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# Prison labour, customs preference schemes and decent work: Critical analysis and outlook

Andrea Sitzia, Benoît Lopez

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Andrea Sitzia, Benoît Lopez. Prison labour, customs preference schemes and decent work: Critical analysis and outlook. International Labour Review, 2023, 162 (2), pp.305-326. 10.1111/ilr.12399 . hal-04191729

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# Prison labour, customs preference schemes and decent work: Critical analysis and outlook

Andrea SITZIA* and Benoît LOPEZ**

**Abstract.** In customs preference schemes, prison labour is primarily viewed as unfair competition, to be rejected out of hand. This form of employment can, however, be understood differently, notably by considering the conditions under which it may constitute decent work, and by seeing it as a tool for rehabilitation. Following an in-depth legal analysis, in which they compare the relevant standards of the ILO to EU and WTO customs regulations in the light of the capability approach, the authors call for the development of a set of rules drawing on several branches of law relating to prison labour.

**Keywords:** prison labour; decent work; unfair competition; tariff policy; ILO standards; European law; vulnerable groups; capability approach; EU, WTO.

## 1. Introduction

The ILO Centenary Declaration for the Future of Work, adopted in Geneva on 21 June 2019 (ILO 2019a) is centred on the promotion of decent work for all. The practical translation of such a broad, ambitious aim requires the examination of every area of human labour. It is only through this meticulous work that avenues for reflection can be uncovered and corrective actions identified. In this study, we offer a reflection on the delicate and controversial issue of prison labour and the importance of the concept of decent work within the debate. However, before embarking on this task, we need to identify the various difficulties raised by prison labour.

The starting point for the analysis is as follows: European Union (EU) customs regulations provide for the temporary withdrawal of its preferential regime, the

<footnote>* Department of Political Science, Law, and International Studies of the University of Padua, email: andrea.sitzia@unipd.it (corresponding author). ** University of Versailles Saint-Quentin-en-Yvelines and Université Paris-Saclay, email: lopezbenoit1@gmail.com.</footnote>

<footnote>Responsibility for opinions expressed in signed articles rests solely with their authors, and publication does not constitute an endorsement by the ILO.</footnote>

<footnote>Original title: "Travail des détenus, systèmes de préférences douanières et travail décent: analyse critique et perspectives", *Revue internationale du Travail* 162 (2). Translation by Lucy Knight. This article is also available in Spanish, in *Revista Internacional del Trabajo* 142 (2).</footnote>
responses provided by its Helpdesk for Business, which provides guidance on
compliance with international labour standards, the ILO usefully recalls the
distinction between forced labour and prison labour.<fnref n="1" /> Likewise, in 1931, in
the same article on prison labour cited above, the ILO had already recognized
that “[t]he aim of employing the prisoner on instructive and useful work is to
strengthen his moral character during the period of detention and make him
capable of living a straight and regular life. Prison labour is thus an important
weapon in the campaign against crime” (ILO 1932a, 522; see also ILO 2001, paras
85–88; ILO 2007a, para. 99).

In addition, an effective solution to ensure that work was compatible with ILO standards would function via the recognition, under the national law of the country concerned, of a legal status specific to imprisoned workers (Auvergnon et al. 2019). In this study, we are not aiming to list the options selected by different national laws on this point for the purpose of comparison. We will focus on what could be an intermediate step before this type of analysis, namely the identification of the minimum legal conditions that must be put in place to allow prisoners to undertake decent work.

The basis theory that we are seeking to develop is inspired by the concept of decent work, as described in the report of the Global Commission on the Future of Work (ILO 2019b), which draws extensively on the capability approach proposed by Amartya Sen (2000). This approach, if taken seriously and applied to the rehabilitative function of prison labour, should lead to reconsideration of the idea that production in prisons is primarily, and necessarily, an activity that distorts competition.

By taking a capability approach, and taking into account the objective of rehabilitation, it seems even more obvious that prison labour should not be organized very differently from free work, notably in relation to the means of production, consent, working conditions (including in terms of working hours and occupational safety) and remuneration. Furthermore, even today, it is necessary to try to “bring the prices of prison products nearer to the level of ordinary industrial prices, at least as far as they are determined by technical equipment. To this extent there would then be no further question of unfair competition” (ILO 1932a, 502; see also ILO 2001; ILO 2007a, paras 99–100; ILO 2012). It may also be considered that competition becomes even more unfair when the labour performed by prisoners is underpaid.<fnref n="2" />

Coherent and rigorous application of the concept of decent work in relation
to prison labour contrasts with any approach permitting a form of forced labour
to be used. In this way, when production in prisons, carried out through the

<footnote n="1">¹ See the page entitled “Q&As on Business and Forced Labour” at https://www.ilo.org/empent/areas/business-helpdesk/faqs/WCMS_DOC Ent_HLP FL_FAQ_EN/lang--en/index.htm#Q3.</footnote>

<footnote n="2">² Fenwick (2005) recalls that in the United States, since 1979, the ban on transporting goods from prison labour to another state from that in which they were manufactured, imposed by the Ashurst-Sumners Act of 1940, may be lifted if the prisoners were paid the minimum legal wage or a wage equivalent to that paid for free work. The United States also prohibits the importation of goods manufactured using forced labour. See Title 19, para. 1307 of the United States code, available at https://www.govinfo.gov/content/pkg/USCODE-2011-title19/html/USCODE-2011-title19-chap4-subtitleII-parti-sec1307.htm.</footnote>
work of prisoners, violates fundamental social rights, it can be affirmed that it is a form of work that is not decent, particularly if it does not seem to be suitable for developing the capacities of the people detained (in professional, economic or psychological terms). Furthermore, the requirement of decent working conditions prevails over whether the work is performed on behalf of the State or for a private entity, even if this latter circumstance is taken into consideration when assessing the legality of the work in accordance with ILO standards.

As a result, it should be considered that the ILO Committee of Experts on the Application of Conventions and Recommendations (hereinafter “Committee of Experts”), depending on the current interpretation of Convention No. 29, is not imposing particular limits on the use of compulsory prison labour by the State, with the result that only prisoners who have not been convicted and prisoners awaiting trial cannot be obliged to work (ILO 1968, para. 77; Servais 2015, 142). The approach is different in the case of labour performed by prisoners for private enterprises, which is always considered contrary to the Convention, unless it effectively results from voluntary activity (ILO 2007a, paras 59–60). As for Convention No. 105, this prohibits forced or compulsory labour, including that performed for the State, to the extent that it constitutes a means of political coercion or education, a punishment linked to the political or ideological views of the person, or a method of mobilizing and using labour for purposes of economic development (Article 1).<fnref n="3" />

Countries that are signatories of a standard relating to international economic law and that wish to apply one of its clauses on labour must be aware of the risks of abuse mentioned above. However, in this article, we maintain that, if a social clause takes the work of prisoners into account, it must reflect the nuances of Conventions Nos 29 and 105. More specifically, it must take into account the way in which these texts should be interpreted in the light of the objectives set in the Centenary Declaration (ILO 2019a), which returns decent work to the centre of the discussion, namely by recalling that work must be useful and meaningful (Fenwick 2005; Quigley 2004), and transformative for the individual (Feldman 2020, 223) from a capability perspective.

To ensure that a social clause does not hinder the adoption of policies aimed at the effective rehabilitation of prisoners, labour law must not only *protect* but *support*. With this in mind, it is essential to examine themes that still receive too little coverage in the labour law literature, notably by analysing the role of work for prisoners, working conditions in prisons and cooperation between enterprises and the public authorities. In doing so, particular attention must be paid to the role of the State and the issue of the voluntary nature of the work (Milman-Sivan and Sagy 2020).

