17 See Conclusions Adopted by the Tripartite Meeting of Experts Concerning the Possible Adoption of an ILO Instrument to Supplement the Forced Labour Convention, 1930 (No. 29) (Geneva, 11–15 February 2013). The Meeting concluded that policy coherence needs to be reinforced with respect to forced labour, including trafficking for forced labour, and emphasised the importance of allocating adequate resources for the effective implementation of measures concerning prevention, victim protection, compensation, and enforcement.
18 For analysis of the Protocol to the ILO Forced Labour Convention, and its added value to the anti-trafficking framework, see Swepston, L., Forced and Compulsory Labour in International Human Rights Law (Paper presented at the Conference: “Shaping the Definition of Human Trafficking”, King’s College London, May 2014), p. 22.
19 For a review of anti-trafficking frameworks worldwide see, for example, US TIP Report 2016.
20 See, in so far as it focuses on proving the labour exploitation purpose and judicial co-operation in relation thereto, EU Commission, Study on Case-Law on Trafficking for the Purpose of Labour Exploitation (October 2015); EUROJUST, Report: Prosecuting THB for the Purpose of Labour Exploitation (2015).
21 See 2015 EU Commission Study (n.20), p. 22.
22 See 2015 EUROJUST Report (n.20), at p. 3, which notes that courts in several EU countries (Austria, Czech Republic, Denmark, Spain, Finland, Italy, Ireland, Netherlands, Norway, Sweden, UK) have considered poor working conditions (including withholding of wages) when assessing the purpose of exploitation in trafficking cases.
23 The EU Commission Study (n.20) points to a case from the United Kingdom (United Kingdom, T20100929 (first instance) [R. v. SK (2011) EWCA Crim 1691) in which the Court of Appeal recognised that the level of pay (i.e., very low wages) may point to coercion if other factors are present. See EU Commission Report (n.16), pp. 71–73.
24 See ILO, Forced Labour and Trafficking: A Casebook of Court Decisions: A Training Manual for Judges, Prosecutors and Legal Practitioners (Geneva: ILO, 2009), p. 5.
25 ECtHR, Chowdury v. Greece, Application No. 21884/15.
26 According to witnesses interviewed by Amnesty International, some 2,000 Bangladeshis work in the area, with a further 3,000 or more workers from other countries, including Bulgaria and Albania. See: Amnesty International “Despair Pervades Camps After 33 Workers Shot in Manolada” (22 April 2013). Available at: http://www.amnesty.ca/news/greece-despair-pervades-camps-after-33-migrant-workers-shot-manolada.
27 Gross minimum wage in Greece in 2013 was at 683.76 EUR/month (see EUROSTAT minimum wage database – available at: http://ec.europa.eu/eurostat/web/labour-market/earnings/database). Calculated at 20 working days per month, eight hours per day, this amounts to 4.27 EUR/hour.
28 Patras Court judgment, p. 425, cited after Application submitted to the ECHR by Greek Council for Refugees and Open Society Institute, at para 10.
29 Police officer’s testimony: “Someone, probably the team leaders, had come to the police station to complain that the workers have not been paid their wages”. Patras Court Judgment p. 218, cited after Application submitted to the ECHR by Greek Council for Refugees and Open Society Institute, at para 10.
30 Police officer’s testimony: “one or two days, I do not remember, before the shooting, one of my colleagues called V. (owner of the farm) and told him”. Patras Court Judgment, p. 219, cited after Application submitted to the ECHR by Greek Council for Refugees and Open Society Institute, at para 10.
31 The summary of the court’s deliberations is extracted from the case summary available from the ECtHR website, see ECtHR, Chowdury v. Greece, Application No. 21884/15, pp. 1–2; as well as Application submitted to the ECHR by Greek Council for Refugees and Open Society Institute (not published), paras 5–22.
32 See CEACR, Individual Observation Concerning Convention No. 29 (Guatemala) (2004).
33 See the ILO’s guidance on dimensions of the operational definition of forced labour: Survey Guidelines to Estimate Forced Labour of Adults and Children (Geneva: ILO, 2012), p. 14.
