• E4J University Module Series: Trafficking in Persons & Smuggling of Migrants

• Module 10: The Role of Civil Society and the Private Sector in Countering Trafficking in Persons

• Introduction and learning outcomes

• Key issues

• • State cooperation with civil society
  • Civil society actors
  • The private sector
  • The public

• Exercises

• Possible class structure

• Core reading

• Advanced reading

• Other resources

• Student assessment

• Additional teaching tools

 

First published in May 2019; additions related to the private sector published in July 2021

 

 

   This module is a resource for lecturers   

 

The role of the private sector in countering trafficking in persons

 

The risk of human trafficking for business

Human trafficking is a significant risk for the private sector, where victims are drawn into the control of traffickers in the bid to gain some form of employment. The private sector, as a whole, is made up of extremely diverse actors. Depending on the industry, human trafficking risks could be situated at very different points in the supply chain in one industry compared to another. For example, the procurement department of a technology company could potentially facilitate trafficking in a very different way to the factory manager of a garment company. Trafficking in persons can therefore occur in any part of the supply chain, as well as in any sector, including but not limited to the hospitality, agriculture, financial and technology sectors.

 

The role of the private sector in addressing human trafficking risks

The private sector has an enormous part to play in the struggle against trafficking in persons. It can potentially play multiple roles as facilitator on the one hand and preventer, combatter and remediator of human trafficking on the other. For this reason, businesses have the corporate responsibility to respect human rights, which is a global standard for all businesses wherever they operate in the world. This responsibility exists independently of States’ fulfilment of their own human rights obligations and does not reduce corporate responsibility.

Addressing adverse human rights impacts, such as human trafficking risks, requires taking appropriate measures for their prevention, mitigation and, where appropriate, remediation. Businesses may fulfil other commitments or activities to support and promote human rights, which may contribute to the enjoyment of rights. More specifically, there are a number of ways businesses can address human trafficking, including adopting preventative policies eliminating goods and services produced using trafficked labour. Governments also have a role in encouraging the business community to act responsibly and make a greater contribution.

Despite the growing number of companies helping to counter and prevent human trafficking, many still remain unengaged. However, the idea that businesses have to do more to respect human rights and mitigate human trafficking risks is becoming more urgent and more mainstream, particularly as we see national and international legal frameworks expand. This module seeks to focus on these issues and encourage student discussions around the private sector’s duty to address human trafficking and create effective solutions.

 

International legal framework

The international legal framework has expanded in recent years to include specific laws around business and human rights and the role of the private sector in addressing human trafficking. The following outlines some key international laws and initiatives.

The Guiding Principles on Business and Human Rights

On 16 June 2011, the United Nations Human Rights Council endorsed the " Guiding Principles on Business and Human Rights: Implementing the United Nations 'Protect, Respect and Remedy' Framework", (‘the Guiding Principles’), which were developed by the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises. These Guiding Principles are grounded in the recognition of:

• States' existing obligations to respect, protect and fulfil human rights and fundamental freedoms;
• The role of business enterprises as specialized organs of society performing specialized functions, required to comply with all applicable laws and to respect human rights; and
• The need for rights and obligations to be matched to appropriate and effective remedies when breached.

Principles 11 to 24 of the Guiding Principles relate to the responsibility of corporations to protect human rights.

Whilst these Guiding Principles are non-binding, they do elaborate upon some existing binding international human rights standards. As a whole however, their status has risen significantly over the last few years due to the imperative nature to address human rights within business.

Treaty on Business and Human Rights

As a result of the Guiding Principles, work on the development of a binding treaty began in 2014 when the UN Human Rights Council in Geneva adopted a resolution drafted by Ecuador and South Africa. An open-ended intergovernmental working group (IGWG) was established with the mandate of creating an international legally binding instrument on Transnational Corporations and Other Business Enterprises with respect to human rights.

In 2017, Elements for the draft legally binding instrument was drawn up and in 2018 the IGWG presented the Zero Draft, followed by its draft Optional Protocol. More recently, a Second Revised Draft was published in August 2020. All of this demonstrates the appetite for the international community to establish binding international obligations for businesses to address human rights risks such as trafficking in persons.

