Observación General (CEACR) - Adopción: 2023, Publicación: 112ª reunión CIT (2024)

Convenio sobre la abolición del trabajo forzoso, 1957 (núm. 105)

The Abolition of Forced Labour Convention, 1957 (No. 105), constitutes one of the ILO fundamental conventions. Its purpose is to supplement the Forced Labour Convention, 1930 (No. 29), by requiring States to suppress the imposition of any form of forced or compulsory labour in five situations specified in its Article 1:

• as a means of political coercion or education or as a punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system;
• as a method of mobilizing, and using labour for purposes of economic development;
• as a means of labour discipline;
• as a punishment for having participated in strikes; and
• as a means of racial, social, national or religious discrimination.

Background context

The Convention was inspired by the work of the ILO–UN Ad-Hoc Committee on Forced Labour, which was established in 1951 to conduct an impartial inquiry into the existence of systems of forced labour. The report issued by the Ad-Hoc Committee in 1953 revealed the existence of two principal systems of forced labour imposed by the State that seriously threaten human rights in contravention with the United Nations Charter. The first was the use of forced labour as a means of political coercion or punishment for holding or expressing political views. The second was the use of forced labour for important economic purposes.¹  The negotiation and further adoption of the Convention reflected the determination of the ILO to continue and intensify its efforts to abolish such practices that were so far not explicitly covered by Convention No. 29.

More than 65 years have passed since the adoption of Convention No. 105. Nevertheless, there are still a considerable number of cases that have been examined by the Committee where compulsory labour continues to be imposed by the State in the different situations prohibited by the Convention. This is particularly the case when compulsory labour is used for economic development purposes or as a punishment for the exercise of civil and political liberties, particularly freedom of expression and assembly. Given the considerable number of situations raised by the Committee with regard to the latter, the Committee considers that it is timely and appropriate to recall the nature and scope of the prohibitions established under Article 1(a) and (d) of the Convention, as well as the Committee’s requests addressed to governments in this regard. These prohibitions refer to the use of compulsory labour as “a means of political coercion or education, or as a punishment for holding or expressing political views or views ideologically opposed to the established political, social, or economic system” (paragraph (a)); and “as a punishment for having participated in strikes” (paragraph (d)).²  It must be noted that in these two cases, forced labour usually takes the form of compulsory labour imposed in the context of a penal sanction pronounced for acts that relate to the exercise of civil liberties, including the right to freedom of expression and the right to freedom of peaceful assembly and association, both of which are recognized in the ILO Declaration of Philadelphia (1944) and the Universal Declaration of Human Rights (1948).

The Committee wishes to recall from the outset that the Convention does not constitute a revision of Convention No. 29 and was adopted to reinforce and complement the protection offered by Convention No. 29. At the same time, these instruments are independent of each other, so that countries which have ratified both must ensure their cumulative application. This is particularly true for the exceptions laid down in Article 2(2) of Convention No. 29, which do not automatically apply in the five specific situations covered by Convention No. 105.³  Accordingly, while under Convention No. 29 work exacted as a consequence of a conviction in a court of law is an exception and does not constitute forced labour,⁴  Convention No. 105 prohibits the imposition of any form of compulsory labour in the situations mentioned under its Article 1, even if the work is imposed as a result of a conviction by a court of law.⁵ 

The Committee also considers necessary to clarify that, in the context of Convention No. 105, compulsory labour can take place either in the form of a sanction of imprisonment involving an obligation to work (compulsory prison labour) or as a specific sanction of community, public or correctional work to which the person has not given his or her consent. In this respect, one of the main questions analysed by the Committee when assessing compliance with the Convention by the country under examination is whether any of these forms of compulsory labour is contained in the national legislation.⁵ 

Exaction of forced or compulsory labour as punishment for holding or expressing political views or views ideologically opposed to the established political, social, or economic system (Article 1(a))

Scope of Article 1(a)

The Committee has pointed out that the underlying rationale of Article 1(a) is to protect persons who, in the exercise of freedom of expression or other related civil liberties, express political views or views ideologically opposed to the established political, social or economic system, by establishing that they cannot be punished by sanctions involving an obligation to work. This is the paramount principle that has guided the work of the Committee while bearing in mind that the Convention was not conceived as an instrument to regulate freedom of expression, as such. The Committee also recalls that the Ad-Hoc Committee on Forced Labour emphasized in relation to the use of compulsory labour as a means of political coercion that “apart from the physical suffering and hardship involved, what makes the system most dangerous to human freedoms and dignity is that it trespasses on the inner convictions and ideas of persons to the extent of forcing them to change their opinions, convictions and even mental attitudes to the satisfaction of the State”.⁷ 