34 See ILO, Survey Guidelines (n.33) (Geneva: ILO, 2012), p. 28.
35 For discussion on evidence of ‘climate of fear’ in labour cases, see United States v. Warren, 772 F.2d 827, 833–834 (11th Cir. 1985), para 834.
36 See Federal Public Ministry v. Jonas Gomes do Nascimento, Judgment No. 2008. 00005–0–5, Penal Court of Pará, Brazil, 18 April 2008. In this case, a production system based on indebtedness – by non-payment of wages and exclusive provision of food supplies through a company shop – was found to be purposely keeping workers chained to the landowner’s land and constituted conditions similar to slavery (Section 149 of the Brazilian Penal Code).
37 Several studies and press investigations reporting widespread abuses of the rights of workers in the Nea Manolada region are referred to in the report: Trafficking for Labour in Greece. Report prepared in the frame of the project: Combating trafficking in human beings – going beyond, co-ordinated by CCME, 2011.
38 See New Statesman, citing one of the journalists:
I went there initially to investigate allegations of inhumane working conditions … When the owners picked up on our presence and what we were doing, they ganged up around us, started pushing us and yelling at us … immediately after I started receiving menacing phone calls, my car was followed and my colleague was threatened as well … The police, despite having full knowledge of the incidents there on, did nothing. No district attorney took action, nothing, even when I was getting anonymous calls telling me “2000 euros are enough to have you killed around here”.
New Statesman, “Greece’s Modern Slavery: Lessons from Manolada” (13.04.2013).
39 In 2008, the Greek Ombudsman reported on the situation in the region. He specifically referred to the issue of omnipresent surveillance and the presence of armed guards, intentional deception as to the payment of wages, as well as complicity of public authorities in exploitation of workers. See Greek Ombudsman, Letter to the Authorities (Athens, 22–04–2008), summarised in the Beyond Report, 2011, at p. 21.
40 In 2012, two Greeks were arrested for beating a 30-year-old Egyptian worker, jamming his head in the window of a car door, and dragging him around for about 1km. See, for example, Financial Times, “Arrest Follows Greek Migrant Worker Shootings” (18.04.2013).
41 See ILO, World Employment and Social Outlook 2015: The Changing Nature of Jobs (Geneva: ILO, 2015). The report emphasises that they are not global estimates and that the estimates of global supply chain-related jobs “should be interpreted as an upper bound estimate of the true number of jobs linked to [global supply chains] in the economies analysed” –that is, 40 countries representing 85 percent of world GDP, and covering two-thirds of the global labour force (p. 133).
42 See ITUC, Frontlines Report 2016 –Scandal: Inside the Global Supply Chains of 50 Top Companies.
43 See ILO, Global Estimate of Forced Labour (Geneva: ILO, 2012).
44 See, specifically on forced labour in supply chains, ILO and the Asia Foundation, Migrant and Child Labour in Thailand’s Shrimp and Other Seafood Supply Chains: Labour Conditions and the Decision to Study or Work (Bangkok: ILO, 2015); ILO and Asian Research Center for Migration, Employment Practices and Working Conditions in Thailand’s Fishing Sector (Bangkok: ILO, 2013).
45 The UN Convention against Transnational Organized Crime provides, for the first time, for the liability of legal persons, without prejudice to the liability of the natural persons who have committed the offences (Articles 10(2) & (3)). The Council of Europe Convention adopts the same rule (Article 22). See, also: EU Anti-Trafficking Directive, Article 5.
46 See, for example, the outcomes of the recent Study on Case-Law on Trafficking for the Purpose of Labour Exploitation (2015), commissioned by the EU Commission (n.20). The report references only two cases where legal persons were prosecuted for trafficking in human beings for forced labour, of which only one resulted in conviction. The desk review
undertaken for the study found only one conviction mentioned in 23 GRETA reports (2015 EU Commission Study, pp. 83–85). According to the TRACE (Trafficking as a Criminal Enterprise) project, carried out under the EU’s seventh framework programme, the lack of cases on corporate liability is, at the same time, both a trend and a challenge for the future: Rijken, C. and Bosma, A., Deliverable D1.1: A Review of the Implementation of the EU Strategy on Human Trafficking by EU Members (p. 22).