In addition to business and human rights related law, the sphere of international criminal justice has also affirmed the role of the private sector in addressing human trafficking. More specifically, this comes in the form of the The United Nations Convention Against Transnational Organized Crime (UNTOC).

The United Nations Convention Against Transnational Organized Crime and its Supplementing Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Trafficking in Persons Protocol), and the Protocol against the Smuggling of Migrants by Land, Sea and Air (Smuggling of Migrants Protocol).

With the signing of UNTOC in Palermo, Italy, in December 2000, the international community demonstrated the political will to address the global challenge of human trafficking with a global response. In addition, as outlined in Article 32 of UNTOC, the UNTOC Conference of Parties (COP) was established to improve the capacity of States Parties to combat transnational organized crime and to promote and review the implementation of the Convention. Mechanisms for achieving these objectives include cooperating with non-state actors such as businesses.

At its ninth session in 2018, the UNTOC COP adopted resolution 9/1, entitled 'Establishment of the Mechanism for the Review of the Implementation of the United Nations Convention against Transnational Organized Crime and the Protocols thereto'. In Paragraph 53, Member States made a commitment to promoting fruitful engagement with relevant stakeholders, including the private sector, in countering organized crime.

There are also numerous recommendations by the Working Groups (see here, here and here) of the UNTOC and Commission on Crime Prevention and Criminal Justice (see here and here), which focus on strengthening partnerships with the private sector in order to effectively combat trafficking for labour exploitation.

UNTOC and its Trafficking in Persons Protocol thus highlights the important role of business in addressing this crime.

 

Other related international initiatives

In addition, the United Nations Human Rights Council established the United Nations Forum on Business and Human Rightsto serve as a global platform for stakeholders to "discuss trends and challenges in the implementation of the Guiding Principles and promote dialogue and cooperation on issues linked to business and human rights, including challenges faced in particular sectors, operational environments or in relation to specific rights or groups, as well as identifying good practices". It is guided and chaired by the Working Group on Business and Human Rights. It is "open to all relevant stakeholder groups, including States, the wider United Nations system, intergovernmental and regional organizations, businesses, labour unions, national human rights institutions, non-governmental organizations, and affected stakeholders, among others". The Forum is the "world's largest annual gathering on business and human rights with more than 2,000 participants from government, business, community groups and civil society, law firms, investor organizations, UN bodies, national human rights institutions, trade unions, academia and the media".

The United Nations has also issued the Global Compact on Human Rights, in which it identifies ten principles of corporate social responsibility for companies to follow in their business policies (see Box 12). The principles are based on four pillars: (i) human rights; (ii) labour rights; (iii) environmental standards; and (iv) combating corruption. The United Nations Global Compact was proposed by then United Nations Secretary-General Kofi Annan in an address to the World Economic Forum on 31 January 1999. Its mandate was renewed in December 2015 by United Nations General Assembly resolution 70/224: "Towards global partnerships: A principle-based approach to enhanced cooperation between the United Nations and all relevant partners".

Box 12

 

The Voluntary Principles on Security and Human Rights

This is a multistakeholder initiative involving governments, companies and NGOs that advocate a set of principles, which guide the extractive industry on providing security for their operations in a way that respects human rights. The Voluntary Principles involve the undertaking of comprehensive human rights risk assessments in their engagement with public and private security providers to ensure human rights are respected in the protection of operations, facilities and premises.

OECD Guidelines for Multinational Enterprises

The OECD Guidelines are recommendations on responsible business conduct for multinational enterprises operating in 49 adhering countries. They provide non-binding principles and standards for responsible business conduct in a global context that are consistent with applicable laws and internationally recognised standards.

The Global Reporting Initiative (GRI)

The Global Reporting Initiative offers a widely followed reporting format that makes it possible for readers to more easily compare how different companies are doing in CSR. The Report looks at a companies' economic, environmental, and societal impacts. The societal impacts include labour and human rights practices, which most definitely includes avoidance of human trafficking. Further, the report takes an extended supply chain view toward human rights. Companies should not just be fair employers, they need to be insuring that their suppliers have fair labour practices.

