Exploitation vs. forced labour -- What can we learn from international labour standards?
By Tim De Meyer, Director, ILO Country Office for China and Mongolia, 2 March 2015
I spent some 12 years promoting international labour standards in East and South East Asia. On many occasions, I was asked whether forced labour and exploitation are the same and, if not, what the difference is between the two concepts. The question is a pertinent one. It arises, for example, from the definition of “trafficking in persons” in the UNTOC Palermo Protocol, which suggests that exploitation encompasses many more situations than only forced labour: “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”.
One may begin to understand exploitation by accepting that, to a degree, exploitation is a legitimate part of any market economy trading goods and services – including labour. Market economies cannot function without respect for private property, including the right of employers to make and retain profit through the extraction of value from individual work performances. Wealth accumulation only works if the surplus value of labour is consolidated and re-invested on a continuous basis.
At the same time, however, the ILO Philadelphia Declaration clearly states that labour is “not a commodity”, but a platform for the pursuit of “material well-being and spiritual development”. Thus, the “exploitation” of labour needs to be reined in in ways that satisfy individual aspirations as well as the sustainability of the societies and economies in which these individuals pursue these aspirations. Free open and democratic societies are only sustainable if the extracted value and the wealth that is created as a result is also fairly shared with workers and their families. To ensure this fair sharing of wealth within a work-related context, the ILO has established international labour standards that protect the economically weaker party (worker) against disproportionate value extraction, i.e. work performances that for any reason disproportionately benefit the value extractor over the value provider. Exploitation – at least the exploitation negatively connoted in the Palermo Protocol – may then be more narrowly understood as any situation that does not meet labour standards relevant to the situation, and therefore generates a disproportionate benefit to the employer. For example, as per the standards in the Minimum Age Convention, 1973 (No. 138), employing a child that has not yet completed compulsory education amounts to exploitation, while providing full-time non-hazardous employment to a child that has completed compulsory education and has reached the legal minimum working age does not amount to exploitation.
The example illustrates that absence of consent is not a determining factor in establishing exploitation. Conversely, the presence of consent does not justify the exploitation. One important reason is that exploitation does not only harm the worker concerned, but potentially also the trading position of the competing employers and even the public at large. For example, minimum wage announcements should have force of law, automatically superseding any agreement made to provide or accept work at a lower wage. Payment of a wage below the minimum wage obviously harms the worker and his family since, by definition, the worker is no longer able to sustain him or herself with a minimum level of dignity. It also harms competing employers who are now exposed to pressures to lower their wages rather than pressures to improve their productivity in order to justify a higher wage. Finally, it harms the economy at large by reducing aggregate demand and the public at large by sending a “pricing signal” that they will need to compete with each other on the price of labour (i.e. the wage), rather than the quality of the work performance.
It is worth noting that ILO Conventions and Recommendations shun references to “exploitation”. The sole exception is the Employment Policy Recommendation (Supplementary Provisions), 1984 (No. 169), which calls for measures to prevent the exploitation of migrant workers. One explanation for this avoidance is precisely that all international labour standards in their sphere of impact are aimed at “pruning” labour exploitation. Another more political explanation is that the ILO at one point not only comprised market economies but also central planning economies, which had in principle eradicated exploitation by banning distinctions of social class through forms of collective ownership.
Forced labour exacted for economic purposes is a particular form of exploitation. Forced labour refers to a situation in which the victim has not freely accepted to work or, having freely accepted to work at the outset, is not free to cease working (for example, because in order to obtain the work (s)he had to incur a debt that can only be serviced by continuing to earn the income that the work is generating). Absence of consent is the specific trigger for considering the work exploitative. Forced labour may be understood as a situation in which exploitation is made more systematic by removing the element of agreement through the application of a penalty or threat of penalty. The coercion may result from acts of physical or mental compulsion – to understand what really constitutes compulsion, the specific vulnerability of the victim (caused e.g. by disability, age, resident status etc) may need to be assessed. It is the removal of consent that renders forced labour similar to theft – and should therefore also in law be treated as its equivalent (i.e. criminalization and criminal punishment).
Forced labour can also be exacted for political purposes without any obvious exploitative intent. Some countries, for example, still maintain statutory restrictions on public servants or career military officers to terminate their service. Other situations are generically described in the Abolition of Forced Labour Convention, 1957 (No. 105). For example, a person convicted for independently organizing workers in breach of trade union laws should not be subject to forced labour while serving time in prison or for “re-education” purposes regardless as to whether the work serves a commercial purpose or the public interest.
In sum, most but not all forced labour is labour exploitation. Definitely not all forms of labour exploitation are forced labour. Both should be outlawed and made punishable by a mixture of criminal, civil and administrative sanctions.
 Art. 3 (a) of the Protocol To Prevent, Suppress And Punish Trafficking In Persons, Especially Women And Children, Supplementing The United Nations Convention Against Transnational Organized Crime, 2000. The Palermo Protocol calls for measures to prevent and combat trafficking in persons “for the purpose of exploitation”.
 Declaration of Philadelphia, paras I (a) and II (a) respectively. The Declaration of Philadelphia is incorporated into the ILO Constitution as an Annex and enunciates the fundamental values of social justice on which modern economies are built.