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Published online by Cambridge University Press: 03 December 2021
Over 40 million people around the world are victims of modern forms of slavery: forced labour and human trafficking. People are tricked into working under onerous conditions, and unable to leave or return home due to physical, psychological or financial coercion, and many of these trafficking victims produce goods for United States (US) and other multinational corporations that profit by relying on the lower wages earned by workers in their global supply chains. Well-developed legal standards prohibit these practices, and governments, intergovernmental organizations, business associations and non-governmental organizations have developed mechanisms to prevent, detect and provide redress to victims. Some businesses lead or comply with the standards and enforcement mechanisms, but too many do not. US law offers a powerful but under-utilized tool to address trafficking: the 2008 Trafficking Victims Protection Reauthorization Act (TVPRA), which imposes civil liability on those who ‘knew or should have known’ about forced labour or human trafficking in their corporate ventures. Unfortunately, courts have ignored or misinterpreted this standard, at times confusing civil and criminal provisions of the statute. Correct and vigorous legal enforcement is key to addressing the accountability gap between the well-developed standards and the continuing use of forced labour and human trafficking. This article is the first to demonstrate that, with regard to the TVPRA standard, corporations have long been on notice of both the obligation to effectively monitor labour conditions and the mechanisms that would accomplish that task. US courts must enforce the ‘knew or should have known’ standard to protect workers – the most vulnerable people in the supply chain – and to prevent an unfair competitive advantage over companies that have established compliance programmes that actually prevent and punish human trafficking and forced labour.
Conflicts of interest: Jennifer Green has been counsel for the plaintiffs in some of the cases identified.
University of Minnesota Law School, Minneapolis, MN, USA, Email: jmgreen@umn.edu
1 International Labour Organization (ILO), ‘Forced Labour, Modern Slavery and Human Trafficking’, https://www.ilo.org/global/topics/forced-labour/lang–en/index.htm (accessed 24 May 2021) (citing ILO, Global Estimates of Modern Slavery: Forced Labour and Forced Marriage) (Geneva: ILO, 2017).
2 Supply chains are the multiple levels of production in the globalized economy to produce goods, materials or information and involve the transformation, movement and storage of goods, materials and information. Other terms are also used to describe the multiple steps in production from other angles. International Labour Organization, ‘11. Global Supply Chains’, Decent work for sustainable development (DW4SD) Resource Platform, https://www.ilo.org/global/topics/dw4sd/themes/supply-chains/lang--en/index.htm (accessed 30 May 2021). One of the more common terms, a value chain, ‘describes the full range of activities that are required to bring a product or service from conception through the intermediary phases of production and delivery to final consumers, and final disposal after use. This includes activities such as design, production, marketing and distribution and support services up to the final consumer (and often beyond, when recycling processes are taken into account)’. Matthias L Herr and Tapera J Muzira, Value Chain Development for Decent Work (2009), https://www.ilo.org/empent/areas/value-chain-development-vcd/briefs-and-guides/WCMS_434362/lang–en/index.htm (accessed 24 May 2021). Value chains are sometimes described to include supply chains: the supply of materials, goods or services as part of production, for example. See generally Virginia Hernandez and Torben Pedersen, ‘Global Value Chain Configuration: A Review and Research Agenda’ (2017) 20 Business Research Quarterly 137. This article predominantly uses the more common ‘supply chain’ but also includes analyses of value chains.
3 Trafficking Victims Protection Reauthorization Act 2008 (US), Title 18 United States Code (USC) sec 1595 (2000) (hereinafter TVPRA). President Clinton signed the initial Trafficking Victims Protection Act of 2000 (US) (hereinafter TVPA) into law on 28 October 2000.
4 See generally June Carbone and William K Black, ‘The Problem with Predators’ (2019) 43 Seattle University Law Review 441, 443; George A Akerlof, ‘The Market for “Lemons”: Quality Uncertainty and the Market Mechanism’ (1970) 84 Quarterly Journal of Economics 488, 489–90.
5 Keo Ratha v Phatthana Seafood Company, No. 18-55041, US Court of Appeals, Ninth Circuit (2018) (allegations of plaintiffs’ complaint).
6 Keo Ratha v Phatthana Seafood Company, No. CV16-04271 (US District Court, CD California, 2017), Brief of Appellees.
7 Keo Ratha v Phatthana Seafood Company, No. CV16-04271 (US District Court, CD California (2017)), Order Granting Defendants Rubicon Resources LLC and Wales and Company Universe, Limited’s Motion for Summary Judgment, 7, n 6.
8 Keo Ratha v Phatthana Seafood Company Brief of Appellees 6, argued 13 September 2019, https://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000016195. At oral argument, the judges on the Ninth Circuit appeals panel focused on the ‘knew or should have known’ standard; Judge Bade noted that the ‘reckless disregard’ standard was not before the court.
9 Constitution of the United States 1789, amendment 13.
10 See also Anti-Peonage Act 1867 (US).
11 See Cox, Archibald, ‘Strikes, Picketing and the Constitution’ (1951) 4 Vanderbilt Law Review 574, 576–7Google Scholar; James Gray Pope, ‘Contract, Race, and Freedom of Labor in the Constitutional Law of “Involuntary Servitude”’ (2010) 119 Yale Law Journal 1474, 1516–20.
12 See Jenny S Martinez, The Slave Trade and the Origins of International Human Rights Law (Oxford, New York: Oxford University Press, 2012); David Weissbrodt and Anti-Slavery International, Office of the United Nations High Commissioner for Human Rights, ‘Abolishing Slavery and its Contemporary Forms’, HR/PUB/02/4 (2002).
13 Convention to Suppress the Slave Trade and Slavery, TS No. 778, 60 LNTS 253 (adopted on 25 September 1926, entered into force on 9 March 1927). The US is one of 99 states parties to this Convention.
14 ILO, ‘About the ILO’, https://www.ilo.org/global/about-the-ilo/lang–en/index.html (accessed 24 May 2021).
15 Convention Concerning Forced or Compulsory Labour, C029 39 UNTS 55 (adopted on 28 June 1930, entered into force 1 May 1932) (hereinafter 1930 ILO Convention).
16 Ibid, art 2(1).
17 Library of Congress, ‘United Nations: Report on Debt Bondage’ (15 September 2016), https://www.loc.gov/item/global-legal-monitor/2016-09-26/united-nations-report-on-debt-bondage/ (accessed 31 May 2021).
18 Smoot-Hawley Tariff Act 1930 (US), sec 1307. Section 1307 of the Smoot-Hawley Tariff Act states: ‘all goods, wares, articles, and merchandise mined, produced, or manufactured wholly or in part in any foreign country by convict labor or forced labor … shall not be entitled to entry at any of the ports of the United States, and the importation thereof is prohibited’.
