisation’s Statistical Information and Monitoring Program on Child Labor (SIMPOC), which is an international body to track the number of child labourers around the world, defines child labour in terms of the following standards[9]:

1. An economically active child under the age of 12 years that works one or more hours per week.
2. An economically active child under the age of 14 years that works at least 14 years per week or in one or more hours per week in hazardous activities by nature or circumstances.
3. A child under age of 17 years who works in an unconditional worst forms of child labour, including children in bondage or forced labour, armed conflict, trafficked children, prostitution, pornography, illicit activities, etc.)

 LAWS RELATING TO CHILD EMPLOYMENT:

The important international conventions and Indian laws concerning the issue of child labour include the following:

• INTERNATIONAL LABOUR ORGANISATION MINIMUM AGE CONVENTION, 1973[10]:

The Convention ensures that all the ratifying member countries must adopt a national policy to abolish child labour globally. It guides nations to fix the minimum age for work while considering young persons’ fullest physical and mental well-being[11]. The minimum age must not be in any case less than the age where the child is deprived of his primary schooling and, in any case, shall not be under 15 years[12]. The minimum age fixed under this Convention applies to quarrying and mining, construction, manufacturing, gas and water, electricity, sanitary services, storage, transport, communication, plantation, and other agricultural activities, excluding family and small-scale holdings for local consumption[13]. However, the minimum age shall be determined based on the nature and  the circumstances of the work[14]. It excluded the sort of work done by children in schools, including vocational or technical education or other training institutions[15].

• WORST FORMS OF CHILD LABOUR CONVENTION, 1999:

The Convention is applicable to children under the age of 18 years[16]. It lists the worst forms of child labour, including all forms of slavery, prostitution, pornographic performances, offering illicit activities, and work which affects children’s health, safety and morals.[17] The member countries are supposed to make laws in order to abolish all forms of child labour, as mentioned in the Convention.[18] Every member country is obliged to take the necessary measures to ensure the effective implementation as well as enforcement of the laws made to prevent the worst forms of child labour. The Convention highlights the importance of education and makes it necessary for countries to take steps to avoid children’s engagement in the worst forms of labour and ensure free primary education.[19]

• CHILD LABOUR (PROHIBITION AND REGULATION) ACT, 1986:

Under Indian laws, the employment of children is restricted under the Child Labour Act 1986, whereby the employment of children below the age group of 14 years is prohibited. The Act provides the minimum employment age along with the hours and work period.[20] It also mentions the number of holidays in a week[21] along with the health and safety of children.[22] Part IV of the Act makes mention of penalties along with the procedure to try the perpetrator of the provisions of the act. The Act prohibits the practice of Child Labour and regulates its prevention and control.

HUMAN TRAFFICKING:

Human trafficking simply refers to transferring persons or selling persons from one place to another, whereby they are forced to work or involved in any other unlawful activity.

MEANING AND DEFINITION:

Human trafficking involves force or fraud to obtain a type of labour or a commercial sex act[23]. It can happen against any person of any gender, caste, age or race. The perpetrators use violence, manipulation, romantic relationships and false promises to lure people into human trafficking. The people who become victims of trafficking include (a) people who face economic hardships; (b) emotionally and psychologically vulnerable people; (c) people from a region where there is political instability etc.

Human Trafficking is the recruitment, transportation, transfer, harbouring or receipt of people through force, fraud or deception to exploit them for profit.[24] It may also be defined as “the recruitment, transportation, transfer, harbouring or receipt of persons, using the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or a position of vulnerability or the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs[25].” It is done to involve the persons in the acts, including commercial sexual acts and sexual slavery.

LAWS RELATING TO HUMAN TRAFFICKING:

• PROTOCOL TO PREVENT, SUPPRESS AND PUNISH THE TRAFFICKING IN PERSONS, ESPECIALLY WOMEN AND CHILDREN, 2000[26]:

The Convention defines Human Trafficking under Article 3. Its primary purpose is to prevent trafficking in persons, particularly children and women. It also protects and aids the victims of trafficking so as to recognise their human rights. It also promoted cooperation among the countries for the abolition of human trafficking. It guides the member states to adopt policies in order to establish human trafficking as a criminal offence and provide for punishment accordingly. The states are supposed to make laws for the protection as well as rehabilitation of victims of trafficking.

• CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATIONS AGAINST WOMEN,1979:

The convention ensures that all the member states must take necessary measures to suppress all forms of discrimination against women, including trafficking. The convention has recognised trafficking as a form of violence against women[27] because it exposes women to abuse and violence.

• OPTIONAL PROTOCOL TO THE CONVENTION ON THE RIGHTS OF THE CHILD ON THE SALE OF CHILDREN, CHILD PROSTITUTION, AND CHILD PORNOGRAPHY, 2000:

The Convention mainly talks about the sale of children for prostitution, sexual activities and pornographic activities. It provides that the states shall ensure that the acts covered under this protocol are criminal in nature under their municipal laws and makes mentions of situations under which the child is influenced to become an object of sale[28]. The states must abolish child trafficking, as mentioned in the protocol. It also provides for the extra-addition of such children from one country to another.

• CONVENTION FOR SUPPRESSION OF THE TRAFFIC IN PERSONS AND OF THE EXPLOITATION OF THE PROSTITUTION OF OTHERS, 1949:

It makes mention of the traffic of persons, especially prostitution. The Convention punishes any person who induces any person towards prostitution and exploits the other person, even if that person has consented. It also ensures that the victims are in a position to get remedies under their domestic laws. The member states are obliged to abolish the trafficking of persons for prostitution.

• SECTION 370 OF IPC, 1860:

Section 370 of the IPC punishes importing or exporting (buying and selling) any person as an enslaved person who receives and accepts that person. The transfer of a person takes place without his will. In such cases, the perpetrators shall be imprisoned for a term which may extend to the period of 7 years with the payment of a fine.

FORCED LABOUR, CHILD EMPLOYMENT AND HUMAN TRAFFICKING:

When we talk of Forced Labour, Child Employment and Human Trafficking, they are interrelated because all of them are committed against the will of an individual. Besides, forced labour may include child employment as well. Similarly, the trafficking of persons is done to involve persons in forced labour as well as child employment. So, we can say that human trafficking is an umbrella term and the first step towards forced labour and child employment. In the same way, child employment may be regarded as forced labour.

Thus, we can depict all the above forms of abuse in the below equation:

Human Trafficking = Forced Labour + Child Employment;

Forced Labour = Human Trafficking + Child Employment;

Child Employment = Human Trafficking + Forced Labour.

CONCLUSION;

Forced Labour, Child Employment, and Human trafficking usually go hand-in-hand. Therefore, there is a need to prevent these abuses against all persons. These abuses are faced by children, women, elders, and adults. Various international conventions have provided a roadmap for the abolition, prevention, and regulation of such abuses. However, there is a need to make people aware of the factors responsible for such abuses worldwide, and the states should take necessary measures to curb such activities.

REFERENCES:

1. International Labour Organisation Forced Labour Convention, 1930.
2. Protocol of 2014 on the ILO Forced Labour Convention, 1930.
3. Abolition of Forced Labour Convention, 1957.
4. Protection of Wages Convention, 1949.
5. United Nations Global Compact, Forced Labor | Business and Human Navigator, Forced Labour • Business & Human Rights Navigator (unglobalcompact.org).
6. Blue Campaign, What is Forced Labor?, What is Forced Labor? | Homeland Security (dhs.gov).
7. Jean Allian, what is Forced Labour? A Practical Guide for Humanities and Social Science Research, (2018) | Researching Forced Labour in the Global Economy: Methodological Challenges and Advances (pp.79-93), Proceedings of the British Academy, Chapter: 5, Oxford University Press, (PDF) What Is Forced Labour? A Practical Guide for Humanities and Social Science Research (researchgate.net).
8. UNICEF Data on Child Labour, Child Labor Statistics – UNICEF DATA.
9. Eric V. Edmonds, Child Labor, NBER WORKING PAPER SERIES (2007), p. 9, Child Labor (nber.org).
10. International Labour Organisation Minimum Age Convention, 1973.
11. Worst Forms of Child Labour Convention, 1999.
12. The Child Labour (Prohibition and Regulation) Act, 1986.
13. Blue Campaign, What is Human Trafficking?, What Is Human Trafficking? | Homeland Security (dhs.gov).
14. United Nations | Office on Drugs and Crime, Human-Trafficking (unodc.org).
15. Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, Supplementing the UN Convention against Transnational Organised Crime, 2000.
16. Optional Protocol to the Convention of Rights of the Child on the Sale of Children, Child Prostitution, and Child Pornography, 2000
17. Convention on the Elimination of Discrimination against Women,1979.
18. Convention for Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others, 1949.
19. Dr Shashi Punam & Sandeep Sharma, Human Trafficking: Causes and Implications, (2018), (PDF) Human Trafficking: Causes and implications (researchgate.net).