The remainder of this article is structured as follows: in section 2, we will examine the social conditionality of international commercial agreements relating to prison labour. In section 3, we will attempt to summarize the current debate on the interpretation of Conventions Nos 29 and 105, highlighting their

<footnote n="3">³ In this regard, particular reference is made to the comments by the Committee of Experts on the application of Convention No. 105 by the United States, and more specifically the punishments involving compulsory work imposed for participating in strikes in North Carolina (ILO 2021, 315).</footnote>
relevance to aspects relating to prison labour. We will then analyse the issue of
prison labour in the light of the capability approach, as part of a broad view
of the concept of decent work (section 4). In the fifth and final section, we will
present our conclusions, drawing attention to the remaining issues.

## 2. General preference schemes and prison labour

Despite the constant and repeated refusal of Member States to include a social
clause in the WTO system (Moreau 1996 and 2002; Servais 1989; Compa 1993;
Maupain 1996; Staelens 1997; Dubin 2003; Reis 2010; Duthu-Calvez 2010; Perulli
2014), which would have made it possible to sanction a Member for the vio-
lation of fundamental social rights, this principle nevertheless flourished at the
margins, in the specific context of relations with developing countries. More
precisely, it was demanded by certain Member States of the General Agreement
on Tariffs and Trade (GATT), later the WTO, that wished to use the margin for
manoeuvre offered to them by establishing general preference schemes. In
this way, the United States was first to see in these new rules of international
economic law an opportunity to protect itself against imports whose conditions
of production did not comply with minimum social standards, notably in terms
of wages, as well as with its legal standards regarding workers' rights. Due to
the paradoxical way in which it is drafted, the United States customs preference
scheme mentions internationally recognized workers' rights without referring
to the relevant international labour Conventions in these areas. This lack of
reference to ILO standards led us to exclude the United States customs prefer-
ence scheme from the scope of this study. Instead, we will focus on the relation
between generally recognized international standards, namely those of the ILO
and the Council of Europe, and the rules of international economic law.

In the following pages, we will see how, at the multilateral scale and within
the customs standards of the EU, the prevailing view that has been imposed is
one of work in prison as a factor of unfair competition. For international trade,
this view of prison labour seems to be the only unavoidable legal standard in
relation to minimum compliance with labour law. In this regard, the EU customs
regime banning the importation of products manufactured through the (forced
or compulsory) labour of prisoners logically mentions ILO Conventions Nos 29
and 105. The issue of their application is therefore embedded into the objective
of combating unfair competition in relation to imports. However, after analysing
the underlying reasons used to justify the establishment of this link, we will
demonstrate later in this article that this is not incompatible with an interpret-
ation of these same international Conventions in support of an improvement in
prison working conditions.

In terms of social clauses, it is notable that, following initial disinterest in
this type of conditionality, towards the end of the twentieth century, the EU
instituted a double approach, on occasion presented somewhat pejoratively
as that of “carrot and stick” (Vandenberghe 2008; Orbie and Tortell 2009). At
that time, the EU notably started to concern itself with respect for workers’
rights in countries wishing to export under preferential conditions. Although it
was the motivating dimension – namely access to the incentive scheme – that
was supported by commentators at the time, the punitive dimension – the
withdrawal of the preference scheme – also merits in-depth analysis. Due to its
impact on the overall customs preference system, this second dimension acts
as a mechanism in itself and follows its own reasoning. It is above all the result
of a view that has gradually come to dominate: that of a link between working
conditions and import management, then between certain labour law rules and
this same management framework. This link imposed the idea of a level or
a plateau beyond which trade between countries should not be encouraged.
Prison labour paved the way for other fundamental social rights. As a result,
from the rejection of production simply deemed to constitute unfair competition
due to its cost – namely that involving prison labour – was born an imperative
encompassing other fundamental social rights, including trade union freedoms.
With the analysis of this slow evolution, the difficulty in viewing prison labour
from a different perspective to that of a factor of unfair competition is all the
more striking.

## 2.1. Emergence of social conditionality within tariff preference schemes: Customs law and working conditions

In Europe, the GSP would contribute to this evolution by combining an approach focused on fundamental social rights with the pre-existing principle in Article XX(e) of GATT, which provides for a general exception to the rules of the Agreement for the products of prison labour. At its creation in 1971, the European system did not seem destined to include social clauses (Sapir 1995). It was chiefly intended to serve development aid objectives and, although this was less openly acknowledged, to maintain strong links with former colonies (De Schutter 2015, 102–103). As a result, the first preference scheme – which was not at that point presented as a single package<fnref n="4" /> – does not mention social rights or the exclusion of products manufactured in prison.

However, from the 1990s, the European GSP would take a new turn with the adoption of Regulation (EC) No. 3281/94,<fnref n="5" /> a text that would become the legal basis for the link between customs legislation and compliance with working conditions. Taking a restrictive view, it is possible to underestimate this shift and see this change as the mere appearance of a *social dimension*, rather than a real *social clause*. The criticism that could be made in this regard is that the withdrawal of a supplementary scheme, and one that is moreover an incentive, does not constitute a sanction. Dispersyn (2001) considers that the provisions aiming to integrate concerns linked to human labour are peripheral, as they

<footnote n="4">⁴ In practice, it is a collection of acts targeting various sectors and establishing a preference scheme in these areas for developing countries, namely Regulations (EEC) Nos 1309/71, 1310/71, 1311/71, 1312/71, 1313/71 and 1314/71 of the Council of 21 June 1971, OJ L 142 of 28 June 1971, available (in French) at https://eur-lex.europa.eu/legal-content/FR/TXT/PDF/?uri=OJ:L:1971:142:FULL&from=FR.</footnote>

<footnote n="5">⁵ Council Regulation (EC) No. 3281/94 of 19 December 1994 applying a four-year scheme of generalized tariff preferences (1995 to 1998) in respect of certain industrial products originating in developing countries, OJ L 348 of 31 December 1994 (hereinafter “Regulation (EC) No. 3281/94”).</footnote>
only lead to the loss of an additional preference. In formulating this criticism, he
does nevertheless recognize that the nuance is slight. Furthermore, the principal
difficulty is that his observation is limited to the motivating dimension linked to
the incentive scheme, and excludes the other consequence of the recognition of a
link between trade and social criteria. Yet this link is established through two differ-
ent means, which merit separate analysis. In its presentation of the new GSP,
the European Parliament saw a punitive social clause and an incentive social
clause.<fnref n="6" /> Beyond the attachment of the two instruments to the family of social
clauses, the terms proposed by European elected representatives opportunistly
underlined the divergences introduced by the new GSP in terms of reasoning
and understanding. The second dimension, namely the incentive social clause,
would be implemented from 1 January 1998 through the introduction of special
incentive schemes granting a preferential additional margin to all countries
respecting certain social standards relating to the right to organize and collective
bargaining, the minimum age for work and environmental issues.<fnref n="7" /> Combining
these two concerns led to a conception of social clauses linked to the promotion
of sustainable development through a legal framework. However, we will focus
here on the punitive social clause, which itself takes a competition approach
proper to international trade and labour law alone, without incorporating
environmental considerations.

