Beyond Trafficking and Slavery

Soft law not enough to prevent slavery and exploitation

POLICY DEBATE: Many corporations need exploited labour to remain profitable, a simple truth that soft law will never effectively overcome, argues the UN special rapporteur for slavery.

Urmila Bhoola
13 September 2016, 12.01am
Lunchtime at a Bangladesh factory.
ILO in Asia and the Pacific//

Urmila Bhoola, UN Special Rapporteur on contemporary forms of slavery, YES.

Recent increases in global trade have created new opportunities for transnational corporations (TNCs) to avoid accountability for human rights violations. This lack of accountability stems from the offshoring of production to the lowest tiers of global supply chains (GSCs), which are usually based in developing countries or informal economies. The profitability of these enterprises is largely dependent on the ease with which they can avoid extraterritorial liability for violations of criminal and labour laws regulating forced labour and contemporary slavery. As part of a deliberate business strategy, many TNCs make use of home-based or small workshops where products are made in conditions of debt bondage, forced labour, the worst forms of child labour, or other forms of contemporary slavery. In these circumstances, opportunity, corruption, and corporate greed meet a ready pool of vulnerable workers – migrants, refugees, indigenous people, people with disabilities, children, and women – seeking the right to decent work and a living wage, but who end up being subjected to various forms of exploitation.

Maximising profit continues to clash with the rights of workers under international labour human rights law.

The illegal extraction of profit – estimated by the International Labour Organisation (ILO) to be in excess of $150 billion per annum – provides an incentive for TNCs to condone human rights violations in GSCs. Hence, regulation through soft law, however persuasive, will be counterintuitive as the interests of maximising profit continues to clash with the rights of workers under international labour human rights law.

While recent successes achieved through the self-regulatory approach should not be discounted, these initiatives have not resulted in liability for extraterritorial rights violations, nor have they compelled TNCs to prevent, protect against, or remedy forced labour and contemporary slavery. TNCs largely evade liability as a result of multiple jurisdictional and legal rules that protect them in their domestic domiciles. Eradicating forced labour and contemporary slavery from GSCs consequentially requires strong laws to ensure effective access to justice, as well as adequate and prompt remediation for victims of contemporary slavery.

United Nations General Protocols (UNGPs) and other ‘soft law’ frameworks have provided clarity on how to operationalise the responsibility of corporations to respect human rights and the obligations of states in relation to slavery and forced labour. However, they have had a limited effect in ensuring corporate and state accountability. TNCs too often find ways to subvert governance in their host countries, where the need for foreign direct investment may outweigh any willingness to protect the rights of workers.

It is important to note that states have an obligation under international human rights law to respect, protect, and fulfil the human rights of all persons in their territory or under their jurisdiction. This includes the duty to protect individuals and groups against egregious violations of labour and other human rights laws, such as forced labour and contemporary slavery, by private actors as well as state-owned entities.

TNCs largely evade liability as a result of multiple jurisdictional and legal rules that protect them in their domestic domiciles.

This duty applies irrespective of the states’ ratification of the 1926 and 1956 UN Anti-Slavery Conventions or the ILO Convention 29 (1930) and the 2014 Forced Labour Protocol, as the protection against slavery is a universal norm. States are obliged to implement binding laws to hold TNCs accountable for forced labour and contemporary slavery. The fulfilment of this obligation to protect should ideally translate into a ‘smart mix’ of measures to ensure that businesses comply with the persuasive authority of ‘soft’ laws like the UNGPs and comply with the responsibility to respect human rights, but also that they are subjected to legal obligations to effectively redress egregious human rights violations through compensation or other appropriate remedies. In addition, duties to conduct due diligence across their supply chains and take steps to report violations and address prevention and protection should be legally binding. At the very minimum, states should ensure that businesses understand the penalties that can be imposed for purchasing products or services that have in any way been linked to forced labour or other contemporary forms of slavery. To date, states have adopted diverse approaches to addressing this issue, which include ensuring criminal, civil, and tort liability for business-related human rights violations; setting up mechanisms to regulate such compliance in trade and consumer protection; and addressing the issue in government procurement.

Binding laws are necessary to stem the increasing tide of forced labour and contemporary slavery, particularly given the egregious violations that continue to occur in global supply chains. Things can only get worse as more and more desperate migrants leave their homes and more communities are displaced by conflict and natural disasters. Only binding laws will address continued impunity of governments and corporations for forced labour and contemporary slavery and ensure that victims receive adequate and appropriate compensation for the human rights violations they have suffered. Binding law will also limit legal challenges to administrative regimes and ad-hoc compliance with voluntary codes that regulate business conduct. Experience also shows, however, that binding laws are more effective and robustly enforced in situations where governance, judicial independence, and the rule of law prevail.

This debate was produced in conjunction with Yale University's Gilder Lehrman Center for the Study of Slavery, Resistance, and Abolition.

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