Introduction
There are an estimated 40.3 million in modern slavery—a $32 billion annual-income business (at minimum), of which one out of four victims are children.[1] The International Labor Organization (ILO) reports:
Out of the 24.9 million people trapped in forced labour, 16 million people are exploited in the private sector such as domestic work, construction or agriculture; 4.8 million persons [are] in forced sexual exploitation; and 4 million persons [are] in forced labour imposed by state authorities. Women and girls are disproportionately affected by forced labour, accounting for 99% of victims in the commercial sex industry and 58% in other sectors.[2]
Human trafficking is an immoral atrocity and a gross violation of the rights of persons. Humankind—both male and female, adult and child—are made by God, in His image. Genesis 1:27 (Amplified Bible, Classic Edition). God has created mankind for His glory and good purposes, not for man’s misuse and abuse. Isaiah 43:7 (Berean Study Bible). For we are [God’s] workmanship, created in Christ Jesus unto good works, which God hath before ordained that we should walk in them. Ephesians 2:10 (Berean Study Bible). God commissions and ordains good-hearted leaders to speak to the Pharaohs of the world, “Let My people go, that they may serve Me.” Exodus 8:20 (Amplified Bible, Classic Edition). It is this same battle—setting the captives free, that began at the Fall (of mankind into sin) and runs the risk, unfortunately, of continuing until Christ comes again. Genesis 3 (Amplified Bible, Classic Edition). At that time, Christ will bring His “wages and rewards” (misthos: recompense or punishment) to repay to each person what his or her own actions and work merit. Revelation 22:12 (Amplified Bible, Classic Edition). It is with this biblical warning, and the hope of setting people free from the modern slave trade, this paper attempts to inspire corporate leaders to soberly evaluate the ethics of their contemporary business practices, extracurricular dealings amongst colleagues or associates, and policymaking with various national governments, and to seriously consider their global leadership capacity regarding the abolition of human trafficking and forced labor.
Modern slavery crosses all cultures, jurisdictions, and economic lines and its defeat requires strategic confrontation within those very same lines. In an increasingly global economic environment, transnational corporations (TNCs) are at the influential forefront of multicultural and technological change. While globalized trade and jurisdictive conflicts pose hurdles to overcoming human trafficking and forced labor,[3] such avenues also provide the opportunity for ethical business practices to fulfill the intention of the U.S. Declaration of Independence and the International Bill of Rights with regard to every individual within their economic sphere. This paper will address the economic and social benefits for the cooperative convergence of corporations within the operative combat of the modern slave trade—in both domestic and international jurisdictions, by appealing to the fundamental principles of international and natural (biblical) law. This paper will assert multinational corporations, and representative individuals of such TNCs, hold an ethical and legal obligation to refrain from business practices and dealings which directly or indirectly allow human trafficking and forced labor events to proceed.
Overview of Topic and Relevance to Human Rights Development
International capitalism has the ability to provide beneficial opportunities and economic independence for people around the world.[4]However, transnational corporations are motivated by profit and working conditions in “developing countries are often very poor,” child labor is common, and the “standards in developing states tend to be low or unenforced.”[5] Dana Raigrodski explains the economic complexity of this issue:
The ILO and the U.S. State Department estimate that at least 20.9 million adults and children are victims of forced labor, bonded labor, and commercial sexual servitude… 18.7 million...are exploited in the private economy. Of these, 4.5 million...are victims of forced sexual exploitation, and 14.2 million...are victims of forced labor exploitation. In 2005 and 2009, the ILO estimated…annual profits from human trafficking are at least $32 billion, of which $15.5 billion is made in industrialized countries. More current estimates put the total illegal profits obtained from the use of forced labor worldwide at $150.2 billion per year.[6]
It is important to consider these illegal and unethical dollars contribute a steady income stream towards legal commercial revenue, “which would not exist without the…trafficking of billions of people around the globe.”[7]No consumer is entirely immune to tainted commerce, however, the average consumer is becoming increasingly conscientious about where they spend their dollars, due to ethical considerations. The aforementioned dollar amounts do not account for funds “generated by trafficked and forced labor within the trillions of dollars in capital flowing across the globe.”[8]Of the “300 billion dollars generated annually by migrant worker remittance, possibly as much as 20 percent goes to pay commissions and debt bondage to the traffickers.”[9]The U.S. is the largest independent consumer in the world, with the government alone spending “$500 billion a year…in the global economy.”[10]
At the 2008 World Economic Forum, Bill Gates called upon corporations to begin initiatives toward “creative capitalism” with the “twin mission [of] making profits and also improving lives for those who don’t fully benefit from market forces.”[11] This ideology advisedly should permeate corporate culture in that businesses are “subject to the disciplinary regimes of…international human rights.”[12]
Article 21 of the Norms [Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights] include[s] any business entity, regardless of the…sphere of its activities.[13]