It was therefore following a first version of the GSP that the European
Community decided to overhaul its functioning in 1994 and add a new title on
the withdrawal of entitlement to the scheme. The link to the pre-existing issue of
taking working conditions into account, as derived from import clauses related
to anti-dumping, would become evident in situations justifying temporary ex-
clusion from the list of beneficiary countries. Yet prison work was once again
part of the criteria selected, with Article 9 of the regulations of 1994, then 1996,
covering the scheme of preferences and, more specifically, situations that could
lead to withdrawal or suspension.<fnref n="8" />

## 2.2. From consideration of working conditions to consideration of labour law

In the consideration of working conditions within international trade, it is pos-
sible to see merely a simple attachment to Article XX(e) of GATT (Cepillo Galvín
2008; Sorriaux 2014). But it is also possible to discern there the result of a work
of “infusion”,<fnref n="9" /> namely the acceptance of this link. Once the idea that working
conditions could constitute a criterion for the application of customs law had

<footnote n="6">⁶ Report on the communication from the Commission to the Council on the trading system and internationally recognized labour standards (COM(96)0402-C4-0488/96), A4-0423/98, 11 November 1998.</footnote>

<footnote n="7">⁷ Regulation (EC) No. 3281/94 and Council Regulation (EC) No. 1256/96 of 20 June 1996 applying multiannual schemes of generalized tariff preferences from 1 July 1996 to 30 June 1999 in respect of certain agricultural products originating in developing countries (hereinafter “Regulation (EC) No. 1256/96”), Articles 7 and 8.</footnote>

<footnote n="8">⁸ Regulation (EC) No. 1256/96, Article 9.</footnote>

<footnote n="9">⁹ Here, we borrow the concept of the infusion of an idea in the legal process (Levi, 1948).</footnote>
been widely recognized (Waer 1996), that same customs law could lead to a broader vision of legal conditionality in the domain, in the form of social clauses.

Furthermore, by focusing on the conditions under which goods are pro-
duced in prison, rather than solely their trade, the WTO takes a position that
remains ambitious despite the narrowness of its legal basis. There certainly does
not exist, whether in WTO law or in GATT 1947¹⁰ or 1994¹¹, a specific binding
provision recognizing the legitimacy of a distinct objective of protecting social
rights (Luff 2004, 1115). But this progress, while limited, must be compared
to the treatment reserved for the prison workforce in other circumstances.
In this respect, the difficulty of taking working conditions into account when
assessing business rights before States during investment arbitration constitutes
an obstacle (Perulli 2018; Treu 2017). Moreover, it should be recalled that the
WTO General Agreement on Trade in Services (GATS)<fnref n="12" /> has never established
exclusions with regard to services provided from prisons, although there are
numerous call centres within prison establishments, some of which are pri-
vate, which are indisputably providing services. It should be noted that, from
March 1994, before the conclusion of the negotiations on the new Regulation
(EC) 3281/94, Manuel Marín, Vice-President of the European Commission at the
time, presented a statement in which he entreated the Commission to make
tariff preferences conditional on the prohibition of both prison labour and any
form of forced labour. The communication to the Parliament on the future of
the preference scheme would largely follow his proposals, notably with regard
to the withdrawal of preferences based on working conditions.<fnref n="13" /> As a result, in
1994, the mention of goods produced by prison labour was accompanied by a
reference to any form of forced labour, and withdrawal became possible not
only on the basis of working conditions, but also in the event of failure to observe
ILO Conventions Nos 29 and 105.<fnref n="14" />

This change is thought-provoking as, for the first time, a labour law rule
is used to justify partial or total withdrawal of the European scheme. It is
all the more striking that the perspective developed by the Commission and
its Vice-President then makes the fight against forced labour an extension, a
prolongation of that which has targeted forced labour in prison for decades.
These cases of withdrawal are included in a single paragraph, and appear to be
similar. Indeed, they focus on the violation of certain working conditions which
justify the prohibition of an import operation. On the other hand, in a separate
treatment that seems at first reading to be puzzling, the Commission evokes

<footnote n="10">¹⁰ General Agreement on Tariffs and Trade 1947, available at https://www.wto.org/english/docs_e/legal_e/gatt47_01_e.htm.</footnote>

<footnote n="11">¹¹ General Agreement on Tariffs and Trade 1994, available at https://www.wto.org/english/docs_e/legal_e/06-gatt_e.htm.</footnote>

<footnote n="12">¹² General Agreement on Trade in Services, available at https://www.wto.org/english/docs_e/legal_e/26-gats_01_e.htm.</footnote>

<footnote n="13">¹³ Communication from the Commission to the Council and the European Parliament: Integration of Developing Countries in the International Trading System – Role of the GSP 1995–2004, COM(94) 212 final, 1 June 1994 (hereinafter “Communication COM(94) 212”). Available at http://aei.pitt.edu/4213/1/4213.pdf.</footnote>

<footnote n="14">¹⁴ Article 9 of Regulations (EC) Nos 3281/94 and 1256/96.</footnote>
and portrays the legal framework taken from international labour law solely
from an incentive point of view, as part of the incentive side of the preference
scheme, which is incidentally the only one to be referred to as a social clause in
Commission Communication COM(94) 212, mentioned above.<fnref n="15" />

In addition, the mention of the ILO Conventions on forced labour constitutes a clear separate and supplementary stage. This shift, which could only take place in the context of anti-dumping regulations, may be analysed as the product of a maturing process that saw the link between working conditions and trade grow stronger. As that became sufficiently established, anchored in international trade, it was able to develop into a ban drawing on labour law rules. This movement can also be analysed as the bridge between the modern social rights-based approach, as demanded from a fundamental rights perspective, and that originally developed by GATT based on wages, and therefore on the living conditions of workers (Alben 2001). The evolution of the social clause within successive preference schemes also validates the vision of a gradual widening of this connection that was originally recognized in the case of prison production. In 2001, with the overhaul of the preference scheme and the adoption of a new regulation,<fnref n="16" /> this social clause on the withdrawal of preferences would see an increase in the number of legal criteria referring to labour law. Indeed, Article 26 of Regulation (EC) No. 2501/2001 provides for withdrawal of the scheme not only in the case of forced labour, but also in the presence of a serious and systematic violation of other fundamental social rights. As a result, the legal regime applicable to imported products with regard to international economic law has evolved to cover the protection of freedom of association, the fight against discrimination and the use of child labour. Although the reference to the importation of products manufactured in prison (and therefore to working conditions alone) remains, it is augmented by serious consideration of labour law. Indeed, and this is probably the main contribution of this regulation, the withdrawal clause no longer applies solely in the case of the importation of products rendered less costly by the working conditions of the workforce, in law or in practice. In effect, freedom of association or non-discrimination, while they may naturally influence the final cost of the product, are not linked to it as directly as forced labour. Moreover, the acceptance of the Council of what became an extension of the legal basis of the mechanism was obtained more smoothly given that it posed no threat to European economic interests (Orbie and De Ville 2010).

With the overhaul of 2001, the punitive social clause maintained the tougher qualitative stance. It is also possible to observe a convergence between the labour law standards taken into account and those mobilized by the incentive social clause (namely, the special incentive arrangements for the protection of labour rights in Article 14, paragraph 2 of Regulation (EC) No. 2501/2001). However, we should not be too hasty in attributing this change to imitation, and

<footnote n="15">¹⁵ See footnote 13.</footnote>

<footnote n="16">¹⁶ Council Regulation (EC) No. 2501/2001 of 10 December 2001 applying a scheme of generalized tariff preferences for the period from 1 January 2002 to 31 December 2004, OJ L 346 of 31 December 2001 (hereinafter “Regulation (EC) No. 2501/2001”).</footnote>
considering that one has necessarily influenced the other. In fact, as recalled previously, from 1994 the incentive clause has taken into account the right to collective bargaining (Article 7 of Regulation (EC) No. 3281/94), without its coercive equivalent doing the same. The admission of social conditionality for the granting of additional preferences does not therefore necessarily entail its reproduction at the point of determining the scenarios for withdrawal from the ordinary preference scheme. This reasoning did, for that matter, raise lively criticism with regard to both the decision to divide fundamental social rights between the two mechanisms and, more broadly, the possibility of granting ordinary preferences even in the event of violation of the collective rights of workers. In a particularly striking turn of phrase, Tsogas writes: "It seems that, according to this peculiar EU 'carrot and stick' approach, exploiting children and organizing death squads against trade unionists are less serious breaches of human rights than running forced labour camps!" (Tsogas 2000, 363). It is in this respect that the connection with provisions limiting the importation of goods produced using forced labour in prison makes it possible to contextualize the punitive social clauses and their development. In other words, appreciation of the context can be analysed as the fact of identifying the principal characteristics of a standard, with a view to recognizing both its subjective and objective nature. In this case, subjectivity relies on its context of development, symbolization and interpretation (Lacroix 2003). In this respect, the appearance of the social clause in the European GSP could be perceived as the result of a willingness, already well-established in anti-dumping instruments, to address the issue of human labour.

