Justice by proxy: combating forced labor in the Greater Mekong Subregion by holding U.S. corporations liable.

• Author: Beatty, Sasha

ABSTRACT

Human trafficking in Southeast Asia is still a thriving and lucrative industry. Despite these blatant human rights violations, international and local laws have struggled to keep ahead of the rapidly growing human trafficking industry. The result is a legal system that cannot effectively combat human trafficking in this region. This Note highlights the United States' significant financial contribution to the growth of this slavery industry, particularly in the purchase of significant quantities of goods produced by forced labor in this region. This Note argues that a way to expedite change in this region should be from external, foreign law targeting the United States' economic role in this industry. Fining or blocking the trade of U.S.-based corporations whose supply chains are de facto complicit in this human trafficking model will slow the human trafficking industry in Southeast Asia, allowing the local and international legal initiatives to take better shape in the meantime.

TABLE OF CONTENTS I. INTRODUCTION II. TRAFFICKING IN THE GMS AND U.S. INVOLVEMENT A. Background on Human Trafficking in the Greater Mekong Subregion B. Case Study: Thailand's Fishing Industry 1. Other Offenses in the GMS C. Forced Labor and its Economic Influences in the GMS D. U.S. Companies and Their Involvement in the GMS Forced Labor Market III. THE GLOBAL RESPONSE TO FORCED LABOR IN THE GMS A. International Initiatives 1. The United Nations and the International Labour Organization 2. Non-Governmental Organizations B. Local State Actor Efforts C. Regional Inter-State Collaborations: COMMIT SPA D. The United States: Current and Proposed Solutions 1. Domestic Initiatives 2. Proposed Legislation: The Business Supply Chain Transparency Act IV. RECOMMENDATION: HOLDING U.S. CORPORATIONS ACCOUNTABLE A. Eliminating Forced Labor U.S. Supply Chains 1. Stage One: Investigate 2. Stage Two: Replace 3. Stage Three: Prevent V. CONCLUSION I. INTRODUCTION

"You ... are never going home. You were sold, and no one is ever coming to rescue you." (1) These were the words spoken to eighteen-year-old Myint Naing of Burma (also called Myanmar), just days after being lured away from his home and family with the promise of work in Thailand. (2) Instead, Myint found himself held captive on a fishing boat, forced to work tirelessly and in brutal conditions while receiving little to no food, water, or pay. (3) He did not know it then, but the fish he and his fellow kidnappees would dredge from the ocean, day after day, would ultimately end up on the shelves of popular American grocery chains and would be used by some of the biggest names in the American pet food industry. (4) After twenty-two years at sea, away from his home, Myint and other workers on his boat were finally freed by the Indonesian government, and Myint was able to reunite with his mother and sister. (5) Myint is considered one of the lucky ones. (6)

From the iPhone, (7) to palm oil, (8) to the fish parts used in the pet food stocking shelves in the United States, (9) it is all but impossible for the average American to avoid goods produced, at least in some part, by forced labor originating from Southeast Asia. (10) The international community's efforts to stem such exploitation have, of course, been stalwart in the face of such egregious violations of human rights. However, the fact remains that despite the best and concerted efforts of both local state governments and international actors, it has become increasingly difficult to prevent this form of human trafficking from occurring, let alone to hold the perpetrators of such crimes accountable.

As has been reiterated in many global mandates, statutes, and reports, "[h]uman trafficking is not a problem to be managed; it is a crime to be stopped." (11) Holding perpetrators criminally responsible, however, has proven difficult in a black market that deals with humans as chattel. Ultimately, the efforts in place thus far have not decreased the number of individuals forced into labor every year. Moreover, there exists no global entity with the authority to regulate states complicit in human trafficking or forced labor violations. (12) Thus, in the wake of the ineffectiveness of international law and supranational legal bodies in implementing immediate and impactful laws to prevent forced labor in Asia at its source, it is time to look for alternative legal means which will, if not target the weed at its roots, at the very least noticeably slow forced labor's growth.