 

National Legal Frameworks

States are obligated under international human rights law to protect against human rights violations within their territory and/or jurisdiction by third parties, including businesses. In recent years, this is reflected in the increasing number of countries implementing business and human rights related legislations, often to combat modern slavery, forced labour and human trafficking. Planitzer (2016), who argues that, broadly speaking, ‘States should enact and implement legislation that obliges corporations to be more transparent in their global business operations. This should also include measures to prevent [trafficking in persons]’ (p. 336-337).

The following provides some examples of countries that have done this:

The United Kingdom (UK)

The United Kingdom enacted the Modern Slavery Act 2015, which was designed to address modern slavery in supply chains. Under this Act, businesses with a global turnover of over £36 million that undertake their business operations, or part of their business, in the UK are obliged to publish a public statement each financial year outlining in detail the due diligence they perform to reduce the risk of modern slavery within their operations. Further information can be found here.

The United States of America

At federal level in the United States, the Trafficking Victims Protection Act establishes an interagency task force to monitor and combat trafficking. The law further regulates various business activities and practices, including those of retail sellers and manufacturers of products. Also see Ezell 2016, who analyses corporate responsibility for trafficking in the supply chain under this Act.

In the United States, at the State level, the California Transparency in Supply Chains Act of 2010, which came into force in January 2012, requires large retailers and manufacturers (those with an annual global turnover of US$100 million) to disclose their efforts to eradicate slavery and human trafficking from their direct supply chains for tangible goods offered for sale in the State. Further information can be found here.

Aside, from US legislation, the US State Department also releases annual Trafficking in Persons Reports, which rank countries based on efforts to comply with the standards in the Trafficking Victims Protection Act of 2000 (see the 2020 Report). The Report documents the efforts of governments around the world to prosecute traffickers, protect victims and prevent human trafficking crimes. It highlights relevant trends, promising practices and updates on important developments.

Germany

In March 2021, Germany’s Federal Cabinet adopted a draft Bill, namely the Supply Chain Act ("Gesetz über die unternehmerischen Sorgfaltspflichten in Lieferketten"). This Act requires all businesses to make reasonable efforts to ensure that no violations of human rights occur within their own business or their supply chain. The ‘supply chain’ for the purposes of this Act covers all aspects of a business to create or provide a service, from the extraction of raw materials to the final customer delivery. The extent of this Act, means that companies will need to address actions that cause human rights risks, such as the trafficking of persons, by its own business; by relevant contractual partners, as well as suppliers, which demonstrates the far-reaching nature of the Act.

Other countries

The European Union and countries like Australia, France and The Netherlands have also implemented, or are implementing, legislation that further reinforces the private sector’s duties to address human trafficking risks within their business (see: Australia’s Modern Slavery Act; France’s Duty of Vigilance Law; Dutch Due Diligence Child Labour Law, due to come into effect in 2022).

Box 13

The following case is an example of a social responsibility framework directed at trafficking in persons and provides a novel way in which collaboration between the private sector and civil society can help to address human trafficking.

 

Public-Private Partnerships (PPPs) to address trafficking in persons

The multifaceted and complex nature of human trafficking has amplified the recognition that governments and public agencies cannot address human trafficking alone. There is therefore a growing need for the public sector to cooperate more closely with the private one. Public agencies such as law enforcement may find it valuable to join forces with businesses that have the resources and supply chain insight to facilitate the prevention of human trafficking. PPPs allow entities within the public spheres to address human trafficking through having access tounconventionalmeans, skills and market-based approaches, which in this context can allow for outcome longevity and have greater positive impacts. PPPs can be used strategically to access the resources of a business in innovative ways for the prevention of trafficking in persons globally.

In order to address trafficking in persons, it is also imperative that the private sector proactively takes steps to ensure this crime is not occurring within their supply chain and/or specific industry to avoid becoming directly, or even unknowingly and indirectly, complicit in the crime. Given the complex manifestations of human trafficking, collaboration with other companies, as well as public agencies and civil society, is key for the private sector in this fight. There are many innovative ways in which different kinds of stakeholders such as businesses, governments, civil society etc can come together to combat human trafficking. The following are examples of such PPPs.

Box 14

Box 15

Box 16

Box 17

 

Next: The public

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