Section I: Finding recourse to public international law norms in order to define certain concepts necessary for applying the ECHR and to define
3. Finding recourse to public international law in order to define certain concepts necessary for applying the ECHR
4.4 Defining ‘forced or compulsory labour’ under Article 4 ECHR
In the Van der Mussele case52 the applicant, a lawyer, complained that
he was required to provide his services without receiving any remuneration or
reimbursement for his expenses. He alleged a violation of the prohibition of
forced or compulsory labour under Article 4 (2) ECHR. The Plenary Court
noted the lack of a definition of the term „forced or compulsory labour‟ in the
text of the ECHR and the absence of any guidance from its preparatory work.
48
A v. United Kingdom, 23 September 1998, [22]; Kudla v Poland, 26 October 2000, (Grand Chamber), [97].
49
Nowak, McArthur, (note 27), 78; Sivakumaran, (note41), 552-553; Evans, (note 28), 378- 381.
50
D.J. Harris et al., Law of the European Convention on Human Rights (Oxford University Press, Oxford, 2009) 106-111.
51
Evans, (note 28), 378-379; Sivakumaran, (note41), 553.
52
The Court had recourse to the 1932 International Labour Organisation (ILO)
Convention concerning Forced or Compulsory Labour53 and the 1959 ILO
Convention on the Abolition of Forced Labour.54 The resort to extraneous to
the ECHR international treaties was justified on a two-fold basis. First, the
Court underlined that the apparent, textual similarity between Article 4 (2)
ECHR and Article 2 of the pre-existing ILO Convention No 29 was not
accidental. Secondly, it noted that both ILO Conventions were binding on
nearly all member States of the Council of Europe, including the respondent
State (Belgium). However, it was stressed that the definition of forced or
compulsory labour contained in ILO Convention No 29 shall provide a
„starting point for the interpretation of Article 4‟55 and, thus, „sight should not be lost of [the European] Convention‟s special features‟έ56
The ILO Convention No 29 defines „forced or compulsory labour‟ as
„all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily‟έ57
When the Court proceeded to examine whether the services rendered by the
applicant amounted to compulsory labour, it encountered the difficulty on the
meaning of „menace of any penalty‟έ It approached the notion by taking
cognisance of the standards adopted by the ILO Committee of Experts58 and
concluded that the risk of striking the applicant‟s name off the roll of pupils or
53
Convention concerning Forced or Compulsory Labour, C29 (concluded on 28 June 1930; entered into force on 1 May 1932) 39 UNTS 55 (ILO Convention No 29).
54
Convention concerning the Abolition of Forced Labour, C105 (concluded on 25 June 1957; entered into force on 17 January 1959) 320 UNTS 291(ILO Convention No 105).
55
Van der Mussele (Pl), [32] (emphases added).
56
Ibid.
57
Article 2 (1).
58„Abolition of Forced Labour‟μ General Survey by the Committee of Experts on Application
rejecting his application for entry on the register of advocates qualified as a
penalty.
As far as the second element of the definition is concerned, namely
whether the applicant performed the service unwillingly, the crucial question
was whether his prior consent to the general legal regime concerning legal aid
in Belgium precluded compulsory labour from coming into play. According to
the Plenary Court, the prior consent of the applicant should be given relative
weight and other factors should be taken into account. It gave due regard to the
national standards of member States and to the Convention‟s underlying
objective of guaranteeing effective and practical rights.59 In light of the facts, it
found that there was no unreasonable imbalance between the aim pursued by
the Belgian legislation and the obligations incumbent on the applicant.
The Court‟s resort to ILO Convention No 2λ had an informative impact
on the construction of Article 4 ECHR. Forced or compulsory labour was
defined by reference to the ILO Convention - a pre-existing (to the ECHR)
treaty regulating ad hoc forced labour - and the standards stemming from the
ILO. At the same time, the Court sets certain limits as to the impact of the ILO
definition on the interpretation of Article 4 ECHR. The question whether the
applicant unwillingly offered his services was assessed against the structure and
the aims of Article 4 ECHR and the Court did not follow a formal approach on
the meaning of consent. Hence, the ECtHR did not employ an unqualified
reliance on ILO Convention No 29, preserving the specificity of the ECHR.
