International Law & Human Trafficking Outline for Wednesday, August 15 (Classes 9 & 10) Professor Carole J.

Petersen [email protected] Required reading: * Jonathan Todres, The Private Sectors Pivotal Role in Combating Human Trafficking, 3 CALIFORNIA LAW REVIEW 190 (2012). Available at: http://www.californialawreview.org/articles/the-private-sector-s-pivotal-role-incombating-human-trafficking It is also recommended (but not required) that you review: Human Trafficking & Business: Good Practices to Prevent and Combat Human Trafficking (2010). Available at http://www.ungift.org/knowledgehub/business/guidelines.html Engaging the mainstream business community in the anti-trafficking movement Voluntary codes of corporate conduct (relatively easy to get businesses to sign on to but difficult to assess after they have signed). Supply chain and anti-trafficking policy disclosure laws: Slightly more coercive; generally do not require businesses to do anything to prevent trafficking, only to disclose what they do (or do not do). Goal is to encourage consumers to buy from companies that do not benefit, even indirectly, from forced labour or trafficked persons History of the Athens Ethical Principles January 2006: a roundtable on human trafficking was organized under the auspices of the Greek Ministry of Foreign Affairs. Co-sponsored by the International Organization for Migration (IOM), the United Nations Development Fund for Women (UNIFEM), the United Nations Office on Drugs and Crime (UNODC), the World Bank, and the Geneva Centre for the Democratic Control of Armed Forces (DCAF). Included CEOs from private sector, representatives of NGOs, government officials, and individuals with experience in anti-trafficking.

In January 2006, the group adopted a set of principles, now known as the Athens Ethical Principles (AEPs) and launched the End Human Trafficking Now! campaign to facilitate their implementation by business companies. End Human Trafficking Now (EHTN) emphasizes the role of the business community; should be in the front and center of anti-trafficking efforts. The AEPs are now published on line in several different languages. However, only Asian languages are traditional and simplified Chinese (see http://www.endhumantraffickingnow.com/athens_ethical.php). The website also lists the signatories to the AEPs (name of the company, the CEO or President, and the date and place the Principles were signed by the company). No information on the nature of the company, where it is incorporated, or where it holds its principle place of business. This makes it difficult to determine whether signatories are complying with their obligations (as opposed to signing simply to get good publicity). Summary of the AEPs -- Companies promise to: Demonstrate zero tolerance towards human trafficking and develop an antitrafficking policy to permeate all activities. Ensure that personnel fully comply with the anti-trafficking policy. Encourage business partners and suppliers to apply the AEPs. Advocate for stronger laws and enforcement by governments. Report and share information (transparency) and contribute to education and awareness campaigns. The Luxor Protocol EHTN also published a set of guidelines known as the Luxor Protocol to assist businesses in implementing the AEPs. The Luxor Protocol breaks down the AEPs into steps that must be taken and steps that companies are simply encouraged to take.

For example, according to the guidelines, signatories are required to publish the companys code of conduct/standards with regard to combating human trafficking on the company website. However, no code of conduct was found during a random search of three signatories websites (ELITE Rent-A-Car, Paola Ghillani & Friends, and MZ Investments). The BEST Alliance BEST Alliance: Business Ending Slavery and Trafficking in Washington is a very new organization and initiative. BEST targets small-to-medium sized businesses in creating and maintaining antitrafficking policies. Businesses can become a BEST signatory if they commit to: (1) Adopt an antitrafficking policy. The company may either create an anti trafficking policy or adopt the basic policy in the BEST Principles: Our company stands against human trafficking for the purpose of labor or sexual exploitation. (2) Incorporate the anti-trafficking policy into the existing business operations by using the seven steps as guides: 1. Comply with applicable laws and regulations. 2. Assess trafficking-related risks and impacts. 3. Implement an anti-trafficking management system with protocols to prevent, report, and remedy incidents. 4. Align existing policies with our anti-trafficking policy. 5. Provide notice of our anti-trafficking policy to employees and business partners including suppliers, contractors, and sub-contractors. 6. Train employees to comply with our anti-trafficking policy and protocols. 7. Report and share best practices. It is unclear whether a business would be required to report trafficking within their supply chain to particular authority or agency. However, in order to maintain BEST signatory status a company must submit regular reports. A confidential Human Trafficking Risks and Impacts worksheet must be submitted in the first month.

