Human Trafficking and the Private Sector: A Role for Corporate Counsel

Vol. 42 No. 4

By

Jonathan Todres (jtodres@gsu.edu) is associate professor of law at Georgia State University College of Law. He is a past chair of the Section’s International Life Sciences and Health Law Committee and a past vice chair of the International Human Rights Committee. For a more in-depth discussion of these issues, see Jonathan Todres, The Private Sector’s Pivotal Role in Combating Human Trafficking , 3 Calif. L. Rev. Circuit 80 (2012), available at http://ssrn.com/abstract=2002957.

In the first half of 2013, Google announced two significant initiatives to combat human trafficking and related forms of exploitation. In April, the company announced that it would develop an integrated network that connects human trafficking hotlines around the globe. Then in June, it pledged to employ its technical expertise and other resources to help identify and eliminate child pornography on the Web. These and other recent initiatives by major companies are unfolding at a time when policymakers are becoming increasingly interested in examining the private sector’s role in facilitating or preventing human trafficking.

Recent legal developments in California and at the federal level suggest the legal landscape is changing for businesses. Corporate attorneys, both in-house and those at law firms, now need to pay attention to issues that historically have not been part of the private sector lawyer’s advisory role. This article discusses the emerging role of the private sector in preventing and responding to human trafficking, the evolving legal landscape, and the implications of this trend for corporate counsel.

Human Trafficking Defined and Its Impact

Human trafficking is a gross violation of human rights. Under international law, human trafficking is defined as “the recruitment, transportation, transfer, harbouring or receipt of persons” by means of force, fraud or coercion for the purpose of exploitation, including “the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.” Article 3(a) of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Supplementing the U.N. Convention Against Transnational Organized Crime (Trafficking Protocol). The Trafficking Protocol provides that when the victim is a minor, such exploitation constitutes trafficking whether or not force, fraud, or coercion is used.

For many victims, the experience of being trafficked is akin to slavery. Trafficking inflicts serious and, at times, life-threatening harm on victims. Trafficking victims and survivors are subjected to physical, mental, and emotional violence, and are exposed to health, environmental, and workplace hazards.

Although precise estimates on the scope of the problem are very difficult to ascertain due to the clandestine nature of the activity and other research challenges, human trafficking is believed to occur in almost every country and the number of victims is reported to be in the millions.

The Prevailing Response to Human Trafficking

In 2000, the modern response to human trafficking was launched with the adoption of both the Trafficking Victims Protection Act in the United States and the Trafficking Protocol at the international level. These two legal instruments established a three-pronged mandate for responding to human trafficking: prosecution of perpetrators, protection and assistance for victims and survivors, and prevention measures. Since then, law enforcement and social services have carried out the lion’s share of anti-trafficking work. Only recently has there been a growing realization that relying solely on law enforcement and social services likely perpetuates an endless cycle of pursuing traffickers for their crimes and seeking to help survivors recover from the trauma inflicted on them. Much more is needed to advance prevention and early intervention strategies so that we stop the harm from occurring in the first place. Accordingly, other sectors—e.g., health care, education—are beginning to assess their roles in addressing the problem. Until recently, preventing exploitation of individuals has not been something traditionally thought to be in the realm of most businesses. Times are changing.

The Private Sector’s Role

As human trafficking implicates a broad array of business sectors, many companies may be unwittingly enabling human trafficking and related forms of exploitation. Perhaps surprisingly, many private sector entities are well-positioned to facilitate effective responses that prevent the harm from occurring or at least improve the chances of earlier intervention. Supply chains are a good example. Today, many major corporations monitor their supply chains in real time. Manufacturers and retailers track inventory on a continuous basis. Staying on top of one’s business and maintaining efficiency are vital to ensuring business success. That surveillance infrastructure also positions these companies to monitor their supply chains to ensure no one is trafficked, enslaved, or otherwise exploited. Developing that component of supply-chain monitoring may be challenging, but a company that monitors its supply chain in real time is likely to be better positioned from a temporal perspective to prevent exploitation of its workforce or that of its subcontractors than a government inspector who might make one or two visits per year to a facility. Government oversight is still needed, but manufacturers and retailers are uniquely positioned to advance trafficking prevention efforts.

Businesses also have the capacity to innovate in ways that can produce gains in the fight against human trafficking. Several years ago, after pressure from human rights advocates, the United Arab Emirates confronted the problem of trafficking of young boys (often as young as five years old) from Bangladesh, Pakistan, Sudan, and Yemen to be exploited as camel jockeys. As the UAE worked to address this problem, a Swiss company provided a key innovation, a robot jockey, which alleviated the need to exploit young boys in this sport. Although that innovation does not address every aspect of the problem (for example, it does not address the poverty in supply countries that marginalizes individuals and makes them more vulnerable to exploitation), it provides a key contribution. Similarly, Google now hopes to utilize its Internet expertise to contribute to the fight against online child exploitation.

