 We will now proceed with the panel discussion. Special Rapporteur Joy Iselo, you will moderate the expert panel. I pass you the word to you now. Thank you. Thank you, distinguished ladies and gentlemen, the panelists, welcome to this debate to mark the anti-trafficking day and the launch of the Swiss anti-trafficking week. The debate will be on the international law of human exploitation, convergence, or confusion. We have eminent, very eminent panelists with deep knowledge of the subject to engage with these conceptual issues around human trafficking, exploitation, slavery, forced labor. We have academics, jurists, legal experts, scholars, and practitioners above all, and I would like to introduce them to the audience and then also to explain the methodology for this debate. I have here with me to my immediate right, Professor Jean Allen, who is Professor of Public International Law at the School of Law, Queen's University, Belfast, UK. He is a very published author and international lawyer who has published in particular the book The Auto of Slavery in International Law of Human Exploitation and Trafficking, very just hot from the press, 2013. I would like to also introduce Mr. Thiago Ribeiro, who is a labor prosecutor from Brazil and also a former labor judge at the Federal Court of Rio de Janeiro, as well as the regional representative of the National Coordination for the Fight Against Slave Labor, corner thing. I would like to also introduce the only lady in the panel, Dr. Anne Galanga, who is the lawyer, a versatile scholar and practitioner who, through her work, have pioneered the guiding principles and guidelines of OSHR on human rights and human trafficking. She is a leading global expert on the subject of human trafficking and she has authored a comprehensive book on the face of his kind called International Law on Human Trafficking. Dr. Galanga, you're welcome. And finally, I would like to introduce Professor Babu Matu, who is a legal expert on bonded labor. He currently teaches at law, at daily law school. He has been instrumental in shaping India's Bonded Labor Abolition Act and is a member of India National Advisory Council yet. So what is the relationship, differences overlap and or hierarchy between and among the concepts of trafficking in persons, slavery, servitude, forced labor and international law? Thank you very much, Mrs. Chair. For me, there's clear distinctions, legal distinctions. In the first instance, it's clear that trafficking should be considered as being distinct from types of exploitation. In other words, trafficking is a process, clearly three elements to it. It's the movement of a person, typically against their will for the purpose of exploitation. So the process of trafficking is different from the actuality of exploitation. And so from my perspective, these are different concepts and should be dealt with in a different manner. When it comes to the issues of slavery, of servitude and of forced labor, from my perspective, once again, there are three international instruments which deal with these. The 1926 Convention deals with slavery. The definition is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised. Ownership is actually about control. So if we think about control when it comes to a person, this is what we're talking about when we talk about slavery. You control somebody to the extent that they have no agency, that they lack liberty. And on that basis, once you control this person, you can then buy them, sell them, use them, destroy them if you wish, because that person no longer has control over themselves, over their person. So for me, the definition of slavery in the 26th Convention works, it's applicable and it has boundaries in which we can apply in a court of law and hold people responsible for issues of slavery. Servitude I think is very interesting because international courts have struggled with the notion of servitude. What does servitude mean? But in fact, if you go back to the 1956 Convention, that convention was negotiated to deal with actually servitude. But for technical reasons, the language was changed from servitude to institutions and practices similar to slavery. So I think, and the technical reasons that originated in 1956 are no longer valid. So we should think about servitude as being those types of institutions and practices similar to slavery. In other words, debt bondage, serfdom, exploitive marriages, and child trafficking. Those are the four elements in the 56th Convention. Finally, forced labor. Forced labor to me is a very interesting concept. You have a 1930 Convention. But in that convention, well, and the definition is such that it can have a quite wide arc that forced labor can be in your mind's eye when people are locked away and forced to work. But it can also be the person that you bought your newspaper from this morning who their boss says to the person, you have to accept less than minimum wage or you're fired. On that basis, that also meets the notion of forced labor. For me, one of the interesting conceptions or issues around forced labor is where do we draw the line in which we say that forced labor is maybe criminal and other instances where it is labor issue. So from my perspective, there are clear distinctions when it comes to the issues of slavery of servitude and forced labor. As you can see from this definition, from Palermo Protocol definition, trafficking persons is this process that can result in slavery or forced labor. And in relation to slavery and forced labor, we have this, considering the international law, we have this definition in 1926 Convention that must be understood in relation to our nowadays problems. And it's interesting that sometimes a worker can be used and controlled like he was an object, an instrument. And these times, we can see slavery and both forced labor. And forced labor can be understood as this concept that can cover, can encompass many other slavery-like practices. So I think that's interesting this, it's important to draw the line between these concepts in order to make clear everyone's obligations. Just because this is a debate, I will just take the position to disagree with Professor Eileen, not terribly much on the substance, but just to perhaps reiterate or emphasize that these terms overlap, they're not actually mutually exclusive. And that efforts to look at the past, to look at the various documents around the conventions of the past can really only take us so far because they duplicate or they replicate rather than actually resolving these international definitional confusions. And we see that very clearly in relation to the definition of trafficking in persons and how states with perhaps very different agendas have been able to shape very different interpretations of that definition that to us lawyers appears to be very clear. And I think that's something that we'll be picking up later on in the debate. Thank you for that. So I will turn to Professor Eileen. You can respond today. Yeah, I said that for me there are clear distinctions between them, but it doesn't mean that there's necessarily that there isn't overlap. In the sense, for instance, if you look at the notion of exploitive marriages, of servile marriages in the 1956 convention, it's very difficult to see in a situation where a bride is sold, where a widow is inherited, that we're not talking about a power attached ownership, in other words, a conception that is slavery. And so it seems to me, and also with regards to forced labor, that if you move towards that far end where someone is locked away and is forced to work, then other types of exploitation can come in and these definitions can also hold. That for me, the issue is from a legal perspective