Human Rights Council Thirtieth session Agenda item 3
Promotion and protection of all human rights, civil,
political, economic, social and cultural rights,
including the right to development
Report of the Special Rapporteur on contemporary forms of slavery, including its causes and consequences,
Following a brief overview of the activities carried out by the mandate, the Special Rapporteur in the present report provides a thematic study on enforcing the accountability of States and businesses for preventing, mitigating and redressing contemporary forms of slavery in supply chains.
A. International and regional normative framework for the duty of States
to protect the right not to be subjected to slavery and slavery-like practices 5
B. Causes and prevalence of contemporary forms of slavery
in supply chains and examples of sectors at risk 6
C. Steps taken by States to comply with their duty to ensure business
accountability for ending contemporary forms of slavery in supply chains 9
D. International framework for the responsibility of businesses
to respect human rights 12
E. Business and stakeholder initiatives to address contemporary forms
of slavery in supply chains 14
F. Corporate legal liability and access to remedies in cases involving
contemporary forms of slavery in supply chains 16
G. Some challenges and gaps to ensuring the accountability of States and businesses
for contemporary forms of slavery in supply chains 18
IV. Conclusion and recommendations 19
The present report is submitted pursuant to Human Rights Council resolution 24/3, renewing the mandate of the Special Rapporteur on contemporary forms of slavery, including its causes and consequences, for three years. Following a brief overview of the activities carried out by the mandate holder, the Special Rapporteur, Urmila Bhoola, then focuses on one of the priority areas as identified in her first report to the Council (A/HRC/27/53): the duty of States and responsibility of business to eliminate contemporary forms of slavery from supply chains.
The Special Rapporteur conducted official country visits to the Niger and Belgium from 11 to 21 November 2014 and from 19 and 26 February 2015, respectively, and her mission reports are issued as addenda to the present report. She would like to reiterate her gratitude to the Government of the Niger and the Government of Belgium for the cooperation extended before and during the visit and looks forward to continued cooperation on the issues pertaining to her mandate. The Special Rapporteur also wishes to thank all those States that have extended to her an invitation for a visit.
Since the presentation of her report to the Council in September 2014, the Special Rapporteur has held consultations with various stakeholders and participated in several events relevant to the mandate, with those most prominent presented below.
On 10 September 2014, she made concluding remarks at a Council side event entitled “Religions and Slavery: What role for religions in the fight against contemporary forms of slavery?”, supported by the Permanent Observer Mission of the Holy See and the Permanent Observer Mission of the Order of Malta to the United Nations Office at Geneva.
On 1 December 2014, she delivered a keynote speech via video message at a conference entitled “Child Labour and Responsibility of European Consumers”, organized in Vienna on the occasion of the International Day for the Abolition of Slavery by the Academic Council on the United Nations System.
From 22 to 23 January 2015, the Special Rapporteur participated in the Global Care Advocacy Workshop, held under the auspices of the Asia Pacific Forum on Women in Law and Development, the Institute for Development Studies and Action Aid International in Bangkok, where she chaired a session on the role of the mandate in eradicating domestic servitude.
From 17 to 19 March 2015, the Special Rapporteur participated at the second international legal conference on contemporary forms of slavery, organized at the University of Granada, Spain, and provided an inaugural address.
From 25 to 27 March 2015, she presented a paper on the role of the special procedures and human rights treaty bodies in addressing criminal justice for slavery at a policy retreat on “Eradicating modern slavery: What role for international criminal justice?”, organized by the United Nations University, the Freedom Fund, the Permanent Mission of Liechtenstein to the United Nations and the Journal of International Criminal Justice in New York. Prior to that, from 22 to 24 March 2015, the Special Rapporteur held consultation meetings with the Alliance to End Slavery and Trafficking, and Humanity United in Washington, D.C. She also met with the International Corporate Accountability Roundtable, Human Rights First, the United States Agency for International Development and the Bureau of International Labor Affairs.
The Special Rapporteur also delivered a keynote speech at the fourth international seminar on contemporary forms of slave labour, which was held at the Universidade Estadual Paulista, Franca, Brazil, from 5 to 8 May 2015.