This means any business entity is responsible and can be held liable for human rights violations globally. There is no doubt that corporations are “powerful forces” within every nation.[14]
The 300 largest corporations account for more than one-quarter of the world’s productive assets [and] transnational corporations hold ninety percent of all technology and product patents worldwide, and are involved in seventy percent of world trade…[and] employ 90 million people (of whom some 20 million live in developing countries)…[15]
One of the greatest challenges facing international law is the tension between the voluntarism of, and enforcement over, independently sovereign states—some of which have differing viewpoints on legality, political policy, and cultural mores regarding forced labor, human rights, and even sexual exploitation. But perhaps the even greater challenge lies in harnessing the “powerful force” of transnational corporations as the primary instrument in the advancement of human rights policy around the world. This, too, is both voluntary and enforceable by international law. In order to persuade TNCs, and their members, to lead in the advocacy of global human rights, consideration must be made regarding the three main areas of profits, legality and ethics.
Human Rights Legal Framework
Many transnational corporations conduct business or contract with third parties in underdeveloped countries where the human rights and labor laws are lax, getting by with sub-par labor standards due to the undeveloped state’s jurisdictive authority. However, cutting these corners has legal repercussions under international law. According to David Weissbrodt and Anti-Slavery International:
The International Court of Justice has identified protection from slavery as one of two examples of “obligations erga omnes arising out of human rights law,” or obligations owed by a State to the international community as a whole. The practice of slavery has thus been universally accepted as a crime against humanity and the right to be free from enslavement is considered so fundamental “that all nations have standing to bring offending states before the Court of Justice.”[16]
Slavery, including forced labor, constitutes a “war-crime when committed by a belligerent against the nationals of another belligerent;” and it is a “crime against humanity” when committed by public officials against any person irrespective of circumstances and diversity of nationality.”[17] It is important for those engaged in international business to be aware that government officials, such as in Tier 3 China, who are committing the crime of forced labor are not immune from penalty under international law, nor are any private persons involved in any “crime against humanity” involving any person.[18]
The United Nations Secretary General, at the World Economic Forum of 1999, “called upon world business leaders to endorse the Global Compact” which included “nine voluntary principles with respect to human rights, labor standards, and the environment.”[19] In 2004, a tenth statement was added to read, “Businesses should work against all forms of corruption, including extortion and bribery.”[20] The term “corruption” implicitly calls for ethical business operations on every level. In addition, the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights clarify standards and accountability of corporate conduct, and the Global Sullivan Principles voluntarily promote corporate social responsibility and transparency.[21] Both the United States Constitution and the Universal Declaration of Human Rights prohibit slavery.[22] Further, the U.S. has ratified the International Covenant on Civil and Political Rights (CCPR) and the Convention on the Rights of the Child Optional Protocol (CRC-OP-SC), which respectively hold states, groups and individuals accountable (Art. 2, 5) and prevent the sale of children and child prostitution.[23] In short, detestable cultural mores and unethical business or government practices which constitute “slavery” are now prosecutable as “crimes against humanity” under international law.
Per the foregoing, businesses originating in developed nations such as the U.S., and each individual employee, now have a global, legal responsibility under international law to not “take advantage of” the lack of local jurisprudence with regard to forced labor and human trafficking. Further, such corporations and employees have an ethical responsibility to relentlessly endeavor to improve the lives of every individual impacted by their dealings. Case in point, the U.S. and China corroborate economically on various technologies, yet China is known for “harsh working conditions…including child labor.”[24] Despite having ratified the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child, and the CRC-OP-SC, China is a nation of top concern according to the U.S. Department of State’s 20th Edition Trafficking on Person’s Report.[25] Among several recommendations, the report recommends China:
Abolish the arbitrary detention and forced labor of persons in internment camps and affiliated manufacturing sites in Xinjiang and other provinces and immediately release and pay restitution to the individuals detained therein. End forced labor in government facilities, in nongovernmental facilities converted to government detention centers, and by government officials outside of the penal process; cease the use of harassment, threats, and illegal discriminatory immigration policies as measures to coerce the return to Xinjiang and subsequent forced labor of ethnic and religious minorities living abroad; criminalize all forms of sex trafficking and labor trafficking as defined under international law.[26]
With the U.S. Department of State issuing such report, it is imperative that U.S. TNCs, including executive leadership, legal counsel, and all employees, are fully aware of the stipulations in the report regarding each specific country with which they have dealings.
