D. International framework for the responsibility of businesses to respect human rights
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In the Universal Declaration of Human Rights, every individual and every organ of society is required to strive to contribute to the universal and effective recognition and observance of human rights for all. While it is commonly accepted that under international human rights law businesses have a responsibility to respect human rights, there is as yet no international legal duty for them to protect human rights. Human rights due diligence, i.e. a continuous process of identifying and addressing the human rights impact of a company across its operations and products, and throughout its supplier and business partner networks,44 is therefore the primary standard used to assess business compliance with its human rights responsibilities.
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Under principle 12, of the Guiding Principles on Business and Human Rights, which in their second pillar clarify the business responsibility to respect human rights, this responsibility applies to all internationally recognized human rights, understood, at a minimum, as those expressed in the International Bill of Human Rights and the ILO Declaration on Fundamental Principles and Rights at Work. All businesses are required to avoid causing or contributing to adverse human rights impacts through their own activities, address such impacts when they occur and seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts (principle 13). Under principle 12 in conjunction with principle 13 (which refers to “business relationships” that are understood to include relationships with business partners, entities in the value chain, and any other non-State or State entity directly linked to its business operations, products or services, i.e. entities in its supply chain beyond the first tier and indirect as well as direct business relationships),45 it is made clear that there is a responsibility on the part of businesses to effectively address contemporary forms of slavery in their supply chains.
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In order to meet their responsibility to respect human rights, businesses need to, as per principle 16, adopt human rights policy statements, the criteria for which are set out in this principle. The responsibility to respect also requires ongoing human rights due diligence to identify, prevent, mitigate and account for human rights impacts (principles 17–21). The Guiding Principles on Business and Human Rights also state that, where businesses identify that they have caused or contributed to adverse human rights impacts, they should have processes in place to enable remediation (principle 15).46
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The Guiding Principles on Business and Human Rights provide conceptual and operational clarity for the two human rights principles of the Global Compact Initiative,47 a broad-based multi-stakeholder initiative addressed to business, launched in 2000. The Global Compact brings together Governments, employers, civil society groups and trade unions, as well as other stakeholders, on the basis of 10 universally accepted principles of human rights, labour, environment and the fight against corruption. The principles are drawn from key United Nations and ILO standards, with contemporary forms of slavery figuring prominently among the categories of human rights and labour rights (principles 1, 2, 4 and 5). Since the Global Compact’s launch, more than 12,000 participants, including over 8,000 businesses from 145 countries, have joined. The high number of the initiative’s participants is commendable, but the most obvious gap of Global Compact is in terms of a follow-up mechanism for monitoring and implementation, since businesses need only to communicate annually on progress made in implementing the 10 principles.
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The first initiatives at the international level to address conduct of businesses emerged in the 1970s. In 1977, ILO adopted the Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy (subsequently amended in 2000 and 2006). It commits Governments, employers’ and workers’ organizations and multinational enterprises to respecting the Universal Declaration of Human Rights and the International Covenants adopted by the General Assembly. In 2014, the ILO Governing Body adopted an implementation strategy for a new follow-up mechanism to the Declaration48 (which is not yet aligned with the Guiding Principles on Business and Human Rights) envisaging public-private initiatives and technical cooperation, as well as awareness-raising, capacity-building, country-level support, research and information-gathering.
