Fighting modern slavery in the Covid era

Margaret TaylorWednesday 3 February 2021

Covid-19 has exacerbated the economic conditions in which modern slavery thrives. Global Insight reports on how work on solutions continues despite the global turmoil created by the pandemic.

Header pic: Workers who have been saved from labour exploitation and are currently working with NoCap, Sagnet’s NGO. Pictures supplied courtesy of Yvan Sagnet and NoCap.

As a child growing up in Cameroon, Yvan Sagnet began dreaming about moving to Italy after becoming hooked on the Italia 90 FIFA World Cup. His dream came true when he won a scholarship to study engineering at the Polytechnic University of Turin in 2008, but quickly turned into a nightmare when he failed an exam, lost his scholarship and, at a friend’s suggestion, travelled to the south of the country to try to find work.

From a cardboard home in a Puglia slum, he was transported daily to a local farm where, for up to 14 hours a day, he and 1,200 others picked tomatoes under the beating sun in return for a little less than £5 a shift. With control of his life effectively passing to the region’s gangmasters, Sagnet says he felt like he had been enslaved, describing the experience as akin to ‘being in the cotton fields of America’ at the height of the transatlantic slave trade.

‘I couldn’t believe this was Italy’, he recalls. ‘I had never experienced conditions like that in Cameroon. Africa is poorer than Italy, but in terms of dignity I had never experienced anything like it.’

Modern slavery

The kind of exploitation Sagnet experienced comes under the umbrella term ‘modern slavery’, and his story is far from an isolated one. Although ‘modern slavery’ is not defined in law, the International Labor Organization (ILO), a United Nations agency bringing together governments, employers and workers from 187 member states, says that in 2016 – the most recent year for which figures are available – an estimated 40.3 million people were living in some form of slavery at any given time.

Of those, 24.9 million were trapped in forced labour while 15.4 million had been forced into marriage. Women and girls were disproportionately affected and, while modern slavery was found to be occurring in every region of the world, it was most prevalent in Africa, where it affected 7.6 people in every 1,000, followed by Asia and the Pacific (6.1 per 1,000), and then Europe and Central Asia (3.9 per 1,000).

Neil Gold, Immediate Past Chair of the IBA Poverty and Social Development Committee and a professor of law at the University of Windsor in Canada, says these figures are likely to soar as huge numbers of people he describes as a ‘having a marginal ability to maintain themselves’ are tipped into extreme poverty as a result of the Covid-19 pandemic.

The potential extent of the issue is clear from figures released by the World Bank in October 2020, which estimated that an additional 88 million to 115 million people would be pushed into extreme poverty this year, with the total rising to as many as 150 million by 2021 depending on the severity of the economic contraction.

Factory workers involved in one of the projects run by NoCap, Sagnet’s NGO, September 2020.

‘That means everyone is hungrier for work and so will be more likely to engage in activity that is problematic’, Gold says. ‘It does create a problem and a double incentive on the ones most likely to be exploited. When there’s struggle and strife those who are weak get weaker.’

Back in 2017, the ILO highlighted the ‘global and cross-border dimensions’ of modern slavery, as well as the ‘array of forces – economic, social, cultural and legal’ that enable it. Given how the world has changed in the three years since, Sara Carnegie, Director of the IBA Legal Policy and Research Unit (LPRU), stresses that it is now ‘one of the most pressing issues of our time’.

Under Carnegie’s leadership, the LPRU has launched a project designed to highlight exactly what is meant by modern slavery, how it touches on everyone’s lives due to the way it is baked into global supply chains, and the steps that might be necessary to eradicate it.

‘We want to achieve a greater sense of awareness in terms of how countries are thinking about legislation, with one area [of focus] being how victims are treated’, Carnegie says. ‘It’s very easy to go for low-hanging fruit when it comes to law enforcement but that means victims are criminalised. There’s an analysis to be done on what’s being applied in different jurisdictions and what best practice is.’

