(María Fernanda Perez Solla) - UNICEF considers that, in 2004, 218 million children were engaged in child labor, excluding child domestic labor
. Moreover, some 126 million children aged 5–17 are believed to be engaged in hazardous work. Children appear to represent 40–50 per cent of all victims of forced labor, or 5.7 million children are trapped in forced and bonded labor. Moreover, 1.2 million children appear to be trafficked worldwide every year. The UN Working Group on Contemporary Forms of Slavery has recognized that some 20 million people are still held in debt bondage around the world.
International law is still created by States, and is predominantly reactive. Most solutions adopted follow the perception of concrete problems. Many problems need to be recognized first as an international problem as to originate some type of decision-making leading to international law-making and cooperation. The majority of the existing international law rules are included in treaty law. Many other rules are embodied in customary international law, and they bind all States. Treaties are normally the product of many years of work. Once in force, they bind only those States which have decided to become parties to them. Though some of the instruments we shall mention have been widely ratified, the relative character of the international obligations must be underlined. The same set of rules does not necessary oblige another international actor. Every State is free to decide which international obligations it assumes, as far as treaty-law is concerned. This insight reveals an additional difficulty: no general approach can be adopted, but one considering the particular obligations assumed by a concrete State.
This paper intends to deal with the task of describing the international legal framework applicable to contemporary forms of slavery, in particular, trafficking in persons, and assessing whether the World Bank, according to its mandate, can work in this arena. Moreover, the author considers that the issues under analysis are human rights concerns, with the bias of being a human rights lawyer; consequently, special attention is given to the analysis whether the Bank can work in the field of human rights. The task before us is complex, and some arguments are not extensively presented for reasons of space.
The notions to mention here have been the result of very different motivations. They range from public morals to actual concern on recognized values. Economic analysis is not a reason to draft international law rules. We shall mention the rules of international law applicable to contemporary forms of slavery, including human trafficking. Though the international community has generally revealed basic agreement in this field, conceptual difficulties of ideological and political character exist in the field of trafficking. Though most States require today lack of consent or a wicked consent by an adult as to qualify a situation as trafficking, some countries consider that consensual engagement in sex work also amounts to trafficking. Moreover, some States have embraced the anti-trafficking or counter-trafficking field from a law enforcement perspective, in an effort to fight international organized crime. This legitimate and necessary goal is, in the praxis, missing sensitiveness to the rights of victims or survivors, particularly, if they are migrants. Some governments have the political goal to show commitment and success in law enforcement, especially concerning delicate issues involving children and women. Victims are not at the center of the effort, but security measures.
The feminist agenda has taken lead in the fight against trafficking, perhaps with special attention to consensual trafficking for prostitution, as a worldwide symbol of exploitation of women. The situation of those trafficked for labor purposes has been, pursuant to this approach, not so prominent. Moreover, this perspective is particularly opposed by migrant rights and sex workers groups, that assert that sex work is not always exploitative, and can constitute the only means of subsistence of some families under constrained economic conditions. They claim for labor rights, and the recognition of their activities as licit, assuming that the construction of sex work as illicit activity is what originates instances of exploitation. The punishment of the demand side of sex work is here also a critical issue. Human and migrants rights advocates and some international organizations try to place the human rights of the victim at the center of the scene, together with the empowerment of those vulnerable to contemporary forms of slavery. These efforts face often serious obstacles, due to the confrontation with the perspectives mentioned above plus the interests of some business sectors to keep the labor market as unregulated as possible, and labor costs low. This paper is written from a human rights perspective. 1 The underlying principle is that the center of attention should always be the rights of the victim or survivor, and the empowerment of those concerned. Legitimate security concerns are not undermined by recognizing that all human beings have rights, and should be treated accordingly, with due respect to their dignity. Moreover, the feminist approach is respectable if the stakeholders, particularly, the women affected, as human rights holders, agree with that point of view, and participate in the design of programs and policies elaborated as to address such concerns. Not to place the emphasis on the empowerment and the rights of the victim or survivor implies to compromise further their situation.