19 Ibid. The Tariff Act was not considered a particularly effective enforcement mechanism due to a loophole that allowed importing goods if there was insufficient domestic production; this loophole was not closed until 2016. In addition, workers have sometimes opposed its use when they do not see the elimination of a market as in their interest since the end result could be the elimination of their jobs. In 1983, the US Commissioner of Customs recommended that to comply with the Tariff Act, three dozen products would not be imported where there was evidence of forced labour in their production within the Soviet Union. In 1991, the Customs Service issued an order to US customs agents under the Tariff Act, section 307 to stop Chinese goods where there was a suspicion that they were manufactured by prison labour. See James M Zimmerman, ‘US Law and Convict-Produced Imports’ (March–April 1992) 19 China Business Review 41.
20 Convention Concerning the Abolition of Forced Labour, C105, 320 UNTS 291 (adopted 25 June 1957, entered into force on 17 January 1959) (hereinafter Abolition of Forced Labour Convention).
21 Universal Declaration of Human Rights, GA Res 217A (III), UN Doc A/810 (adopted 10 December 1948) (art 4: ‘no one shall be held in slavery or servitude’; art 23 (1): ‘free choice of employment’); Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, 266 UNTS 3 (adopted on 7 September 1956, entered into force on 30 April 1957) (hereinafter Supplementary Convention); American Convention on Human Rights, 1144 UNTS 123 (adopted on 22 November 1969, entered into force on 18 July 1978), art 6; International Covenant on Civil and Political Rights, 999 UNTS 171 (adopted on 16 December 1966, entered into force on 23 March 1976), art 8; International Covenant on the Elimination of All Forms of Racial Discrimination, 660 UNTS 195 (adopted on 21 December 1965, entered into force on 4 January 1969), art 5(e); European Social Charter, 529 UNTS 89 (adopted on 18 October 1961, entered into force on 26 February 1965), art 1; Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, 96 UNTS 271 (adopted on 21 March 1950, entered into force on 25 July 1951); Convention for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS 221, (adopted on 4 November 1950, entered into force on 3 September 1953), art 4; ILO, Declaration on Fundamental Principles and Rights at Work (adopted by the International Labour Conference at its Eighty-sixth Session, Geneva, 18 June 1998) (https://www.ilo.org/declaration/thedeclaration/textdeclaration/lang–en/index.html (accessed 31 May 2021).
22 1930 ILO Convention, note 15; see also The Labour Principles of the United Nations Global Compact: A Guide for Business (Geneva: ILO, 2008) (hereinafter ILO/GC Labour Principles Guide), discussing Core Labour Conventions.
23 See Supplementary Convention, note 21, art 1. ‘Debt bondage, that is to say, the status or condition arising from a pledge by a debtor of his personal services or of those of a person under his control as security for a debt, if the value of those services as reasonably assessed is not applied towards the liquidation of the debt or the length and nature of those services are not respectively limited and defined’.
24 ILO, Forced Labour and Human Trafficking Casebook of Court Decisions 17-18 (Geneva: ILO, 2009); Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, SC Res 827 (25 May 1993), as amended by SC Res 1877 (7 July 2009); Rome Statute of the International Criminal Court, 2187 UNTS 90 (adopted on 17 July 1998, entered into force on 1 July 2002).
25 US General Accounting Office (GAO), Garment Industry: Efforts to Address the Prevalence and Conditions of Sweatshops (2 November 1994), https://www.gao.gov/assets/hehs-95-29.pdf (accessed 24 May 2021)
26 US State Department, ‘Promoting the Model Business Principles’ (June 1997), http://library.law.columbia.edu/urlmirror/4/PromotingtheModelBusinessPrinciples.html (accessed 18 May 2021); ‘Announcement of Best Global Practices Award’, Federal Register (25 July 1996), https://www.govinfo.gov/content/pkg/FR-1996-07-25/pdf/96-18927.pdf (accessed 30 May 2021).
27 World Trade Organization, Singapore Ministerial Declaration, WTO Doc WT/MIN (96)/DEC, 36 ILM 220 (adopted on 13 December 1996).
28 Doe v Unocal Corp, 963 F Supp 880, 891–2 (US District Court, CD California (1997)); see also Doe v Unocal Corporation, 395 F3d 932, 945 US Court of Appeals, Ninth Circuit 2002) (Vacated after 2005 settlement but widely cited as persuasive authority). The Ninth Circuit ruled that ‘forced labor is so widely condemned that it has achieved the statusof a jus cogens violation.’
29 Doe v Reddy, Civ No. 02-05570, 2003 WL 23893010 (US District Court, ND California (2003)). See also In re: World War II Era Japanese Forced Labor Litigation, 164 F Supp 2d 1160, 1179 (US District Court, ND California (2001)). ‘Forced labor violates the law of nations’.
30 Adhikari v KBR, Inc, No. 4:16-CV-2478, 2017 WL 4237923 (US District Court, SD Texas 2017); Doe v Nestle, 766 F3d 1013, 1022 (US Court of Appeals, Ninth Circuit (2014)); Kadic v Karadzic, 70 F3d 232, 239 (US Court of Appeals, Second Circuit (1995)); Estate of Rodriquez v Drummond Company, 256 F Supp 2d 1250, 1260 (US District Court, Alabama (2003)).
31 Weissbrodt and Anti-Slavery International, note 12, 18.
32 Gallagher, Anne T, The International Law of Human Trafficking (Cambridge: Cambridge University Press, 2010) 12.CrossRefGoogle Scholar
33 Migration for Employment Convention, C97 (Revised), 120 UNTS 71 (adopted on 1 July 1949, entered into force on 22 January 1952).
34 Concerning Migrations in Abusive Conditions and the Promotion of Equality of Opportunity and Treatment of Migrant Workers, C143 1120 UNTS 323 (adopted on 24 June 1975, entered into force on 9 December 1978).
35 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, 2220 UNTS 3 (adopted on 18 December 1990, entered into force on 1 July 2003) (hereinafter Migrant Workers Convention).
36 Gallagher, note 32, 13-25.
37 Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, Annex, A/Res/55/25, 2237 UNTS 319 (adopted on 15 November 2000, entered into force on 25 December 2003) (hereinafter Human Trafficking Protocol) art 3.
38 Status of Treaties, ‘Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime’, UN Treaty Collection, https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-12-a&chapter=18&clang=en (accessed 22 May 2021).
39 Human Trafficking Protocol, note 37, art 6(6).
40 See, e.g., Adhikari v Daoud & Partners, 697 F Supp 2d 674, 686, US District Court (SD Texas 2009), rev’d on other grounds on summary judgement, 845 F3d 184, US Court of Appeals (Fifth Circuit 2017).
