Labour Migration, Human Trafficking and Multinational Corporations

The Commodification of Illicit Flows

Ato Quayson, Antonela Arhin

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781136482632
• Edition: 1
• Topic: Economics
• Subtopic: Labour Economics
• Index: Economics

Although much literature on human trafficking focuses on sex trafficking, a great deal of human trafficking results from migrant workers, compelled - by economic deprivation in their home countries - to seek better life opportunities abroad, especially in agriculture, construction and domestic work. Such labour migration is sometimes legal and well managed, but sometimes not so – with migrant workers frequently threatened or coerced into entering debt bondage arrangements and ending up working in forced labour situations producing goods for illicit markets. This book fills a substantial gap in the existing literature given that labour trafficking is a much more subtle form of exploitation than sex trafficking. It discusses how far large multinational corporations are involved, whether intentionally or unintentionally, in human trafficking for the purposes of labour exploitation. They explore how far corporations are driven to seek cheap labour by the need to remain commercially competitive and examine how the problem often lies with corporations' subcontractors, who are not as well controlled as they might be. The essays in the volume also outline and assess measures being taken by governments and international agencies to eradicate the problem.

1 Corporate liability for violations of international human rights law

Mohamed Y. Mattar

Introduction

Reflecting the impact of the current economic crisis, the second report by the UN Special Rapporteur on Trafficking in Persons, especially Women and Children, Ms Joy Ezeilo, submitted August 12, 2009 stated that:

Trafficking for purposes of labour exploitation is likely to escalate, particularly during the current economic crisis and in light of increasing poverty caused by massive unemployment and the tendencies of employers to use cheap labour in order to cut costs and maximize profits.¹

The same assessment was made by the International Labour Organization (ILO) in its annual Global Employment Trends Report 2009. The Report states the expectation that the global economic crisis may lead to a dramatic increase in the number of people joining the ranks of the unemployed, working poor and those in vulnerable employment.² Recognizing this development, the International Framework for Action to Implement the Trafficking in Persons Protocol was explicit in defining prevention to include “strengthen[ing] monitoring and management of labor markets, including regulation and monitoring of work places and recruitment processes”³ and “implement[ing] awareness-raising campaigns … to address the demand for easily exploitable services and labor.”⁴

Illegal or improper business practices

If we are to succeed in effectively combating labor trafficking, forced labor, and child labor, it is crucial to encourage the private sector to incorporate policies that prohibit any type of illegal or improper business practices.

We are all familiar with such illegal and improper business practices. For example, McDonald’s “Happy Meal” toys were found to be made by Vietnamese teenagers who were forced to work 12 hours a day without overtime, not being allowed sick days, and being fined for any mistakes.⁵ Similarly, Gap Inc., an international clothing retailer, had received merchandise from a factory in India where children as young as ten years old worked sixteen hours a day without pay.⁶ And Victoria’s Secret had production facilities in Jordan where Bangladeshi and Sri Lankan employees worked 14 to 15 hours a day, seven days a week, receiving, on average, one day off every three or four months.⁷

The question in all of these cases becomes: How does one hold a corporation liable for an illegal or improper business practice? The other question is whether this liability is limited to national laws or whether a corporation can be held liable under international law. And when these illegal or improper business practices also constitute a violation of human rights – is there a place for human rights in business?

Of course, it is not easy to answer these questions; especially when a parent company is trying to escape its liabilities for acts committed by its subsidiary or affiliate.

How can a corporation be held criminally liable when the corporation is merely a legal fiction? And how can one convince a corporation that observance of human rights would lead to corporate profitability?

Liability of corporations under national legislation

The simple answer is that corporations are more likely to be liable under national legislation.

Sex tourism industries such as Big Apple Oriental Tours advertise packages for tourists that include hotel, transportation, and some sex on the side. Under the US Protect Act,⁸ a corporation doing business in the tourism industry may be liable. Match-making organizations may traffic brides; and the court in European Connections v. Gonzalez made it clear that requiring an international marriage broker to reveal information to a foreign bride does not constitute a violation of the US Constitution.⁹ Under the International Marriage Broker Regulation Act such broker may be liable for failure to disclose information.¹⁰

Moreover, USUS contractors who were supporting and up-keeping the USUS military personnel in Iraq exploited victims from Nepal. After being recruited from poor villages in Jordan, through a trail of deceit, fraud, and negligence, twelve Nepalese men were kidnapped from an unprotected caravan and killed by insurgents on their way to jobs at an American military base in 2004.¹¹ This instance led to the amendment of the Trafficking Victims Protection Re-Authorization Act 2005, providing for its application on extra-territorial basis to USUS corporations doing business abroad.¹²

There are a number of USUS laws that aim to prohibit imports of goods produced by forced labor or child labor. One is the Child Labor Deterrence Act,¹³ a bill first introduced to Congress in 1992 intending to impose sanctions on entities importing products made using child labor, thus aiming to give effect to the ILO Convention No. 182 on the Elimination of the Worst Forms of Child Labor. Another is the 2000 Trade and Development Act,¹⁴ banning importation of products made using forced labor or prison labor.