Finding legal solutions

It is almost 13 years since John Ruggie, the UN Secretary-General’s then Special Representative for Business and Human Rights, published a report entitled Protect, Respect and Remedy. In this report he detailed how member states have a duty to protect citizens against human rights abuses by third parties, and how businesses also have a corporate responsibility to respect those rights.

That duty has been incorporated into a number of domestic laws since, with the United States’ state of California introducing its Transparency in Supply Chains Act in 2010, the United Kingdom and Australia passing Modern Slavery Acts in 2015 and 2018 respectively, and France instituting its Duty of Vigilance Law in 2017.

The common theme running through each of these laws is that they put the onus on businesses to identify human rights abuses within their supply chains, with the focus more recently beginning to shift from voluntary reporting and disclosure to mandatory due diligence.

When, for example, European Commissioner for Justice Didier Reynders committed to introducing new legislation at the European Union level in April 2020, he said mandatory human rights and environmental due diligence would be incorporated. Full details of how that law will operate are expected later this year.

Yvan Sagnet is given honorary citizenship of the city of Lecce for his work to end modern day slavery, 8 September 2020.

Yet, due in part to the global nature of supply chains, such laws do not by definition mean stamping out modern slavery is going to be a simple task. Indeed, using the example of the Indian sandstone industry, Daniel Appelman, Treasurer of the IBA Human Rights Law Committee and a partner at Silicon Valley firm M&H, says that identifying who should be responsible for carrying out – and acting upon – mandatory due diligence is a vexed legal issue.

Appelman explains that sandstone is used for home construction and there’s a long supply chain. ‘If you work backwards from the consumer who wants a nice house, they hire a contractor to build the house. The contractor needs raw materials so buys them from an importer. The importer traces the chain back to an exporter, who has bought it from the manufacturer or the company that mines it’, he says.

He highlights that within the sandstone industry there are questions of child labour and the miners, who are very poor and work in the mines for very low wages. ‘Sometimes it’s bonded labour as they have to take loans from the companies that employ them’, he explains. ‘Whether it is the responsibility of the contractor or the importer of those materials to investigate the links in the chain is a highly dynamic and developing area of law.’

To some degree that question is moot when all corporations should be paying attention to the activities of the organisations they do business with anyway. However, Rocío Domingo Ramos, Business and Human Rights Policy and Research Officer at advocacy group Anti-Slavery International, points out that even at a time when mandatory due diligence is becoming the norm there is little incentive to ensure all businesses comply.

Noting that the UK Modern Slavery Act ‘has a lot of shortfalls because it doesn’t include sanctions for non-compliance’, Ramos says that Anti-Slavery International is lobbying hard to ensure penalties for non-compliance are incorporated into the new EU legislation when it comes.

‘We’ve been working on mandatory human rights due diligence at the EU level for three years and the European Commission has committed to introducing a proposal for new legislation next year’, she says. ‘That will require those companies that operate in the EU – those that sell there as well as those that are based there – to take steps to reduce the impact of human rights and environmental issues.’

For Ramos, this is very significant as voluntary measures have been shown to not be enough. One of the things that members of the European Parliament (MEPs) are divided on, however, is the issue of liability and enforcement.

‘We think [the forthcoming EU] legislation must include strong sanctions for non-compliance – we want criminal liability to be one of the key elements of this legislation – but some MEPs don’t want to put more burdens on businesses’, says Ramos.

Power in unity

Regardless of whether various laws are seen to have teeth or not, there is a growing consensus that companies need to act fast to avoid damage to their brands if forced labour is uncovered in their supply chains.

In mid-January, UK Foreign Secretary Dominic Raab warned British companies they’ll face fines if they’re unable to show their due diligence in keeping their supply chains free of forced labour. The fines are part of proposals published by the Foreign Secretary specifically in relation to conditions for Uighur workers in China’s north-western Xinjiang region.