41 See generally Carroll, Archie, ‘A History of Corporate Social Responsibility: Concepts and Practices’ in Crane, Andrew et al (eds.), The Oxford Handbook of Corporate Social Responsibility (Oxford: Oxford University Press, 2008) 19–46 Google Scholar; Morrell, Heald, The Social Responsibilities of Businesses: Company and Community, 1900–1960 (New Brunswick and London: Transaction Publishers, 1970)Google Scholar.
42 Harold Hongju Koh, ‘Separating Myth from Reality about Corporate Responsibility Litigation’ (2004) 7 Journal of International Economics Law 263, 265. ‘If corporations have rights under international law, by parity of reasoning, they must have duties as well’. Burt Neuborne, ‘Of “Singles” Without Baseball: Corporations as Frozen Relational Moments’ (2012) 64 Rutgers Law Review 769. ‘[T]he corporate fiction does – and should – serve as an enforcement agent (and enforcement target) for the rights and duties of the human beings who constitute the corporation’; Sara Sun Beale, ‘A Response to the Critics of Corporate Criminal Liability’ (2009) 46 American Criminal Law Review 1481, 1484. Cases against individuals may be inadequate to deal with collective action.
43 Ida, Tarbell, The History of the Standard Oil Company (McClure, Phillips and Company. 1904)Google Scholar; Theodore, Rosenof, ‘Young Bob Lafollette on American Capitalism’, 55:2 The Wisconsin Magazine of History (Winter, 1971–1972), 130–9Google Scholar; Upton, Sinclair, The Jungle (New York: Doubleday, Page & Company, 1906)Google Scholar.
44 Barnard, Chester I, The Functions of The Executive (Harvard: Harvard University Press, 1938)Google Scholar; Clark, John M, Social Control of Business, 2nd edition (New York: McGraw Hill, 1939)Google Scholar; Kreps, Theodore J, Measurements of Social Performance of Business (Washington: US Government Printing Office, 1940)Google Scholar; Zerk, Jennifer A, Multinationals and Corporate Social Responsibility (Cambridge: Cambridge University Press, 2006) 15CrossRefGoogle Scholar.
45 Smoot-Hawley Tariff Act of 1930, note 18.
46 See ILO Constitution, art 7 (Governing Body), https://www.ilo.org/dyn/normlex/en/f?p=1000:62:0::NO:62:P62_LIST_ENTRIE_ID:2453907:NO#A7 (accessed 22 May 2021). Detailing the role of businesses as part of tri-partite structure of ILO.
47 Carroll, note 41, 27–8.
48 United Nations, ‘Report on Multinational Corporations in World Development: Chapter IV – Towards a Programme of Action’ (1973) 12:5 International Legal Materials 1109–35; see also UN Economic and Social Council Resolution 1721 (LIII) (1972). The UN Economic and Social Council initiated research to study role of multinational corporations and impact on development.
49 See The Impact of Multinational Corporations on Development and International Relations, UN Doc E/5500/Rev 1, ST/ESA/6 (1974).
50 OECD, Guidelines for Multinational Enterprises adopted as part of the Declaration on International Investment and Multinational Enterprises (1976; rev 1979), https://legalinstruments.oecd.org/en/instruments/OECD-LEGAL-0144 (accessed 24 May 2021); see also OECD, ‘Policy Brief, The OECD Guidelines for Multinational Enterprises’, (OECD: Paris, 2001).
51 ILO, Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy 8 (Geneva: ILO, 2017)Google Scholar. See also Lance Compa and Tashia Hinchliffe-Darricarrere, ‘Enforcing International Labor Rights through Corporate Codes of Conduct’ (1995) 33 Columbia Journal of Transnational Law 663, 671. This declaration, reflecting agreement between governments, corporations and labour organizations, dealt with subcontracting and provided for a Standing Committee with responsibility for a detailed complaint procedure, although the Declaration did not provide sanctions.
52 Ramasastry, Anita, ‘Corporate Social Responsibility versus Business and Human Rights: Bridging the Gap Between Responsibility and Accountability’ (2015) 14 Journal of Human Rights 237CrossRefGoogle Scholar.
53 Ibid, 237, citing Karin Buhmann, 6 Corporate Social Responsibility: What Role for Law? Some Aspects of Law and CSR. Corporate Governance 2, 188–202 (2006).
54 Ramasastry, note 52, p. 237.
55 Sikkink, Kathryn, ‘Codes of Conduct for Transnational Corporations: The Case of the WHO-UNICEF Code’ (1986) 40 International Organization 815–40CrossRefGoogle Scholar.
56 See, e.g., Gereffi, Gary, ‘International Trade and Industrial Upgrading in the Apparel Commodity Chain’ (1999) 48 Journal of International Economics 37 CrossRefGoogle Scholar.
57 Perez-Lopez, Jorge F, ‘Promoting International Respect for Worker Rights Through Business Codes of Conduct’ (1993) 17 Fordham International Law Journal 2 Google Scholar. Director of Office of International Economic Affairs at the Bureau of International Labour Affairs, US Department of Labor describes US participation in ILO, activities of designated Department of State officer at every US Embassy to monitor worker rights; AID/AFL-CIO training of foreign labour leaders; Department of Labor technical assistance to foreign labour leaders.
58 US Governmental Accountability Office, See note 25.
59 ILO, The Role of Private Employment Agencies in the Functioning of Labour Markets 7 (Geneva: ILO, 1994)Google Scholar; ILO, Trafficking in Human Beings: New Approaches to Combating the Problem (Geneva: ILO, 2003)Google Scholar; Gavel, Eric, ‘ILO standards concerning employment services’, Merchants of Labour (Geneva: International Institute for Labour Studies and International Labour Office: 2006).Google Scholar
60 ILO, The Role of Private Employment Agencies, note 59.
61 WR Böhning, Employing Foreign Workers: A Manual on Policies and Procedures of Special Interest to Middle- and Low-Income Countries (Geneva: International Labour Office, 1996), https://www.ilo.org/public/libdoc/ilo/1996/96B09_165_engl.pdf (accessed 31 May 2021).
62 Convention Concerning Private Employment Agencies, C181 2115 UNTS 249 (adopted on 19 June 1997, entered into force on 10 May 2000) (hereinafter Private Employment Agencies Convention); ILO, ‘Recommendation No. 188 Concerning Private Employment Agencies’ (19 June 1997), https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:55:0::NO::P55_TYPE,P55_LANG,P55_DOCUMENT,P55_NODE:SUP,en,R188,/Document (accessed 31 May 2021) (hereinafter Private Employment Agencies Recommendation); International Labour Organization, ‘Guidelines on Special Protective Measures for Migrant Workers Recruited by Private Agents’ in Report of the Tripartite Meeting of Experts on Future ILO Activities in the Field of Migration, Annex II (Geneva: ILO, 21–25 April 1997).