Subsequently, the dynamic of import control, on the basis of working conditions as well as respect for labour law, would be maintained while being grouped together with the incentive clause.<fnref n="17" /> Beyond the respective scope of these clauses, it is all the less appropriate to have combined them given that they do not operate on the same basis. In Article 26, paragraph 3(a) of Regulation (EC) No. 2501/2001, the approach ceases to be empirical, as it no longer refers to the effective violation of a labour law or form, instead focusing on the legislative dimension. It is therefore the insertion of one or several standards in the national corpus that will allow a country to avoid withdrawal on this basis. Although there is a synergy between the social rights defended by the two social clauses of the GSP, the punitive social clause can be differentiated by the way it works and its consequences.

This dynamic would be maintained from the overhaul of the Regulation in 2005 until its final version, namely the 2012 Regulation, the application of which has been extended until 2023.<fnref n="18" /> Nevertheless, a last adjustment can be noted and makes it possible still today to justify a distinct analysis of the puni-

<footnote n="17">17 This second mechanism dedicated to the incentive scheme of the GSP was already present in Article 20 of Council Regulation (EC) No. 2820/98 of 21 December 1998 applying a multiannual scheme of generalized tariff preferences for the period 1 July 1999 to 31 December 2001, OJ L 357 of 30 December 1998.</footnote>

<footnote n="18">¹⁸ Regulation (EU) No. 978/2012 of the European Parliament and of the Council of 25 October 2012 applying a scheme of generalized tariff preferences and repealing Council Regulation (EC) No. 732/2008, OJ L 301 of 31 December 2012 (hereinafter “Regulation (EU) No. 978/2012”).</footnote>
tive social clause as it appears in the GSP. Indeed, successive regulations from
2005¹⁹ no longer list the specific breaches regarding working conditions whose
violation leads to withdrawal of the GSP. From this date, they refer directly to
a list of international conventions, featured in an annex, and grouped within a
subcategory dedicated to human rights and the rights of workers (Part A). Once
again, the structure of the instrument shows alignment with the incentive social
clause that, from the same period, is embedded in a global incentive scheme
covering all aspects of sustainable development, known as GSP+. The latter is
based precisely on compliance with and ratification of the conventions targeted
by the annex mentioned above. However, concerns regarding good governance
and the environment contained in the international conventions listed in Part B
of the same annex are explicitly excluded from the punitive social clause.

Furthermore, it should be noted that in this latest version, namely the regu-
lation of 2012, the text provides for the possibility of withdrawal in the event
of serious and systematic violations of principles laid down in the conventions
listed in Part A of Annex VIII, as well as, once again, the export of goods made
by prison labour (see Article 19, paragraph 1). Reading the text shows that this
first paragraph belongs without doubt to the social clauses governing imports.
This positioning reflects the specific treatment given to imports produced in a
way that infringes the fundamental rights of the workforce. The technique of
withdrawal, contrary to the application of compensatory price measures or the
granting of additional preferences, prolongs the initial approach of rejecting
prison work as such. It thereby leads to loss of the economic advantage, not solely
to the adjustment of a customs tariff. Beyond the importance of distinguish-
ing between integration into the legal corpus and the factual observation
of non-observance of the rule implied by the notion of violation, consideration
of the situation in fact, rather than the situation in law, theoretically has the
advantage of reporting on the position of enterprises. Indeed, it is the employer
that omits to apply a labour law rule – which must naturally have been legally
recognized, through ratification or an internal text by the country on the territory
of which it exercises its activity. Contrary to legislative control, which focuses on
the responsibilities and efforts of States, consideration of the violations requires
double verification. First, it is necessary to ensure that the rule exists under
national law, which is a vital prerequisite, then that the behaviour of one or
several enterprises complies with it. Unfortunately, behind this satisfactory
appearance, it turns out that GSPs are used to the detriment of these two steps to
focus on the pair formed by the exported product and its country of origin. Yet
this mechanism, when it is mobilized as part of a sanctions approach, and more
uniquely for determining beneficiaries, results in a measure being applied to a
nation and to all enterprises within a sector when that measure should instead
have been targeted, first of all to avoid sanctioning a group for the wrongdoing

<footnote n="19">¹⁹ See Article 16, paragraph 1 of Council Regulation (EC) No. 980/2005 of 27 June 2005 applying a scheme of generalized tariff preferences, OJ L 169 of 30 June 2005; Article 15, paragraph 1 of Council Regulation (EC) No. 732/2008 of 22 July 2008 applying a scheme of generalized tariff preferences for the period from 1 January 2009 to 31 December 2011 and amending Regulations (EC) No. 552/97, (EC) No. 1933/2006 and Commission Regulations (EC) No. 1100/2006 and (EC) No. 964/2007, OJ L 211 of 6 August 2008.</footnote>
of one or several others, then to ensure that the perpetrator of the violations – the enterprise – is not removed from the chain of accountability or protected by the screen of the country for which customs preferences are suspended. This is the major shortcoming of social clauses linked to imports, especially when they are divorced from price increases associated with anti-dumping measures, as in the case of the GSP. In this regard, it seems crucial to personalize and refine legal regimes targeting imported products, even for partners that could claim the status of developing State. Certainly, this status is the reason for this exemption system and thus, indirectly, the legal condition necessary to justify this type of social clause under the rules of global trade. The fact remains that it must not be a strict boundary, the sole paradigm when considering the means of withdrawing the economic advantages to which these clauses are attached. This is all the more important as it is primarily exporting enterprises that ultimately profit from additional preferences, even though they are at the origin of fundamental social rights violations. However, for the sake of completeness, when questioning this paradigm, the reverse case should be considered: through the use of prison labour, can enterprises, whether national or transnational, play a positive role in the career paths of prisoners?