Another trend is to pay more attention to the demand of persons trafficked (perhaps with the huge influence of the opinion asserting that the person demanding the services of sex workers is the cause of sex work). This has originated an imbalance of attention, with negligence to the “offer” side, that is, the human beings being trafficked, and their rights.
Some of the rules described in this paper have become customary international law. They bind all subjects of international law, including international organizations such as the World Bank. This is the case of the prohibition of slavery. Though the exploitation of human beings is as ancient as history, international law, traditionally focusing on State relations, has only recently devoted time and efforts to rules directly applicable to individuals. The first notions have resulted on the criminalization of certain behaviors, particularly, slavery, Another trend is to pay more attention to the demand of persons trafficked (perhaps with the huge influence of the opinion asserting that the person demanding the services of sex workers is the cause of sex work). This has originated an imbalance of attention, with negligence to the “offer” side, that is, the human beings being trafficked, and their rights traffic in women, and enslavement and forced labor during armed conflict.
Human rights rules in a post-UN world have been later drafted. States have agreed to respect the rights enumerated in the international instruments, and to ensure their respect, through domestic legislation, or other type of adequate measures. Human rights rules are considered today goals and means to realize the respect for human dignity. They embody values and are, at the same time, an effective technique for their achievement.
The notion “contemporary forms of slavery” is employed here for practical reasons: it is coherent with all the existing treaty-making efforts, and is employed by scholars and practitioners as to characterize the series of phenomena presented in this paper. 6 According to the UN Office of the High Commissioner for Human Rights, “[t]he word ‘slavery’ today covers a variety of human rights violations. In addition to traditional slavery and the slave trade, these abuses include the sale of children, child prostitution, child pornography, the exploitation of child labor, the sexual mutilation of female children, the use of children in armed conflicts, debt bondage, the traffic in persons and in the sale of human organs, the exploitation of prostitution, and certain practices under apartheid and colonial régimes. Contemporary forms of slavery are a global problem which affects all continents and most countries of the world that counts with specific gender and age dimensions.
Available statistics are limited and contested in the field of contemporary forms of slavery, due to the clandestine character of most activities. This represents a serious deficit when trying to approach this topic with quantitative methodologies. Qualitative research appears to be extraordinarily important and useful in this arena. However, mainstream research is still focusing mainly on quantitative methods. The UNESCO Trafficking Project has shown the disparities among different statistical sources. We have preferred this language to the use of the term exploitation. Exploitation is not defined by international law. Some conventions on children rights, infra, and the Palermo Trafficking Protocol mention this language, but without defining it. Though all the notions mentioned here imply the presence of exploitation, there are no clear guidelines to assert what constitutes and what does not constitute exploitation. We could define exploitation as a conduct that, as a minimum, is not respecting the international labor rights we shall mention infra. In their most serious forms, they have been defined as crimes in treaties. For instance, we could consider exploitation work without the legal right to periodic holidays. However, though the international community has recognized the right to periodic holidays, it has not asserted that its violation amounts to exploitation.
UNICEF considers that, in 2004, 218 million children were engaged in child labor, excluding child domestic labor. Moreover, some 126 million children aged 5–17 are believed to be engaged in hazardous work. Children appear to represent 40–50 per cent of all victims of forced labor, or 5.7 million children are trapped in forced and bonded labor. Moreover, 1.2 million children appear to be trafficked worldwide every year. The UN Working Group on Contemporary Forms of Slavery has recognized that some 20 million people are still held in debt bondage around the world.
International law concepts have the advantage to have been accepted by States, normally after several years of discussions at international bodies. International State obligations require the effective implementation of these notions under domestic legislation. In some of the cases, international monitoring mechanisms have been created, though this is not the case concerning the slavery conventions. Most definitions are relatively broad, and they probably require the development of further operational concepts as to tailor concrete activities, with essential participation of relevant stakeholders. These definitions permit those planning a concrete intervention to determine whether the problem exists in the country under analysis.