On 18 June 2015, the Special Rapporteur provided an introductory statement via video message at a Council side event on the role of the United Nations in combating the intersection of caste and gender in the area of forced and bonded labour, sponsored by Human Rights Watch, the International Movement Against All Forms of Discrimination and Racism, the Minority Rights Group, Anti-Slavery International and Franciscans International and organized in association with the International Dalit Solidarity Network.
In relation to the present thematic report, on 2 April 2015, the mandate holder organized an expert meeting on eradicating contemporary forms of slavery from supply chains in Geneva.1 The meeting brought together more than 20 leading experts from international organizations, businesses, employer organizations, trade unions, non-governmental organizations, investor groups, foundations and academia. The Special Rapporteur wishes to thank the expert participants for their valuable contributions to the consultation and follow-up thereto.
While taking note of the previous initiatives undertaken by mandate holders relating to human rights violations in the context of supply chains,2 in the present report, the Special Rapporteur focuses, inter alia, on legal and policy frameworks and stakeholder initiatives to ensure that businesses, in relation to their supply chains, respect human rights and eradicate contemporary forms of slavery, understood for the purpose of the present report primarily as forced labour, debt bondage and the worst forms of child labour, through increased human rights due diligence and effective remediation.
III. Enforcing State and business accountability for ending contemporary forms of slavery in supply chains
Following egregious violations of health and building safety standards that resulted in fatal accidents, such as the 2013 Rana Plaza factory collapse in Bangladesh leading to death of over 1,100 garment workers,3 additional attention has been given to increasing State and corporate accountability for violations of human rights, including labour rights, in global value or supply chains.4 In this context, the recent commitment by leaders of major global economies at the recent Group of Seven (G7) Summit to take action to address human rights in global supply chains is welcome and needs to be followed up by concrete actions.5
A. International and regional normative framework for the duty of States to protect the right not to be subjected to slavery and slavery-like practices
The right to be free from slavery is a peremptory norm of international law from which no derogation is permitted and creates an erga omnes obligation on all States to protect this right. It is entrenched in the Slavery Convention of 1926 and has been incorporated into the Universal Declaration of Human Rights (art. 4), the International Covenant on Civil and Political Rights (art. 8 (1))6 and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (art. 11 (1)).
In the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of 1956, the protection of the right is extended to include “institutions and practices similar to slavery”, i.e. debt bondage, serfdom, servile marriage and delivering a child for exploitation. Child economic exploitation and child hazardous labour are further prohibited in the International Covenant on Economic, Social and Cultural Rights (art. 10 (3)) and the Convention on the Rights of the Child (art. 32). In the International Labour Organization (ILO) Worst Forms of Child Labour Convention, 1999 (No. 182), the elimination of the worst forms of child labour is called for, which are defined as including all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage, serfdom and forced or compulsory labour as well as hazardous work (art. 3).
While in the Slavery Convention reference is made to forced labour and States are called on to take all necessary measures to prevent compulsory or forced labour from developing into conditions analogous to slavery (art. 5), forced labour was not defined until the ILO Forced Labour Convention, 1930 (No. 29). The right not to be subjected to forced labour is now enshrined in a number of other international instruments, including in the ILO Abolition of Forced Labour Convention, 1957 (No. 105), the International Covenant on Civil and Political Rights (art. 8 (3)) and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (art. 11 (1)). In the ILO Declaration on Fundamental Principles and Rights at Work (1998), the elimination of all forms of forced or compulsory labour and the effective abolition of child labour is required.
The Protocol of 2014 to the Forced Labour Convention, 1930 (No. 29),7 outlines measures for prevention and elimination of forced labour and emphasizes the need for victim protection and access to appropriate and effective remedies, such as compensation. One of the preventive measures it sets out is “supporting due diligence by both the public and private sectors to prevent and respond to risks of forced or compulsory labour” (art. 2 (e)). The non-binding ILO Recommendation 203,8 providing practical guidance on the Protocol, while not referring specifically to supply chains, contains a provision on preventive measures, in which States are called on to provide guidance and support to employers and businesses to take effective measures to identify, prevent, mitigate and account for how they address the risks of forced or compulsory labour in their operations or in products, services or operations to which they may be directly linked (section 4 (j)). The Protocol is largely aligned with the Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect andRemedy” Framework (see below), although it is limited because, inter alia, it focuses only on forced labour and not on all human rights violations.
