Ending forced labor and modern slavery in global supply chains requires binding legislation, rather than corporate self-regulation and self-disclosure. Yes or No?
Genevieve LeBaron and Joel Quirk
Garment & Allied Workers' Union
UN Special Rapporteur on Contemporary Forms of Slavery
Queen's School of Business
International Labour Organisation
Formerly of the Coca-Cola Company
The Freedom Fund
International Organisation for Migration
National Commission for the Eradication of Slave Labour
Ed Potter, former Director of Global Workplace Rights at The Coca-Cola Company, NO.
As discussed below, companies are already regulated by national laws prohibiting forced labour. The problem has been the lack of effective enforcement of these laws. Additional forced labour legislation directed at companies will have the same enforcement gaps. As set out in the 2011 UN Guiding Principles on Business and Human Rights, the corporate duty to respect human rights is secondary to the primary duty of the nation state to protect its citizens from human rights harm and supplements the primary state duty. Since 2011, companies have been urgently working to address their human rights impacts without the need for additional binding regulation or disclosure requirements.
Global or cross-border supply chains are nothing new. They have existed for centuries from the inception of international commerce. What is new, however, is that because of the internet and social media, we, as a consuming public, are more aware of them and have a somewhat better picture of the working conditions in them.
Cross-border supply chains were much in the minds of the negotiators of the Labour Chapter of the Treaty of Versailles ending World War One. The formation of the International Labour Organisation (ILO) in 1919 came at the end of an expansionary wave of cross-border trade. From the outset, there were concerns that differing labour conditions could create a competitive advantage for one country's goods and services over another. The ILO was founded to address the need to eliminate social injustice and to establish minimum labour standards.
The need for binding international and domestic legislation to abolish forced labour and human trafficking is not a new question. The abolition of forced labour has been a focus for nation states since the late nineteenth century and the ILO Convention 29 on Forced Labour was the first of the fundamental standards adopted by the ILO in 1930. Virtually all nations have ratified the 1930 ILO Forced Labour Convention, and those who have not, such as the United States, have constitutional and legislative provisions that address forced labour.
More recently, international attention and action has focused on human trafficking. The adoption of the UN Trafficking Protocol in 2000 reflected growing concerns about transnational organised crime and the related phenomena of the smuggling of migrants and trafficking in persons. This protocol has now been ratified by 169 nations. In 2014, the ILO adopted the Forced Labour Protocol to update its 1930 Forced Labour Convention and make clear that its definition of forced labour includes human trafficking. The ILO has in place a robust global campaign for ratifying the 2014 Protocol.
When a nation state ratifies a treaty, it undertakes a binding international obligation to implement the terms of the treaty into its law and practice. All firms, whether they have a cross-border supply chain or not, are required to comply with the laws of the country in which they operate. This means that all companies operating in a particular country, whether they produce for the domestic market or for export and regardless of their size, are subject to the laws and regulations of the country, including ratified ILO standards. We also know, however, that ratified ILO standards are often not fully implemented. This is reflected in 90 years of ILO oversight via the Committee on the Application of Standards and the Committee of Experts.
The root cause of this implementation failure is not the absence of binding laws, but the failure or the lack of capacity of governments to implement and enforce their laws. The forced labour and decent work challenges in cross-border supply chains mirror a failure to enforce the forced labour prohibitions in those economies generally. The issue is therefore not the need for more binding legislation on forced labour and human trafficking, but rather the need for more effective and comprehensive law enforcement in general. This applies to all labour practices within a country, regardless of whether or not they involve international exports or domestic consumption.
Protection of fundamental principles and rights including decent work must apply to all workers. We should avoid creating a two-tiered compliance system, where people working for exporters have higher standards, but the rest get lesser or diluted protections. The only way to ensure that all workers are equally protected is to develop strong national institutions that can implement and enforce laws covering all companies and workers within their borders, regardless of whether they participate in cross-border supply chains.
The conclusions from the 2016 International Labour Conference on global supply chains has also shown that the ILO can play an even bigger role with regard to decent work in cross-border supply chains. The conclusions contain a clear and straightforward action plan for the ILO. Important parts of this action plan include improving our understanding of supply chains through more and better data; driving policy coherence at international levels with other international organisations; strengthening capacity building; providing companies with the information they need for their due diligence and human rights risk mapping; supporting companies through guidance and advice on labour rights due diligence; and promoting national and cross-border social dialogue.
No regulatory gap has been identified that needs to be bridged at the international level because of cross-border supply chains. If fully implemented, national law and practice; ratified international labour standards; the 1998 Declaration on Fundamental Principles and Rights at Work; and the United Nations Guiding Principles on Business and Human Rights are fully adequate to address decent work issues in all work circumstances, including cross-border supply chains. What is needed is more effective implementation of legislation and regulations prohibiting forced labour and human trafficking.