On December 25, 2003, the U.N. General Assembly’s Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (Trafficking Protocol) was entered into force.[27] The Protocol defines trafficking in persons, in three applicable elements:
1) An action, consisting of “recruitment, transportation, transfer, harbouring or receipt of persons”; 2) By means of “the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person”; [and] 3) For “the purpose of exploitation”. [It] includes, “at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude, or the removal of organs”.[28]
While the U.S. has strict laws and penalties, China “establishes only the crime of the trafficking in women and children for the purpose of purchase and not of exploitation” and the Chinese government has been criticized for flawed interpretations of the General Assembly’s Trafficking Protocol, thus making it difficult to “facilitate transnational law enforcement cooperation.”[29] In addition, the ILO recommends any form of trafficking girls or boys under the age of 18 for labor be made a criminal offense.[30] While the lines between forced labor, child labor and sexual exploitation may be somewhat blurred, the international legal community has made it distinctly clear they are all crimes punishable by law.
Legal Principles and Applicable Case Law
Under international law, both states and individuals can be held liable for proven human rights violations—but can corporations? In Kiobel v. Royal Dutch Petroleum Co. the “Second Circuit diverged from prior case law” (regarding the Alien Tort Statute) and held, though individuals can be found liable for violations of international legal norms, “there was no such liability for corporations.”[31] Circuit Judge Level replied:
I agree with the majority that all of the claims pleaded against the Appellants must be dismissed. I cannot, however, join the majority's creation of an unprecedented concept of international law that exempts juridical persons from compliance with its rules. The majority's rule conflicts with two centuries of federal precedent on the ATS, and deals a blow to the efforts of international law to protect human rights.
In 2010, the U.S. Supreme Court granted certiorari but did not decide the case on the aforementioned grounds and the question has remained open in U.S. law, with the exception of Aragon v. Ku.[32] In this 2019 case, it was held:
[C]ertain forms of conduct violate the law of nations whether undertaken by those acting under the auspices of a state or only as private individuals. Although corporations have rarely been prosecuted criminally or civilly for violating customary international law, corporate defendants can and have been held liable for violations of international law. The Alien Tort Statute, 28 U.S.C.S. § 1350, is civil, and corporate tort liability is common around the world.[33]
The foregoing cases set forth precedent, establishing an avenue for potential individual and corporate prosecution regarding misconduct for human rights violations. This potential for penalization exists under both domestic and international law. Proper international and multistate legal analysis of all countries with which the TNC is doing business is imperative to the fiscal viability and ethical responsibility of such corporation. All direct and contracted labor policies should be routinely analyzed and effectively monitored to ensure compliance with ethical labor standards and international law. Global law firms, with expertise in both human rights and international business law, may prove a valuable asset regarding routine compliance analysis for TNCs.
The Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, though not legally binding, may soon become a form of “soft law” and the implementation procedures suggest corporations guilty of human rights violations should be subject to “compensation, return of property, and other reparations.”[34] It is best for TNCs to concisely and proactively “pick a side” with regard to fair labor standards and the human rights global initiative. The elementary framework for business ethics can be found within the U.N. Global Compact principles, which include the following:
Principle 1 and 2: Businesses should support and respect the protection of internationally proclaimed human rights; and make sure that they are not complicit in human rights abuses.
Principle 3 through 6: Businesses should uphold the freedom of association and the effective recognition of the right to collective bargaining; the elimination of all forms of forced and compulsory labour; the effective abolition of child labour; and the elimination of discrimination in respect of employment and occupation.