59
Van der Mussele (Pl), [37]. J.G. Merrills, The Development of International Law by the European Court of Human Rights (Manchester University Press, Manchester, 1993) 219.
The Siliadin case also relates to the definition of forced and compulsory
labour. The applicant was a French national of Togolese origin who had been
brought to France at fifteen years of age. Her passport was taken away from
her and she became an unpaid housemaid working under inhuman conditions.
She complained before the Court that the criminal law provisions applicable in
France at the material time did not ensure her adequate protection against the
treatment to which she was subjected. Moreover, she argued that the French
criminal law framework was in „divergence with the European and international criteria for defining servitude and forced or compulsory labour‟έ60
The Court took cognisance, again, of the ILO Convention No 29 for
defining „forced or compulsory labour‟, according to which the work or service
had to be extracted by an individual under the menace of penalty. It admitted
that the applicant in the specific circumstances had not been threatened by a
„penalty‟, but it stated that „the fact remains that she was in an equivalent situation in terms of the perceived seriousness of the threat‟έ61
The equivalent
status was inferred on the particular circumstances of the applicant‟s vulnerable
position (a minor who was unlawfully present on French territory) and her fear
that the police would arrest her. Therefore, the Court, in light of the specific
facts, equated the ILO standard of being threatened by a menace of penalty to
perceiving to be threatened by a penalty. This is more flexible and favourable
to the individual interpretation.
In sum, in both Siliadin and Van der Mussele cases the Court is guided
by the definition of forced or compulsory labour, as contained in ILO
60
Siliadin , [59].
61
Convention No 29 and developed by the standards of the ILO Committee of
Experts. It will be also seen below, that the Court has a standard practice of
reading the PIL norms that takes into account in conjunction with the views
(either binding or not) of their (if existent) supervisory bodies. This is crucial
for two reasons; the first reason is that, in this way, the Court places the PIL
norms in the treaty context from which they originate, hence, acknowledging
the contextual differences of every treaty. This is a fundamental aspect of the
fragmentation of PIL, as discussed in Chapters 1 and 2, since similar or
identical norms may attain different meanings and interpretations, in light of
the structure, aim and specificities of the treaty that they stem from. In practice,
the Court starts its interpretation process, by taking the ILO definition into
account, because it identifies a core of similarity between Article 4 ECHR and
the ILO Convention No 29. 62 However, the Court by reading the ILO
Convention No 29 in its treaty context, also identifies a core of difference
between the ECHR and the ILO context, setting a limit to the interpretative
guidance that it derives from the external PIL norms. In Van der Musselle the
meaning of unwillingness was approached by reference to the aim of the
ECHR and the practice of member States. In Siliadin the Court relaxed the
strict ILO requirement of being threatened. In this respect, one should not lose
sight of the fact that the ILO Convention relates to the „labour law paradigm‟,
whereas the ECHR is a treaty for the protection of human rights.63
62 Tέ Broude, Yέ Shany, „The International Law and Policy of Multi-Sourced Equivalent
Norms‟, in Tέ Broude, Yέ Shany (edsέ), Multi-Sourced Equivalent Norms in International Law (Hart Publishing, Oxford, 2011) 1, 5.
63
Cf. Forowicz, (note 41), 361 who uncritically argues that the ECHR and the ILO Convention No 2λ „strive for the same goals‟έ Also infra 7.4.
The second reason that the Court‟s practice of reading the external PIL norms in light of their supervisory bodies‟ views is important is because it
alleviates the danger of having two international bodies interpreting the same
PIL norm in different ways. The Court employs the PIL norm in its reasoning,
whose content has been elucidated and developed through time by its
supervisory body.64 This enhances consistency and harmonisation of standards
in PIL as different international bodies develop them. Nonetheless, the VCLT
general rules of interpretation (Articles 31-33) do not appear to accommodate
the interpretative development of treaties by their supervisory bodies,65
although it is an arguable claim that their practice may qualify as a subsequent
practice in the application of the treaty (Article 31 (3)(b) VCLT).66 This is a
point that should be kept in mind regarding the possible limits of the VCLT for
addressing the challenges of the fragmentation of PIL.