The US 1984 Amendment to the Generalized System of Preference, a program which provides tariff-free access to markets in the developing countries for certain types of goods originating from developing countries, requires that a beneficiary of the program must be making every effort to afford workers’ internationally recognized rights, including freedom from forced labor and acceptable conditions at work relating to hours, wages, health, and safety.¹⁵ In 1987, Chile was excluded from the program.

Free-trade agreements that the USUS signed with foreign countries, including Bahrain, Jordan, and Morocco, impose an obligation on signatories to respect internationally recognized labor rights, including the elimination of all forms of compulsory or forced labor and child labor.¹⁶

In the context of NAFTA, the North American Agreement on Labor Cooperation (NAALC) binds each member state to “promote compliance with and effectively enforce its labor law through appropriate government action.”¹⁷ These domestic laws must contain the prohibition of forced labor and the protection of children.¹⁸ Under the NAALC complaint procedure individual workers or labor organizations may challenge one nation’s failure to enforce its domestic labor laws.¹⁹

In its lending programs, the World Bank takes into consideration human rights and core labor standards. Its International Finance Corporation (IFC) and Multilateral Investment Guarantee Agency (MIGA) have explicit policies forbidding the use of harmful child or forced labor in investor projects.²⁰

More recently, the William Wilberforce Trafficking Victims Protection Act addresses rights of migrant workers for the first time. It recognizes

the legal rights of immigrant victims of trafficking in persons and worker exploitation, including – (A) the right of access to immigrant and labor rights groups; (B) the right to seek redress in United States courts; (C) the right to report abuse without retaliation; (D) the right of the nonimmigrant to relinquish possession of his or her passport to his or her employer; (E) the requirement of an employment contract between the employer and the nonimmigrant … ²¹

Similar US laws were also utilized to prosecute labor cases on an extraterritorial basis, including the Racketeering Influenced and Corrupt Organizations Act (RICO)²² and the Foreign Corrupt Practices Act (FCPA).²³

Over the last years, the number of FCPA investigations has risen drastically: “For example, US authorities brought more defendants to trial in FCPA cases in 2009 than in the preceding five years combined, and obtained convictions on at least some counts in each trial.”²⁴

All these are examples of national laws. In a number of cases, the court held the corporation liable for violation of human rights.

Judicial remedies for victims of labor law violations

A number of labor cases have been decided under the US Alien Tort Claims Act (ATCA).²⁵

As stated in Sosa v. Alvarez-Machain, the Supreme Court affirmed its judicial interpretation of the ATCA that enables victims of human rights abuses to sue their observers in US courts, as long as it “violates definable, universal, and obligatory norms.”²⁶

In Roe v. Bridgestone Corp. a number of workers from Liberia alleged that their corporate employer, the Firestone Rubber Plantation, employed children as young as 6 without any health or safety protection, in violation of ILO international labor standards as embodied in Convention No. 182 on the Elimination of the Worst Forms of Child Labor. In this case, the court found that child labor allegations were sufficiently pleaded to permit the claims to be brought under the ATCA.²⁷

Doe v. The Gap, Inc., a case filed in 2002 by foreign-born “guest workers” against USUS retailers for their garment industries in the Northern Mariana Islands, involved weaver workers mostly from Asian countries.²⁸ They were asked to sign a “shadow contract” requiring them to pay a “recruitment fee” and preventing them from exercising their basic labor rights. They were subject to unlawful living and working conditions and long hours without overtime payment. They claimed ...

Table of contents

• Cover
• Title
• Copyright
• Contents
• List of contributors
• Introduction
• 1. Corporate liability for violations of international human rights law
• 2. Trafficking for labour exploitation: Getting the responses right
• 3. The commodification of human smuggling and trafficking
• 4. Child labour migrants or victims of labour trafficking?: A segmental approach
• 5. Displacing childhood: Labour exploitation and child trafficking in sport
• 6. Labor migration, human trafficking and multinational corporations within the ECOWAS region: Challenges and opportunities
• 7. Adults or children?: The case of trafficking children for purposes of exploitative labour in the fishing industry in Ghana
• 8. Doing Canada’s dirty work: A critical analysis of law and policy to address labour exploitation trafficking
• 9. Minimum wage: An ally in the fight against human trafficking for labour exploitation?
• 10. Responding to labour trafficking: Suggestions from experiences of local service providers
• 11. The programmatic approach to combating trafficking in human beings
• Index