47 Trade union advocacy for the new laws that would fill the gap in access to remedy for victims of corporate abuses has been subject to discussion during several seminars organized within the framework of the FINE TUNE project (n. 5). See: Gausi, T. (2015) “Has the Modern Slavery Act left the UK’s most exploited workers even more vulnerable?”, Equal Times, available at: https://www.equaltimes.org/has-the-modern-slavery-act-left?lang=en#.WSwsK8YlFaR. For an analysis of the gaps in the regulation of right to remedy for corporate abuses of human rights see: Skinner, G., McCorquodale, R., and De Schutter, O., The Third Pillar – Access to Judicial Remedies for Human Rights Violations by Transnational Business (Report for ICAR, CORE, and ECC, 2014), pp. 60–61.
48 See Skinner et al. (n.47).
49 See ITUC, CCME, Anti-Slavery International, Trafficking for Labour Exploitation in the EU – Tackling Group Cases (2014), report prepared in the frames of the FINE TUNE project.
50 See ILO, Decent Work in Supply Chains, 105th ILC (May–June 2016), Provisional Record – especially comments made by Workers Spokesperson, Representative of Young Christian Workers, and the Governments of Egypt and the Philippines, at paras 23, 36, 60, 69, and 106, respectively.
51 For a review of the concept of joint liability see, for example, Davidov, G., “Indirect Employment: Should Lead Companies Be Liable?” –Written for a Symposium of the Comparative Labor Law & Policy Journal on David Weil, The Fissured Workplace (Cambridge, MA: Harvard UP, 2014).
52 See: Carestel (Belgium), brief available at: http://www.ituc-csi.org/joint-corporate-liability-in.
53 See: Article 2 of the Protocol of 2014. These provisions are further elaborated upon in the Recommendation No. 203.
54 This assumption is supported by the Palermo Protocol’s own saving clause, which affirms consistency between the instrument and existing rights, obligations, and responsibilities under international law: see Article 14. See also: Gallagher, A.T., The International Law of Human Trafficking (Cambridge: CUP, 2010), p. 35.
55 See ILO and EU, Operational Indicators of Trafficking in Human Beings (Geneva: ILO, 2009).
56 See 2015 EU Commission Study and 2015 EUROJUST Study (n.20).
57 Articles 18(1) & 18(2) of Directive 2009/52/EC.
58 For instance, only Bulgaria, Cyprus, Greece, and Slovenia have included in their laws the right of third-country nationals who were irregularly staying and working to claim outstanding remuneration from their employer. Other EU Member States relied on vague references to their civil law. See EU Communication on the Application of the Directive 2009/53 Providing for Minimum Standards on Sanctions and Measures Against Employers of Illegally Staying Third Country Nationals, COM(2014) 286 final.
59 For the report on the application of the Directive issued in 2014, the Commission has not required any data on what actions have been taken against delinquent employers, or on how many workers were able to effectively claim their wages – see (n.58).
60 EU Anti-Trafficking Directive, Article 5; Council of Europe Anti-Trafficking Convention, Article 22; and UN Convention Against Transnational Organized Crime, Article 10.
61 The expression ‘un-free labour’ (instead of ‘forced labour’) is used here intentionally in order to indicate the positive aspect of freedom from forced labour – that is, the need for protection of all rights necessary to provide workers with free labour. Accordingly, a worker may be free to quit; but if (s)he does not also enjoy the right to change employers then (s)he cannot be considered free – see the US case: Shaw v. Fisher, 113 S.C. 287, 292 (1920) (invalidating, on Thirteenth Amendment grounds (prohibition of slavery and involuntary servitude), the tort of employing a labourer who was under contract to another employer). See also Pope (n.13).