is holding people responsible. And in a sense, it falls to the discretion of prosecutors to what extent and what is the evidence around these things. And so very much from a legal perspective, rather than let's say a policy perspective of trying to shape the bigger agendas. So I will now turn to Dr. Anne Galanga, to really, Dr. Anne, please. Can you consider the practical significance, if any, that the lack of conceptual clarity in the international legal framework with respect to trafficking, slavery, servitude and forced labor have, especially at municipal and also international levels? Thanks very much, Joy. And I think that perhaps the first thing to do is to acknowledge that this lack of conceptual clarity actually does exist. We do actually have a problem. And the problem has arisen after the definition of trafficking actually came out in the year 2000. Before that, we knew very well that slavery was distinct from forced labor. We knew that forced labor was materially different to debt bondage. And we also knew that servitude was bad, but it wasn't as bad as slavery. And the trafficking definition, as I said, has muddled that. I see that there are two distinct trends. Both of them are expansionist in the very real sense of the word. The first one is the removal of the movement element from the definition of trafficking, which in effect renders forced labor, for example, trafficking. And I think we'll have a chance to talk about whether that was actually the intention of the drafters of the protocol or whether this has been a subsequent evolution that is supported or not by the actual text of the protocol itself. And the other expansionist trend we see is slavery has come to be equated with this expanded definition of trafficking. So in other words, trafficking equals slavery. Now there are multiple players in this new global anti-slavery movement. We have expansionist elements of the generally conservative law and order lobby who've really come together with the human rights, progressive social justice groups into one slavery movement. And into that of course, that mix, that very volatile mix, come the international organisations themselves that perhaps have issues around the mandate, who is responsible for what, and definitions really matter then because if forced labour is slavery then it may actually affect which organisation is taking the lead on which issue. And we see this actually duplicated at the national level. For example, in the US where the Department of Labor and the State Department have had great discussions over trafficking and forced labour and the relationship between the two. And I think that the problems wrought by this kind of conceptual confusion is actually that's one of the reasons that we're here. The UN, its member states and many of us working in this area are rightly worried about the fluidity and the permeability of these key definitions. Now in terms of the consequences of confusion and exploitation creep, I really think that this remains to be seen where it's very early days yet and particularly while the law and the practice of the law is still so new in so many countries, we haven't actually seen the full effect. Certainly there are reasons to feel positive and to see some positive impacts, not least the bringing of these new norms, these new very strong norms and strong compliance mechanisms, both international and unilateral, to bear on a set of practices that have long been ignored or marginalised by the international community, including by the international human rights community. And it's also been focusing attention on exploitation, which is really at the core. That's actually what we're talking about today. We're talking about people being exploited. So this expansion has actually allowed us to focus more directly on that. But I do think we need to be aware and highly mindful of the potential negatives and the risks associated with this. First of all, a risk of a dilution of attention and efforts. There's really a chance that this expansion will deflect attention away from the worst forms of exploitation as we try to deal with everything as quickly and completely as we can. And perhaps this is something that may well come up again in the debate, but there is a chance that this expansion will really obscure the reality that of the link between migration and vulnerability to exploitation and the role that problematic migration policies play in feeding into trafficking. And then, of course, I have broader concerns as an international lawyer. I think it's not unreasonable to suppose that for some states, vagueness and imprecision can actually be welcome. It prevents the articulation of very specific obligations and it prevents the kind of concrete measurement that allows one to determine a violation as clearly as one would like. So for international law, and I think right down to the national level, we see the need for precision. It's not just something that should be the obsession of the lawyers. It's something that we should all be very concerned about. In my context, bonded labor. We have within our statutory framework three stages. The first stage is to identify. The second stage is to release. And the third stage is to rehabilitate. And we find that the legal missionary is happy to do the first and the second and will run away from the third. And in recent days, I begin to feel that international pressure is for you to mention from where that may be originating seems to emphasize more on prosecution. And some of us in that context are very reluctant to move away from rehabilitation to prosecution. A bonded laborer belonging to the Dalit caste in India does not want the prosecution of his master. He wants to be rehabilitated in order to lead a decent life. Now, my question is my anxiety to find information and knowledge on this is, in terms of definitional categories, does definition have a role to play vis-a-vis rehabilitation, for example? Why is there a movement towards prosecution rather than rehabilitation? Some of us are clearly opposed to it. Thank you. I think that's it. Because if you look at the conceptual clarity or confusion directly impacts on identification, prosecution, punishment, and then importantly in terms of addressing vulnerabilities and then providing redress or recovery for victims so that they are not re-victimized again. But I think maybe, do you have something to say, John? OK, yes, OK. Thank you. For me I think the interesting element is that between trafficking and exploitation that there's been an emphasis on states on passing trafficking legislation at the expense I think maybe of forgetting about the exploitative legislation that there is trafficking legislation that for instance talks about slavery, servitude and forced labor but it's not necessarily so that states have also put in to their domestic legislation that deal specifically with and defines these elements. So I think there are issues around that. Some of the practical significance of a lack of conceptual clarity, it seems to me, is that when states have introduced trafficking legislation into their domestic system, very few states have actually introduced the same legislation with regards to what is considered trafficking. And Anne has already mentioned that by removing the movement part of it and calling it trafficking, you're actually talking about something different. And in fact, so there's only three states, the Bahamas, Liberia and the Philippines, that have introduced word for word the Palermo definition. But even that, if you dig down a bit further, the Bahamas in one of the elements of one of the types of exploitation, sexual exploitation, it adds that sexual exploitation should be understood