Finally, the private sector has the ability to leverage significant resources that can aid in the fight against human trafficking. The Global Business Coalition Against Human Trafficking (gBCAT) is a leading example of that power. Launched in 2012, it aims to “mobilize the power, resources and thought leadership of the business community to end human trafficking.” See www.gbcat.org. With initial members including Carlson (owner of Radisson and other hotel chains), The Coca-Cola Company, Delta Airlines, ExxonMobil, LexisNexis, Manpower Group, Microsoft, NXP, and Travelport, it has the potential to bring much-needed resources to bear on the problem.

It is too early to assess whether these initiatives will have the impact hoped for, but they suggest a change in approach. Increasingly, companies are taking active roles in developing solutions to human trafficking. The law is also changing.

Corporate Counsel’s Role

Given recent trends, human trafficking is no longer an issue that corporate entities can ignore. It implicates numerous sectors, and counsel to the business world need to be prepared to work with clients in responding to this issue.

Supply chains, discussed earlier, are one aspect of private sector operations that the law is already starting to implicate. In January 2012, the California Transparency in Supply Chains Act entered into effect. It requires any manufacturer or retailer that is “doing business” in the State of California and has global annual gross receipts of at least $100 million to disclose on its website its policies adopted—and measures undertaken—to prevent forced labor and trafficking in its supply chain. The Act is limited to a disclosure requirement, and the exclusive remedy under the Act is an action by the California attorney general for injunctive relief. However, the disclosure requirement, which applies to roughly 3,200 companies, has much broader implications. Human rights organizations can utilize it to shine a spotlight on those companies they consider models or those they believe are failing to do enough. Consumers can use the disclosure to inform choices they make about which products to buy. Finally, and perhaps most significantly, investment managers can consider this information in decisions they make with the funds they manage and with how they advise their clients. For example, in a 2011 report on the California law, the Interfaith Center on Corporate Responsibility; Christian Brothers Investment Services, Inc.; and Calvert Investments stated that “it is imperative that companies take active steps to combat human trafficking within their direct operations as well as supply chains to ensure that they are not complicit in human rights abuses.” Effective Supply Chain Accountability: Investor Guidance on Implementation of the California Transparency in Supply Chains Act and Beyond, Nov. 2011, at 4, available at www.iccr.org/resources/2012/2011SupplyChainGuide.pdf.

So for counsel to manufacturers and retailers, there are two issues: technical compliance with the law’s disclosure requirement and advising on the best course of action for the business. Beyond ethical obligations, there may be brand management and other reasons to advise a company to do more than the minimum. Supply chains figure to be an area of ongoing attention. At the federal level, an analogous bill—H.R. 2759, the Business Transparency on Trafficking and Slavery Act—was introduced in 2011. It would have imposed requirements similar to the California law on all publicly listed companies. Although it died in committee in 2012, such measures suggest that pressure is increasing on businesses to be proactive in this area.

Government contracts are another area of rapid change. On September 25, 2012, President Obama issued Executive Order 13627, Strengthening Protections Against Trafficking in Persons in Federal Contracts, to further augment U.S. government efforts to combat human trafficking. The Executive Order “prohibit[s] Federal contractors, contractor employees, subcontractors, and subcontractor employees from engaging in [various] types of trafficking-related activities.” This prohibition includes a ban on engaging in misleading and fraudulent recruitment practices, charging employees recruitment fees, confiscating or destroying passports or other identity documents, and other trafficking-related activities. It also requires contractors and subcontractors to develop compliance plans, educate their employees about these rules on trafficking-related activities, and create a mechanism for employees to report trafficking activities without fear of retaliation. In short, doing business with the U.S. government now requires companies to take proactive measures to minimize the risk of human trafficking in their operations.

These examples of federal and state regulations indicate a growing focus on the business sector’s role in facilitating, or preventing, human trafficking. That is a trend that is likely to continue and is one that businesses should support. Strong uniform measures on supply chains or other areas where trafficking is a risk help ensure that less ethical businesses do not gain an unfair competitive advantage by exploiting vulnerable individuals.

Moving Forward

Developing innovative solutions, building on the core strengths of one’s business, and utilizing one’s unique market position are all strategies that private sector entities regularly seek to employ. Today, they have the same opportunity to do all of these in ways that help prevent vulnerable individuals from being trafficked and exploited. Their corporate counsel can guide them in developing a successful strategy for achieving this goal.

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