All Hands on Deck: Legal Intersections with Human Trafficking in Supply Chains

ABA ROLI explores numerous entry points to reduce the risk of human trafficking in global supply chains.
Photos via Kyaw Thaung (top left), Lynsey Addario (top right), City Limits (bottom left), and Welt, (bottom right).

by Mridula Shrestha

If you were general counsel to a company considering operating in a country, and you were committed to rooting out trafficking in persons (TIP) in your supply chain, what would you want to know about that country’s legal and policy frameworks? Asked another way, where in a country’s legal and regulatory frameworks can law- and policy-makers look for points of intervention to prevent and combat TIP? These inquiries framed the American Bar Association Rule of Law Initiative’s task in a two and a half -year project supported by the U.S. Department of State’s Office to Monitor and Combat Trafficking in Persons, with Verité as our primary partner, to map legal intersections and identify trafficking risk in supply chains in sub-Saharan Africa.

These questions led us in many more directions than we had originally anticipated. We started, of course, with the usual suspects. For example: Is there anti-TIP legislation and a national action plan? Are there governmental institutions specifically mandated to combat TIP? Does the criminal code criminalize TIP, and how stringent are the penalties? To what services and protections are victims entitled? What migration and border control measures exist? How does the labor law mitigate or exacerbate TIP risk?

We then probed a little further, in areas that are generally recognized as linked: How does the legal framework address organized crime and corruption? Does the country comply with international standards regarding individual and community rights? How does the law address rights to natural resource extraction and land ownership? How is access to justice provided, by formal and informal means? Do laws regulating financial transactions help trace TIP activity? Can corporations be held legally liable for violations of laws? Are there laws to protect the environment and manage humanitarian disasters? Do policies promote remittance economies without safeguards for exploitation and mechanisms for safe migration and return?

We went even further, into less examined hypotheses: How do laws governing contracts play a role - for instance, are fraudulent contracts deemed void or voidable? Do under-regulated illicit markets, such as those for counterfeit goods, increase vulnerability? Does the way companies and employees are required to report their taxes allow an opportunity to identify red flags?

These are just a small sample. With our team of in-house and pro bono lawyers, and our dedicated interns and fellows, we considered many more areas of inquiry and worked together to conceptualize the potential nexus of these to (mainly) trafficking for labor exploitation. With the generous pro bono support of lawyers at Skadden Arps, Littler Mendelson and Kirkland & Ellis, who provided expertise in specialized areas of law such as international trade, tax, finance and banking and environmental law, we worked together to connect the dots. We situated our inquiry in sub-Saharan Africa, but realized quickly that it was applicable to supply chains anywhere in the world.

It was simultaneously thrilling and overwhelming to explore the many pressure points in the law that may affect the incidence of TIP; the accountability and cost-benefit analysis of perpetrators; and the experience and vulnerability of survivors. We consulted and anchored to international standards wherever we could, but did not limit ourselves to them in drawing potential connections. You can read a summary of our approach here.

By design, our project was one to raise rather than answer questions. We have not run any regressions (yet) to establish causal connections, or even report empirical correlations - we have a long way to go for that, including as a community of practitioners to collect and report reliable data on prevalence and vulnerability. What we don’t know, is which of our hypotheses are supported by the evidence? What have we missed? What sectors and supply chains are likely to benefit most from legal intervention? And perhaps most of importantly of all, what really matters - i.e., which of these legal and policy areas should we target for reform in a given context to actually move the needle to counter trafficking?

As large in scope as our project was, it was a very small first step in figuring out how we might expand our use of the law to fight TIP more effectively. For me, the main takeaway was that you don’t need to work in the conventional anti-TIP space to help eradicate trafficking. There are potentially so many entry points for intervention, and we urgently need to try many more than we have, to defeat this elusive yet globally pervasive crime. Justice sector actors working in all areas - from governance, criminal justice, immigration, trade, banking, tax, energy, property, environmental to human rights and labor - and partners in civil society and the private sector, all have a part to play, and can innovate within and across our respective fields to find what works. We can use - and need - all hands on deck.

Mridula Shrestha is Co-Chair of ABA ROLI’s Trafficking in Persons Practice Group and Advisor in the Research, Evaluation and Learning team in Washington, DC.