This Note analyzes the relationship between companies based in the United States and the labor market in the Greater Mekong Sub-Region (or, the "GMS," consisting of Lao People's Democratic Republic, China, Myanmar, Vietnam, Cambodia, and Thailand), a geographic region fraught with trafficking and forced labor. (13) The Note then discusses the necessity for a more adequate form of accountability on the part of these companies such that forced labor in the GMS may founder and fail. Part II explores the trafficking and forced labor phenomenon in these countries and how this type of labor seeps its way into the United States through the products imported for American consumption and profit. Part III then describes the main options that are either already in place and available for addressing the issue or are still in the process of being finalized or executed, while explaining briefly why each "solution" has thus far been inadequate. Finally, Part IV argues that, in order to fully impact the GMS and affect the change needed, U.S. companies must be held fully accountable both legally and financially with the goal of withdrawing these companies from foreign production partnerships which rely upon the use of forced labor. Ultimately this Note contends that levying a substantial financial burden on U.S. companies that fail to legitimize their supply chain is the most effective form of legal deterrent, on behalf of non-GMS nations, to target forced labor. This, in turn, may buy the respective regulatory authorities the time they need to come together and find a more permanent solution.

2. TRAFFICKING IN THE GMS AND U.S. INVOLVEMENT

   The global supply chain is a convoluted system that often leaves little room for accountability. Whether intentionally or not, this complicated network of trade has aided U.S.-based corporations by shielding them from being held legally accountable for products in their supply chain that are tainted by forced labor. (14)

   1. Background on Human Trafficking in the Greater Mekong Subregion

      Contrary to popular belief, modern-day slavery is alive and well in many parts of the world. "Forced labor" is defined by the International Labor Organization as referring to "situations in which persons are coerced to work through the use of violence or intimidation, or by more subtle means such as accumulated debt, retention of identity papers or threats of denunciation to immigration authorities." (15) Although forced labor and human trafficking is present in developed and developing countries alike (including, perhaps surprisingly, the United States), (16) in the Asiatic region the problem is especially dire. (17) Although steps have been taken to raise awareness across multiple platforms, (18) a dearth of prophylactic local law and the ineffectiveness of business transparency in the global supply chain have left millions of individuals without recourse. (19)

      As of 2012, the International Labor Organization estimated that there were more than 20.9 million victims of forced labor around the globe. 20 Of this number, the Asia-Pacific region accounts for an astonishing 56 percent of the global total--11.7 million, more than three times higher than the next highest region, Africa. (21) In terms of economics, illegal forced labor in the private economy brings in at least $150 billion each year. (22) Clearly, it is a profitable source of revenue for these countries, whose economies and industries are still in development. (23)

   2. Case Study: Thailand's Fishing Industry

      Addressing this increasingly pervasive problem has been met with difficulty, and despite the concerted efforts of international organizations, particularly those of the United Nations as well as collaborative and independent regional actors, human trafficking remains all too prevalent. In Southeast Asia, these problems present themselves in the form of sex slavery and forced labor, often through coercion, kidnapping, and false promises. (24) For example, several investigative sources have exposed the fishing industry in this region as a source of great exploitation. (25) Thailand is considered one of the most egregious human rights violators in this regard. (26) This is compounded by the fact that the Thai gross domestic product (GDP) is essentially built upon the fishing industry. (27) The Thai seafood industry generates over $7 billion and 4.2 million tons of fish per annum, supplying its labor from surrounding nations: Myanmar, Cambodia, and the People's Democratic Republic of Lao (Lao PDR). (28) Young men and children are promised a decent wage, an honest way to work off their debt, and the means to make money to send home to their families. For those whose options for work are limited, this is a tempting offer. (29)

      The conditions on these fishing boats are brutal. Long hours--often seven days a week, with no break--without adequate food, water, or rest are commonplace. 30 The captains of the ships physically discipline their crew to maintain order and to maintain the hierarchy of captain and his subordinates, expendable slaves. 31 Starvation, isolations in the brig, and beatings are frequent, as are sexual assaults on the workers by their ship's officers. (32) Requests to return home are denied, and the sick workers, useless as laborers, are simply thrown overboard. (33) Those who try to escape and are caught and swiftly executed, often in public and in violent ways to deter other captives...