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[1] United Nations Global Compact, Forced Labor | Business and Human Navigator, Forced Labour • Business & Human Rights Navigator (unglobalcompact.org), last seen on 14/05/2023.

[2] Blue Campaign, What is Forced Labor?, What is Forced Labor? | Homeland Security (dhs.gov), last seen on 14/05/2023.

[3] The European Court of Human Rights in the case of Siliadin v France (2005).

[4] Article 1(1) of the Protocol of 2014.

[5] Ibid, Article 1(2).

[6] Article 2 of the Abolition of Forced Labour Convention, 1957.

[7] Each Member of the International Labour Organisation which ratifies this Convention undertakes to suppress and not to make use of any form of forced or compulsory labour:

(a) As a means of political coercion or education or as a punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system;

(b) As a method of mobilising and using labour for purposes of economic development;

(c) As a means of labour discipline;

(d) As a punishment for having participated in strikes;

(e) As a means of racial, social, national or religious discrimination.

[8] UNICEF Data on Child Labour, Child Labor Statistics – UNICEF DATA, last seen 15/05/2023.

[9] Eric V. Edmonds, Child Labor, NBER WORKING PAPER SERIES (2007), p. 9, Child Labor (nber.org), last seen 16/05/2023.

[10] It is a conclusive convention consolidating the Minimum Age (Industry) Convention of 1919, the Minimum Age (Sea) Convention of 1920, the Minimum Age (Agriculture) Convention of 1921, the Minimum Age (Trimmers and Stokers) Convention of 1921, the Minimum Age (Non-Industrial Employment) Convention, 1932, the Minimum Age (Sea) Convention (Revised), 1936, the Minimum Age (Industry) Convention (Revised), 1937, the Minimum Age (Non-Industrial Employment) Convention (Revised), 1937, the Minimum Age (Fishermen) Convention, 1959, and the Minimum Age (Underground Work) Convention, 1965

[11] ILO Minimum Age Convention, 1973, Article 1.

[12] Ibid, Article 2(3).

[13] Ibid, Article 5(3).

[14] Ibid, Article 3.

[15] Ibid, Article 6.

[16] Worst Forms of Child Labour Convention, 1999, Article 2.

[17] Ibid, Article 3.

[18] Ibid, Article 4.

[19] Ibid, Article 7.

[20] The Child Labour (Prohibition and Regulation) Act, 1986, Section 7.

[21] Ibid, Section 8.

[22] Ibid, Section 13.

[23] Blue Campaign, What is Human Trafficking?, What Is Human Trafficking? | Homeland Security (dhs.gov), last seen 18/05/2023.

[24] United Nations | Office on Drugs and Crime, Human-Trafficking (unodc.org), last seen 18/05/2023.

[25] Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, Supplementing the UN Convention against Transnational Organised Crime, 2000, Article 3.

[26] The Convention is also known as ‘Palermo Protocol’

[27] General Recommendation No. 19 on CEDAW, 1979.

[28] Optional Protocol to the Convention of Rights of the Child on the Sale of Children, Child Prostitution, and Child Pornography, 2000, Article 3.