In February 2020, a large number of major brands were named in a report from the Australian Strategic Policy Institute as either directly or indirectly benefitting from the forced labour of Uighur workers in the Xinjiang region. Some of the companies named were called before the UK Parliament’s Business, Energy and Industrial Strategy Committee to publicly account for how potential weaknesses in their supply chains could be squared with their anti-slavery policies. A number of the brands have denied the report’s claims, either to the media or during the UK parliamentary committee hearings.

Thomas Wilson, Website Officer of the IBA Human Rights Law Committee and a partner at Vinson & Elkins in Houston, Texas, says that as ‘most international corporations are very aware of their reputations’, many are taking action to avoid similar situations by writing anti-slavery clauses into their contracts.

This means they can easily extricate themselves from damaging relationships as and when human rights abuses are uncovered, allowing them to take the kind of immediate action that will enable them to save face with shareholders and consumers.

‘When companies know this could be an issue, they need to think about it in their contracts because this has a big impact on the social part of ESG [environmental, social and corporate governance]’, he says. ‘If investors can read your ESG report, see what you’re doing and possibly make decisions based on that you have a lot of reasons to be very careful here.’

‘Companies are looking at contractual arrangements to make sure they can have a positive impact on this issue if it turns out from their due diligence that some part of their supply chain may be involved in modern slavery’, says Wilson.

While breaking ties with suppliers who fall short on human rights standards is one option open to international corporations, another is to work either with them, or directly with their employees, to improve the situation on the ground.

Fashion retailer ASOS has been involved in a pilot project aimed at empowering migrant workers employed in garment factories across Mauritius to speak out about any rights infringements. It is working with Anti-Slavery International to develop an app that will help migrant workers who flock to the island nation from Bangladesh, India and Madagascar to check what their rights are and raise grievances.

Yvan Sagnet is knighted Cavaliere dell'Ordine al Merito della Repubblica Italiana (Order of Merit of the Italian Republic) by Italian president Sergio Mattarella, February 2017.

For Tara Archer-Glasgow, Vice-Chair of the IBA Poverty and Social Development Committee and a partner at Bahamian firm Higgs & Johnson, finding ways to empower workers to stand up for their rights can be just as important as having laws that protect them. In many ways, she believes, the two are co-dependent: laws can, after all, only be invoked once it is clear they may have been broken.

Citing the case of a group of Chinese construction workers who managed to get evacuated from the Bahamas in the wake of the Covid-19 pandemic, Archer-Glasgow says third parties such as lawyers need to recognise that they have a role to play too.

‘The Chinese workers marched, but no one listened to them’, Archer-Glasgow says. ‘Eventually they found a lawyer who brought them together and they wrote a letter asking to be returned to China because they felt at greater risk in the Bahamas.’

‘You need to find a corporate person to speak for you. In this instance it was a health concern, but no one paid attention to them marching individually. They got together collectively and spoke to the ambassador of China then people sat up and listened. There’s power in unity’, she adds.

Despite this, Ben Hensler, General Counsel at Washington DC-based labour rights monitoring organisation Worker Rights Consortium, says that in some instances no amount of action, collective or otherwise, will make a difference to the abuses going on. That means that as part of their due diligence brands will need to consider whether there are some places in the world where they simply cannot do business at all.

‘There’s no way that if you’re sourcing products that are made in north-west China, or made with input from there, that they are not being made with forced Uighur labour’, he says. ‘The scale of forced labour is too great, and the surveillance of the population is so great that no one is free to speak candidly to an auditor.’

Hensler says brands need to take an honest look at whether it’s actually possible for them to make a difference or not. ‘In a country like Cambodia, which is highly dependent on export garment manufacturing, if brands make a call that they expect respect for labour rights as a condition of doing business there, the government is likely to be really responsive if that demand is made in a serious way’, he says.

‘But the notion that a single brand, no matter its size, will be able to make a difference in a state being run as a giant labour camp is implausible’, Hensler says.

The Covid conundrum

It also seems implausible to assume, at a time of global strife, that legislation, contractual clauses and worker action are going to be enough to end modern slavery.