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The Organization for Economic Cooperation and Development (OECD) Guidelines for Multinational Enterprises49 were adopted in 1976 and updated five times, most recently in May 2011 to include a new chapter on human rights and business consistent with the Guiding Principles on Business and Human Rights. In the Guidelines, explicit reference is made to the responsibilities of multinational enterprises in relation to their supply chains.50 A system of national contact points — a non-judicial mechanism that the adhering countries are obliged to set up — are established thereunder. National contact points contribute to the resolution of issues that arise from alleged non-observance of the Guidelines (so called specific instances mechanism).51 In dealing with specific instances, which are not legal cases, national contact points must make an initial assessment to determine if the issues raised merit further examination, assist in resolving the instances through offering good offices, and make the results of the procedure publicly available. Despite the value of this grievance mechanism, which is accessible to any interested party, the national contact point system has been criticized by civil society on multiple counts and specific recommendations have been provided to strengthen it.52 Business compliance with other guidelines, for example the Dhaka Principles for Migration with Dignity that relate to reducing exploitation from the moment of the recruitment process is critical to reducing the incidence of forced labour and other contemporary forms of slavery at all levels of supply chains.53
E. Business and stakeholder initiatives to address contemporary forms of slavery in supply chains
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Global brands and other transnational corporations operating complex supply chains that span multiple jurisdictions have increasingly adopted voluntary codes of conduct to address contemporary forms of slavery in their operations, as well as those of their suppliers, prompted mainly by reputational risk. The voluntary codes cover a wide variety of issues, from social and environmental to human rights and anti-corruption. Policies that clearly prohibit forced labour are now commonplace in codes across companies of different sizes and operating in different regions and sectors. A key recent innovation is the development of policies that address recruitment and hiring in labour supply chains by banning private employment or recruitment agencies supplying workers to facilities in their supply chains from charging recruitment fees to those workers.54
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Despite their important role in complementing the normative framework, voluntary codes of conduct are often bald statements without any independent monitoring mechanisms and leave numerous gaps in protection if they do not apply to all entities, especially informal sector and home-based suppliers and subcontractors. However, an increasing number of steps are being taken to implement voluntary codes, involving a diverse set of strategies, typically starting with some form of compliance assessment conducted at workplace level in businesses’ supply chains. These are commonly called “social audits” and frequently address other standards in addition to human rights issues, depending on the codes upon which they are based.
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While businesses continue to rely on social audits as a key element of their human rights due diligence programmes and to assess their own facilities and those of their business partners, many believe that auditing has had a limited impact on identifying and eliminating contemporary forms of slavery from supply chains. New strategies are therefore required that move beyond auditing and include proactive independent investigations and robust independent verification, which incorporate consultations with workers with due regard to confidentiality and privacy. Consumer and trade union advocacy can play an important role in ensuring the involvement of workers and their representatives in such processes. Largely as a result of stakeholder criticism, some companies have already piloted new protocols that prioritize the confidential testimony of workers and attempted to develop more robust investigative techniques, sometimes in partnership with civil society.55
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Company-level grievance mechanisms, which range from complaints boxes to telephone hotlines, are being created to identify human rights violations and other forms of abuse. Their effectiveness is often dependent on information exchange between business peers and companies often rely on multi-stakeholder initiatives to develop efficient systems.
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Another strategy in tackling the risk of contemporary forms of slavery in supply chains relates to transparency and reporting,56 on the one hand, and traceability, on the other. In both cases, pressure from regulators, civil society actors and investors has pushed companies not only to disclose information about business relationships in supply chains, but to implement measures to track products and materials from finished goods to the commodities level to promote “clean” production at every step of the way. However, opinion remains divided on the effectiveness of these initiatives in improving conditions for workers and, in particular, for addressing contemporary forms of slavery.
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Certification has arisen as another key approach from increased consumer, trade union and other civil society awareness. The most well-known is the Fairtrade Mark, which can be found on a wide range of products — over 27,000 — and certifies that those products meet internationally agreed Fairtrade Standards, including those relating to child labour and labour rights.57 In another example, the GoodWeave58 certification label provides assurance that no child labour was used in the manufacture of rugs.
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Given the complexity and span of supply chains, identifying and eradicating contemporary forms of slavery can be successful only if sustainable and effective multi-stakeholder partnerships and initiatives involving the authorities, businesses, trade unions, consumers and other stakeholders, each acting from their own areas of expertise to enforce mutually agreed goals, are formed. Such initiatives are frequently international in scope, given the breadth of transnational operations. Some focus on a single sector, industry or commodity,59 while others are cross-sectoral.60 Others focus on a single issue like child or forced labour,61 while many typically address a cross-section of labour and human rights issues alongside the environment and general principles of ethical business.62
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An example of good practice is the multi-stakeholder public-private platform Project Issara63 initiated by Anti-Slavery International to tackle modern slavery in South-East Asia, with an initial focus on forced labour in the export-oriented industries of Thailand that affect global supply chains. Another well-known example of a multi-stakeholder private-public initiative is the National Pact for the Eradication of Slave Labour in Brazil, which brings companies together to combat slave labour with the assistance of ILO, non-governmental organizations (including Repórter Brasil and Ethos) and support from the Government. Over 400 companies and trade associations had signed the pact as of May 2014, including large companies such as Walmart Brazil, committing not to do business with people and companies involved with slave labour.64
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Multi-stakeholder initiatives help to address questions of credibility and effectiveness that have surrounded business-only and corporate social responsibility strategies. They offer a more inclusive model as they involve various stakeholders and thus provide a long-term solution to addressing risks to contemporary forms of slavery in supply chains. Those multi-stakeholder platforms that are genuinely premised on social partnership and involve trade unions have the additional benefit that they can ensure collaboration across a number of initiatives including public-policy advocacy and grievance resolution.