Principle 10: Businesses should work against corruption in all its forms, including extortion and bribery.[35]
Though TNC and state lines of responsibility can be blurred, it is advisable for TNCs to be aware of their sphere of influence during ongoing negotiations and use it to consistently advocate for human rights development within the regions they impact. Further, TNCs can carefully select the sectors and contracted relationships within which they operate, based on the lawful and ethical labor standards in play within such sectors or contracted forums. Businesses must exercise due diligence regarding indirect associations as…
Businesses can…be indirectly linked to trafficking through the actions of their suppliers or business partners, including sub-contractors, labour brokers or private employment agencies. In this way, companies can be implicated if they source goods or use services that are produced or provided by trafficking victims.[36]
A conviction under international criminal law does not necessarily require “knowledge of [the] specific abuse” or desire or intention for it to occur, as long as there was some “knowledge of the contribution.”[37] Therefore, it is not an adequate defense against human rights violations that a company was merely carrying on “normal business activities” or “following orders, fulfilling contractual obligations, or even complying with national law.”[38] In short, ignorance—regarding international legal norms as they pertain to human rights—is not an excuse.
As previously stated, in order to persuade transnational corporations to lead the charge in global human rights advocacy, the categories of profits, legality and ethics must be considered. To fulfill the anti-corruption principle of the Global Compact (Principle 10 above), TNCs must seek legal expertise, develop educational programing, and implement internal fiscal incentives for the ethical behavior of compliant employees (and corrections or dismissal for those found noncompliant) while navigating the intersection of global business and legal ethics. Both categories of ethics coexist on an international plane and are to be employed to promote justice and freedom for all. Effective international leadership, wherein capitalism and free markets can “transform economies from extreme poverty…where socialism has failed” requires a firm stance against corruption, or “self-interests and greed will destroy democratic capitalism.”[39] This is, however, a cooperative effort from individuals on both sides of the human rights equation.
[I]ndividual rights, self-assertion and self-interest have come to play an increasingly important role in society. Some are inclined to claim a right to everything. This is, at the same time, one of the weaknesses of the human rights movement. There are important dangers to a boundless extension and misappropriation of the human rights movement. One role that business ethicists may play is in formulating better theories of rights that are not open to the corruptive effects of self-aggrandizement.[40]
In addition to human rights remaining legitimately within the realms of fairness and rightness (wherein labor unions, or other individuals or organizations, are not taking unjust advantages of corporations, nor swaying union members politically in exchange for benefits), corporate and governmental vices regarding power or the pursuit of financial gain must also remain legitimately within the realms of fairness and rightness. The red flag against corruption flies both ways, however, history has proven free trade, if ethically balanced, shores individual freedoms from a predominantly socialist or communist agenda which inevitably infringes on the “rights” of all persons under such state or dictatorial control.
Corporate ethical standards entail the responsibility to review present regional and international laws regarding human rights to ensure both business practice and the corporate culture support ethical policy-making and legal compliance.[41] The culture, or relational dynamics, of corporations are extremely influential over not only direct or contract employees and associates, but over consumerism, politics, media, government, and society at large. Daniel M. Warner explains the underlying principle that should govern all free-trade business conduct:
An ethically proper action is one that tends to follow the dictates of the market; however, no action is acceptable and the market presumption is rebuttable if it denies any person basic opportunities for liberty or [ethical] advancement, or if any social inequalities it promotes fail to benefit the least advantaged.[42]
The Universal Declaration of Human Rights advocates for the “equal and inalienable rights of all members of the human family.”[43] Not one is to be discounted or overlooked with regard to fair treatment. Further, “advancement” is to maintain absolute moral rightness regardless of the region or culture hosting business practices. In the face of extreme poverty, businesses must refrain from taking advantage of such things as extremely low wages; unsafe working conditions; gender discrimination or lack of equal employment or education/training; lack of employee benefits; absent or disrespected grievance procedures; and the like. In competition with the sole aim of profits, westernized corporate professionals are increasingly called upon to soberly consider their business’ impact on the global community—including living conditions, local environmental concerns, and adequate health care.[44] There is a worldwide…
[G]rowing coalescence around the concept of the corporation as a community, with behavioral outcomes of loyalty, trust, and consensus or a sense of justice [and] some of the most promising recent work in business ethics centers on “community” as the most important context for corporate social responsibility.[45]
Further, many TNCs and non-profits are taking the lead in human rights advocacy around the globe, utilizing their efforts to promote consumerism and to educate the public on such things as fair trade, organics, and local improvements in the standard of living. For example, the tourism and travel industry has adopted the Code of Conduct for the Protection of Children from Sexual Exploitation in Travel and Tourism (co-funded by UNICEF), and has endeavored to train staff and educate consumers in a cooperative effort to report and inevitably end human-trafficking.[46] The Body Shop, in conjunction with End Child Prostitution, Child Pornography and Trafficking of Children for Sexual Purposes (ECPAT), has provided press conferences on the issue, run public educational campaigns, promoted “Soft Hands Kind Heart” hand cream in the media, garnished governmental and celebrity support, and involved youth in anti-trafficking initiatives.[47] The hand cream “sold 70% above expected sales targets during the first year of the campaign.”[48] Clearly, these companies and industries have taken a proactive and transparent stance on human rights advocacy and have utilized both their influence and marketing expertise to generate consumerism to increase profits, awareness and anti-trafficking endeavors. Utilizing corporate expertise for such ethical purposes is good for human rights advocacy, corporate public relations, and generating long-term revenue.
