Steve Peers

Although often used lightly, the term “wage slaves” reflects a harsh reality for millions trapped in forced labor globally, a modern form of slavery. This exploitation represents a significant aspect of human trafficking, alongside sexual exploitation.

Key international entities like the United Nations and the Council of Europe have been at the forefront of combating human trafficking. However, the International Labour Organisation (ILO) brings long-standing expertise, particularly concerning labor exploitation. The ILO is currently considering new measures, including a Protocol and a Recommendation, due to concerns over the insufficient implementation of existing treaties addressing forced labor.

The proposed Protocol outlines a general obligation for states to actively prevent and eliminate forced labor. This involves implementing action plans, taking concrete steps against trafficking for labor or sexual exploitation, raising public awareness, expanding labor law coverage, strengthening inspection services, and protecting workers, especially migrants, from exploitation through placement services.

Furthermore, the Protocol mandates states to ensure the identification, release, recovery, and rehabilitation of forced labor victims. This includes guaranteeing their access to remedies, such as compensation, and exemption from liability for offenses they were coerced into committing. It also emphasizes international cooperation between states and national-level enforcement of the Protocol’s provisions.

Expanding on the Protocol, the draft Recommendation offers detailed guidance on its implementation. This includes provisions related to data collection on forced labor, skills development for vulnerable groups, combating related discrimination, promoting freedom of association for at-risk individuals, establishing clear terms and conditions of work, guaranteeing basic social security, providing pre-departure orientation for migrants, ensuring coherent labor and immigration policies that consider the risks faced by irregular migrants, and reducing the demand for and trade in goods and services produced using forced labor.

Protecting victims is paramount, contingent on their informed consent, and not dependent on their involvement in criminal proceedings. The Recommendation details specific protections, such as safeguarding against retaliation, housing, healthcare, privacy, and social assistance. Migrant victims should have a reflection and recovery period, access to residence permits where suitable, and facilitated voluntary repatriation.

Access to justice is crucial, enabling victim representation, their right to compensation from perpetrators, state-sponsored compensation mechanisms, access to information, and legal recourse. Enforcement should include penalties like profit confiscation, legal sanctions, and accountability for legal entities.

EU law aspects

While the EU has not comprehensively addressed forced labor as a standalone issue, various measures touch upon specific aspects. For instance, a 2011 EU Directive tackles the criminal law aspects of human trafficking, a 2004 Directive regulates the immigration status of trafficking victims, and the 2012 Crime Victims’ Directive focuses on the status of crime victims more broadly. Additionally, EU employment law contains provisions related to this issue.

Generally, when the EU establishes internal legislation on a matter, it acquires external competence in that area. This competence becomes exclusive if the EU has fully harmonized the issue. Consequently, the EU has entered into the relevant UN Convention Protocol but hasn’t signed the Council of Europe Convention on human trafficking.

However, planned ILO measures present a unique challenge. Unlike many treaties under the UN or Council of Europe, only states can be party to ILO legal instruments. Consequently, the EU cannot fully participate in ILO discussions, even within its external competence.

Historically, the EU addressed this by authorizing Member States to act on its behalf within the ILO framework. This included authorizing them to sign and ratify resulting Conventions, as exemplified by the recent ILO Convention on Domestic Workers.

The European Commission proposed a similar approach for the ILO measures on forced labor. This includes a Council Decision to harmonize Member States’ positions on the Recommendation and a separate proposal for the Protocol (not yet public).

However, this approach, while employed in other contexts where Member States represent the EU, isn’t without challenges. Past cases involving maritime security, child abduction, and chemical use at work highlight disputes and legal complexities surrounding EU competence in international fora.

A pending case further complicates matters. Germany contests a Council Decision where Member States coordinate positions within an international wine organization on behalf of the EU. They argue that the EU’s authority to establish positions within international bodies is limited to instances where the EU itself is a party to the relevant organization or treaty, as opposed to situations where Member States act on its behalf. This argument directly impacts the ILO scenario, as the EU itself would not be a party.

Should Germany’s case succeed, the proposed Council Decision regarding the ILO measures would be jeopardized. However, even if the EU is legally empowered to coordinate Member States’ positions, complexities remain.

Firstly, the Commission’s proposal overlooks the varying opt-outs from EU law exercised by some Member States. The immigration and criminal law measures are not universally binding, unlike the employment law measures. Addressing this might necessitate separate Council Decisions.

Secondly, disagreements might arise regarding the precise boundaries of EU external competence compared to the ILO measures. While preliminary analysis reveals concerns regarding the Commission’s proposal, it’s premature to determine if the Council will amend or reject it.

Thirdly, the Court of Justice of the European Union (CJEU) places less weight on international treaties to which the EU is not a party. This diminishes the significance of ILO treaties in the CJEU’s interpretations, even if implemented through EU legislation.

Fourthly, procedural disputes regarding EU competence often overshadow the substance of the treaty in question. This is problematic in the context of forced labor, a serious human rights violation affecting millions globally. The EU could leverage this opportunity to evaluate the adequacy of its own legislative framework in tackling this issue.

Unfortunately, the EU’s non-party status to the Recommendation or Protocol doesn’t necessitate such reflection. Conversely, even if Member States become parties, the impact of any reflection is limited, as some actions fall solely under EU jurisdiction.

While the EU and its Member States must navigate shared competence in external relations, there is an urgent need for mechanisms that prevent internal EU disputes from hindering their contribution to crucial international objectives, such as eradicating forced labor.

The EU has explored innovative solutions in the past, including mixed agreements (treaties binding both the EU and its Member States) and EU legislation governing Member States’ exercise of external competence in areas closely tied to EU law. It is high time for the EU to implement measures that effectively harmonize the exercise of competence between itself and its Member States, particularly regarding the legal framework for safeguarding international human rights.

Annex

Links between EU law and proposed ILO Protocol

Article 2(c): Directive on temporary agency work
Articles 3 and 4: Crime victims Directive; Trafficking in persons Directive

Links between EU law and proposed ILO Recommendation

Clause 2(2): Directive on data protection

Clause 3(c): EU anti-discrimination legislation Clause 3(e): EU Directive on contracts of employment

Clause 3(j): EU trade policy; EU legislation on corporate social responsibility

Clauses 4, 5, 7-10: Crime Victims Directive; Trafficking in Persons Directive; Trafficking victims’ residence permits Directive

Clause 6: Temporary agency workers’ Directive Clause 11(b) and (c): Trafficking in persons Directive

Legal Base problems:

The Commission proposes legal bases relating to criminal law and employment law to adopt the Council Decision. However, the preamble also references EU immigration legislation and rules on the free movement of EU citizens, suggesting that relevant legal bases (Articles 45 and 79 TFEU), particularly concerning immigration, should be cited given their close connection to the EU legislation. Since immigration and criminal legislation are not universally applicable to all Member States, separate Council decisions might be necessary to address this.

Barnard & Peers: chapter 9, chapter 20, chapter 24, chapter 25, chapter 26