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Investors have also begun to play an increasing role in requiring human rights due diligence.65 Furthermore, civil society actors have been at the forefront of challenges to contemporary forms of slavery in supply chains66 and civil society “naming and shaming” of companies has resulted in some businesses responding positively by adopting or adjusting their policies and practices.67 A welcome initiative in the reporting context is the recently launched United Nations Guiding Principles Reporting Framework, which provides guidance for companies to report on how they respect human rights.68
F. Corporate legal liability and access to remedies in cases involving contemporary forms of slavery in supply chains
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States have a duty under international human rights law to ensure the right to a remedy, including equal and effective access to justice and adequate, effective and prompt reparations for human rights violations. For victims of gross violations of international human rights law, such as slavery and slavery-like practices, full and effective reparation may take the following forms: restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.69 In the third pillar of the Guiding Principles on Business and Human Rights, clear guidance is set out on “access to remedy”, delineating respective roles for both States and business.
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Prior to that, principle 22 in the second pillar states that where businesses identify that they have caused or contributed to adverse human rights impacts, they should provide for or cooperate in their remediation through legitimate processes. Where businesses have not caused or contributed to harm but it is directly linked to their operations, products or services by a business relationship, they are encouraged to take a role in providing remediation. In terms of operational principles under the third pillar, the Guiding Principles on Business and Human Rights, call on companies to establish or to participate in effective operational-level grievance mechanisms for those adversely impacted by them, so that grievances can be addressed early and remediated directly (principle 29). Such mechanisms are typically administered by enterprises, alone or in collaboration with other relevant stakeholders. They can be important complements to wider stakeholder engagement and collective bargaining processes, but cannot substitute for either, and can also make it possible to prevent harm from compounding or escalating. To ensure their effectiveness, the Guiding Principles on Business and Human Rights state that the operational-level grievance mechanisms should be legitimate, accessible, predictable, equitable, transparent, rights-compatible, a source of continuous learning, and based on engagement and dialogue (principle 31). There are already some good practice examples of operational-level grievance mechanisms.70
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As part of its duty to protect against business-related human rights abuses, the State is required to take appropriate steps to ensure that those affected have access to effective remedy when abuses occur within their territory and/or jurisdiction and to reduce barriers that could lead to a denial of this access. In the Guiding Principles on Business and Human Rights, it is indicated that this is to be achieved primarily through State-based judicial mechanisms and non-judicial grievance mechanisms, which are complementary in nature (principles 25–27). States are also encouraged to consider ways to facilitate access to effective non-State based grievance mechanisms that can have the benefit of reduced costs, increased speed of access and transnational reach, where States may be more limited. These may be non-judicial business, industry or multi-stakeholder mechanisms; or they may be regional or international human rights bodies (see principle 28).
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For victims of contemporary forms of slavery, including those in supply chains, remedies may include compensation, medical and psychological care, free legal aid and social services, effective measures aimed at the cessation of continuing violations and alternative livelihood support measures. However, the right to an effective remedy for many workers, in particular the most vulnerable in supply chains, remains largely elusive and redress for corporate human rights violations is hampered by many barriers, including the high costs of litigation and a lack of a free legal aid. Moreover, the victims, especially if not members of trade unions, may not be aware that their rights have been violated. In extreme instances, workers may be enslaved and physically unable to enforce their rights.71
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Given the gravity of slavery and slavery-like practices as gross human rights violations, judicial remedies are a key form of securing accountability for business-related human rights abuses. Access to justice for victims in this context is, however, often constrained by legal rules limiting the liability of a corporation for human rights violations not directly arising from its business operations. This is a problem in global supply chains whereby the business enterprise sourcing the product is not directly implicated in the exploitation that occurs lower down the supply chain, but is complicit as a result of failing to comply with its human rights due diligence obligations. Also, vicarious liability rules prevent corporate liability for management conduct in many instances which arise in the disarticulation in the supply between the global retailer and the many small subcontractors at the lowest tier.