63 See, e.g., ILO, Stopping Forced Labour (Geneva: ILO, 2001); ILO Director-General, A Global Alliance Against Forced Labour: Global Report under the Follow-Up to the ILO Declaration on Fundamental Principles and Rights at Work (Geneva: ILO, 2005); ILO, Multilateral Framework on Labour Migration (Geneva: ILO, 2006); Merchants of Labour note 59, describes best practices with regard to recruitment of workers. The ILO also partnered with the Asian Development Bank (ADB) to produce the Core Labor Standards Handbook (Geneva: ILO, 2006). The ADB adopted a committment to core labor standards … in 2001.’
64 Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy, note 51
65 UN.GIFT – United Nations Global Initiative to Fight Human Trafficking, UN Office on Drugs and Crime, https://www.ungift.org/about/ (accessed 24 May 2021).
66 ILO Director-General, The Cost of Coercion: Global Report under the Follow-Up to the ILO Declaration on Fundamental Principles and Rights at Work (Geneva: ILO, 2009), paras 35–40 (hereinafter Cost of Coercion).Google Scholar
67 Office of the High Commissioner on Human Rights, ‘Business and Human Rights: A Progress Report’ (2000), https://www.ohchr.org/Documents/Publications/BusinessHRen.pdf (accessed 31 May 2021).
68 ILO/GC Labour Principles Guide, note 22.
69 UN Global Compact, ‘The Ten Principles of the Global Compact: Principle Four: Labour’, https://www.unglobalcompact.org/what-is-gc/mission/principles/principle-4 (accessed 31 May 2021).
70 UN Global Compact, Global Compact Office, ‘Our Participants’, https://www.unglobalcompact.org/what-is-gc/participants (accessed 31 May 2021).
71 ILO, Stopping Forced Labour, note 63.
72 Ibid. See also UN Global Compact and Business for Social Responsibility, ‘Supply Chain Sustainability’ (2010), https://www.bsr.org/reports/BSR_UNGC_SupplyChainReport.pdf (accessed 29 May 2021).
73 See Business for Social Responsibility, ‘About’, https://www.bsr.org/en/about/story(accessed 24 May 2021).
74 See, e.g., Verité, ‘About’, https://www.verite.org/; Verité, ‘Help Wanted: Hiring, Human Trafficking and Modern-Day Slavery in the Global Economy’ (2010), https://www.verite.org/wp-content/uploads/2016/11/Help_Wanted_2010.pdf (accessed 26 May 2021); in 2012 Verité published three reports on indicators of forced labour in supply chain (Indonesia, Philippines, Bangladesh), e.g., Verité, Research on Indicators of Forced Labor in the Supply Chain of Shrimp in Bangladesh (2012), https://www.verite.org/wp-content/uploads/2016/11/Research-on-Indicators-of-Forced-Labor-in-the-Bangladesh-Shrimp-Sector__9.16.pdf, (accessed 26 May 2021).
75 The Fair Labor Association (FLA) began following a meeting called by President Bill Clinton in 1996 that included multinational companies and non-governmental organizations. The group, initially focused on labour standards in the apparel and footwear industries, incorporated as the Fair Labor Association, a non-profit organization in 1999.
76 FLA, Addressing the Risks of Forced Labor in Supply Chains: Protecting Workers from Unfair Restrictions on their Freedoms at Work (2017), https://www.fairlabor.org/sites/default/files/documents/reports/addressing_forced_labor_in_supply_chains_august_2017.pdf, (accessed 26 May 2021).
77 See, e.g., Maria Holmlund and Soren Kock, ‘Buyer Dominated Relationships in a Supply Chain – A Case Study of Four Small-Sized Suppliers’ (1996) 1 International Small Business Journal 26.
78 See John Ruggie, ‘Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises’, para 4, A/HRC/8/5 (7 April 2008) (hereinafter 2008 Ruggie Report) https://www.ohchr.org/EN/Issues/TransnationalCorporations/Pages/Reports.aspx.
79 See 2008 Ruggie Report, note 78, para 52.
80 ILO/GC Labour Principles Guide, note 22. See also International Labour Office, Combating Forced Labour: A Handbook for Employers and Business (Geneva: ILO, 2008) (hereinafter Combating Forced Labour).
81 See ILO Declaration on Fundamental Principles and Rights at Work, note 21, https://www.ilo.org/declaration/thedeclaration/textdeclaration/lang–en/index.html; ‘Declares that all Members, even if they have not ratified the Conventions in question, have an obligation arising from the very fact of membership in the Organization to respect, to promote and to realize, in good faith and in accordance with the Constitution, the principles concerning the fundamental rights which are the subject of those Conventions, namely: … (b) the elimination of all forms of forced or compulsory labour …’.
82 ILO/GC Labour Principles Guide, note 22.
83 ILO, Engaging Business: Addressing Forced Labour, https://www.ilo.org/global/topics/forced-labour/events/WCMS_092170/lang—en/index.html (accessed 22 May 2021).
84 Ibid.
85 ILO, ‘Addressing Forced Labour: The Role of Employers’ Organisations and Business’ (Bangkok: 30 June–1 July 2008), https://www.ilo.org/global/topics/forced-labour/events/WCMS_095907/lang–en/index.html (accessed 22 May 2021). This was part of a series of training programmes; see also ILO, ‘The Labour Dimension of Corporate Social Responsibility: from Principles to Practice’ (10–12 December 2008), https://www.ilo.org/empent/Eventsandmeetings/WCMS_101315/lang–en/index.html (accessed 22 May 2021); ILO, International Instruments and Corporate Social Responsibility: A Booklet to Accompany Training on the Labour Dimension of CSR (Geneva: ILO, 2007).
87 HR Report No. 108-264 (2004) (US), 9.
88 TVPA note 3, (Definitions (8)). See also US Department of State, Archives, https://2001-2009.state.gov/g/tip/c16507.html (accessed 1 June 2021). et seq.
89 TVPA note 3 sec 1589.
90 TVPA note 3 sec 1592.
91 Roe v Howard, 917 F3d 229, US Court of Appeals, Fourth Circuit (2019)) Opinion cites TVPRA text and legislative history.
92 TVPRA 2003 (US). The 2003 amendments also provide for the termination of any ‘grant, contract, or cooperative agreement provided or entered into by a Federal department or agency … if the grantee or any sub-grantee, or the contractor or any subcontractor (i) engages in severe forms of trafficking in persons … during the period of time that the grant, contract, or cooperative agreement is in effect, or (ii) uses forced labor in the performance of the grant, contract, or cooperative agreement’.