as, and it gives a number of examples, pornography, prostitution, but other sexual activities having been subject to the effects of narcotic drugs. And so what we see here is a kind of a different understanding of what trafficking is, there's other examples, many other examples, sexual tourism, illegal adoption, this is from various countries, farm labor, debauchery, sexual assault, et cetera, et cetera, et cetera. The practical implications of this is that the trafficking Palermo protocol was established to ensure that there was cooperation across states in criminal matters. But when it falls to issues of jurisdiction, for instance, of extradition, it's very difficult when you're trying to extradite somebody when the crime is not the same in both countries. And so I think that's one of the fundamental different practical significances of conceptual difference in trafficking. Thank you very much. I will give you, Dr. Angelanga, you have one minute's right of reply. Okay, right, very quickly. Well, first of all, I think the question about victims and whether victims qualify for assistance, that's actually, and I think very clearly, been part of the push to expand the definition of trafficking, because as states start to develop regimes to support victims of trafficking, it becomes very important, particularly for the activists and for the victims themselves, that the category of victim is sufficiently broad enough to enable people who need help to access it. So that's been one of the pressures. I'll just finish this particular question, I think on a positive note, because states, I feel, have been perhaps a little bit more pragmatic than many of us working at the international level in getting around this conceptual confusion. And it is, of course, very true that most states have not adopted word for word the trafficking protocol definition. I think that's a very, very wise decision for states to make. And definitely we start to see, as we see the second and third generation of trafficking law, we start to see a much more sophisticated approach to understanding of trafficking that, for example, brings in related offences. So I spend a lot of time working with countries on revising their laws. And more and more, what we're encouraging and what we're seeing is states keeping the definition of trafficking and this idea very clearly, but also making sure that they have very effectively and very clearly criminalized forced labor, forced marriage, and the offences that are associated with trafficking. And most importantly, offences that are often much easier to prosecute than the very complex crime of trafficking. And that might be something else that we'll be talking about a bit later. Thank you very much. I will now move quickly to Professor Babu Matiu. Given your background and your ex-parties, what can be done to clarify the existing international legal framework with respect again to trafficking as slavery, servitude and forced labor, as well as state's responsibility under these international standards? What role should in particular be played by the courts? Or does supervisory or monitoring bodies or even international organization in this regard? I must be honest and confess that my own understanding on this is still at a very early stage of evolution. Partly because I come from a jurisdiction where human rights has developed its own jurisprudence. And so far as the achievement of remedy is concerned, we rely much more on our national jurisdiction. And therefore, there is no compelling reason to search for international support, given its inefficacy. Having said that, I must still welcome this whole tremendous effort and share a few related things. I find the idea of a continuum, a very interesting idea. I've come to know more about it as part of the preparation for this occasion. I understand that in France and in Brazil, the notion of continuum is present and that in Brazil, almost everything in this broad category is treated as close to slavery. I come to the Indian position. The slavery part of it is dealt with under the Indian Penal Code. And that's the criminal law of the land. That's a substantive criminal law of India. Not surprisingly so, because it was Lord Macaulay who prepared it in the year 1860. And that remains on the statute book. And it attracts various forms of punishment. But I think where I can raise some interesting questions, vis-a-vis international law, is relating to what we call bonded labor. And here I must mention that it is the Indian variant of slavery. And I think that has its own sociological implications. It is embedded in the caste system of India. It is sanctified by the Hindu religion. It is not less than 3,000 years old. It's closely interwoven with the division of labor. It's deeply embedded in the agrarian system of India. It's related to the division of labor, unclean jobs, removing the dead carcass of an animal, cleaning up, and agrarian labor or agricultural workers. It's part of feudalism. And it's aggravated by poverty and social exclusion. It's hugely practiced against the Dalit. And if it's a Dalit woman, it's a double oppression. Children of Dalits continue to be discriminated. You know, one of the founders of the anti-caste movement in India is the one who led the constitution writing process. His name is Dr. Ambedkar, a Dalit himself. He was quoted, is known to have stated, I was born a Hindu, but I will never die a Hindu. And that's the extent to which he thought that the Dalits cannot liberate themselves so long as they are bound by Hindu philosophy and theology. And therefore he actually converts himself into Buddhism. And that will give us a peep into what are the sociological dimensions of what we are talking. Now, if we look at forced labor, as recognized in international law, it appears to hinge around the notion of the menace of penalty, you know. And if I were to relate to that, then I would find that the other limb in international law is any work that a person does for which the person has not offered himself voluntarily. So this question of voluntariness, this question of force, the Indian contribution to this aspect is referred to as the Asiad case. That is a Supreme Court judgment by a leading judge of the Indian Supreme Court. And that is something which has held for the last 30 years. I doubt it will ever be reversed. Such a powerful judgment it is. And this depends upon the interpretation of our constitution. In the constitution we have a fundamental rights chapter. And there are only two fundamental rights which by constitutional law are made into punishable offenses. One is the offense of untouchability. And the other is the offense of beggar. Beggar is an Indian word that's been added to the English dictionary. Beggar means extracting work without any payment. And therefore there was a debate in the Supreme Court where the partial payment will mean that it is not forced labor. And the Supreme Court rejected that argument and laid down that non-payment of minimum wage will be equal to forced labor. And then the question is, you know, what is free choice? If a person is compelled to sell his labor on account of poverty, on account of hunger, on account of starvation, on account of inability to lead a life, if those circumstances force somebody to sell labor, and that might apparently appear to be voluntary but it's not voluntary, it is forced labor. And I think this aspect may be something which is useful for us to consider even in terms of international law. I think it's actually a wonderful question to ask what the can be done to actually clarify the existing international legal framework. I think for me first and perhaps most importantly, we probably need to be pretty