Part 2 of a multi-part blog series. Part 1 is available here. Part 3 is available here. Updated links to additional posts will be added here as they become available.
“There are no longer any legal rights of ownership over human beings anywhere in the world.” – Siddharth Kara
All recognized countries today have technically outlawed slavery. Yet “unfree labor” – a term used to describe a variety of types of employment against will – persists. Today scholars and activists use terms like “unfree labor,” “modern slavery,” “modern-day slavery,” “slavery-like practices,” “conditions analogous to slavery,” or “contemporary forms of slavery” to describe practices such as forced labor, debt bondage, human trafficking, and more. Examples of contemporary unfree labor can be found in almost every country in the world, and stem from the long human tradition of slavery in many cultures, which has existed since the time before written history.
What types of international conventions exist to address slavery and define human rights today?
Research on human rights abuses in labor requires knowledge of both international human rights law and domestic law. In the case of Brazil, applicable international human rights law is primary comprised of international conventions that have been signed and ratified by the national government, and applicable domestic law establishes regulations in harmony with or building upon these international laws.
A few important organizations are relevant to our discussion:
The United Nations is “a global organization that brings together its member states to confront common challenges, manage shared responsibilities and exercise collective action in an enduring quest for a peaceful, inclusive and sustainably developing world, in conformity with the principles of justice and international law and with respect for human rights and fundamental freedoms.”
The mission of the Office of the United Nations High Commissioner for Human Rights is “to work for the protection of all human rights for all people; to help empower people to realize their rights; and to assist those responsible for upholding such rights in ensuring that they are implemented.”
The International Labour Organization is a UN agency, and since 1919 its mandate has been focused on social justice – bringing together governments, employers, and workers of the now 187 member States, to set labor standards, develop policies, and devise programs to promote decent work for all. The fight against forced labor remains one of its top priorities.
Additionally party to the ILO/MPT working paper is a national agency, the Public Prosecutor’s Office (Ministério Público do Trabalho, MPT), the branch of the Public Ministry of Brazil whose function is to act in the defense of collective and individual labor rights.
Internationally, unfree labor is considered an abuse of human rights, as codified and defined by the United Nations (UN) and other organizations. Notably, the UN defines human rights as:
Human rights are rights inherent to all human beings, regardless of race, sex, nationality, ethnicity, language, religion, or any other status. Human rights include the right to life and liberty, freedom from slavery and torture, freedom of opinion and expression, the right to work and education, and many more. Everyone is entitled to these rights, without discrimination.
The following conventions and declarations on human rights are especially important to understanding the possible violation of rights through unfree labor in the global context:
Each of these organizations places priority on addressing pressing human rights violations as they are defined by these documents, and in focusing attention on the violations and proposing solutions to them. It is in this context that the ILO/MPT working paper must be understood.
What legal definitions and indicators are used to define “conditions analogous to slavery” and “child labor” in the ILO/MPT working paper?
In any investigation on slavery or child labor, there are certain conditions or indicators that can satisfy the definition.
A “condition” is a property of a situation that could be used to classify it as a type of labor. For example, to qualify types of work as “child labor,” a situation must include the conditions described by law around the child’s age, type and hours of work performed, and the conditions under which it is performed. These conditions are then measured by “indicators,” a defined metric to indicate the level or quantity of a thing, in surveys and interviews, as a way to calculate estimates according to statistical standards.
The ILO/MPT working paper is primarily concerned with two types of rights violations: “conditions analogous to slavery” and “child labor,” though it is not always clear what specific type of child labor is being described in the writing.
The authors cite several specific legal definitions linked with domestic Brazilian and international policy that are used to define these particular labor conditions and rights abuses, including but not limited to:
International Labour Organization Declaration on Fundamental Rights and Principles at Work (1998):
Adopted in 1998, the Declaration commits Member States to respect and promote principles and rights in four categories, whether or not they have ratified the relevant Conventions. These categories are: freedom of association and the effective recognition of the right to collective bargaining, the elimination of forced or compulsory labour, the abolition of child labour and the elimination of discrimination in respect of employment and occupation.
International Labour Organization definitions surrounding child labor (1999):
Not all work done by children should be classified as child labour that is to be targeted for elimination. Children’s or adolescents’ participation in work that does not affect their health and personal development or interfere with their schooling, is generally regarded as being something positive. This includes activities such as helping their parents around the home, assisting in a family business or earning pocket money outside school hours and during school holidays. These kinds of activities contribute to children’s development and to the welfare of their families; they provide them with skills and experience, and help to prepare them to be productive members of society during their adult life. The term “child labour” is often defined as work that deprives children of their childhood, their potential and their dignity, and that is harmful to physical and mental development. It refers to work that:
is mentally, physically, socially or morally dangerous and harmful to children; and
interferes with their schooling by: depriving them of the opportunity to attend school; obliging them to leave school prematurely; or requiring them to attempt to combine school attendance with excessively long and heavy work. The worst forms of child labour involves children being enslaved, separated from their families, exposed to serious hazards and illnesses and/or left to fend for themselves on the streets of large cities – often at a very early age. Whether or not particular forms of “work” can be called “child labour” depends on the child’s age, the type and hours of work performed, the conditions under which it is performed and the objectives pursued by individual countries. The answer varies from country to country, as well as among sectors within countries.