93 TVPRA 2008 (US), amending sections 1589 (forced labour), 1591 (sex trafficking of children), 1593 (benefiting financially from peonage, slavery and trafficking – referencing 1581(a), 1592 or criminal penalties under 1595).
94 TVPRA 2008 (US) 18 USC sec 1595.
95 Restatement (Second) of Torts 1965 (American Law Institute), section 302. Section 302 applies to third-party conduct, whether it is negligent or intentional.
96 For a summary of cases brought under the TVPRA, see Martina E Vandenberg, Ending Impunity, Securing Justice (The Human Trafficking Pro Bono Legal Center, 2015) 13, https://www.htlegalcenter.org/wp-content/uploads/Ending-impunity-securing-justice.pdf (accessed 31 May 2021) (giving as example Pattaiso v Alahmad, 1:14-cv-0004, which was brought against labour recruiters on behalf of a woman subjected to forced labour with a hotel, two businesses and a number of individuals). See also Alexandra F Levy, Federal Human Trafficking Civil Litigation: 15 Years of the Private Right of Action (The Human Trafficking Legal Center, 2018) 6, https://www.htlegalcenter.org/wp-content/uploads/Federal-Human-Trafficking-Civil-Litigation-1.pdf (accessed 31 May 2021). Available statistics suggest that since October 2003, 299 cases have included TVPRA claims for civil damages. The vast majority have including claims of forced labour. Cases brought under the TVPRA have included a range of cases for treatment of workers in the United States. See, e.g., Delgado v Villanueva, No. 12 CIV 3113 JMF, 2013 WL 3009649, *1, District Court, SD New York (2013); David v Signal International LLC, 37 F Supp 3d 822 (2014).
97 Ratha v Phatthana Seafood Company (2017), note 7.
98 TVPA, note 3, 18 USC sections 1589–1593, 1595.
99 Nunag-Tanedo v E Baton Rouge Parish School Board, No 10-1172-AG, 2011 WL 1315310, District Court, CD California (2011).
100 David v Signal, 37 F Supp 3d 822 (US District Court, ED Louisiana) (2014); see also David v Signal, Civil Action Nos. 08-1220, et seq, 2014 WL 5489359 (US District Court, ED Louisiana); Third Amended Complaint in David v Signal, file:///C:/Users/jmgreen/Downloads/david%20v%20signal%203rd_amended_complaint.pdf (acccessed 30 May 2021).
101 David v. Signal (2014) note 100.
102 Lesnik v Eisenmann SE, 374 F Supp 923 (US District Court, ND California (2019)).
103 Lesnik v Eisenmann SE, 2018 WL 4700342, (US District Court, ND California, Slip Opinion (2018)).
104 Lesnik v Eisenmann SE, note 102. Court gives the elements of forced labour under section 1589: force or threats of force, means or threats of serious harm, means of abuse or threatened abuse of law or legal process, means of a scheme, plan, to cause person or another to believe they could be harmed.
105 Ibid.
106 Zevallos v Stamatakis, No. 2:17-cv-00253-DN, 2017 WL 6262012, District Court, D Utah (2017).
107 Lawson v Rubin, 17-cv-6404, 2018 WL 20212869, District Court, ED New York (2018) (court misstates 1505 standard); Ricchio v McLean, 853 F3d 553 United States Court of Appeals, First Circuit (2017). Case finds that hotel owners have direct knowledge of sex trafficking and acted ‘at least in reckless disregard’.
108 Gallagher, note 32.
109 US Department of State, ‘Victims of Trafficking and Violence Protection Act of 2000: Trafficking in Persons Report’, https://2009-2017.state.gov/j/tip/rls/tiprpt/2001/index.html (accessed 30 May 2021).
110 Bureau of International Labor Affairs, ‘List of Goods Produced by Child Labor or Forced Labor’, US Department of Labor, https://www.dol.gov/agencies/ilab/reports/child-labor/list-of-goods (accessed 31 May 2021).
111 Ibid.
112 Ibid.
113 William M Sullivan Jr and Fabio Leonardi, ‘Prosecuting Corporations that Benefit Financially from Human Trafficking’, Pillsbury (24 July 2019), https://www.pillsburylaw.com/en/news-and-insights/prosecuting-corporations-that-benefit-financially-from-human-trafficking.html (accessed 14 May 2021).
114 Rhys Jenkins, Corporate Codes of Conduct: Self-Regulation in a Global Economy, United Nations Research Institute for Social Developement (April 2001) 7, http://www.unrisd.org/unrisd/website/document.nsf/(httpPublications)/E3B3E78BAB9A886F80256B5E00344278?OpenDocument (accessed 21 May 2021).
115 Murphy, Patrick E, ‘Corporate Ethics Statements: Current Status and Future Prospects’ (1995) 14 Journal of Business Ethics 727CrossRefGoogle Scholar; Johnson & Johnson, Our Credo, https://www.jnj.com/credo/ (accessed 31 May 2021). See also Davidow, Joel and Chiles, Lisa, ‘The United States and the Issue of the Binding or Voluntary Nature of International Codes of Conduct Regarding Restrictive Business Practices’ (1978) 72:2 American Journal of International Law 247–71CrossRefGoogle Scholar.
116 Perez-Lopez, note 57, 1–3.
117 Slepak Principles Act, 101st Congress, 1st Session (1989).
118 HR 1571, 102nd Congress 1st Session (1991). See also Diane F Orentlicher and Timothy A Gelatt, ‘Public Law, Private Actors: The Impact of Human Rights on Business Investors in China’ (1993) 14 Northwestern Journal of International Law and Business 66. It is also important to note that foreign policy imperatives plainly drove these developments rather than solely concern for the international human rights of workers.
119 Levi Strauss & Company, ‘Business Partner Terms of Engagement and Guidelines for Country Selection 5(d) (March 1992)’, excerpted in Perez-Lopez, note 57, 1, 24–5. See also Nolan, Justine, ‘The Corporate Responsibility to Respect Human Rights: Soft Law or Not Law?’ in Deva, Surya and Bilchitz, David (eds.), Human Rights Obligations of Business: A Critical Framework for the Future (Cambridge: Cambridge University Press, 2013)Google Scholar; Compa and Hinchliffe-Darricarrere, note 51. 675–9.
120 Perez-Lopez, note 57, 1, 26.
121 Compa and Hinchliffe-Darricarrere, note 51, 681.
122 Ibid, 686.
123 G Pascal Zachary, ‘Business Brief: Starbucks Adopts Guidelines to Improve Conditions for Foreign Coffee Workers’ (1995) Wall Street Journal B4; Starbucks, ‘Starbucks Framework for Action (1998–99)’ (5 February 1998). Additional examples include Gap, Nike and Toys R Us. Nolan, note 119, 148. Some observers have noted that leaders were companies concerned about their brand image who were susceptible to consumer pressure.