rigorous in separating advocacy from the law. We need to accept that terms such as slavery and modern slavery will continue to be used fairly promiscuously by advocates but that shouldn't distort the law. And international lawyers, and I believe international organizations have a very special responsibility in that regard. It's actually quite tempting to the lure of simplifying the complicated and broadening perhaps one's appeal is a very strong one, particularly in this current climate where there seems to be perhaps that that's the only way to attract attention and funding. But we do pay a high price for that and we should be brave enough to confront initiatives that perhaps undermine or further confuse the law, whether they come from a government or from a private corporation or anything else. What specifically can we learn from development of national law that could help shed light on how to understand the relationships between the concepts of trafficking, slavery, forced labor and the slavery and forced labor? Brazil's example reveals this attempt to develop a definition that besides trafficking persons, a definition that's encompass many forms of labor exploitation. We have under Brazilian law this crime of reducing someone to condition analogous to that of a slave with a very detailed definition and with this definition we can encompass slavery and encompass forced labor, debt to bondage and many so-called slave-like practices. So I think this attempt to develop a concept that can make it clear what situations can review the existence of forced labor and slave-like practice is an important contribution to shed light in relation to this concept and maybe the same thing can occur in other states by the development of a context concepts that is related to local context and maybe can help the achievements in relation to the combats against forced labor and labor-like practice. I think what I've learned from having examined the domestic laws with regards to trafficking, slavery, et cetera, is that when it comes to slavery, servitude and forced labor that the legislation that's in place is limited. Oftentimes states only have provisions, let's say, in their constitution, but they don't expand on it. And you get a real sense that there was an introduction of these things, let's say, around the time of the Universal Declaration or around the ICCPR, the International Covenant on Civil and Political Rights. So you have this legislation that comes in waves. For me, and I think maybe to be, let's say, a bit to challenge my colleagues and to raise an issue, I think that I mentioned before that with regards to trafficking and exploitation specifically, that there's been a number of different readings of what exploitation means. So there's been a real divergence. But I see another trend, and I think it's a trend that's rather interesting. And that is that, for instance, the European Union in its 2001 directive puts forward this notion of the movement of a person against their will, so trafficking, but with regards to any criminal activity. And that may be the future of the definition of trafficking, that we don't seek to establish what exploitation is. We accept that anybody who's forced to do something against their will, which is illegal and which has movement attached to it, meets that definition of trafficking. So it may be that there's convergence at the end of this process, that there has been an attempt in each country to define what trafficking is, and each country has come up with a different understanding. There may be this umbrella concept, which catches much of it, and that is that any criminal activity in which a person is coerced into, when there's movement, might well meet the definition of trafficking. Thank you very much. So I will take one more minute before we move to the next segment, giving you, of course, the right to reply. Yes, thank you. Yeah, just very briefly, I don't see that happening. I think that what we are seeing very much is that states are playing around with the issue of movement, and in fact, more and more, not requiring movement, but rather focusing on the end purposes which are the exploitation themselves, and perhaps that ends up coming pretty much to the same thing. But I do believe very much that the trend will be away from focusing on movement, and that may well be problematic. We can talk about that, I think, at some point, which is a big part of the definition, and very much skipping, even perhaps skipping over the means element and going straight to the servitude, the particularly forced labour, forced marriage, and these end purposes of trafficking. So the trend that I see is, in fact, that the end purposes of trafficking are starting to become trafficking. And that's very significant legally, but also in terms of policy, both at the international and the national level. Thank you. Is trafficking in person a form of exploitation, or is it a process that may result in exploitation? Where would that fit in the continuum of exploitation? I think a very interesting question, whether trafficking is a form of exploitation or it's a process that results in exploitation. Legally, you don't have to be exploited to be trafficked. That is that if you are seeking to exploit someone and you move that person through deception, et cetera, then that can also be trafficking. But I think that's, in a sense, a lowerly answer because it will be rare that this will take place. I think that trafficking is exploitive because behind that is the acknowledgement and the realization that when somebody is trafficked, it is violent. The person does not want to move and they're being moved. And they're being moved in a sense towards exploitation, something they don't agree to. As a result, the trafficking process is probably the most violent and it is, if you wish, in quite harsh language, it is the breaking of a person so that they can then be exploited. So I do see that on the one hand, you could say, well, no, it's a process that leads to exploitation, but to my way of thinking, we should not deny that the process of trafficking itself is exploitive. So the first. The second is the issue of a continuum. I think we've discussed it in many ways already of this continuum and that there's overlap. But there are clear reasons why slavery was outlawed and then forced labor and then we've seen different types of exploitation being dealt with. For me, the issue of a continuum may fall rightly with regards to the penalties that are attached to it, but beyond that, I don't see all that much leverage, legal leverage in talking about a continuum. I'm a little disconcerted to agree with Professor Elaine again, but I would pick him up on one thing and that is the continual use of the word movement. That trafficking is a process moving someone into a position of exploitation because unfortunately that doesn't resolve one of the central questions that we're here to talk about today. And that is the very strong argument that continues to be advanced that maintaining a person in a situation of exploitation is trafficking. And that is the exploitation creep that has I think many people, many organizations quite rightly worried. I think for me the interesting thing and the thing that we often forget is that the international level, the pluriprotocol is exactly that. It's a protocol to a convention dealing with organized crime. And so the conception of trafficking was the movement by a criminal gang and that movement ended when the criminal gang was no longer involved. And so you could clearly make parameters around this person left here. These are the people that assisted and then that person was exploited. But I think that's been lost when we move to