At the regional level, States’ obligation to eradicate contemporary forms of slavery is enshrined in a number of human rights instruments. Under article 4 of the Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms, slavery, forced labour and servitude are prohibited. In article 5 of the African Charter on Human and Peoples’ Rights, it is stated that, inter alia, slavery and slave trade shall be prohibited. The African Charter on the Rights and Welfare of the Child, in its article 15, enshrines the protection of children from all forms of economic exploitation and from performing any hazardous work. Slavery, involuntary servitude, slave trade and traffic in women, as well as forced labour, are prohibited under the American Convention on Human Rights (art. 6). In article 10 of the Arab Charter on Human Rights all forms of slavery, servitude and forced labour are prohibited.
B. Causes and prevalence of contemporary forms of slavery in supply chains and examples of sectors at risk
Globalization has created unprecedented opportunities for corporations to extend their operations across national borders, including to developing countries, in order to source the cheapest products and maximize profit. The demand for cheap labour meets a ready supply of workers from vulnerable groups: indigenous people, minorities, those considered to be from the “lowest castes” and migrants, especially those in an irregular situation. Women workers are particularly vulnerable to exploitation in certain sectors given the nexus of gender discrimination and inequality.
Global enterprises with supply chains that are long and complex and involve complicated networks of subsidiaries, franchisees, suppliers, contractors and subcontractors are more likely to be faced with challenges related to contemporary forms of slavery. While the first tier of supply chains is less susceptible to the risk of contemporary forms of slavery, the lower levels have been shown to be at risk of products or raw materials being sourced from home-based or small workshops in the informal economy and made in situations of debt bondage, forced labour or the worst forms of child labour.
Although more research into the scope and prevalence of contemporary forms of slavery is required, various small-scale studies (for example, on the garment, conflict mineral, seafood, sporting goods, handmade carpet and tea industries) show that products from the informal sector enter global supply chains and are also part of domestic economies in the developing world, often in the most labour-intensive sectors.9 Human rights violations in the sourcing of conflict minerals, for example, have received much attention,10 but more research is required to identify the scope and prevalence of contemporary forms of slavery in supply chains of specific commodities and particular sectors. The sectors mentioned in the present report are therefore not meant to be a comprehensive list, but an indication of where contemporary forms of slavery have been reported to occur.11
According to ILO data from 2012, 5.5 million of the 20.9 million of persons in forced labour are children12 and an estimated 5–15 per cent of those are working in supply chains, with the figure significantly higher if domestic supply chains are also taken into account. The lowest tiers in the informal economy are particularly at risk of involving the worst forms of child labour. In 2012, the number of children involved in hazardous work that directly endangers their health, safety and moral development, often understood as a proxy for the worst forms of child labour, was said to be 85 million in absolute terms.13 While reliable data on those sectors most susceptible to using such work are difficult to obtain, cases of the worst forms of child labour were found in sectors that correspond to those with a high risk of contemporary forms of slavery occurring in supply chains, including agriculture (i.e., farming of raw materials such as sugar, cotton, cocoa and tobacco), construction, mining and quarrying, and garments and textiles.14
In agriculture, contemporary forms of slavery have reportedly occurred in many countries, involving crops such as sugar cane, cut flowers, fruit and vegetables, tropical nuts and commodities, for example, palm oil, cotton,15 cocoa, tobacco and beef.16 Production in the sector often relies on temporary or migrant labour and is characterized by complex contracting and subcontracting chains, as well as smallholder farming in some cases. Much of the work on remote farms and plantations is typified by excessive working hours, lack of compliance with labour laws, weak or non-existent labour inspections and corruption. Competition to produce at the lowest cost enhances the risk of contemporary forms of slavery being involved in agriculture, especially debt bondage in impoverished rural communities and among vulnerable categories of workers, such as indigenous people, minorities, migrants, women and children.