124 Model Business Principles, note 26.
125 Bureau of International Labor Affairs, ‘The Apparel Industry and Codes of Conduct: A Solution to the International Child Labor Problem’, US Department of Labor (1996) 54, https://www.dol.gov/sites/dolgov/files/ILAB/research_file_attachment/apparel.pdf (accessed 29 May 2021).
126 Model Business Principles, note 26.
127 Ibid.
128 Bureau of International Labor Affairs, note 125.
129 US Department of Labor, Apparel Industry Partnership’s Agreement, 14 April 1997, https://training.itcilo.org/actrav_cdrom1/english/global/guide/apparell.html (accessed 31 May 2021).
130 Jenkins note 114.
131 Ibid, iv.
132 Ibid.
133 Ibid, 22.
134 OECD, ‘About’, https://www.oecd.org/about/history/ (accessed 22 May 2021). The OECD was established in 1961 after a treaty was negotiated between members of the Organization for Economic Cooperation – the organization charged with implementing the Marshall Plan after World War II. The OECD plays a pivotal role in world economic challenges; the current 38 participants account for 80 per cent of international investment and trade.
135 OECD Working Party of the Trade Committee, ‘Codes of Conduct – An Expanded Review of Their Contents’ (2001), https://www.oecd.org/daf/inv/investment-policy/WP-2001_6.pdf (accessed 31 May 2021).
136 Stephanie Barrientos, ‘Contract Labour: The Achilles Heel of Corporate Codes in Commercial Value Chains’ (2008) 39:6 Development and Change 977.
137 Business for Social Responsibility (BSR) began advising businesses in 1992. ‘About’, https://www.bsr.org/en/about/story (accessed 24 May 2021) ‘Verité began advising businesses in 1995. Verité, ‘About’, www.verite.org/about/ (accessed 24 May 2021). Since 1995, the organization has partnered with hundreds of corporations, governments and NGOs in more than 70 countries across multiple sectors to improve working conditions and social performance within global supply chains.
138 Fair Labor Association, Enhancing the FLA Workplace Code of Conduct and Compliance Benchmarks (June 2011) 4, https://studylib.net/doc/8828405/enhancing-the-fla-workplace-code-of-conduct-and-compliance (accessed 22 May 2021). The 1997 provision provided, ‘there shall not be any use of forced labor, whether in the form of prison labor, indentured labor, bonded labor or otherwise’.
139 IBM, What is the Value of a Company? (2002) 36, https://www.ibm.com/ibm/environment/annual/IBM_CorpResp_2002.pdf (accessed 22 May 2021). ‘IBM does not tolerate child labor or forced labor in its own operations, or in those of its suppliers or contractors’.
140 World Bank Group Corporate Social Responsibility Practice, Company Codes of Conduct and International Standards: An Analytical Comparison, Part I of II: Apparel, Footwear and Light Manufacturing, Agribusiness, Tourism (2003) 6, http://documents1.worldbank.org/curated/en/416281468096001385/pdf/346620v10CompanyCodesofConduct.pdf (accessed 22 May 2021).
141 Ibid.
142 Ibid.
143 Ibid, 7.
144 Ibid, 83.
145 Verité, Protecting Overseas Workers: Research Findings and Strategic Perspectives on Labor Protections for Foreign Contract Workers in Asia and the Middle East (December 2005) 7, http://www.verite.org/sites/default/files/images/Protecting%20Overseas%20Workers.pdf (accessed 30 May 2021).
146 Yu, Xiaomin, ‘Impacts of Corporate Code of Conduct on Labor Standards: A Case Study of Reebok’s Athletic Footwear Supplier Factory in China’ (2008) 81 Journal of Business Ethics 513 CrossRefGoogle Scholar.
147 Universal Declaration of Human Rights, note 21; Freedom of Association and Protection of the Right to Organise Convention, C087 68 UNTS 17 (adopted on 9 July 1948, entered into force on 4 July 1950).
148 Convention Concerning the Application of the Principles of the Right to Organise and to Bargain Collectively, C098 96 UNTS 257 (adopted on 1 July 1949, entered into force 18 July 1951).
149 ILO, ‘Conventions and Recommendations’, https://www.ilo.org/global/standards/introduction-to-international-labour-standards/conventions-and-recommendations/lang—en/index.html (accessed 22 May 2021). ILO fundamental labour standards are delineated in eight conventions: Freedom of Association and Protection of the Right to Organise Convention, note 147; C87; Right to Organise and Collective Bargaining Convention, 1949 (No. 98) note 148; Forced Labour Convention, Abolition of Forced Labour Convention, note 20; Minimum Age Convention, C138 1015 UNTS 297 (adopted on 26 June 1973, entered into force 19 June 1976); Worst Forms of Child Labour Convention, C182 2133 UNTS 161 (adopted on 17 June 1999, entered into force on 19 November 2000); Equal Remuneration Convention, C100 165 UNTS 303 (adopted 29 June 1951, entered into force on 23 May 1953); Discrimination (Employment and Occupation) Convention, C111 362 UNTS 31 (adopted on 25 June 1958, entered into force 15 June 1960).
150 International Labour Office, Trafficking for Forced Labour: How to Monitor the Recruitment of Migrant Workers: Training Manual 39, 77–78 (Geneva: ILO, 2005), https://www.ilo.org/wcmsp5/groups/public/–-ed_norm/–-declaration/documents/instructionalmaterial/wcms_081894.pdf (accessed 28 May 2021) (hereinafter ILO Training Manual).
151 Ibid, 79–80.
152 Cost of Coercion, note 66, paras 115–17 (2009).
153 Human Rights Council, ‘Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework’, A/HRC/17/31 (21 March 2011) (hereinafter UN Guiding Principles). UN Guiding Principles, (II)B.
154 Judith Schrempf-Stirling, Guido Palazzo and Robert A Phillips, ‘Ever Expanding Responsibilities: Upstream and Downstream Corporate Social Responsibility’ in Adam Lindgreen et al (eds.), Sustainable Value Chain Management: Analyzing, Designing, Implementing, and Monitoring for Social and Environmental Responsibility (Farnham: Ashgate, 2012) 353, 355.
155 Taylor, Mark B, Zandvliet, Luc and Forouhar, Mitra, ‘Due Diligence for Human Rights: A Risk-Based Approach’, Corporate Social Responsibility Initiative Working Paper No. 53 (Cambridge, MA: John F Kennedy School of Government, Harvard University, 2009) 2 https://www.hks.harvard.edu/sites/default/files/centers/mrcbg/programs/cri/files/workingpaper_53_taylor_etal.pdf (accessed 30 May 2021).Google Scholar
156 Securities Act 1933 (US), sec 11.
157 Taylor, Zandvliet and Forouhar, note 155, 5. While the Supreme Court is tightening the strict liability standard, that particular development is irrelevant for this analysis.