bring the legislation into the domestic legal order. And I think that's where what was conceptually quite strong has kind of broken and fragmented into the understanding and maybe the issues and the problems that we're seeing today as a result of the domestic implementation conceptually quite strong at the international level but it's been lost in translation as it's been brought into the domestic legal orders. What is the meaning of the term harbouring in the trafficking definition? And how do you think the drafters of the protocol understood this term? If it operates, it operates to bring both the process and the end situation of trafficking within the definition as you have written particularly in your book on international law on human trafficking. Again, it would be interesting if you look at what are the legal and functional limitations today's. Okay, I think that perhaps the first thing to say is that harbouring is problematic. It was actually identified by the conference of parties to the protocol, to the convention as an area of potential study in this broader study of complicated and complex concepts in the definition. Now it's not least problematic because this term is usually used to refer to contraband or criminals and it's only really in the context of trafficking that harbouring has been used with reference to victims of crime and that's perhaps something interesting that we could explore a bit further if we had some more time. But leaving that aside, this becomes an issue of treaty interpretation. The US government, for example, has argued very strongly that inclusion of harbouring and receipt within the act element of trafficking in persons extends the definition of trafficking to cover situations in which someone has not been recruited or moved into that situation by a third party. So for example, a person who's maintaining control over a bonded labourer has in fact trafficked that person because he or she is harbouring them through one of the prohibited means for purposes of exploitation. Now the most direct effect of this and the effect that has, I think, many governments and international organisations worried is that this brings all forced labour or bonded labour within the definition of trafficking. Forced labour in fact is trafficking under this interpretation as is forced marriage, debt bondage and most of the other forms of exploitation to which trafficking has been linked through the protocol. Now I've accepted previously in my work that this is indeed a possible interpretation of the international definition but the problems attached to that interpretation are quite clear. And I think we do need to acknowledge, it's already been mentioned a couple of times that this expanded vision of what trafficking is seems to be pretty much at odds with what the drafters of the protocol intended. Ordinary meaning is of course very important in interpreting treaties but so is object and purpose. I was actually there at the protocol negotiations and it was very clear to me that states negotiating the protocol were focusing very much on the process of trafficking. They didn't bother to go to all of the trouble of developing a three-part definition of trafficking just so that the first two parts could be rendered irrelevant. That just doesn't make any sense at all. The same argument applies to the trafficking-equal-slavery equation as well. Why bother to develop an entirely new treaty regime? And this is a treaty. It's called a protocol but it's a treaty when slavery and forced labour are already quite well-addressed through strong customary law and through strong treaty law. It really just doesn't make sense. Now the second problem around harboring is a much more practical one and it relates to the consequences of this interpretation. What a colleague of mine who writes in this area extensively, Janie Chung, has termed exploitation creep. The transformation, as I said before, of the purposes of trafficking into trafficking. And as has already been mentioned, the consequences of this creep really remain to be seen. We can see it as positive because it's brought these new practices or these old practices into a new and quite rigorous legal regime. But we can also see it as a negative. Making everything trafficking, making everything slavery, for that matter, through this umbrella concept of harboring, risks, as has been said, diluting attention and effort and marginalising perhaps the very worst forms of exploitation that we so desperately need to be focusing on with all of our attention. Thank you. So are you saying, in effect, that a situation of intergenerational bonded labour involving no preceding process fall within or without the scope of the trafficking definition? OK, what I'm saying is that that definition is supported by the text of the convention itself but is undermined by many other aspects of the convention. It's very clear that the convention was talking about this process. It's in the preamble, which talks about countries of origin and transit and destination. It's in the kinds of obligations that were created for cooperation that actually are siloed according to whether a country is a country of origin or destination. For example, if we look at the Traveau preparatoire, we see the same... There was not an idea that states were, in fact, criminalising or creating a new treaty to actually deal with slavery and forced labour and the other ones that are in the purposes of trafficking. So, yes, we have a problem here because we have the text of the convention that goes some way towards supporting this but we also have the context and the object and the purpose of this treaty that I think undermined that interpretation. What is the relationship between bonded labour and other legal concepts such as trafficking in persons, slavery and forced labour under Indian law? Yeah. You know, many of us, including activists, we have taken the position that the bonded labour system abolition act of India as specific legislation and we must take note of the importance of specific legislation to deal with various aspects we are talking of. For example, in relation to forced labour, I can identify 25 separate pieces of legislation which address particular forms. Take marriage. There is the dowry prohibition act and you know dowry is an all-encompassing social evil in India and that cannot be addressed except by specifically targeting on it. Coming to the bonded labour system, there are 31 forms of bonded labour for which the statute uses the vernacular language. Each vernacular language corresponds to a particular state and if that form of bonded labour system exists anywhere in India, there shall be a presumption that a debt bondage is involved. This is absolutely crucial to the definitional aspect. Even I cannot understand the vernacular manifestations of it but it's incorporated into the English written statute. Advance, payment of advance is an important part of the bonded labour system but it can be advance or it can be a customary social practice or it can be an obligation devolving by succession, intergenerational succession or for any economic consideration or by reason of his birth in a particular caste or community. And so if you include this variety, it is the Dalits, it is the tribal, it's the Muslim and if you put all of them together that will constitute about 37.5% of 1.2 billion people in India. How many European countries put together? So I think this dimension must be kept in mind and the operative part of the definition is is there any form of unfreedom and four varieties of unfreedom are identified and if any one of those forms of unfreedom is present that's enough to drive home bonded labour. One is nominal wages or now