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In the context of supply chains, a lack of extraterritorial jurisdiction affects access to remedies for contemporary forms of slavery and other human rights violations, which are committed outside the territory in which a business is domiciled. In this context, the United States Supreme Court held, for example, in Kiobel v. Royal Dutch Petroleum, Co., that the presumption against the extraterritorial application of United States law applies to the Alien Tort Statute,72 and this can only be overcome if the claim “touches and concerns” the territory of the United States “with sufficient force” to displace the presumption against extraterritorial application.
G. Some challenges and gaps to ensuring the accountability of States and businesses for contemporary forms of slavery in supply chains
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Despite notable improvements in recent years, gaps in legal and regulatory protection for the human rights of victims of contemporary forms of slavery exist in a number of countries. This has a significant impact on enforcing corporate legal liability.73 In many cases, States also lack an integrated approach to criminal, labour and human rights laws, which impedes law enforcement and prevents effective investigation and prosecution of abuses. Where the legislative framework does exist, in some instances this is affected by lengthy legal proceedings and corruption, including bribery, which means that access to remedy is slow and victims are reluctant to come forward as a result.
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In other cases, some legal jurisdictions are part of the problem, exacerbating the vulnerability of workers to contemporary forms of slavery. This is the case in countries where laws tie migrant workers to specific employers, preventing them from leaving without the employer’s authorization. In some countries, for example, certain categories of workers are not guaranteed their right to freedom of peaceful assembly and association and thus not allowed to form or join trade unions or hold office within them, which adds to their vulnerability.
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It also remains a challenge for transnational businesses with complex supply chains to conduct human rights due diligence on all levels of their supply chains, particularly where they have no direct business relationship with subcontractors.74 The same applies for labour supply chains, the informal economy and the production, harvesting or extraction that occurs at the commodities level of the global economy.
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A key gap is the lack of research and data in identifying the exact scope and prevalence of contemporary forms of slavery in specific supply chains and related to particular commodities, as well as its prevalence in the informal sector, which could enable strengthened and targeted policy and normative response and practical strategies. More research and data is also needed on domestic supply chains.75
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Global businesses have the capacity and resources to address, jointly with relevant stakeholders, the root causes of contemporary forms of slavery, particularly structural issues relating to discrimination, poverty and inequality and should use this leverage more prominently.76 There is also the need for increased dialogue and cooperation among all stakeholders working on the issue of contemporary forms of slavery in supply chains, also within the international community, in order to combine their efforts to ensure its eradication, including in relation to the 2016 International Labour Conference general discussion on the issue of decent work in global supply chains.
IV. Conclusion and recommendations
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The present report provides an indication of some of the challenges in enforcing accountability of States and businesses for preventing, mitigating and redressing contemporary forms of slavery in supply chains. The framework emerging from the United Nations system has provided greater clarity on how to operationalize the responsibility of business to respect human rights, including through conducting human rights due diligence, and the obligations of States to address business-related human rights abuses. The passing of national laws, which reflect an increasing global concern with transparency, reporting and human rights due diligence obligations that add to the accountability tool belt, is to be applauded. So are the businesses’ human rights policy commitments, although loopholes exist in terms of their enforcement, and the important role played in the combat against contemporary forms of slavery in supply chains by other stakeholders, including civil society actors, such as non-governmental organisations, trade unions, foundations and consumers, as well as international organizations and the media. While these developments are notable, important gaps still exist in terms of effective access to justice and adequate and prompt remediation for victims of contemporary forms of slavery in supply chains.
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Against this backdrop, the Special Rapporteur wishes to make the following recommendations to States:
(a) States should ratify all relevant international instruments prohibiting slavery and slavery-like practices, including the Protocol of 2014 to the Forced Labour Convention, 1930 (No. 29), align their domestic legislation with international standards, criminalize all contemporary forms of slavery and provide adequate penalties for violations;
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