### 3. Prison labour in the light of ILO instruments

In the international human rights system, the most important instrument for the protection of prisoners working for private entities is ILO Convention No. 29 on forced labour (Fenwick 2005). Like Article 4 of the European Convention on Human Rights,<fnref n="20" /> this text does not draw a distinction between “forced” and “compulsory” labour. In paragraph 34 of the judgment delivered in the case of *Van der Mussele v. Belgium*,<fnref n="21" /> the European Court of Human Rights (ECHR) confirms on this point that the “[t]he first of these adjectives brings to mind the idea of physical or mental constraint ... As regards the second adjective, it cannot refer just to any form of legal compulsion or obligation. For example, work to be carried out in pursuance of a freely negotiated contract cannot be regarded as falling within the scope of Article 4 ... on the sole ground that one of the parties has undertaken with the other to do that work and will be subject to sanctions if he does not honour his promise” (see also the analysis of Thouvenin and Trebilcock 2013, 1420).<fnref n="22" />

If the issue of prison labour is taken into account, it is because this situation is one of those that may justify an exemption from the obligation to suppress the use of “forced or compulsory labour in all its forms” as listed in Article 2 of Convention No. 29, which specifies that the term does not extend to the “work or service exacted from any person as a consequence of a conviction in a court of law, provided that the said work or service is carried out under the super-

<footnote n="20">²⁰ Text available at https://www.echr.coe.int/Documents/Convention_ENG.pdf.</footnote>

<footnote n="21">²¹ European Court of Human Rights, *Van der Mussele v. Belgium*, Application No. 8919/80 (23 November 1983).</footnote>

<footnote n="22">²² However, it should be noted that this case did not concern forced or compulsory labour by prisoners, but the obligation of providing free legal assistance to those in need.</footnote>
vision 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"
(Article 2, paragraph 2(c)). Prison labour (forced or compulsory) is therefore
admitted only in the civic interest of society in general, and never in the private
interest (Milman-Sivan 2013, 1630).<fnref n="23" />

The interest of society, in this sense, may be direct, as when prisoners partici-
pate, through their service, in public works, or indirect, for example through
the social benefit associated with the rehabilitative function of regular work
for prisoners (Fenwick 2005, 268). Work should be considered an appropriate
social measure with a view to crime prevention, also taking into account the fact
that “the causes of crime have often to be sought in bad social conditions” (ILO
1932b, 312; see also ILO 2007a; ILO 2012).

Compulsory work is therefore admitted when it is in the public interest. This principle should hold not only for the private sector, but also for the use of prison labour by the State. For the purposes of overall understanding, we should dismiss the legitimacy of all forms of forced or compulsory labour that do not serve the interest of society in general (ILO 2007a, para. 49). In this respect, forms of work that are not meaningful and which do not contribute to the objective of the social rehabilitation of prisoners should be banned. In other terms, if we consider the general reasoning of Article 2, paragraph 2(b) and (c) of Convention No. 29, the State should only be able to impose a work activity on prisoners where that effectively contributes to their rehabilitation. If that is not the case, the criteria of the interest of society at large, which may justify an exemption from the ban on forced or compulsory labour, would not be met.

On this issue, the Committee of Experts defines the concept of “useful work”, namely that which is of benefit to the community as a whole (ILO 2007a, para. 124). If this work is performed for the benefit of the private sector, the Committee specifies that it must be performed voluntarily. For this to be considered to be the case, it is firstly necessary for the prisoner to provide formal consent in writing (ILO 2007a, para. 115; ILO 2012, 262). The issue of prisoner consent brings into play the notion of a contract, a fundamental principle on the labour market (Milman-Sivan 2013; Fenwick 2005, 278). This also echoes certain considerations, linked to a more modern approach to penology, namely the idea that rehabilitation takes place via the effective and personal participation of the individual (Van Ness and Strong 2015). However, the Committee of Experts has always applied a second condition for consent to be considered freely given. For this to be the case, working conditions must approximate a free labour relationship (ILO 2007a, para. 60; ILO 2012, 262).

Accordingly, the payment of wages is an indicator of the voluntary nature
of the work, to the extent that they are comparable to those available for similar
work in the private sector (Fenwick 2005, 278). However, differences in wages
and social security benefits have sometimes been deemed acceptable “on the
basis that there is lower productivity of prison labour” (ILO 2001, para. 141;

<footnote n="23">²³ Guido (2019) also underlines that the standard protects prisoners from forced labour for private gain, but does not rule out exploitation by the State.</footnote>
see also Guido 2019). The wage differential has also been viewed as a kind of
functional deduction for reparations to victims, family support and the cost of
accommodation and food (Milman-Sivan 2013). However, the literature shows
that, to be considered truly *meaningful*, purposeful or useful, the work “must
impart meaningful employment skills and habits to prisoners” (Phelan 1997,
1758; see also Guido 2019; van Zyl Smit and Dünkel 1999; Hiller 1915). In this
regard, the Committee of Experts has specified that the similarity of working
conditions to those of work in a free setting could promote the rehabilitative
goal of prisoners’ work by helping to create a “real work situation” (Fenwick
2005, 279; ILO 2001). This particular configuration of the principle relating to
the voluntary nature of the work may balance the two fundamentally opposed
considerations concerning prison labour: that of profit-making and that of
rehabilitation (Milman-Sivan 2013, 1629).

Where the work performed by prisoners effectively reflects a real work situ-
ation (ILO 2007a, para. 60 and, before that, ILO 1932a, 499), and if the principle
of sufficient proximity to the working conditions of the free market applies also
in the case of work performed for the State, it could be considered that there is
no longer an issue of unfair competition with regard to products manufactured
in prisons being placed on the market.

Naturally, the criterion of a “real” work situation should not be applied too
narrowly in relation to certain economic conditions and specific production
methods. It should be possible to consider the employment of prisoners for the
general management of the prison establishment, namely in the areas of laundry,
cooking, maintenance and so on, as a real work situation. Yet these activities
performed as part of internal prison services are sometimes seen as incidental
in economic terms, due to their immediate use, or even not assimilated to “work”
in certain judicial interpretations, to the extent that “prisoners are taken out of
the national economy”<fnref n="24" /> (see Quigley 2004, 1166; Zatz 2008).<fnref n="25" /> Furthermore, such
activities usually have the shortcoming of requiring limited qualifications and
offering few opportunities for development in terms of employment prospects
and skills acquisition (see ILO 2007a, para. 49). However, they can, if performed
with respect for human dignity, constitute work or service that may contribute
to rehabilitation, and which may therefore be justified by a combined reading
of paragraph 2(b) and (c) of Article 2 of Convention No. 29. Indeed, it may be
considered, to a certain extent, that this work or service forms part of the normal
civic obligations of the prisoners.<fnref n="26" />

The condition of the “normality” of the activity performed by prisoners is
not expressly provided for by paragraph 2(b) of Article 2 of Convention No. 29.

<footnote n="24">²⁴ United States Court of Appeal for the Second Circuit, *Danneskjold v. Hausrath*, 82 F.3d 37 (19 April 1996). Available at https://law.justia.com/cases/federal/appellate-courts/F3/82/37/485388/.</footnote>

<footnote n="25">²⁵ In the literature, some authors stress that “[r]egular participation in work can also help to inculcate prisoners with more disciplined work and personal habits” (Fenwick 2005, 261; Guido 2019).</footnote>

<footnote n="26">²⁶ The Committee of Experts has never, to our knowledge, expressed itself in such terms, but it has indicated that the exception of “normal civic obligations” should be interpreted in the light of other provisions of the Convention (ILO 2007a, para. 47).</footnote>
However, paragraph 3(a) of Article 4 of the European Convention of Human Rights states that the expression “forced or compulsory labour” (the practice prohibited, in principle, by paragraph 2 of the same Article) does not apply to “work required to be done in the ordinary course of detention” according to the provisions of Article 5 of the same text.<fnref n="27" />

To determine which activities should be considered “work required to be done in the ordinary course of detention”, the ECHR takes into account the criteria prevailing in Member States, which notably include the objective of rehabilitation (“reintegration into society”) (see also Harris et al. 2014, 280; Dermine 2014, 110; Jacobs, White and Ovey 2010, 187).<fnref n="28" /> The parameter of “normality”, interpreted in this sense, converges with that of the “proximity” of working conditions of prisoners to those of free labour.