158 Taylor, Zandvliet and Forouhar, note 155, 8–11.
159 Taylor, Ibid, 3.
160 End Human Trafficking Now, Athens Ethical Principles (31 May 2021), http://youth-underground.com/wp-content/uploads/2014/11/AEP.pdf (accessed 31 May 2021). Verité, ‘About Verité’, https://www.verite.org/about/ (accessed 31 May 2021). ‘Since 1995, we have partnered with hundreds of corporations, governments, and NGOs to illuminate labour rights violations in supply chains and remedy them to the benefit of workers and companies alike’.
161 Doe v Unocal (2002), note 28. In 1997 the US District Court in Doe v Unocal (CD Cal 1997) found that the company was complicit in the use of forced labour, and the 1997 ruling stands as precedent. This was upheld by the Ninth Circuit; a 2004 settlement set aside that ruling, but that opinion has been cited as persuasive authority.
162 ILO, A Global Alliance against Forced Labour (Geneva: ILO, 2005) 6. See also Combating Forced Labour, note 80.
164 See, e.g., GAO, note 25, 12-13. The US Department of Labor Wage and Hour Division coordinated with garment manufacturers to monitor compliance, conduct training programs andaddress compliance deficiencies. https://www.dol.gov/agencies/ilab/public-report-review-submissions-no-940001-honeywell-and-940002-general-electric#
165 See, e.g., Manolo Abella, Sending Workers Abroad: A Manual on Policies and Procedures of Special Interest to Middle and Low Income Countries (17 December 1999) ch 3, 6; ILO Director-General, Your Voice at Work: Global Report under the Follow-up to the ILO Declaration on Fundamental Principles and Rights at Work (Geneva: ILO, 2000), https://www.ilo.org/wcmsp5/groups/public/–-dgreports/–-dcomm/–-publ/documents/publication/wcms_publ_9221115046_en.pdf (accessed 22 May 2021).
167 ILO Training Manual note 150.
168 Combating Forced Labour note 80.
169 End Human Trafficking Now, Luxor Implementation Guidelines to the Athens Ethical Principles: Comprehensive Compliance Programme for Business, file:///E:/supply%20chain/issues_doc_human_rights_Resources_Luxor_Implementation_Guidelines_Ethical_Principles.pdf (accessed 31 May 2021).
170 Human Rights Council, ‘Human Rights Impact Assessments – Resolving Key Methodological Questions’, A/HRC/4/74, 3 (5 February 2007). Note that the term ‘impact assessments’ is used in two different ways. In this case, it overlaps with risk assessments; in other instances, it is more similar to an audit for ongoing past actions or inaction. The article discusses the second meaning below in the section on monitoring and audits section.
171 Ibid, 10, para 40.
172 Intel Corporate Responsibility Report, With Leadership Comes Responsibility (2007) 81, 97, http://csrreportbuilder.intel.com/PDFfiles/archived_reports/Intel%202007%20CSR%20Report.pdf (accessed 22 May 2021).
173 UN Global Compact, note 69.
174 ILO/GC Labour Principles Guide, note 22.
175 Ibid, 23, 35–48.
176 Beate Andrees, Forced Labour and Human Trafficking: A Handbook for Labour Inspectors (Geneva: ILO, 2008), https://www.ilo.org/wcmsp5/groups/public/–-ed_norm/–-declaration/documents/publication/wcms_097835.pdf (accessed 28 May 2021).
177 Engaging Business: Addressing Forced Labour, note 83.
178 Ibid.
179 Combating Forced Labour, note 80.
180 International Standards Organization, ‘About Us’, https://www.iso.org/about-us.html (accessed 13 May 2021).
181 International Standards Organization, ‘Risk Management – Principles and Guidelines’ (November 2009), https://www.iso.org/standard/43170.html (accessed 3 July 2020).
182 Ibid.
183 Ibid; see also John F Sherman III, ‘The UN Guiding Principles for the Corporate Legal Advisor: Corporate Governance, Risk Management, and Professional Responsibility’, paper presented at an ‘ABA Human Rights Center Conference’ on 4 April 2012, 10, https://www.americanbar.org/content/dam/aba/administrative/human_rights/sherman_legal_advisors_paper.authcheckdam.pdf (accessed 22 May 2021).
184 Southern Shrimp Alliance, ‘United Nations (UN) Inter-Agency Project on Human Trafficking’, https://www.shrimpalliance.com/tag/united-nations-un-inter-agency-project-on-human-trafficking/ (accessed 22 July 2020).
185 Securities Act, note 156.
186 Taylor, Zandvliet and Forouhar, note 155, 3–8.
187 Ibid, 7.
188 Ibid, 16; OECD.
189 Ford Motor Company, Forced Labor and Human Trafficking in Supply Chains http://ophelia.sdsu.edu:8080/ford/09-14-2014/microsites/sustainability-report-2013-14/supply-materials-trafficking.html (accessed 31 May 2021).
190 Ibid.
191 Taylor, Zandvliet and Forouhar, note 155.
192 2008 Ruggie Report, note 78, paras 56–64.
193 Ibid, para 56. The report noted that ‘[c]omparable processes are typicallly already embedded in companies’ when laying out the due diligence framework.
194 Ibid, paras 56–7.
195 Some monitoring reports also use the term ‘impact assessments’; note that this term is also used in some circumstances to describe risk assessments. There is of course overlap between these two forms of impact assessments as finding existing violations can increase the risk of future violations.
196 Combating Forced Labour note 80. Directed at businesses and and employer organizations among others, the handbook focused on skills and techniques and policy changes to apply to monitor human trafficking.
197 ILO Training Manual note 150.
198 Ibid; Combating Forced Labour note 80.
199 FLA, Year Two: Annual Public Report, Part 3 of 4 (18 August 2004) 221–2, https://www.fairlabor.org/sites/default/files/documents/reports/2004_annual_public_report_part3.pdf (accessed 29 May 2021). FLA benchmarks for evaluating forced labour include workers bound to employment as condition of fulfilling terms of debt to a third party or employer; and workers retaining control of their passports, travel documents or other personal legal documents.
