Legal Accountability

Since 2010, California (U.S.), the U.K., Australia, and France have supplemented their anti-trafficking and forced labor statutes through a combination of supply chain transparency, human rights due diligence, and customs laws. Such policies move enforcement to a more proactive, industry-wide posture, and are therefore tools of prevention and prosecution.

California Transparency in Supply Chains Act of 2010 | U.S.

The California Transparency in Supply Chains Act (CTSCA), signed into law in 2010, was the first law to articulate a policy that large retailers and manufacturers can inadvertently condone forced labor or child labor through its supply chains. The act requires any any retail seller or manufacturer with with gross receipts exceeding $100,000,000 and doing business in California to disclose its efforts to eradicate slavery and human trafficking from its supply chain. See, Senate Bill No. 657, California Civil Code Section 1714.43.

The Act recognizes that “absent publicly available disclosures, consumers are at a disadvantage in being able to distinguish companies on the merits of their efforts to supply products free from the taint of slavery and trafficking.” The CTSCA requires that large businesses must disclose— typically on their website — the extent to which they verify product supply chains to evaluate the risks of human trafficking and slavery; conducts audits of suppliers to evaluate supplier compliance; requires direct suppliers to certify materials in its products comply with the laws in the country or countries in which it does business; maintains internal accountability; and provides training to company employees and management.¹

Modern Slavery Act of 2015 | U.K.

Activists and parliamentarians in the U.K. sought to build on the CTSCA while drafting and debating the Modern Slavery Act (MSA) of 2015, which requires a more-formal filing by businesses, with more governmental oversight than the California law. Commercial organizations, regardless of where incorporated, that supply goods and services with an annual global derived revenue of more than £36 million, are required to file an annual slavery and human trafficking statement about “the steps the organization has taken during the financial year to ensure that slavery and human trafficking is not taking place in any of its supply chains, and in any part of its own business.” See, Modern Slavery Act, S.54.²

In September 2020, the U.K. and European Union announced initiatives to increase human rights transparency in the private and public sector. The U.K. Home Office plans to enhance the MSA in 2021, and businesses have been advised to start auditing their due diligence and reporting on slavery and forced labor.³

Modern Slavery Act of 2018 | Australia

In 2018, the Australian government passed the Modern Slavery Act, requiring businesses based or operating in Australia, with an annual consolidated revenue of more than $100 million, to report annually on the risks of modern slavery in their operations and supply chains. The annual reports are publicly filed and maintained in a repository known as the Modern Slavery Statements Register. See, Modern Slavery Act, No. 153, Simplified Summary of Act, Part 1, Section 3.⁴

The Modern Slavery Act is a significant step forward in combating modern slavery in Australia. First, by requiring businesses to assess the risks of modern slavery in their operations and supply chains, the Act forces businesses to pay attention to this issue. Second, the Act sets the stage for increased accountability by requiring each business to file an annual report setting forth its efforts to identify and curtail risks of forced labor within its operations. Finally, the Act provides for a public repository of the annual reports, accessible online, which could help increase transparency. In short, the Act’s emphasis on increased accountability and transparency is essential to creating a culture that values and promotes slave-free and ethical business practices.

Duty of Vigilance Law of 2017 | France

Another set of laws, which are not limited just to modern slavery, have been emerging in the European context. In 2017, France enacted a human rights due diligence statute that went beyond the relatively neutral reporting ethos of the California and U.K. laws. See, Republic of France Legislation. Law No. 2017-399. Compared to the California or U.K. laws, the French statute’s requirements are more expansive, including a host of human rights and environmental concerns and requiring companies to not merely report on efforts, but to affirmatively adopt and carry out a “vigilance plan” that sets forth how they will assess human rights risks among subsidiaries, subcontractors, and suppliers; how they will track and mitigate risk; and what mechanisms they will use to assess effectiveness.⁵

In the immediate term, with all of the various transparency legislation, businesses can expect that architecture, engineering, and construction firms will be affected either by having to file disclosures themselves or by having suppliers who are big enough to have disclosure requirements. Those who must file disclosures themselves will have to adopt and execute policies and procedures to make their disclosures accurate or risk regulatory or criminal exposure. Those who work with businesses required to file disclosures will have the advantage of assessing potential suppliers or partners for their anti-slavery activities. Filing businesses whose public disclosures and private actions are aligned will develop a reputation for ethical business practices that will inure to those who use their products or services.

“The design and construction of such large architectural projects involves a highly collaborative and often widely dispersed group of clients, financiers, architects, engineers, consultants, manufacturers, contractors, and workers who construct a fully realized project. Many of these actors must coordinate and work together through efficient technological platforms, established standards, and global legal and trade agreements. Through shared software platforms, international sizing and manufacturing standards, and disciplinary frameworks, nearly every aspect of the design and construction process can be quantified and organized. One area that remains shockingly unregulated is the human labor used to construct such designs of the future.” — Who Builds Your Architecture? A Critical Field Guide, 2017

Sustainable Development Goal 8.7

The Sustainable Development Goals (SDGs),⁶ promulgated by the United Nations in 2015 and adopted by 193 member countries, set forth an ambitious framework for development work in the coming decade, ranging from poverty alleviation and gender equality to climate action and rule of law. SDG 8 sets forth a number of targets to ensure decent work and economic growth. Target 8.7 mandates member states to:

[t]ake immediate and effective measures to eradicate forced labour, end modern slavery and human trafficking and secure the prohibition and elimination of the worst forms of child labour, including recruitment and use of child soldiers, and by 2025 end child labour in all its forms.⁷