In the garment and textile sectors, reports indicate a significant risk of contemporary forms of slavery occurring in the complex subcontracting that characterizes the industry in many parts of the world, including the sometimes home-based and informal workshops operating on the margins of the formal economy. Subcontractors such as these are often overlooked both by labour inspections and due diligence systems, making workers in these supply chains particularly vulnerable to exploitation given the quick turnaround time to meet orders from global fashion brands and consumer needs. Contemporary forms of slavery have often been cited as occurring in global supply chains of international brands.17
Despite the various measures taken to eradicate the worst forms of child labour from the carpet industry, these forms were reported to continue to exist in handmade carpet production units in South Asia, in which carpets are produced for export mainly to the United States of America.18 Various studies have reported the existence of contemporary forms of slavery and labour exploitation in the construction industry19 and forced labour in the manufacturing of electronic goods has also been the subject of recent research.20
The food processing and packaging industry has been frequently implicated in labour exploitation that can amount to contemporary forms of slavery, particularly in fish and seafood processing in parts of South-East Asia.21 Reports have been made involving workers enslaved on fishing vessels in the region.22
The mining23 and forestry24 sectors have also been cited in reports on forced labour in supply chains. Here risks include vulnerability arising from the isolated nature of workplaces, the role of private security firms, the presence of organized criminals attracted by high value commodities such as gold or other minerals, and the growth of illegal, unlicensed or unregulated mines and forestry operations that benefit from weak regulation and law enforcement.
C. Steps taken by States to comply with their duty to ensure business accountability for ending contemporary forms of slavery in supply chains
States have an obligation under international human rights law to respect, protect and fulfil the human rights of all persons in their territory and/or jurisdiction. This includes the duty to protect individuals and groups against human rights abuses committed by private actors, such as business enterprises. The Human Rights Committee, in paragraph 8 of its general comment No. 31 (2004) on the nature of general legal obligations on States Parties to the Covenant, stipulates the need for States to exercise due diligence to prevent, punish, investigate or redress the harm caused by private persons or entities.
The Guiding Principles on Business and Human Rights,25 unanimously endorsed by the Human Rights Council in 2011, validate the duty of States to protect against and redress business-related human rights harms, and it is stipulated therein that this is to be done through effective policies, legislation, regulations and adjudication (principle 1). State duties include setting out clearly the expectation that all business enterprises domiciled in their territory and/or jurisdiction respect human rights throughout their operations (principle 2).
In the context of contemporary forms of slavery, this duty to protect could translate into a smart mix of measures to ensure that businesses engage in their responsibility to respect human rights, including through undertaking human rights due diligence throughout their supply chains and remediating the adverse impact of their operations on human rights. At the very minimum, States should ensure that businesses realize the implications of 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 it in government procurement. Disclosure and transparency can also feature as legal obligations rather than being limited to voluntary corporate social responsibility initiatives.26
In the most recent development, in March 2015, the Parliament of the United Kingdom passed the Modern Slavery Bill, which includes a specific part on transparency in supply chains and imposes obligations on businesses to disclose the steps, if any, they are taking to address contemporary forms of slavery in supply chains.27 The duties imposed in the Modern Slavery Act28 can be enforced in civil proceedings undertaken by the authorities. Under the Act, company disclosures must be signed by a company director, creating clear accountability. Regulations are currently being prepared to operationalize the provisions for transparency, based on consultations. In some of the submissions for the consultations, it was suggested that a threshold be introduced that would bring even small companies within the ambit of the Act, which would require companies to reveal business relationships in the lower tiers of their supply chains and set clear criteria for disclosures in their reports; it was also suggested that reports be featured on a government website. The Act has, however, received criticism for creating a loophole that allows United Kingdom-based companies to effectively “hide” their supply chains if the goods produced do not enter the United Kingdom.29
In the context of transparency, the most often cited legislation is the California Transparency in Supply Chains Act of 2010,30 which came into effect on 1 January 2012. Under the Act, all retailers and manufacturers with annual global revenues of over US$100 million doing business in California, whether or not they have their headquarters there, are required to disclose their efforts to eradicate slavery and human trafficking from their direct supply chains for tangible goods offered for sale. While an important development, the law is judged to be insufficient because it only requires companies to report on what, if anything, they are doing to address contemporary forms of slavery, using five specific categories: verification, auditing, certification, internal accountability and training, and no specific preventive actions need to be taken nor does it call to improve conditions for those vulnerable to abuse in the supply chain.31
In 2014, the draft Business Supply Chain Transparency on Trafficking and Slavery Act of 201432 was introduced into the United States Congress. The Act, not yet adopted, contains, inter alia, reporting requirements for businesses relating to the disclosure of conditions amounting to forced labour, slavery, human trafficking and the worst forms of child labour in supply chains. At the time of writing the present report, a draft law on business human rights due diligence in supply chains was pending before the Senate in France,33 after having been adopted by the National Assembly in the first reading in March 2015.
