Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

Abolition of Forced Labour Convention, 1957 (No. 105) - United States of America (Ratification: 1991)

Further to its previous observation, the Committee has noted the information supplied by the Government in its latest reports, as well as the discussion that took place at the Conference Committee in 2002.

Trafficking in persons

1. In its latest report, the Government draws attention to the Trafficking Victims Protection Act of 2000 (TVPA), which has created new federal crimes, including a "forced labor" crime in a new section 1589 inserted in Title 18 of the United States Code; the Act also has strengthened penalties for trafficking-related offences, afforded new protection and expanded services to trafficking victims. An Interagency Task Force to Monitor and Combat Trafficking in Persons was established in February 2002. According to the Task Force report, "Since the enactment of the TVPA in October 2000, the Department of Justice (DOJ) prosecuted 79 traffickers in FY 2001 and 2002, three times as many as the previous two years, opened 127 investigations of trafficking cases, and conducted the largest ever training for federal prosecutors and agents in October 2002. In a number of these cases, defendants were charged with violating the newly enacted forced labor provisions of Title 18 of the U.S. Code. In addition to domestic efforts at combating trafficking and forced labor, prosecutors stepped up their international efforts, working to build anti-trafficking capabilities and to share best practices with police and prosecutors in Eastern Europe and Latin America." DOJ also took various measures, including the funding of a number of non-governmental organizations (NGOs), to help trafficking victims to receive benefits and services.

2. The Committee has noted these indications with interest. It also notes, from the documents appended to the Government’s report, the findings of the United States Congress: that "Approximately 50,000 women and children are trafficked into the United States each year"; that "Trafficking for such purposes as involuntary servitude, peonage, and other forms of forced labor has an impact on the nationwide employment network and labor market"; and that "To deter international trafficking and bring its perpetrators to justice", priority is given "to the prosecution of trafficking offenses, and protecting rather than punishing the victims of such offenses". The Committee hopes that the Government will supply further details of the measures taken to this end, including the outcome of the 79 prosecutions and 127 investigations of fiscal years 2001 and 2002 referred to in its report.

Punishment for participation in a strike

3. In its previous observation, the Committee noted that under article 12, section 95-98.1 of the North Carolina General Statutes, strikes by public employees are declared illegal and against the public policy of the State. Under section 95-99, any violation of the provisions of article 12 is declared to be a Class 1 misdemeanour. Under section 15A-1340.23, read together with section 15A-1340.11 of Chapter 15A (Criminal Procedure Act), a person convicted of a Class 1 misdemeanour may be sentenced to "community punishment" and, upon a second conviction, to "active punishment", that is imprisonment. Article 3 (Labor of Prisoners), section 148-26 of Chapter 148 (State Prison System) declares it to be the public policy of the State of North Carolina that all able-bodied prison inmates shall be required to perform diligently all work assignments provided for them. The failure of any inmate to perform such a work assignment may result in disciplinary action. The Committee observed that under Article 1(d) of the Convention, ratifying States are obliged to abolish all penalties involving any form of compulsory labour which may be imposed as a punishment for having participated in strikes.

4. In its reply, the Government points out that under North Carolina law, a person without any prior convictions who is convicted for participating in an illegal strike could only be sentenced to community punishment which, in most cases, only requires the payment of a fine or "may simply involve some minor form of probation or community service". A convicted person with one to four prior convictions can be sentenced to "active punishment", but not receive a sentence of more than 45 days; in North Carolina, sentences of less than 90 days are served in county jails, without work requirements. It is theoretically possible for a person with five or more previous convictions who is found guilty of participating in an illegal strike to receive a sentence of more than 90 days and be subject to a work requirement. However, in the Government’s view, any such individual would be receiving this more serious sentence "for their recidivism" and "not for mere participation in an illegal strike". In addition, "research disclosed no history of strikes by public employees in North Carolina and, consequently, no known instances of any convictions under this law". The Government concludes that North Carolina law and practice is not in violation of Article 1(d) of the Convention.

5. The Committee takes due note of these indications. It must however point out that a sentence of community service, in so far as it may involve an obligation to perform work or service, comes under the definition of compulsory labour. Also, the fact that a person has a number of earlier convictions would not remove a prison sentence involving an obligation to work that may be imposed on him or her upon participating in a strike from the scope of the Convention. Noting with interest the Government’s indication that the relevant provisions of North Carolina law appear never to have been applied in practice, the Committee again expresses the hope that the necessary measures will be taken to bring the law into conformity with the Convention.

6. The Committee notes with interest the Government’s indication that a review of state law was undertaken and "disclosed no state that had a law comparable to North Carolina’s, where participation by a public employee in a strike is illegal, and punishable as a crime that could result in forced labor while in prison". The Committee is raising certain questions in this regard in a request addressed directly to the Government.