In conclusion, we can affirm that the global architecture of the system is based on coherent reasoning, fully based on the need for the activities demanded of prisoners to have a positive impact on their mental and physical health, and contribute effectively to their rehabilitation (ILO 1932a and 1932b, see also ILO 2007a). Work in a free, productive environment contributes to this objective and serves as a point of reference. What remains to be defined is the role that private enterprise, whose input sometimes appears to be necessary, should play in terms of offering genuinely useful and meaningful work for prisoners, while guarding against any form of exploitation.

## 4. Prison labour and decent work: The capability approach

We have seen that the main criterion to be observed in relation to the work that might be demanded of prisoners is that it approximates a “real work situation” (see ILO 1932a, 499; 2001, para. 137; 2007a, para. 60). This characteristic, which, according to the Committee of Experts, is necessary to ensure that prisoners’ work for private entities can be considered legitimate, is confirmed by the recent changes in conceptual approaches to the notion of decent work. In particular, the transposition of the capability approach into the 2030 Agenda for Sustainable Development (UN 2015) may lead to confirmation of the principle according to which work must always be meaningful and form part of the goal of rehabilitation of prisoners.

The capability approach also appears in the ILO report *Work for a Brighter Future* (2019b), in which the Organization presents a human-centred programme that calls for increased investment in human potential, labour market institutions, and decent and sustainable work. The chapter on increasing investment in people's capabilities refers specifically to the studies of Sen (2000) and Nussbaum (2000 and 2011).

<footnote n="27">²⁷ On the definition in question, see European Court of Human Rights, Grand Chamber, *Stummer v. Austria*, Application No. 37452/02 (7 July 2011).</footnote>

<footnote n="28">²⁸ European Court of Human Rights, *Stummer v. Austria*, para. 121.</footnote>
Similarly, the ILO Centenary Declaration for the Future of Work emphasizes the need to strengthen the “capacities of all people to benefit from the opportunities of a changing world of work”, notably through “effective measures to support people through the transitions they will face throughout their working lives” (2019a, 6). This universal objective (the promotion of decent work for all) necessarily extends to prisoners, who are manifestly in a period of transition that should lead to reintegration into free society.

Choosing the capability approach, with a view to identifying the means of responding to the needs of prisoners to better prepare them for their possible future freedom, contributes to attenuating the negative effects of detention. We also know that detention can be associated with poverty (ILO 1932a), including in a relative sense, as the consequence of the failure of certain “basic skills”. According to Nussbaum (2000; see also Langille 2019, 62), there are ten central capabilities that all democracies should protect, including the freedom of workers to choose from a variety of lifestyles. The link between poverty and imprisonment also stems from the fact that the situation does not only affect prisoners on an individual basis, it also has consequences for their children and families. In addition, it has an impact on how the community functions, namely on the relationships between its members and its capacity to provide a suitable environment for living, working and raising children, and on the security of life within it (Clear 2008; Khwela 2014; Maeran, Menegatto and Zamperini 2017).

Indeed, it should not be forgotten that “imprisonment” marks a rupture in the experience of life outside, which is interrupted (Clemmer 1940), which favours hostility towards others and social withdrawal, while disrupting family structures (Maeran, Menegatto and Zamperini 2017; Strydom and Kivedo 2009; Haney 2002).

Be that as it may, a low level of education, limited or, at any rate, patchy formal professional experience and not having a clean criminal record makes it extremely difficult to find stable employment when leaving prison (Scott 2010). In this regard, “reintegration” is vital. The positive transformation of a prisoner (seen as a delinquent) and the favourable development of their basic behaviours must make it possible for them to emerge from a state of poverty and find a place once again within society and the family “so that they can once again function as a proper unit” (Khwela 2014, 152).

The objectives of the 2030 Agenda for Sustainable Development should be re-examined in the light of these elements, notably as regards the promotion of “full and productive employment” and “decent work for all” (UN 2015, see target 8.5). In the system of international conventions that we have described, forced labour is only permitted, as we have seen, in a form of “normality” and in the context of rehabilitation policies, that is, where it aims to help the prisoner reintegrate into society.<fnref n="29" /> In the description of target 8.5, we find three adjectives, two of which modify the word “employment” and one the noun “work”. All evoke the characteristics of the concept of “useful work” defined by the Committee

<footnote n="29">²⁹ European Court of Human Rights, Court (Plenary), *De Wilde, Ooms and Versyp v. Belgium*, Application Nos 2832/66, 2835/66 and 2899/66 (18 June 1971), para. 90.</footnote>
of Experts: the work must be “full”, “productive” and “decent”.<fnref n="30" /> Yet the data
shows that the work generally imposed by the State upon prisoners is work
that, in fact, is not comparable to a full-time job, given the perennial rarity of
job opportunities. It is not “productive” or “decent” either, if we understand
this to mean “work that meets people’s basic aspirations, not only for income,
but for security for themselves and their families, without discrimination or
harassment, and providing equal treatment for women and men” (ILO 2000).

As a result, if we take the objective of “decent work” seriously, consider-
ing that work, in the specific case of prisoners, forms part of a treatment
programme within which it constitutes an educational and therapeutic tool
(Maeran, Menegatto and Zamperini 2017) aiming to encourage the prisoner
to reintegrate into society, we should exclude from the permissible forms of
compulsory work all those that are neither “productive” nor “decent”. This
perspective can enhance the value of work offered by the private sector, which is
likely to provide a “meaningful” occupation for prisoners. The issue is being given
increasing attention in the literature, particularly with regard to State policies,
which support and encourage cooperation between the public authorities and
private enterprises for the purposes of combating forced or compulsory labour,
including through forms of prison privatization (see the detailed analysis of
Milman-Sivan and Sagy (2020) on the situation in Germany, Austria, Australia
and the United Kingdom<fnref n="31" />).

The Committee of Experts has stated several times that the employment of
prisoners by private employers is only compatible with the Convention in the
case of a free work relationship, meaning that it takes place not only with the
agreement of the person concerned, but also with certain guarantees, notably
with regard to the payment of normal wages (ILO 1998, para. 119; 2001, para.
133).<fnref n="32" /> It strongly reaffirmed this principle with regard to the Russian Federation
(ILO 2021, 290–291; see also Milman-Sivan and Sagy 2020).

As long as it does not constitute forced or compulsory labour, it can be
argued that work performed by prisoners for private entities (inside or outside
prison) may contribute to the goals of the UN 2030 Agenda for Sustainable
Development. Likewise, public–private partnership can allow the development
of policies for investing in people’s capabilities in the special context of detention.

<footnote n="30">³⁰ It is interesting to compare the terms used by the UN Sustainable Development Agenda and this passage from an 1829 report that highlights the virtues of work for prisoners, which claims that “[i]t is productive, it is healthful, it teaches convicts how to support themselves when they leave prison, it is reformatory, and is consonant with republican principles” (cited in Quigley 2004, 1162, and Hiller 1915, 854).</footnote>

<footnote n="31">³¹ With regard to Australia, the Committee of Experts notes in its 2019 report that, according to the Australian Government, prisoners in Tasmania work for private enterprises on a voluntary basis as part of their sentence management plan, which is aimed at facilitating their employment upon release (ILO 2019c, 194).</footnote>

<footnote n="32">³² It notably recalled this in its observations on the implementation of Convention No. 29 in France, in the context of direct requests adopted in 2011, 2014 and 2018 (available at https://www.ilo.org/dyn/normlex/en/f/?p=NORMLEXPUB:13101:0::NO::P13101_COMMENT_ID:2698124; see also Auvergnon 2018; Rambaud 2010; OIP 2020). Subsequently, Act No. 2021-1729 of 22 December 2021 on confidence in the judiciary modified the rules applicable to the work of prisoners and introduced a prison employment contract for prisoners who work (Auvergnon 2022).</footnote>
The theory has already shown that the objections based on principles derived from ILO instruments at this stage – objections generally raised by industrialized States – could be overcome by a ban on all forced prison labour (Milman-Sivan and Sagy 2020, 518).