The Brazilian Ministry of Labour maintains a record of people and corporations found to be using slave labour, which has been termed the “dirty list”, established by ministerial decree of 2003. The database was used by public and private companies that applied commercial and financial sanctions. The list grew to include 52 employers of slave labourers in 2003 to 609 as of July 2014. However, in December 2014, the Supreme Court granted an injunction to an association of construction companies, suspending the “dirty list”. To date, attorneys from the Federal Government have not been able to re-establish the database. Another challenge to the list was launched following the Labour Prosecutor’s Office finding that Zara Brazil (part of global brand Inditex) had directive power over the supply chain34 and litigation has ensued which includes a challenge to the constitutionality of the “dirty list”. Also in Brazil, the Sao Paulo State Law to Combat Slave Labour, also known as the Bezerra Law, seeks to regulate the disclosure of slave labour.35
At the United States federal level, under the Trafficking Victims Protection Reauthorization Act of 2005, the Department of Labor’s Bureau of International Labour Affairs is mandated to, inter alia, create and maintain a List of Goods Produced with Child Labor or Forced Labor.36 In addition, a list of products using forced or indentured child labour is also produced by the Bureau of International Labour Affairs and intended to ensure that United States federal agencies do not procure goods made by this labour.37 Under the Trade and Development Act of 2000,38 the Secretary of Labor is mandated to issue beneficiary country initiatives to implement their international commitments to eliminate the worst forms of child labour. These transparency initiatives primarily provide information for government procurement but also assist investors and consumers.
Executive Order 13627 on strengthening protections against trafficking in persons in federal contracts, issued in September 2012, targets contemporary forms of slavery in government procurement.39 Under the Executive Order, federal contractors, sub-contractors, and their employees are prohibited from engaging in misleading or fraudulent recruitment practices; charging employees recruitment fees; and destroying, concealing, confiscating or otherwise denying an employee access to their identity documents, such as passports or drivers’ licences (section 2 (1)(A)(i)–(iii)). Under the Order, contractors and subcontractors are further required to agree to fully cooperate, by contractual agreement, in providing reasonable access to enforcement agencies to conduct audits, investigations and other actions to assess compliance with the Trafficking Victims Protection Act of 2000 (section 2 (1)(B)). The Federal Acquisition Regulation40 that needed to be updated following the Executive Order and related requirements in the Ending Trafficking in Government Contracting Act (set forth in the National Defense Authorization Act for 2013)41entered into force in March 2015, hence it is difficult to comment on its impact in practice.
The United States Tariff Act of 1930 is also relevant to supply chains and goods produced using forced labour. In section 1307 of the Tariff Act, the import of goods produced with prison labour and forced labour is specifically prohibited: “All goods, wares, articles, and merchandise mined, produced, or manufactured wholly or in part in any foreign country by convict labor or/and forced labor or/and indentured labor under penal sanctions shall not be entitled to entry at any of the ports of the United States, and the importation thereof is hereby prohibited”. The terms forced labour or/and indentured labour include forced or indentured child labour.
Restrictions on trade that has negative human rights impact is particularly relevant to addressing slavery and slavery-like practices in supply chains. The Alliance to End Slavery and Trafficking, and Humanity United have recently supported initiatives in the United States Congress to strengthen human rights provisions in trade agreements. This followed a proposed amendment to the Trade Act of 201542 to prohibit an international trade agreement from receiving fast-track benefits if it involves a country that is not meeting minimum standards in combating human trafficking.43
Although the assessment of the efficacy of these legislative developments in practice is beyond the scope of the present report, they provide a snapshot of the issues that impact on the challenge of States to regulate the human rights conduct of businesses operating supply chains outside domestic economies. In these cases, risks and violations are often off-shored, resulting in lack of redress under domestic laws, but having significant impact on the human rights situation in developing economies. This results in challenges to effectively address business-related human rights harms in supply chains and requires sustainable and holistic solutions that involve all stakeholders in the supply chain.