we say below the minimum wage. Number two is four feet's freedom of employment. Number three is four feet's freedom to move freely. Number four is four feet's the freedom to sell his labour power and that's the reason why minimum wages is something which is very important. I would then say that we as activists have decided that we don't want an amendment to the statute. The biggest bugbear is non-implementation and therefore we have asked for writing rules all over again in order to facilitate implementation. The barrier is not conceptual, the barrier is implementational and the government last week has accepted to sit with us and rewrite the rules in order to implement what is conceptually clarified. I would just move quickly to Mr. Ribeiro and then to also ask you this question about especially the concept of Tablello Escavo which has evolved over time and then to look at it, how has it evolved and how is it working the concept in view of, in the light of the discussions we've been having? Well, since 2003 we had this amendment to our Brazilian penal code and we have this detailed definition of the crime of reducing someone to a condition analogous to that of a slave and this legal concept gives this detailed definition. As I said, it says that that practice can occur by subjection person to forced labor or to arduous working days, subjection person to degrading working conditions, also restricting in any manner his mobility by reason of a debt contract in respect to the employer, also by retaining workers at the workplace by preventing them from using any means of transportation and finally, retaining workers at the workplace by confiscating their personal papers or personal property. So as you can see, this concept that do not cover trafficking persons, trafficking persons under Brazilian laws are not an issue, but it's a concept, this definition of reducing someone to a condition analogous to that of a slave. It's well known as its reduced form, slave labor and it's a definition that uncompressed, forced labor and compulsory labor in a strict sense, also debt to bondage, bond labor and finally many other slave-like practice that are literally mentioned in this legal definition. And I think that this concept evolved over time and I think that the main point of this evolution is that reference to work-integrating conditions. Of course, that work-integrating conditions do not mean any single labor law fault. Work-integrating conditions are debt conditions that reveal such a serious violation of human dignity and there's a garden of the human condition, the situations where the worker is being treated like an object, like an instrument of the employer. Of course, that freedom is the main subject when it comes to forced labor, but it's also important to be aware that freedom is an attribute of human condition and a worker that, for example, receives no proper water is being obligated to sleep under canvas on the field with no protection, he's being treated not like a human being, he's been treated like an object and I think that this link between freedom, free will and serious violation of human dignity, I think that's the most important note of this evolution of the concept of slave labor and it's important to say that, unfortunately we have these attempts in Brazil of some groups of Brazil's politics that are trying to review this definition are trying to reduce the protection of this definition and we know that, for example, Miss Gonara is aware of and we count on this support of the international organizations and we hope that that attempts will not occur and we still have this important instrument that is the legal definition of slave labor under Brazilian law. This legal concept really allowed many improvements in Brazil's practice and programs and policies and also prosecution, mainly in labor law courts, we have this distinguishments, we have this labor prosecutions and when we have this, we claim for the so-called compensation for collective moral damage and this is, unfortunately, in many cases, labor prosecutors can have this compensation, this sentence that's imposed, this compensation to society but unfortunately under the criminal courts, we also have to improve the actions, we still have many difficulties in relation to criminal convictions but I think that's a progress that we will achieve to this also. As you mentioned in Brazilian law and nowadays we don't have this definition for trafficking persons for a labor exploitation, only trafficking persons for prostitution and we have this crime of enticement of workers but it's not a legal concept that's resolved the problem because it's focused not on the protection of the victims but the protection of local economy and it has a ridiculous penalty so I mean it's not helpful and we really needed this update of Brazilian law and because nowadays when we have a situation of slave labor with previous trafficking persons, we try to make both employer and the responsible for recruitment to answer for the practice of slave labor but actually it should be possible to make them answer for both practice because are two different violations of human rights so with this amendment we could make them answer to slave labor and trafficking persons and that would be the first importance of this amendment and also to put in evidence this other purpose of trafficking persons because according to this framework, Brazil's discussions in relation to trafficking persons are focused on the prostitution and sex exploitation which of course are very important subjects but it's important to focus also on this matter of labor exploitation and the other purpose of trafficking persons and so this amendment would be very important to increase and to put Brazilian law according to the standards of international law nowadays and we expect for this amendment to improve the actions in Brazil against trafficking persons especially for this other purpose of exploitation Okay, go ahead, Mr. Ma. It's in order to express tremendous solidarity with this approach especially for the reason that the word dignity is used in India the right to life constitutional law jurisprudence revolves around the word dignity it is the fight to regain dignity which is the most crucial the most dehumanizing form of life experience is the denial of dignity in various forms labor jurisprudence began with the organized sector and failed to look at dignity in this sense it looked at it as a class issue whereas the dignity issue is an issue of the excluded social groups and hence that direction of traveling is very welcome under Indian conditions I think for me an interesting issue that arises from this move that originally deals with prostitution and then realizes that it's also about other types of exploitation that's taking place in the Brazilian context at the moment is historically what has transpired that the very regime of trafficking emerges from what was called the white slave trade but it was really about prostitution and in a sense the early my feeling about the early attempts to incorporate the Palermo protocol was the emphasis on sexual exploitation but that in a very short period of time there was a true realization that exploitation went beyond it in the context where I come from in the UK there's very much a shift from sexual exploitation to labor exploitation and I think that's a healthy development that's transpired as a result of Palermo that the notion of exploitation goes beyond sexual exploitation to labor exploitation Looking at the concept of bonded labor how has it evolved over time and what is covered in the bonded labor act of India in 1966 the bonded labor system act and what is the reasoning behind the recent