200 Compa and Hinchliffe-Darricarrere, note 51, 678.
201 Ibid, 678–9; Cavanagh, John, ‘The Global Resistance to Sweatshops’ in Ross, Andrew (ed.), No Sweat: Fashion, Free Trade and the Rights of Garment Workers (NY: Verso Books, 1997) 39.Google Scholar
202 Frank Swoboda, ‘Sears Agrees to Police its Suppliers’, Washington Post (31 March 1992) C1, C5.
203 Compa and Hinchliffe-Darricarrere, note 51, 682–3.
204 Bureau of International Labor Affairs, note 125.
205 Krupat, Kitty, ‘From War Zone to Free Trade Zone: A History of the National Labour Committee’, in Ross, Andrew (ed.), No Sweat: Fashion, Free Trade and the Rights of Garment Workers (NY: Verso Books, 1997) 51, 58.Google Scholar
206 Office to Monitor and Combat Trafficking in Persons, ‘What Do the Tiers of the Trafficking in Persons Report Mean?’, US Department of State (3 June 2005), https://2001-2009.state.gov/g/tip/rls/other/48236.htm (accessed 30 May 2021).
207 Gallagher, note 32, 486. ‘Each and every State, irrespective of its relative power, position, or adherence to a particular treaty, is subject to close and continuing scrutiny. A verdict, with potentially serious consequences is then pronounced’.
208 TVPA, note 3.
209 ILO Training Manual, note 150.
210 Combating Forced Labour, note 80, 77.
211 As You Sow, ‘Project Kaleidoscope: A Collaborative and Dynamic Approach to Code of Conduct Compliance,’ https://www.asyousow.org/reports/project-kaleidoscope-a-collaborative-and-dynamic-approach-to-code-of-conduct-compliance (accessed 31 May 2021).
212 Verité, ‘Bonded Labour and Excessive Recruitment Fees in Supply Chain’, https://www.verite.org/services/assessments/ (accessed 31 May 2021). The example of recruitment fees also demonstrates the evolution of standards with increasing awareness on what is necessary to fully address trafficking and forced labour. More recently, corporations, including Apple, have banned recruitment fees altogether, recognizing the link between recruitment fees and debt bondage. Craig Johnson, ‘Apple Ends Third-Party Recruitment Fees at Foreign Factories’, Contingent Workforce Strategies (25 February 2015), http://cwstrategies.staffingindustry.com/apple-ends-third-party-recruitment-fees-at-foreign-factories/ (accessed 31 May 2021). Apple ‘has gotten reimbursements of US$20.96 million to more than 30,000 foreign contract workers since its program began in 2008’. In 2011, the Dhaka Principles for Migration with Dignity’s first principle held that no fees should be charged to migrant workers. Institute for Human Rights and Business, ‘The Dhaka Principles for Migration with Dignity’ (June 2011), https://www.ohchr.org/Documents/Issues/SRMigrants/ConsultationRecruitment/DhakaPrinciples.pdf (accessed 18 May 2021).
213 Shift, Remediation, Grievance Mechanisms and the Corporatde Responsibility to Respect Human Rights (1 May 2014).
214 Ibid.
215 2008 Ruggie Report, note 78, para 92.
216 Ibid, para 95.
217 Verité, ‘An Introduction to Grievance Mechanisms’ (2011), https://helpwanted.verite.org/node/735/#main-menu (accessed 18 May 2021).
218 Taylor, Zandvliet and Forouhar, note 155, 16.
219 Ibid.
220 Keo Ratha v Phatthana Seafood Company, note 5.
221 Ibid, Appellant’s Opening Brief (25 May 2018). Expert reports of Lou C DeBaca, Mark Bendick and Roger Plant in support of plaintiffs’ opposition to summary judgement in Keo Ratha v Phatthana Seafood Company, 5. Oral argument for the Ninth Circuit appeal is available at United States Court of Appeals for the Ninth Circuit, ‘18-55041 Keo Ratha v. Phatthana Seafood Co., Ltd.’ (13 September 2019), https://www.youtube.com/watch?v=T9MsyRckLG8 (accessed 22 May 2021).
222 Expert Report of Lou C DeBaca et al, note 222.
223 David Livshiz, Emily Holland and Justin Simeone, ‘Landmark Ruling in Trafficking Victims Protection Reauthorization Act Case’, Freshfields Bruckhaus Deringer (20 February 2018), http://humanrights.freshfields.com/post/102eqto/landmark-ruling-in-trafficking-victims-protection-reauthorization-act-case (accessed 19 May 2021).
224 Southern Shrimp Alliance, 2008 Activities Report, https://shrimpalliance.com/Press%20Releases/Activities%20Report%202008.pdf (accessed 22 May 2021).
225 Flomo v Firestone National Rubber Company, 643 F3d 1013, 1021 (2011).
226 See generally Xiaomin Yu, note 146.
227 Compa, Lance, ‘Labor Rights and Labor Standards in International Trade’ (1993) 25 Law & Policy International Business 165, 167 Google Scholar.
228 Phil Bloomer, ‘Forced Labor in Corporate Supply Chains: A Powerful Role for Benchmarking’, TriplePundit (14 January 2016), https://www.triplepundit.com/story/2016/forced-labor-corporate-supply-chains-powerful-role-benchmarking/29251 (accessed 31 May 2021).
229 Business and Human Rights Resource Centre, Out of Sight: Modern Slavery in Pacific Supply Chains of Canned Tuna. A Survey and Analysis of Company Action (June 2019) 4, https://www.business-humanrights.org/sites/default/files/Out%20of%20Sight%20Modern%20Slavery%20in%20Pacific%20Supply%20Chains%20of%20Canned%20Tuna_4.pdf (accessed 28 May 2021).
230 Investor Alliance for Human Rights, ‘Investors with US$5 trillion call on governments to institute mandatory human rights due diligence measures for companies’, Interfaith Center on Cororate Responsiblity (21 April 2020), https://investorsforhumanrights.org/newsinvestorcaseformhrdd#:~:text=New%20York%2C%2021%20April%202020,associated%20with%20their%20business%20activities (accessed 31 May 2021). See also Gavin Hinks, ‘Investors Call for Mandatory Due Diligence’, Board Agenda (24 April 2020), https://boardagenda.com/2020/04/24/investors-call-for-mandatory-human-rights-due-diligence/ (accessed 28 May 2021).
231 An important development for enforceable standards is the movement of the European Union to develop regulations focused on mandatory human rights due diligence, updated information on this changing area can be found at the Business & Human Rights Resource Center, ‘Mandatory Due Diligence’, https://www.business-humanrights.org/en/mandatory-due-diligence/latest-news-on-mandatory-humanrights-due-diligence (accessed 30 May 2021).
232 Steinhardt, Ralph, ‘Corporate Responsibility and the International Law of Human Rights: The New Lex Mercatoria’ in Alston, Philip (ed.) Non-State Actors and Human Rights (Oxford: Oxford University Press, 2005) 177–227.Google Scholar