## 5. Conclusion

Following this analysis, it seems evident that the issue of prison labour cannot be duly addressed without introducing the individual interests of prisoners into the equation. National or supranational legislation must naturally play a role in protecting their fundamental social rights. This mission is especially important to prevent exporting enterprises from incorporating the exploitation of prison labour as a customary profitability factor in their economic model.

Yet efforts aiming to protect prisoners and, more specifically, to guarantee respect for their fundamental social rights must take into account the imperative of rehabilitation, as it is important for these people to be able to re-establish a place in society upon release. With this in mind, it is vital to consider the prospects for the individual and their capacity to find a job when imposing legal conditions on prison labour, even when the goal is to avoid competing with national and foreign enterprises.

It is therefore a matter of striking a balance, which involves several branches of the law: firstly customs rules, which are imposed upon Members of the WTO and EU and are not therefore decided solely on a national basis where they relate to the importation of products and services from prison labour, followed by, depending on national decisions, criminal law, administrative law and, potentially, labour law, where this activity is limited to the internal market.

On this last point, without claiming to have studied all the solutions adopted, even only in Europe (Nowak 2015), this research has attempted to show that neither international economic law nor international labour law poses an obstacle to developing a set of legal rules in favour of prisoners in the area of work. However, although it does not seem reasonable to ban prison labour, we should not allow prisoners to be underpaid by the enterprise or public entity that agrees to employ them, especially where imprisonment has little (or no) effect on the job in question. Moreover, the more closely prisoners' wages approximate those offered to free workers, the less likely it is that the issue of unfair competition will arise. When envisaging a legal solution, it is therefore appropriate to draw a clear distinction between the benefits that this type of employment can provide for workers in prisons and the spin-off benefits it may generate for the enterprise.

## References

* Alben, Elissa. 2001. "GATT and the Fair Wage: A Historical Perspective on the Labor-Trade Link". *Columbia Law Review* 101 (6): 1410-1447.

* Auvergnon, Philippe. 2018. "Travail pénitentiaire". In *Répertoire de droit du travail*. Paris: Dalloz.
—. 2022. "Quand la lutte contre la récidive permet et limite les progrès de l'encadrement juridique du travail en prison". *Droit social*. https://shs.hal.science/halshs-03924058/document.

Auvergnon, Philippe, Marie Crétenot, Nicolas Ferran, and Cyril Wolmark. 2019. "Propositions pour un statut juridique du détenu travailleur". *Droit social* 12 (December): 1075–1082.

Busse, Matthias, and Sebastian Braun. 2003. "Trade and Investment Effects of Forced Labour: An Empirical Assessment". *International Labour Review* 142 (1): 49–71.

Cepillo Galvín, Miguel Ángel. 2008. *Política comercial europea y preferencias arancelarias*. Madrid: Dykinson.

Clear, Todd R. 2008. "The Effects of High Imprisonment Rates on Communities". *Crime and Justice* 37 (1): 97–132.

Clemmer, Donald. 1940. *The Prison Community*. Boston, MA: Christopher Publishing House.

Compa, Lance A. 1993. "Labor Rights and Labor Standards in International Trade". *Law and Policy in International Business* 25: 165–191.

Dermine, Élise. 2014. "Activation Policies for the Unemployed and the International Human Rights Case Law on the Prohibition of Forced Labour". In *Activation Policies for the Unemployed, the Right to Work and the Duty to Work*, edited by Élise Dermine and Daniel Dumont, 103–138. Brussels: Peter Lang.

De Schutter, Olivier. 2015. *Trade in the Service of Sustainable Development: Linking Trade to Labour Rights and Environmental Standards*. Oxford: Hart Publishing.

Dispersyn, Michel. 2001. "La dimension sociale dans le système des préférences généralisées (SPG) de l'Union Européenne". *Revue de la faculté de droit de l'Université libre de Bruxelles* 23: 87–110.

Dubin, Laurence. 2003. *La protection des normes sociales dans les échanges internationaux*. Aix-en-Provence: Presses Universitaires d'Aix-Marseille.

Duthu-Calvez, Vanessa. 2010. "Les avatars de la ‘clause sociale’ dans les règles du commerce international: aspects juridiques". PhD thesis, Université de Nantes. https://www.theses.fr/2010NANT4008.

Feldman, Lindsey Raisa, 2020. "Anti-Heroes, Wildfire, and the Complex Visibility of Prison Labor". *Crime, Media, Culture* 16 (2): 221–238.

Fenwick, Colin. 2005. "Private Use of Prisoners' Labor: Paradoxes of International Human Rights Law". *Human Rights Quarterly* 27 (1): 249–293.

Guido, Mario. 2019. "Private Prison Labour: Paradox or Possibility? Evaluating Modern-Day Systems and Establishing a Model Framework Through the Lens of the Forced Labour Convention". *Journal of Law and Jurisprudence* 8 (2). https://doi.org/10.14324/111.2052-1871.119.

Haney, Craig. 2002. *The Psychological Impact of Incarceration: Implications for Post-Prison Adjustment*. Washington, DC: Urban Institute. http://webarchive.urban.org/publications/410624.html.

Harris, David, Michael O'Boyle, Ed Bates, and Carla Buckley. 2014. *Law of the European Convention on Human Rights*. 3rd ed. Oxford: Oxford University Press.

Hiller, Ernest T. 1915. "Labor Unionism and Convict Labor". *Journal of Criminal Law and Criminology* 5 (6): 851–879.

ILO. 1932a. "Prison Labour: II". *International Labour Review* 25 (4): 499–524.

—. 1932b. "Prison Labour: I". *International Labour Review* 25 (3): 311–331.

—. 1968. *Forced Labour: General Survey on the Reports concerning the Forced Labour Convention, 1930 (No. 29), and the Abolition of Forced Labour Convention, 1957 (No. 105)*. Report III, International Labour Conference, 52nd Session. Geneva.
—. 1998. *Report of the Committee of Experts on the Application of Conventions and Recommendations*. Report III (Part 1A), International Labour Conference, 86th Session. Geneva.

—. 2000. "ILO Director-General highlights need for 'Decent Work', insists on employment as the best means of social inclusion and urges comprehensive employment policies to underpin globalization". Press release, 10 November 2000. https://www.ilo.org/global/about-the-ilo/newsroom/news/WCMS_007916/lang--en/index.htm.

—. 2001. *Report of the Committee of Experts on the Application of Conventions and Recommendations*. Report III (Part 1A), International Labour Conference, 89th Session. Geneva.

—. 2007a. *Eradication of Forced Labour: General Survey concerning the Forced Labour Convention, 1930 (No. 29), and the Abolition of Forced Labour Convention, 1957 (No. 105)*. Report III (Part 1B), International Labour Conference, 96th Session. Geneva.

—. 2007b. *Report of the Committee of Experts on the Application of Conventions and Recommendations*. Report III (Part 1A), International Labour Conference, 96th Session. Geneva.

—. 2012. *Report of the Committee of Experts on the Application of Conventions and Recommendations*. Report III (Part 1A), International Labour Conference, 101st Session. Geneva.

—. 2019a. *ILO Centenary Declaration for the Future of Work*. Geneva.

—. 2019b. *Work for a Brighter Future: Global Commission on the Future of Work*. Geneva.

—. 2019c. *Application of International Labour Standards 2019: Report of the Committee of Experts on the Application of Conventions and Recommendations*. Report III (Part A), International Labour Conference, 108th Session. Geneva.

