EFFECTIVE ENGAGEMENT OF MULTINATIONAL CORPORATIONS TO ADDRESS EXISTING INADEQUACIES IN THE ENFORCEMENT OF NORMS AGAINST HUMAN TRAFFICKING AND FORCED LABOR.

• Author: Hannegan, Taylor

INTRODUCTION

In all its forms, human trafficking is the third largest criminal enterprise in the world, generating roughly 150 billion dollars every year and growing rapidly. (1) Though there is arguably some dispute about the number of victims of human trafficking and forced labor, the most widely accepted number seems to fall between twenty-one and twenty-seven million people living in conditions of modern slavery today. (2) Even the lowest estimates suggest there are millions of victims. (3) Though the estimates vary somewhat, private forced labor exploitation constitutes roughly sixty-four percent of the victims; forced sexual exploitation makes up nineteen percent, with state-imposed forced labor as the last sixteen percent. (4) Estimates also suggest that these abuses disproportionately impact women and girls, with females comprising roughly seventy percent of the victims. (5) Regardless of the exact number, it is clear that the situation is dire and demands global attention and action.

Norms against human trafficking and forced labor are certainly developing, and they have a strong theoretical foundation upon which to grow. Article 4 of the Universal Declaration of Human Rights expressly states "no one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms." (6) There are fourteen international conventions related to the prohibition of trafficking and similar crimes, and countless more domestic laws dealing with the same. (7) Yet, as the continually high number of victims demonstrates, these initiatives clearly are not working fast enough. There is no simple solution to deal with the enormity of this problem. It requires a multi-faceted approach spanning the social, economic, and political spheres.

Given the attention dedicated to preventing these abuses and the long history of such efforts, there is a strong argument to be made that the norms against human trafficking are reaching a jus cogens (8) status. This, in turn, would permit greater state involvement and intervention to encourage action be taken to curb these abuses.

To such an end, engaging private, multinational corporations and subjecting them to more concrete enforcement mechanisms would address the problem from one angle that is currently underdeveloped. (9) It is true that an ever-increasing number of companies are implementing some form of the "People, Planet, Profit" triple bottom line maxim when making business decisions. (10) Corporate social responsibility is no longer a term being discussed solely by human rights scholars and cutting-edge companies. Dana Raigrodski maintains that a paradigm-shift is needed that factors in the true cost of business, but "[a]dmittedly, such a paradigm-shift will take time and significant commitment by companies, and it may not be attainable across the board." (11) Many other companies still adhere to the adage that a business's only responsibility is to increase its profits. Others still may engage in "whitewashing" of their activities, attempting to gain the social and economic benefit of corporate responsibility with hollow efforts.

Beyond that, the fact that human trafficking and forced labor continue to be so widespread indicates either that the companies emphasizing the triple bottom line are not at all involved in these activities, or that they too are involved and the measures are simply ineffective. Regardless of the true nature of the issue, greater regulation to prevent these crimes should be pursued. Imposing legal regulations such as tax incentives and penalties as well as corporate liability can serve as a catalyst to effect such a shift in corporate behavior.

2. THE EXISTING INTERNATIONAL FRAMEWORK: A SOLID BASE FOR POLICY, A LACKING FOUNDATION FOR ENFORCEMENT

   As mentioned, there are currently at least fourteen international conventions and agreements related to preventing human trafficking and forced labor. (12) Unlike some other social ills, trafficking is almost universally acknowledged as a global problem requiring global action.

   The International Labor Organization's Committee of Experts on the Application of Conventions and Recommendations (CEACR) has determined that the definition of forced labor under ILO standards encompasses human trafficking as defined by the Palermo Protocol. (13) Absent qualification, then, forced labor and human trafficking shall both be used to refer to the broader concept of human rights violations covering forced labor and human trafficking.

   Substantively, the laws and conventions related to these crimes are relatively similar in their definitions. Generally speaking, the laws define trafficking in persons as

   the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs. (14) The definition of human trafficking or forced labor has gone through many iterations over many decades. (15) Though this definition seemingly covers the vast majority of situations of human trafficking, some have criticized it as being overly complex. (16) Some have interpreted it as excluding labor that began voluntarily but shifted to be coercive or violent in nature. (17) Many of the critiques of the laws dealing with human trafficking is that they are too narrowly construed and do not offer protections to many people in conditions that, but for one subtle nuance, would normally be considered trafficking. (18) Several authors have attempted to establish a more concise definition that still encompasses all the relevant situations of exploitation and slavery. (19)

   Perhaps the most successful definition comes from Professor Kevin Bales who identifies three core factors at issue. (20) First, there is a loss of free will of the victim or slave. Second, is the use of violence to control the victim. Third, is some form of economic exploitation that would typically preclude the victim from receiving compensation for their work. (21) Even this definition has received criticism, with Ann Jordan of the International Human Rights Law Group noting that the definition would exclude cases that involved only psychological coercion. (22) While Professor Bales suggests that psychological coercion and similar practices are accompanied by physical violence, it is still possible that this would not always be the case.

   Therefore, the most appropriate and broad definition, for the purposes of this paper, is a variation on the definition offered by Professor Bales. Human trafficking and forced labor are "[a] social or economic relationship marked by the loss of free will where a person is forced" or coerced into giving up the ability to sell his or her own labor power freely. (23) This expansive definition could potentially include a scenario that would not have historically been considered trafficking but still does not go nearly so far as to jeopardize internationally acceptable working conditions.

   1. An Extensive International Prohibition on Human Trafficking and Forced Labor

      The most comprehensive and current international law focusing specifically on human trafficking is the Palermo Protocol to Prevent, Suppress, and Punish Trafficking in Persons. (24) It provides morally binding provisions wherein states are expected to pursue three crucial components of what has been called the three-P paradigm: Prevention, Protection, and Promotion. (25) Broadly speaking, the Palermo Protocol is designed to prevent and counteract trafficking, protection and assist victims, and promote cooperation between states. (26)

      The Protocol is directed solely toward state parties and technically lays out several obligations. (27) Every state should adopt legal measures to criminalize the offenses as described in the protocol. (28) States must also take steps to protect and repatriate victims, enact policies to prevent trafficking, and undertake information sharing and training programs with other states in order to further address these crimes. (29) State parties should endeavor to implement the components of the Protocol, or seek to improve their existing measures. (30)

      The Palermo Protocol on trafficking, however, offers little in the way of concrete enforcement. None of the aforementioned provisions have any legally binding enforcement mechanisms. Instead, the Protocol relies entirely on state parties feeling morally obligated to enact the articles of the Protocol. (31) Some have criticized this dearth of legally binding enforcement as undermining the efficacy of the protocol. (32) Others, though, suggest that legally enforceable measures would be coercive in nature, and therefore both violative of state sovereignty and beyond the scope of the United Nations. (33) Furthermore, if there were legal requirements to the Protocol, it would likely hamper adoption by states that would most benefit from following its guidelines.

      Domestically, the United States has one of the more far-reaching statutes. (34) The Trafficking Victim's Protection Act (TVPA) ranks countries into three tiers based on the actions they're taking to prevent human trafficking related crimes. (35) Should a country fall to the bottom tier, the United States will impose certain non-economic sanctions on the country in an effort to enforce the developing norms against human trafficking and forced labor. (36) Contrary to the Palermo Protocol on trafficking, the TVPA has immediate legal effects for those that fail to adhere to its...