Indeed, as noted by Gold, Covid-19 is exacerbating all the conditions that help modern slavery thrive. Luz Nagle, 2019-2020 Latin American Regional Forum Liaison Officer on the IBA Poverty and Social Development Committee and a professor of law at Stetson University in Florida, agrees and adds that the pandemic’s impact has already been devastating.

‘In the informal economy, people that sell food or sell trinkets depend on big social events happening [in order to make a living] and all of a sudden they had nothing’, she says. ‘Now what we have is an enormous supply of vulnerable people and their vulnerability to enslavement is going to increase. That will amplify some of the drivers of human trafficking.’

As Gold pointed out, the pandemic has resulted in a far larger pool of people willing to take on jobs that come with appalling conditions and derisory levels of pay. Appelman adds that unscrupulous companies are in turn taking advantage of the oversupply of desperate workers – at a time when the international community’s eyes are averted – to make those conditions and pay levels even worse.

‘The pandemic gives all kinds of excuses for companies to disrespect human rights’, he says. ‘Covid-19 is reducing demand for the goods, services and materials that are produced by exploited labour, and employers have much more leverage to pay less and not improve working conditions. We’re seeing this all-over developing countries: Covid-19 being used as an excuse.’

For Nagle, it has therefore never been more important for businesses to be on top of what is happening at every stage in their supply chain so they can take action when a discrepancy is found.

She says businesses must realise they need to work with their suppliers. ‘They need to sit down and say they need to be part of the solution. They need to look at the political risks that exist in places where their suppliers are. Are there weak protections on civil liberties and human rights? Do they have any corruption associated with human trafficking? Do officials look the other way? There’s a duty on corporations to ensure that their suppliers are not abusing human rights’, she explains.

A blended approach

Notwithstanding the commitment that various governments and organisations have made to rooting out modern slavery it is clear that, particularly in the time of Covid-19, their efforts cannot work in isolation. Rules and regulations are one thing, but they must be coupled with direct – and preferably public – action if they are to stand a chance of safeguarding those they’ve been designed to protect.

Back in Italy, that is something Sagnet discovered very quickly after mobilising his fellow tomato pickers to protest against the conditions they were living and working under. All 1,200 workers from the slum in which Sagnet was housed took to the streets, blocking one of Puglia’s main roads in the middle of the busy tourist season to demand that their contractual rights be upheld.

Not only did they capture public and media attention but also, crucially, the blockade meant the gangmasters were unable to access any workers, so the farmers had no labour either. This was key to the strike’s success.

‘The strike lasted two months’, Sagnet says. ‘The first important outcome was that it showed that things could be done, but it also raised awareness, which led to an important change in the law.’

Passed in 2016, new legislation made it a crime for farmers to exploit migrant workers and for anyone to act as an intermediary to procure that labour. In the area Sagnet worked, several cases have been brought under that law and several of his friends have come forward to act as witnesses. ‘There’s still a lot to be done to improve workers’ conditions, but I feel positive that we’re starting to see change’, Sagnet says.

Ultimately, Sagnet, who now runs a non-governmental organisation focused on raising awareness of the pervasiveness of modern slavery in supply chains, believes that all of us, as consumers, could have the most important role of all to play. That’s because until the market for cheaply produced goods dries up there will always be the potential for exploitation.

‘There is always someone else behind the gangmasters’, he says. ‘It could be the farmer but, more importantly, behind them are the supermarkets and they dictate the prices, which are often very low. The last link is consumers, and we have to ask ourselves what we are buying, especially when prices are low because often it’s tainted with people’s blood.’

‘On the one hand there need to be strict laws, especially against human trafficking’, says Sagnet. ‘On the other hand, we need to change the economic model to allow for traceability of products to nudge consumers into making more [informed] choices.’

Margaret Taylor is a freelance journalist and can be contacted at mags.taylor@icloud.com

For more on this subject, watch a recording of Ending modern slavery: how the legal profession can meet the challenge at the IBA 2020 - Virtually Together Conference.

Additionally, find out more about the LPRU's Modern Slavery initiative and watch their short film on modern slavery and supply chains here.