legislative reforms around that what value, what gaps are there that they want to fill it's very strange perhaps to take note of the fact that this particular legislation came into the statute book during the period of emergency declared by Mrs. Indira Gandhi and does that indicate anything perhaps it indicates that in a caste-ridden society a legislation in favor of the downtrodden social groups required emergency conditions and that ordinance was then became law and as I mentioned earlier this is one law whose conceptual framework we are happy with one interesting thing about legislation in India and every particular social evil is addressed by a specific legislation interestingly there's a corresponding fundamental right in our constitution which is equivalent to the human rights regime and therefore if a statute falls short of interpretative benefit then the constitutional law can step in even into an area occupied by a statute and give it an even more expansive definition and that's the reason why there is a bonded labor act has become a useful because a strict interpretation of the definition of bonded labor would require the presence of bonded debt but by virtue of falling back on the constitutional law that is overcome in order to say if somebody is working without a minimum wage that is forced labor which is equivalent to beggar in our condition and therefore that's a violation of human rights and so it becomes expansive and when the Supreme Court of India pronounces that becomes the law of the land and the statute has to be read in conformity with the Supreme Court's judgment so if you put the statute and the constitutional law judgment on the subject then we have no shortage conceptually we then go back to the problem of implementation which is rules and rules is strictly speaking not a legislative measure it's a delegated legislative measure it's the administration and the executive that enacts rules and I must say our campaign has just now has been successful to the extent that the government of India has agreed okay we will re-look at the rules and that exercise is on the sixth draft of it is already ready but I guess one of the points to make is that if we look at prosecutions at the national level for trafficking we do see that they continue to be predominantly addressed towards those who have been moved into situations of exploitation so we see that migrants and migrant workers are still predominantly over represented in trafficking prosecutions so there is still some attachment to the notion of movement now the ILO I think has repeatedly over the years interpreted trafficking for forced labour to include only forced labour involving recruitment or movement by a third party that hasn't been universally agreed to and as I mentioned before the United States for example using both receipt and harboring have argued and have in fact applied in their own unilateral compliance mechanism the notion that all forced labour is trafficking as I did mention before the protocols context the treaty structure and its substantive provisions do go some way to supporting ILO's focus on movement or recruitment as a distinguishing feature of trafficking and I think that there are a number of factors some of which I've already mentioned the origins of both protocols the trafficking and migrant smuggling protocols were very much around concerns related to clandestine migration including in its more abusive forms we can't really get around that fact I think particularly for those who were actually there and saw where the impetus really lay once again I point to the preamble which states talks very very clearly about the need for an international approach in the countries of origin and transit and destination and as I said it actually assigns obligations according to this categorization the Travaux preparatoire includes several indications that the delegates were operating from the assumption that trafficking actually involves movement and in that regard it's really important to note that there was no debate around whether trafficking requires movement the debate that relates to that during the protocol negotiations were over whether cross-border movement was required that was the critical part of the debate whether there could be internal trafficking but it wasn't actually about the movement itself now I was one of the representatives from the UN agencies that were participating in the negotiations for the protocol I was representing the UN High Commissioner for Human Rights Mary Robinson at the time and we were working very closely with ILO UNHCR and UNICEF and others on trying to push very hard for this criminal criminal justice UN Crime Commission instrument to actually include human rights we were very clearly and that's obvious in the documents that emerged from our side working on the assumption that movement or recruitment elements were key factors in rendering migrants particularly vulnerable to exploitation now that the act element includes a range of actions beyond movement and recruitment isn't this is not necessarily decisive because I think it can be argued quite convincingly that this reflected the drafter's intention to see trafficking as a process carried out by multiple actors working in concert so pinpointing each act in the process was actually an attempt to criminalise all the actors involved in the process the recruiters, the transporters, the owners, the managers and the supervisors actually of a place of exploitation not to equate the individual parts of the process with what was actually the outcome so yes we have a little bit of a problem there with the plain meaning of the words versus this much more contextual interpretation that brings us back again to the idea that trafficking is somehow associated very closely with movement and particularly with the exploitation of very vulnerable migrants I just want to draw attention once again to the trend towards criminalisation the government of India for example is very happy to include in any statute a criminal provision it has become an escape route to find remedies and I hope the international also doesn't fall into the same trap Thank you So I will get to the final question on this debate and that will be to you Professor John Allian is the distinction between slavery and servitude both distinct and qualitative what is the added value of the concept of servitude how are we to understand it and is it something you see as a non-derogable norm of international law becoming something already that is part of customary international law do you look at it as that? With regard to servitude I've already mentioned that well let me start by saying this is that international courts have struggled with the notion of servitude they've been unable really to draw parameters I think parameters around it which are viable in a court of law so they've come as close as to say that it is an exploitive labor but that doesn't get us very far and that's probably pretty close to forced labor anyway so there is a difficulty and I think the struggle has been a failure to realize that the 1956 the supplementary convention is actually about servitudes as opposed to this conception that was forced on the negotiators of institutions and practices similar to slavery now having said that if you look at the actual provision so there's four provisions debt bondage, serfdom, servile marriage and child trafficking if you actually look at them then for instance serfdom and servile marriage by definition they can be equated to slavery so what's left as far as servitude is concerned is child trafficking and debt bondage which gives the possibility at a certain level that these two can fall into slavery so from my reading