Target 8.7 is driving change. The International Labour Organization serves as Secretariat for the United Nations coordinating body, Alliance 8.7. Through this process, states, businesses, civil society, and international organizations are working to implement the target, including specific work on supply chains. The Delta 8.7 Knowledge Platform, maintained by United Nations University, seeks to increase the knowledge base around modern slavery issues and is becoming a useful repository of research and analytical tools, such as a global compendium of national laws against slavery and trafficking. SDGs are so important because they are informing governments’ responses to modern slavery and are also being incorporated into business and investment practices, which make a real, cross-sector impact. Financiers— whether investors, banks, or the global financial institutions that often fund major infrastructure construction such as the World Bank and International Monetary Fund — are also examining projects and funding priorities through the lens of the SDGs.⁸

Trade Facilitation and Trade Enforcement Act of 2015 | U.S.

The U.S. Trade Facilitation and Trade Enforcement Act of 2015 (TFTEA)⁹ prohibits all products made by forced labor, including child labor, from being imported into the U.S. See, Section 307 of the Tariff Act of 1930 (19 U.S.C. S 1307). It states: All goods, wares, articles, and merchandise mined, produced, or manufactured wholly or in part in any foreign country by convict labor or/and forced labor or/and indentured labor under penal sanctions shall not be entitled to entry at any of the ports of the United States, and the importation thereof is hereby prohibited … ¹⁰

TFTEA operates mainly through the mechanism of a “withhold release order” (WRO), through which a sub-agency of the Department of Homeland Security, U.S. Customs and Border Protection (CBP), prohibits the goods from entering into the U.S. WROs are issued not on proof beyond a reasonable doubt, as in a criminal case, or even by a preponderance of the evidence, as in a civil action, but when there is reasonable suspicion to believe the goods are made by forced labor, prison labor, or forced child labor. WROs can be lifted once CBP is satisfied that the company has taken remedial measures in its supply chain. WROs for forced labor enforcement is a relatively new activity for the U.S. government, but the reach of the affected goods has to date been broad, ranging from agricultural commodities to minerals, from personal protective equipment to fish. Important precursor chemicals such as soda ash and potassium nitrate have also been barred entry.

Companies can also be placed on what is known as the “entities list.” In July 2020, 10 Chinese companies were placed on the entities list because of the widespread state-sanctioned forced labor of Muslim populations in their home province of Xinjiang and in other areas of China to which they have been forcibly relocated. Human rights researchers report that sanctioned producers are in the supply chains of at least 80 major multinational companies. While many of the companies were apparel or footwear brands or retailers, others were systems,equipment, or electronics companies such as Bosch,Cisco, Dell, Electrolux, General Motors, Hitachi, HP, Huawei, Lenovo, LG, Mercedes-Benz, Mitsubishi, Panasonic, Siemens, and Toshiba.¹¹

In assessing the flow of slave-made goods in international commerce, major economies are increasingly paying attention to the role of governments, whether as actively participating in forced labor, failing to adequately protect workers from exploitation, or pursuing policies that facilitate exploitation. Accordingly, if goods or services are obtained or maintained through coercive force, it does not matter if a particular practice is legal in a country — such as holding workers’ passports, using political prisoners’ labor, or allowing child labor — the resulting goods and services are considered to be connected to slavery nonetheless. Compliance with the least-stringent legal standard in a developing or autocratic country will not shield a company from liability in the globalized world.

Governmental and Non-Governmental Reports

The most basic way to assess the likelihood of slavery in a supply chain is to be aware of current trends in particular countries and around specific commodities or manufacturing sectors. A good starting point is the three major reports: the U.S.’ Trafficking in Persons Report and List of Goods Produced by Child Labor or Forced Labor, and the Walk Free Foundation’s biennial Global Slavery Index. Reports by established, credible human rights organizations (such as Human Rights Watch or Amnesty International) or industry-specific watchdog groups or think tanks (such as the Environmental Justice Foundation), are not issued on as regular a schedule, but are an important— and often more in-depth — snapshot of particular areas of concern.

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1. California Transparency in Supply Chains Act, State of California.
2. Modern Slavery Act, UK Public General Acts. 2015.
3. With Recommendations to the Commission on Corporate Due Diligence and Corporate Accountability, European Parliament, Committee on Legal Affairs. September 9, 2020.
4. Modern Slavery Act 2018, Australian Government Department of Home Affairs. 2018.
5. CBP and the Trade Facilitation and Trade Enforcement Act of 2015 (TFTEA), U.S. Customs and Border Protection. 2015.
6. Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, United Nations. New York, November 15, 2000.
7. On the Duty of Vigilance of Parent Companies and Ordering Companies, Republic of France Legislation. Law No. 2017-399. March 27, 2017.
8. Sustainable Development Goals, United Nations General Assembly. New York, 2015.
9. Sustainable Development Goals, Alliance 8.7, United Nations. 2015.
10. Walker et al. “Sustainable Development Goals: Harnessing Business to Achieve the SDGs through Finance, Technology and Law Reform,” Wiley. 2019.
11. CBP and the Trade Facilitation and Trade Enforcement Act of 2015 (TFTEA), U.S. Customs and Border Protection. 2015.
12. Forced Labor: Section 307 of the Tariff Act of 1930 (19 U.S.C. § 1307), U.S. Customs and Border Protection.
13. Uyghurs for Sale, Australian Strategic Policy Institute. 2020.