—. 2021. *Application of International Labour Standards 2021: Addendum to the 2020 Report of the Committee of Experts on the Application of Conventions and Recommendations*. Report III/Addendum (Part A), International Labour Conference, 109th Session.

Jacobs, Francis G., Robin C.A. White, and Clare Ovey. 2010. *The European Convention on Human Rights*. 5th ed. Oxford: Oxford University Press.

Khwela, Michael N. 2014. "A Need to Re-integrate Prisoners to the Community: A Case of Polokwane Medium B Prison, South Africa". *Athens Journal of Social Sciences* 1 (2): 145-156.

Lacroix, André. 2003. "L'éthique et les limites du droit". *Revue de droit de l'université de Sherbrooke* 33 (1-2): 195-217.

Langille, Brian, ed. 2019. *The Capability Approach to Labour Law*. Oxford: Oxford University Press.

Levi, Edward H. 1948. "An Introduction to Legal Reasoning". *University of Chicago Law Review* 15 (3): 501-574.

Luff, David. 2004. *Le droit de l'Organisation mondiale du commerce: analyse critique*. Brussels: Bruylant.

Maeran, Roberta, Marialuisa Menegatto, and Adriano Zamperini. 2017. "Il lavoro in carcere: significato psicologico". In *Il lavoro dei detenuti*, edited by Maria Giovanna Mattarolo and Andrea Sitzia, 149-159. Padua: Padova University Press.

Maupain, Francis. 1996. "La protection internationale des travailleurs et la libéralisation du commerce mondial: un lien ou un frein?". *Revue générale de droit international public* 1996/1: 45-100.

Milman-Sivan, Faina. 2013. "Prisoners for Hire: Towards a Normative Justification of the ILO's Prohibition of Private Forced Prisoner Labor". *Fordham International Law Journal* 36 (6): 1619-1682.
Milman-Sivan, Faina, and Yair Sagy. 2020. "On the International Labour Organization and Prison Labour: An Invitation to Recalibrate". *International Labour Review* 159 (4): 505–524.

Moreau, Marie-Ange. 1996. "La clause sociale dans les traités internationaux: bilans et perspectives". *Revue française des affaires sociales* 1 (96): 89–110.

———. 2002. "Quelques observations sur les évolutions juridiques". *Revue internationale de droit économique* 2–3 (T. XVI): 383–400.

Nowak, Beata Maria. 2015. "Social Reintegration of Prisoners in Selected European Union Countries". *Resocjalizacja Polska/Polish Journal of Social Rehabilitation* 10 (December): 55–79.

Nussbaum, Martha C. 2000. *Women and Development: The Capabilities Approach*. Cambridge: Cambridge University Press.

———. 2011. *Creating Capabilities: The Human Development Approach*. Cambridge, MA: Harvard University Press.

OIP (Observatoire international des prisons). 2020. "Le travail en prison, en France, en 2020". https://oip.org/wp-content/uploads/2020/03/oip-travail-prison-2020.pdf.

Orbie, Jan, and Ferdi De Ville. 2010. "Core Labour Standards in the GSP Regime of the European Union: Overshadowed by other Considerations". In *Human Rights at Work: Perspectives on Law and Regulation*, edited by Colin Fenwick and Tonia Novitz, 487–508. Oxford: Hart Publishing.

Orbie, Jan, and Lisa Tortell. 2009. "The New GSP+ Beneficiaries: Ticking the Box or Truly Consistent with ILO Findings?". *European Foreign Affairs Review* 14 (5): 663–681.

Perulli, Adalberto. 2014. "Fundamental Social Rights, Market Regulation and EU External Action". *International Journal of Comparative Labour Law and Industrial Relations* 30 (1): 27–47.

———. 2018. "The Perspective of Social Clauses in International Trade", Centre for the Study of European Labour Law "Massimo D'Antona" Working Paper, INT No. 147/2018. https://csdle.lex.unict.it/sites/default/files/Documenti/WorkingPapers/20181221-095119_Perulli_n147-2018intpdf.pdf.

Phelan, Lisa C. 1997. "Making Prisons Work". *Loyola of Los Angeles Law Review* 30 (4): 1747–1780.

Quigley, William P. 2004. "Prison Work, Wages, and Catholic Social Thought: Justice Demands Decent Work for Decent Wages, Even for Prisoners". *Santa Clara Law Review* 44 (4): 1159–1178.

Rambaud, Gonzague. 2010. *Le travail en prison: enquête sur le business carcéral*. Paris: Autrement.

Reis, Patrice. 2010. "Commerce international, clause sociale et développement durable". In *Le commerce international entre bi- et multilatéralisme*, edited by Bernard Remiche and Hélène Ruiz-Fabri, 300–320. Brussels: Larcier.

Sapir, André. 1995. "The Interaction between Labour Standards and International Trade Policy". *World Economy* 18 (6): 791–803.

Scott, Terri-Lynne. 2010. "Offender Perceptions on the Value of Employment". *Journal of Correctional Education* 61 (1): 46–67.

Sen, Amartya. 2000. *Development as Freedom*. New York: Anchor Books.

Servais, Jean-Michel. 1989. "The Social Clause in Trade Agreements: Wishful Thinking or an Instrument of Social Progress?". *International Labour Review* 128 (4): 423–432.

———. 2015. *Droit international du travail*. Brussels: Larcier.

Sorriaux, Jonathan. 2014. "Le système de préférences généralisées de l'Union Européenne: le droit douanier facteur de développement". PhD thesis, Université Paris-Est. https://theses.hal.science/tel-01127948.

Staelens, Patrick. 1997. "Droit du travail, intégration économique et 'clause sociale' à la lumière de l'expérience nord-américaine". PhD thesis, Université de Saint Étienne. https://www.theses.fr/1997STETT42X.
Strydom, Hennie, and M.E. Kivedo 2009. "Psychosocial Needs of the Children of Incarcerated Parents". *Acta Criminologica: African Journal of Criminology & Victimology* 22 (2): 99-117.

Thouvenin, Jean-Marc, and Anne Trebilcock, eds. 2013. *Droit international social: droits économiques, sociaux et culturels – Tome 2: Règles du droit international social*. Brussels: Bruylant.

Treu, Tiziano. 2017. "Globalizzazione e diritti umani. Le clausole sociali dei trattati commerciali e negli scambi internazionali fra imprese", Centre for the Study of European Labour Law "Massimo D'Antona" Working Paper, INT No. 133/2017. http://aei.pitt.edu/100497/1/20170104-015320_treu_n133-2017intpdf.pdf.

Tsogas, George. 2000. "Labour Standards in the Generalized Systems of Preferences of the European Union and the United States". *European Journal of Industrial Relations* 6 (3): 349-370.

UN (United Nations). 2015. General Assembly resolution 70/1, Transforming our world: the 2030 Agenda for Sustainable Development, A/RES/70/1.

Vandenberghe, Jan. 2008. "On Carrots and Sticks: The Social Dimension of EU Trade Policy". *European Foreign Affairs Review* 13 (4): 561-581.

Van Ness, Daniel W., and Karen Heetderks Strong. 2015. *Restoring Justice. An Introduction to Restorative Justice*. Waltham: Anderson Publishing.

van Zyl Smit, Dirk, and Frieder Dünkel, eds. 1999. *Prison Labour: Salvation or Slavery? London: Routledge.*

Waer, Paul. 1996. "Social Clauses in International Trade: The Debate in the European Union". *Journal of World Trade* 30 (4): 25-42.

Zatz, Noah D. 2008. "Working at the Boundaries of Markets: Prison Labor and the Economic Dimension of Employment Relationships". *Vanderbilt Law Review* 61 (3): 857-958.