of it servitude has a very small place in this continuum that in law it has a very small space when it comes to being utilized as a tool to try to suppress exploitation the other hand is this distinction between slavery I've spoken about slavery already I have spent a lot of time looking at it with a group of experts in the area in property law in the history of slavery we've developed something called the Bellagio-Harvard Guidelines and those I think help us think about the notion of slavery in a way that replicates the lived experience or catches the lived experience of contemporary slavery today and so I think it's helpful in essence and I've mentioned it before it's about controlling somebody and then once you control them then so control in the sense of possessing something and so if you want to draw the analogy let's say to illegal drugs so in the context of illegal drugs the judge won't ask who owns it because you can't legally own it in the same way that you can't legally own a person but the judge will ask who possessed who controlled and in the same way then we expect and we would hope that when it comes to slavery that the judge asks the same question who control this person was that control to the extent that that person had lost agency, had lost their free will and typically what we'll see is that once that free will is gone then you can first force the person to do whatever you want you can buy, sell them you can even exhaust them to the extent that you work them to death and so I think there are conceptual differences but that with regards to servitude that there is very little legal space in which you can actually talk about servitude today courts have struggled with it I think reference to the 56 probably helps and also ultimately that forced labor is wide enough to catch other types of exploitation Thank you Thank you very much I think it's been so far very fascinating and very rewarding conversation that we've been having here I truly believe that the protocol and the international human rights framework are our best weapons we need law so plans of action and things like that are all very important but at the end of the day we need law and we need conceptual clarity it's not just a luxury for us lawyers with too much time on our hands to sit around and debate these issues it conceptual, the lack of conceptual clarity contributes to vagueness and uncertainty and as I've written before as long as the law remains unclear states can and will continue to argue about it as long as the law remains unclear they will almost certainly not be brought to task for failing to apply it and that's where our attention really must be Thank you I think what is critically important is to address the root causes that's conveniently forgotten and even when root causes there's a pretension to address root causes it's addressed only within the framework of a safety net rehabilitation of the safety net variety is hopelessly inadequate to issues concerning factors in the political economy of the society that aggravates the condition to create more and more of all the victims that we are talking of all the victims Thank you and then Mr. Tiago Riveru Thank you just to give a short answer child labor is under Brazilian law we have clearly addressed it in Brazilian law we have these policies we have these laws these laws against child labor and it's also been developed these projects, these programs into elimination to child labor and just to conclude my last message we are here debating, discussing around concepts because it's so difficult to previously define when it comes to the human creativity to develop forms of human exploitation so but I think with movements like this with discussions and with the action from the international community we will finally can eliminate these forms of exploitation and I think that it's important to say that labor exploitation other forms of human exploitation are mainly economical issues but the cost of the coercion is also our idea of civilization and I think that's it and thank you for the invitation Thank you very much I want to just thank the panelists for deepening discussion towards conceptual clarification on trafficking in persons slavery, servitude, forced labor bonded labor thank you for being part of this debate and for contributing to expanding knowledge in this field and I will quickly turn on to my colleague the special report on contemporary forms of slavery Ms. Gunara to do a brief summary Thank you You put me in a very hard task to collect all of this information and to present to readers it was really exceptional and I think this is a discussion this is a process that we have to continue discussing the hard issues that we come across when we work in the field when we work with legislation and situations that we encounter in many countries when I travel I see the situations that I'm trying to understand how I'm going to apply slavery definition to this whether this is trafficking what does it mean and what is the cultural context of the country economic context of the country how I'm going to apply this this is a very hard process and I think we always have to be open as I was telling in my discussion open to this definition having in consideration the very dynamic process we are living in and very dynamic responses of criminals or people who are exploiting people you know, exploiters we have to take into consideration we have to be open and even you know when if there is a law of course as Angoliker was saying there is human rights law there is trafficking law combination of those elements is extremely important so you cannot apply sometimes only labor law you have to go beyond that you have to go beyond criminal law you have to go beyond migration law in order to have a clear picture We're coming to an end of a very intense and informative morning and I'd like to very warmly thank our panellists for really an excellent and captivating panel this morning you have showed us very eloquently the incredible complexity of the issue of trafficking and all the forms of exploitation you showed particularly the challenges around definitions and the legal implication of clear, vague or not having a definition of course clear definition is paramount for effective action by states and international organization but I am tempted to say maybe here it's more the practitioner that states and international organization must not wait for an international agreed clear definition to be active in parallel to the normative work they have to be engaged engaged engineer would like to say in the practical fight against trafficking and exploitation this fight is also about the political will to act even under a vague normative regime Thank you also to special representative Ezelio for an excellent job as moderator of the panel and to special rapporteur Shahinian for wrapping up the findings of the panel and now to the continuation of the day I'd like to remind you once again that at 2 p.m. the exhibition starts please go and see the different booths that are prepared outside about the different form of exploitation then also you are all invited at 2.30 to the high level event just in the room three here and we will have addresses given by the Swiss ministry or minister of justice and police federal counselor Simoneta Somaruga you will have her excellency Navi Pillay UN High Commissioner for Human Rights Director General Bill Swing of IOM Greg Wines Deputy Director of ILO and Mr. Folker Turk acting High Commissioner for Protection at the UNHCR and now I think we all have deserved sandwich which is waiting outside as we have already time for having our lunch so stay with us have a sandwich and thank you again for a great morning