In the context of the supervision of the application of Article 1(a), the Committee has examined a wide range of legislation, including provisions of national constitutions, criminal codes, laws relating to defamation and seditious acts, electoral laws, laws regulating the use of communication and social media, press laws, among others. It notes that, nowadays, the expression of political or ideological views or views opposed to the established system can take place orally or through the press or other type of publications or communication media, including social media platforms. This is also closely linked to the exercise of collective rights such as the right to organize or take part in peaceful assembly, including online assemblies, the right to freedom of association, through which persons seek to secure dissemination and acceptance of their views.⁸  Thus, the Committee has carefully examined the scope of legal restrictions to these rights when they could lead to the imposition of sanctions involving compulsory labour. In this regard, it has pointed to situations in which restrictions are justified and do not fall within the purview of Article 1(a), for example, restrictions to protect public order, the security of the State, or to guarantee respect for the rights and freedoms of others. Moreover, situations where the expression of views opposed to the established system take place through recourse to violence or incitement to violence are outside the scope of the protection granted by the Convention.⁹  It is also important to recall that, as recognized by universal and regional human rights bodies, any restriction to the rights of freedom of expression and assembly should meet the requirements of legality, necessity, and proportionality.¹⁰ 

Examples of l egislative provisions that may have a bearing on the application of Article 1(a)

The Committee has identified different types of legislative provisions that have a bearing on the application of Article 1(a) of the Convention.

First, provisions establishing offences punishable with penalties involving compulsory labour which by their own wording are clearly contrary to the Convention, for example provisions banning and punishing all type of publications or participation in meetings or political parties advocating views contrary to the political system in place.

Secondly, provisions aimed at establishing legitimate restrictions to the right to freedom of expression or assembly, but which are worded in terms broad enough to lend themselves to an interpretation and application that could be incompatible with the Convention. This is the case of provisions aimed at protecting public order by prohibiting the publication and dissemination of “fake news” or information that is “likely” to prejudice national interests or disturb the constitutional order, as well as provisions prohibiting acts of subversion or engagement in agitation or propaganda with a view to “weakening” the authority of the State. In these cases, the Committee requests the Governments concerned to review the wording of the provisions to limit their scope to effective and concrete threats to public order, or the use or threatened use of violence.

The Committee has also noted that in a number of countries, defamation (including in the form of libel or slander) still constitutes a penal offence punishable with sanctions involving the obligation to perform work. The Committee observes that United Nations Human Rights Committee as well as other regional institutions have also warned against the excessive use of defamation provisions to restrict the exercise of freedom of expression, particularly by journalists and human rights defenders. In doing so they have called upon States to ensure that defamation laws are crafted with care so that they do not unnecessarily interfere with freedom of expression and that penalties against defamation are not excessive and disproportionate.¹¹  Over the years, the Committee has examined provisions penalizing defamation or press offences when the corresponding sanction involves an obligation to undertake work. In these situations, the Committee has emphasized the importance of amending the defamation provisions, so that they do not constitute penal offences punishable with sanctions involving compulsory labour.

Furthermore, the Committee has observed that the incompatibility of the imposition of compulsory labour with Article 1(a) of the Convention may also result indirectly when publications are subject to prior authorization granted by governmental authorities at their discretion, violations being subject to sanctions involving compulsory labour.¹²  Likewise, restrictions in respect of taking part in political activities or constituting associations of a political character other than a specified movement or party, in so far as they are enforced by penalties involving an obligation to perform work,¹³  also fall within the scope of Article 1(a) of the Convention.

Practical application of such provisions

Information on the practical application of legal provisions that have a bearing on the implementation of Article 1(a) of the Convention is crucial as it is not always possible for the Committee to appreciate their scope simply by reading them. It is only by carefully studying the way in which legislative texts are interpreted and implemented in practice that the Committee determines that the standards laid down by the Convention are being observed.¹⁴  In other words, the Committee must be certain that the legal provisions in question are not used to punish persons, who express political views or in a peaceful manner oppose the established order, with penalties involving compulsory labour. For this reason, the Committee has systematically requested governments for information on judicial decisions that illustrate how such provisions are applied by the judiciary, and in which context. In addition, when conducting its assessment, the Committee takes due account of the conclusions and recommendations of United Nations human rights treaty bodies, particularly under the International Covenant on Civil and Political Rights, judgments of regional human rights courts and information from national human rights institutions. Moreover, social partners’ observations help provide essential information regarding the national landscape in which the law is applied.