Article 149 of the Brazilian Penal Code (originally published in 1940, updated in 2003):
Reducing someone to a condition analogous to that of a slave, namely: subjecting a person to forced labour or to arduous working days, or subjecting such a person to degrading working conditions or restricting, in any manner whatsoever, his mobility by reason of a debt contracted in respect of the employer or a representative of that employer. Penalty – two (2) to eight (8) years of imprisonment, together with a fine, on top of any sentence handed down for violence. 1º Any persons committing the following offences shall receive the same penalties: I – retaining workers at the workplace by preventing them from using any means of transportation II – retaining workers at the workplace by confiscating their personal papers or personal property, or by maintaining manifest surveillance 2º The prison sentence is increased by half if the crime has been committed: I – against children or adolescents II – on the basis of race, colour, ethnicity, religion or origin.
Article 7 item XXXIII of the Brazilian Federal Constitution (1988 with amendments):
The following are rights of urban and rural workers, in addition to any others designed to improve their social condition: … XXXIII. prohibition of nighttime, dangerous or unhealthy work for those under eighteen years of age, and of any work for those under the age of sixteen, except as an apprentice.
Article 227 of the Brazilian Federal Constitution (1988 with amendments):
It is the duty of the family, the society and the Government to assure children, adolescents, and youths, with absolute priority, the rights to life, health, nourishment, education, leisure, professional training, culture, dignity, respect, liberty and family and community harmony, in addition to safeguarding them against all forms of negligence, discrimination, exploitation, violence, cruelty and oppression.
A variety of additional decrees and land statutes from Brazilian domestic law also inform the working paper, as described in the text. These address tax evasion, sharecropping, and corporate responsibility, all of which are relevant to the context of cacao production and sales in Brazil.
While definitions and indicators along the international and domestic legal lines described above are not free from controversy, it is important to understand that they nonetheless serve as an important basis for research and protection against human rights abuses. Research completed according to traceable definitions is essential to informing conversations within industry and in supporting evidence-based policy making.
What additional measures exist to support research and action against labor rights abuses in Brazil?
Since 2003, the public mechanism of transparency of the Brazilian state has been the Register of Employers (Cadastro de Empregadores) that subjects workers to conditions analogous to slavery. This is known colloquially as the “Dirty List” (Lista Suja).
The list discloses the names of individuals or legal entities found to engage in human rights abuses according to Article 149 above. Overseen by the Ministry of Labor and Employment, the Slave Labor Eradication Inspection Division administers the list. The list is published every six months and the names of businesses stay on the list for two years. Any businesses on the list cannot receive public funds, experience bank lending penalties, and are subject to investigation.
While the list has experienced interruptions and technical changes in recent years due to legal challenges, it currently lists 202 entities, a small number of them involved in cacao production. It is often the case that when an entity is placed on the list, it is covered in local and national media; suppliers to well-known large companies can sometimes even attract international media attention.
The Dirty List has historically generated considerable impact, especially through the creation in 2005 of the National Pact for the Eradication of Slave Labor, where companies signing the pact agreed to cut all ties and financial support for businesses on the list and to share best practices in the prevention and eradication of slave labor. At one point, the pact had 300 signatories representing more than 30% of Brazil’s GDP. This pact was further institutionalized in 2013 with the founding of InPACTO, the Institute of the National Pact, with the objective to unite the private sector and civil society organizations to prevent and eradicate slave labor in productive chains.
The current businesses committed to InPACTO as dues-paying members are listed online, and include come of the most powerful companies in Brazil (e.g. 3M, Carrefour, and Walmart). They also include some cacao-chocolate companies and organizations operating in Brazil such as Cargill, Nestlé, and UTZ, with a number of notable omissions. The coffee sector formed a working group in conjunction with InPACTO and Catholic Relief Services in 2017 to address its own labor challenges.
Finally, since 1992, the ILO’s International Programme on the Elimination of Child Labour (IPEC) has been active in Brazil. Brazil was prioritized for this work due to the ability of existing institutions in Brazil to measure statistically the incidence of child labor, and due to the country’s political environment, which often openly acknowledges that child labor exists and works to eradicate it.
With the support of the ILO and UNICEF, Brazil launched the National Forum on Preventing and Eradicating Child Labor (FNPETI) in 1994, bringing together stakeholders from the government, NGOs, employer organizations, labor unions, and other institutions dedicated to eliminating child labor from Brazilian supply chains. It serves as a democratic, non-institutionalized space for discussing proposals, defining strategies, and building consensus between government and civil society on the issue of child labor. The current FNPETI national network includes the ILO and the MPT.
Both the work of InPACTO and the work of the FNPETI are important to understanding the context of the ILO/MPT working paper on cacao.
Brazil faces many challenges in eradicating human rights abuses in labor. At the same time, the reality is that many Brazilian government institutions, companies, and NGOs are working to address these challenges actively, serving as an inspiring global reference for action around the world.
Postscript: Brazilian labor history
Chattel slavery was formally abolished in Brazil with the passing of the Lei Aurea (Golden Law) in 1888, though its impact remains to the present day. To read more about the history of slavery and forced labor in cacao production, read “The Bitter and Sweet of Chocolate in Europe,” by Martin and Sampeck.
Resources
The views expressed in this blog post are those of its authors. They do not necessarily reflect the views of the journalists, policy makers, companies, or organizations mentioned in this post.