International and EU legislation on trafficking in human beings (THB) for labour exploitation
The UN Palermo Protocol
The first comprehensive international definition of THB (referred to as ‘trafficking in persons’) was provided in article 3(a) of the UN Palermo Protocol of 2000 to prevent, suppress and punish trafficking in persons, especially women and children. (1)
‘Trafficking in persons shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force of other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of 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.’
Article 3(a) also provides a definition 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.’
This definition makes clear that the Palermo Protocol considers labour exploitation to be one of the forms of exploitation that THB can be aimed at. However, no further explanation is given of what is meant by ‘forced labour or services, slavery or practices similar to slavery, servitude’. The preparatory materials to the Protocol, however, do refer to the then already existing Conventions elaborating these concepts.
Convention on Action against Trafficking in Human Beings
The Council of Europe Convention on Action against Trafficking in Human Beings (2) was adopted in 2005. The definition of THB provided in article 4(a) of this Convention is identical to that in the Palermo Protocol.
The Convention itself does not elaborate on what labour exploitation is, but paragraphs 90-95 of the Explanatory Report on the Convention specifically address the definitions of forced labour or services, slavery or practices similar to slavery and servitude. They refer to the fact that the authors of the European Convention on Human Rights (ECHR) used the ILO Convention concerning Forced or Compulsory Labour (No. 29) of 29 June 1930 as their model, which describes as forced or compulsory ‘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’. In addition, the report explains that ‘a human trafficking victim’s consent to a form of exploitation’ is irrelevant (article 4(b)) if any of the means (i.e. forms of coercion) has been used.
According to case law of the European Court of Human Rights (3), the words ‘forced labour’ are ‘to be given a broad meaning’ and encompass ‘the concept of forced services’. Slavery is not defined in the Convention but the Explanatory Report refers to the ‘many international instruments’ that ‘define or deal with slavery and practices similar to slavery’.(4) Finally, when it comes to ‘servitude’, the European Commission of Human Rights regarded it as ‘having to live and work on another person’s property and perform certain services for them, whether paid or unpaid, together with being unable to alter one’s condition’ ‘Servitude is thus to be regarded as a particular form of slavery’, but without ‘the ownership features characteristic of slavery’.
EU Anti-Trafficking Directive
The definition of THB in the EU Directive on preventing and combating trafficking in human beings and protecting its victims (2011/36/EU) (5) contains a number of additions when compared to the definitions of the UN and the Council of Europe. Article 2 of the Directive defines trafficking in human beings as:
'1. The recruitment, transportation, transfer, harbouring or reception of persons, including the exchange or transfer of control over those persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or bene ts to achieve the consent of a person having control over another person, for the purpose of exploitation.
3. Exploitation shall include, as a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, including forced begging, slavery or practices similar to slavery, servitude or the exploitation of criminal activities, or the removal of organs.’
The actions that can form part of THB have been further specified by adding ‘including the exchange or transfer of control over those persons’. The definition also includes additional forms of exploitation, namely forced begging, which according to recital 11 of the preamble ‘should be understood as a form of forced labour or services as defined in the 1930 ILO Convention No 29 concerning Forced Labour’, and the exploitation of criminal activities. The preamble does not contain any further explanation of labour exploitation.
In order to monitor the different actions being taken in the member states with regard to trafficking in human beings, article 19 of the EU Directive 2011/36/EU obliges states to take the necessary measures to establish national rapporteurs or equivalent mechanisms (NREMs). The task of the rapporteur / mechanism is, according to the EU Directive, to carry out assessments of trends in trafficking in human beings and to measure results of anti-trafficking policies. The Directive furthermore obliges the rapporteur / mechanism to report about the research findings. In measuring the results of anti-trafficking actions, the Directive urges member states to ensure that the rapporteur / mechanism gathers statistics in close cooperation with relevant civil society organisations.
Trafficking in human beings is also mentioned in the EU Charter of Fundamental Rights: article 5 of the Charter prohibits slavery, servitude, forced labour and trafficking in human beings.
Protocol to ILO Convention No. 29
The ILO Convention No. 29 concerning Forced or Compulsory Labour from 1930 (6) and the definition it contains on forced labour were already mentioned as part of the discussion of the Council of Europe Convention. In 2014, a protocol to the Convention (7) and a recommendation were adopted. The main difference between the ILO Convention No 29 and its protocol and the EU legislation, is the emphasis it places on cooperation with the social partners, namely employers and trade unions. The ILO Convention and protocol is binding on all member states, even if they have not ratified it.
(3) Van der Müssele v. Belgium (judgment of 23 November 1983, Series A, No.70, paragraph 37).
(4) For example, the Geneva Convention on Slavery of 25 September 1926, as amended by the New York Protocol of 7 December 1953; the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices similar to Slavery of 7 September 1956; the ILO Worst Forms of Child Labour Convention (Convention No.182).
(6) ILO Convention No. 29 concerning Forced or Compulsory Labour, Geneva 1930.
(7) ILO, Protocol of 2014 to the Forced Labour Convention, 1930, Geneva 2014.