Part 8
Economic aspects
37
Exploitation of migrant workers and trafficking in human beings
A nexus of the demand by employers, workers, and consumers
Natalia Ollus and Anniina Jokinen
Introduction
Demand and supply are among the basic concepts of economics. In economic theory, the price of commodities is based on the relationship between demand and supply. An increase in demand results in an increase in the price of the commodity. These concepts are often used also in discussions on the causes of, and underlying factors affecting, human trafficking. It is argued that without the demand for the goods and services produced by victims of trafficking, there would be no market for trafficking, and no profit from trafficking.1 However, the use of economic terminology is problematic when trafficking networks and flows remain poorly understood, and it is unclear how they mirror traditional economic exchanges.2 The issue of demand and human trafficking is both complex and contested. This chapter looks at how the concept of demand evolved in the anti-trafficking framework. Second, it addresses how demand manifests itself in the context of labour exploitation and trafficking in Finland, and finally, how addressing demand could enhance the efforts to prevent labour trafficking.
The current ‘migration crisis’ has acutely highlighted the existing tension between global inequalities and restrictive migration policies. Much migration is caused by economic hardship and a search for better opportunities. Restricted migration channels create opportunities – and a demand – for various ‘assistance’ across borders. Ultimately, this may lead to trafficking. Trafficking becomes the “opportunistic response to the tensions between the economic necessity of migrating, and the politically motivated restrictions on doing so”.3 Human trafficking is thus linked to the tensions, disjunctures, and inequalities of globalisation and the differential freedom of movement of people in different parts of the world.4 In part, trafficking becomes a consequence of migration pressures in a world of closed borders.5 At the same time, work worldwide is becoming increasingly casualised, and low-paid and flexible work is becoming more common. The supply and demand in the context of trafficking is therefore linked to migration patterns, migration policies, and to changes in the labour market and the nature of work.
The evolution of the concept of demand in treaties
The issue of demand has been included in various recent treaties. However, in most of the legal instruments the focus is not on demand for exploitation per se, but rather on the practices that foster, facilitate, or create exploitation. The Palermo Protocol is one of the first treaties to include provisions related to the issue of demand for the goods and services produced by victims of trafficking.6 The Protocol refers to demand in Article 9(5), in which it requires States to
adopt or strengthen legislative or other measures, such as educational, social or cultural measures, including through bilateral and multilateral cooperation, to discourage the demand that fosters all forms of exploitation of persons, especially women and children, that leads to trafficking (authors’ emphasis).
The focus of the Protocol is on exploitation that leads to trafficking and the need to tackle the demand that enables such exploitation. Addressing demand is framed as a preventative measure, along with research, education, awareness-raising campaigns, and cooperation.
Demand is also referred to in the Council of Europe Convention on Action against Trafficking in Human Beings. Article 6 requests each of the Parties to “discourage the demand that fosters all forms of exploitation of persons, especially women and children, that leads to trafficking”, through adopting or strengthening legislative, administrative, educational, social, cultural, or other measures. The Convention treats demand as one of the root causes of trafficking and links traffickin
g with gender inequality (article 6). The Explanatory Report to the Convention outlines that “the drafters sought to underline the importance of tackling demand in order to prevent and combat the traffic itself”.7 It also emphasises the need for research on best practices, methods, and strategies for effectively discouraging client demand.8 The measures addressing demand thus focus especially on consumers of goods and services.
The 2011 EU Directive on preventing and combating trafficking in human beings and protecting its victims refers to demand in article 18 on prevention. Member States shall “discourage and reduce the demand that fosters all forms of exploitation related to trafficking in human beings” (article 18.1), but shall also “consider taking measures to establish as a criminal offence the use of services” of victims of trafficking (article 18.4). According to the Explanatory Memorandum to the Directive, criminalising the actions of users, or buyers in particular, of the sexual services of victims of trafficking was controversial among the negotiators, and several Member States “pointed out that in any case such a provision should not be binding”.9 The EU Strategy towards the Eradication of Trafficking in Human Beings (2012–2016), however, aimed at developing guidelines on reducing the demand for services provided by victims of THB – in particular in high-risk areas, including the sex industry, agriculture, construction, and tourism.
Some other regional bodies have also included references to demand in their anti-trafficking treaties and strategies, e.g., the 2015 Convention Against Trafficking in Persons of the Association of Southeast Asian Nations (ASEAN) and the ECOWAS (the Economic Community of West African States) Initial Plan of Action against Trafficking in Persons (2002–2003), which addresses, in particular, “those who might exploit victims of trafficking, for example as child domestics or farm labourers”.10
Routledge Handbook of Human Trafficking Page 93