Exaction of forced or compulsory labour as punishment for participation in strikes (Article 1(d))

The prohibition of the exaction of forced or compulsory labour as punishment for participation in strikes was extensively discussed during the negotiations of the Convention at the International Labour Conference. The workers’ members who proposed the inclusion of this prohibition under Article 1 emphasized that “the question at issue was not the right to strike and agreed that strikes could be declared illegal in certain circumstances”¹⁵; however, they considered that the penalty for having participated in strikes should not be forced labour.

In examining the conformity of the national legislation with Article 1(d) of the Convention, the Committee undertakes a review of labour as well as criminal legislation to determine whether participation in strikes regardless of their legality is punishable by sanctions involving compulsory labour. In this regard, the Committee has requested governments to review legal provisions which expressly prohibit organization and participation in strikes when that prohibition is enforced with sanctions involving compulsory labour. It has also drawn attention to provisions which provide for disciplinary sanctions, involving compulsory labour, for civil servants for abandoning their functions or refusing to exercise any of their duties with the intention of obstructing the pursuit of business, when these provisions could be applied for participation in strikes. The Committee attaches great importance to the practical application of such type of provisions with a view to better assessing their conformity with the Convention.

Situations where participation in strikes implies recourse or incitement to violence fall outside the scope of the Convention¹⁶.  When it comes to determining the scope and ascertaining the restrictions to the organization or participation in strikes for the purpose of Article 1(d), the Committee has generally followed the principles developed in the area of freedom of association.

The Committee wishes to recall that the Convention is not an instrument that was designed to regulate strikes, as such, and it applies solely to the exaction of compulsory labour, including prison labour, community work or correctional work, imposed as a sanction for having organized or participated in strikes. In this regard, the Committee has continually emphasized that no penal sanctions should be imposed against a worker for having peacefully carried out a strike and thus for merely exercising an essential right, and therefore that measures of imprisonment should not be imposed on any account. Such sanctions could be envisaged only where, during a strike, violence against persons or property, or other serious infringements of penal law have been committed and can be imposed exclusively pursuant to legislation punishing such acts, such as the Penal Code. Moreover, the concerns of the Committee that prison sanctions be imposed on strikers have also been shared by the treaty bodies of the United Nations, particularly the Committee on Economic, Social and Cultural Rights.

Therefore, the Committee reiterates that authorities should not have recourse to penal sanctions involving compulsory labour (either in the form of compulsory prison labour or community work) for those who organize a strike or participate in it peacefully.¹⁷ 

Conclusions and challenges ahead

As indicated above the main purpose of the Convention is to abolish any form of forced or compulsory labour imposed in the five specific circumstances mentioned in its Article 1. Through this protection the Convention is an instrument that has also contributed to guaranteeing respect of other human rights, particularly freedom of expression, the right to peaceful assembly and participation in demonstrations and strikes. Despite being in force since 1957, the implementation of the Convention continues to face a number of challenges as new types of restrictions to fundamental freedoms, including freedom of expression and freedom of association, enforceable with sanctions involving compulsory labour continue to emerge and national legal frameworks contemplate compulsory prison labour or sanctions involving compulsory labour. At the same time, the emergence of new information technologies poses new threats to State´s institutions and national security that come into discussion with the national and global public order debate. Against this background, when assessing compliance with the Convention, the Committee is called upon to examine considerations related to the protection of fundamental freedoms, on the one hand, and considerations of national interest, security and public order, on the other hand. While the Committee has considered that a balance needs to be struck between these two considerations, it has emphasized that sanctions involving compulsory labour fall within the scope of the Convention where they enforce a prohibition of expression of views or peaceful opposition to the established political, social or economic system.¹⁸ 

The Committee also wishes to highlight the key role of national courts in ensuring compliance with the Convention, as they are those who are called first to ensure that limitations to the exercise of fundamental rights stay within the limits of legality, proportionality, and necessity.

Furthermore, the Committee would like to stress once again the key role of social partners in the supervision of the application of the Convention. This is not only because they can provide first-hand information on the scope and practical implementation of a wide range of legislation that the Committee needs to assess, as described above, but also because the guarantees offered by the Convention are essential for their very existence and the continued exercise of their activities.