Within six months, a risk assessment and implementation plan must be submitted. After one year, each company must submit a confidential BEST Report to measure progress on implementing the BEST principles in accordance with the timelines set by each company and in comparison with businesses in the industry. California Transparency in Supply Chains Act (came into force 1 January 2012) Legislative History The legislative purpose of the Act is to provide consumers and businesses with information to inform their purchasing decisions in an effort to use market forces to prod companies to help eradicate human trafficking and slavery. As originally introduced, the bill included language requiring covered companies to develop [and] maintain efforts to eradicate slavery and human trafficking from their supply chains. That language was dropped, however, and the bill as signed into law only requires covered companies to disclose their efforts to do so on their websites. Requirements of the California Transparency in Supply Chains Act The Act covers retail sellers and manufacturers doing business in California that have annual worldwide gross receipts exceeding US $100,000,000. (Note: this is estimated to cover 87% of economic activity in California. If California were a country, its economy would be the 8th largest in the world.) Any company subject to the Act must post a conspicuous and easily understood link on its web site to a statement that shall, at minimum, disclose to what extent, if any the retail seller or manufacturer:
Engages

in verification of product supply chains to evaluate and address risk of human trafficking and slavery (specifying whether the verification was conducted by a third party). Conducts audits of suppliers to evaluate supplier compliance with company standards for trafficking and slavery in supply chains (specifying whether the verification was an independent and unannounced audit). Requires direct suppliers to certify that materials incorporated into the product comply with the laws regarding slavery and human trafficking of the country or countries in which they are doing business.

Maintains internal accountability standards and procedures

for employees or contractors failing to meet company standards regarding slavery and human trafficking. Provides company employees and management who have direct responsibility for supply chain management with training on human trafficking and slavery, particularly with respect to mitigating risk within the supply chains of products. In the event the retailer or manufacturer does not have a web site, consumers must be provided with a written disclosure containing the above information within 30 days of submitting a written request. Enforcement of the California Transparency in Supply Chains Act Exclusive enforcement of the Act is vested with the Attorney General of California. Every year, the Franchise Tax Board will provide the Attorney General with a list of retail sellers and manufacturers that are covered by the Act, based on the previous years tax returns. The only remedy available to the Attorney General for those companies that fail to comply with the Act is injunctive relief. Although the Act expressly does not create a private right of action, it does state that [n]othing in this section shall limit remedies available for a violation of any other state or federal law. Californias class action plaintiffs bar will likely examine representations made pursuant to the Act seeking to identify false or misleading representations or omissions that might form the basis of a claim under other California statutes. Example of company compliance Genentech has requested that all key suppliers that supply materials for use in our products comply with the Roche Supplier Code of Conduct, or an equivalent code of conduct. Genentech is in the process of ensuring that all suppliers have an equivalent code or agree to the Roche Supplier Code of Conduct. The Roche Supplier Code of Conduct provides, among other things, that our suppliers may not use any form of child, involuntary, or slave labor in the manufacture of the goods that are incorporated into products that we sell. We have the right to audit our suppliers and we conduct or use third parties to conduct routine announced audits of suppliers on a periodic basis. These audits look at numerous issues, including issues related to child, involuntary or slave labor in the supply chain. If any supplier is found to have used child, involuntary, or slave labor in the manufacture of products supplied to us, we will cancel all outstanding orders with such supplier.

Because of the overwhelmingly positive response to Genentechs request that vendors comply with the Code, we have not required independent certifications of compliance. We have conducted internal training on issues related to child, involuntary and slave labor with all of our global sourcing staff who have direct responsibility for supply chain management, as well as certain other management personnel and product buyers. Any employee who fails to abide by our procedures regarding forced labor will be subject to disciplinary action, including potential termination. Questions regarding supply chain transparency laws As with any corporate policy, how do we distinguish between policy and practice? How will we know whether it is all fluff? Will boards of directors and shareholders advocate for active investigation of the supply chain prior to the disclosure statement? Will the average consumer really make buying choices on the basis of the information provided in the disclosure statement? Do we want to know whether trafficking or labour exploitation reduced the price of the goods we buy? In theory, you can find out (at slaveryfootprint.org) but it does not name brands. Is there a danger that voluntary codes and supply chain transparency laws will delay the enactment of stronger laws (e.g. imposing greater liability on companies that do not eradicate trafficking in their supply chains)? Is the state shifting responsibility for monitoring to the private sector?

Note: in the afternoon session we will review the course and I will answer any outstanding questions. If you email me your questions in advance of the afternoon session then I will attempt to organize them prior to class.