Finally, as an instrument contributing to the protection of fundamental human rights, the ILO Committee of Experts must within its mandate continue to engage in dialogue with the UN treaty bodies and other mechanisms, to ensure that the provisions of the Convention are applied in such a way to strengthen the full realization of civil, political, economic, social, and cultural rights to all without discrimination, as mentioned in the 2023 Joint statement by the ILO Committee of Experts on the Application of Conventions and Recommendations and UN Human Rights Treaty Bodies Chairpersons.

End Note

1. 1 - United Nations and International Labour Office, Report of the Ad-Hoc Committee on Forced Labour, Geneva, 1953, para. 548.
2. 2 - For this purpose, the Committee is taking into consideration the preparatory work of the Convention as well as the five subsequent General Surveys on forced labour instruments that have been adopted since 1962. ILO, Report III (Part IV/3), Report of the Committee of Experts on the Application of Conventions and Recommendations, International Labour Convention, 46th Session, 1962; Report III (Part 3), General Survey on the Reports concerning the Forced Labour Convention, 1930 (No. 29), and the Abolition of Forced Labour Convention, 1957 (No. 105), ILC, 52nd Session, 1968; Report III (Part 4B), General Survey of the Reports relating to the Forced Labour Convention, 1930 (No. 29), and the Abolition of Forced Labour Convention, 1957 (No. 105), ILC, 65th Session, 1979; Report III (Part 1B), General Survey concerning the Forced Labour Convention, 1930 (No. 29), and the Abolition of Forced Labour Convention, 1957 (No. 105), ILC, 96th Session, 2007; Report III (Part 1B), General Survey on the fundamental Conventions concerning rights at work in light of the ILO Declaration on Social Justice for a Fair Globalization, 2008, ILC, 101st Session, 2012
3. 3 - As indicated above, the survey of the UN–ILO Ad Hoc Committee found that one of the most common forms of forced labour was forced labour as a means of political coercion and many of the cases from which the Ad Hoc Committee drew this conclusion related to labour resulting from penal legislations involving convictions by a court of law. At its 127th Session (Rome, November 1954), the Governing Body accordingly decided to include an item on forced labour in the agenda of the Conference and expressed the view that any subsequent instrument adopted by the Conference should deal with the practices which are specifically excluded from the scope of the 1930 Convention.
4. 4 - According to Article 2(2)(c) of Convention No. 29, labour imposed on convicted prisoners does not constitute forced labour provided that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals, companies or associations.
5. 5 - Report III (Part IV/3), para. 11.
6. 6 - ILO, Forced Labour, Report VI (I), 39th Session, Geneva, 1956, 17.
7. 7 - United Nations and International Labour Office, Report of the Ad-Hoc Committee on Forced Labour (Geneva 1953), para. 549.
8. 8 - ILO, General Survey, 1979, para. 133; and General Survey, 2012, para. 152.
9. 9 - ILO, General Survey, 2012, para. 303.
10. 10 - United Nations Human Rights Committee, General Comment No. 34 on article 19 adopted in 2011, and General Comment No. 37 on the right of peaceful assembly (article 21), adopted in 2020, para. 36.
11. 11 - United Nations Human Rights Committee, General Comment No. 34, article 19: Freedom of Opinion and Expression (CCPR/C/GC/34, para. 47); European Commission Recommendation 2022/758 of 27 April 2022 on protecting journalists and human rights defenders who engage in public participation from manifestly unfounded or abusive court proceedings, para. 23; Community Court of Justice of the Economic Community of West African States, Suit No. ECW/CCJ/APP/36/15; Judgment No. ECW/CCJ/JUD/04/18, pages 40 and 47; Inter-American Court of Human Rights, Judgment of July 2, 2004. Series C, No. 107; Judgment of May 2, 2008, Series C, No. 177; African Court on Human and Peoples’ Rights, Application No. 002/2013, Judgment of December 5, 2014.
12. 12 - ILO, General Survey, 1962, para. 108.
13. 13 - ILO, General Survey, 1962, para. 113.
14. 14 - ILO, General Survey, 1962, para. 15.
15. 15 - ILO, Record of Proceedings, 1956, Appendix IX, 723.
16. 16 - ILO, General Survey, 2012, para. 313.
17. 17 - The Committee on Freedom of Association has stressed in this respect that: “Penal sanctions should only be imposed if, in the framework of a strike, violence against persons and property or other serious violations of the ordinary criminal law are committed, and this, on the basis of the laws and regulations punishing such acts” (Principle 955 of the 2018 Compilation of Decisions of the Committee on Freedom of Association).
18. 18 - ILO, General Survey, 2012, para. 303.