The U.N. Guiding Principles on Business and Human Rights (adopted July 6, 2011) focuses on “corporate activities affecting the rights of individuals.”[49] Though the framework did not bind corporations to human rights treaties at the same level as states, it did “maintain that corporations have a baseline responsibility” in managing their human rights conduct and, within the context of international law, could be “held accountable in actual courts…”[50] As discussed above, U.S. case law, and customary law, favor this view. This trend is changing the legal landscape of international law to allow it to preside over not merely states and individuals, but business entities, brands, subsidiaries, stakeholders, and so on. This has a significant impact on Fortune 500s and other high-profile conglomerates. TNCs which assume a leadership role in combating human trafficking and forced labor and which strongly advocate for international human rights are heavy influencers over future international trade/commerce and legal policymaking. Proactively leading in human rights endeavors provides multiple long-term benefits to those TNCs which wish to take a positive stance today.
Impact of Problem on Human Rights
The Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children has inspired a widespread legislative response, in that “the number of countries having anti-trafficking legislation more than doubled between 2003 and 2008, more than half of the responding states have established an anti-human trafficking police unit, [and] many have launched a national action plan.”[51] Over “116 countries have…enacted [recent] anti-trafficking laws and legislation.”[52] While the number of convictions for human trafficking and related offenses is increasing, convictions are limited to a “handful of countries.” [53]
Most countries’ conviction rates rarely exceed 1.5 per 100,000 (below the level normally recorded for rare crimes like kidnapping in Western Europe). As of 2007/08, two out of every five countries covered by the UNODC Report had not recorded a single conviction.[54]
Much work is to be done to enforce human rights policy, and the potential for TNC’s to impact labor polices and anti-human trafficking positively within the global and local economy is massive. The anti-trafficking initiative presents a high-profile opportunity for ethical corporations to advance locally and globally. Due to TNC’s multicultural influence, the areas of ethics, morality and human rights have the potential to develop right alongside free trade and conscientious consumerism, with the goal of financial independence for every individual. Further, ethical businesses have the capabilities to combat criminal activity via commerce by advancing regions in underdeveloped nations, helping each citizen gain independence. Mexico is a case in point:
[W]ithin the context of trafficking and conflict situations [Mexico attests] women and girls were among the most vulnerable…[and] structural factors that [lead] to trafficking…[include] extreme poverty and a lack of opportunities; there [is] a need to end illicit financial flows and the financing of criminal activities for the purpose of trafficking women and girls.[55]
TNCs stand in a unique position, backed by international law and policy, to provide opportunities, income, and, therefore, increased protection and security to women and girls. Mexico borders the United States, and it is estimated that traffickers of persons into the U.S. make “between $13,000 and $67,000 per person trafficked” and 83% of all reported incidents of trafficking in the U.S. are for sex.[56] This is extremely unfortunate for both countries, let alone the victims of the modern slave trade. The Trafficking Victims Protection Act (TVPA) provides $95 million in assistance to local law enforcement agencies to enforce the antitrafficking provisions of the law.[57] “The U.S. government [has] invested more than $200 million in the anti-trafficking business” and continues to invest.[58] This crime is exceedingly costly. Beyond international treaties, domestic and international laws, and non-profit initiatives, the problem of forced labor, kidnapping, and trafficking in persons is of such a magnitude that every business entity and employees of the same, every individual invested in the free trade market, and every consumer must put forth an immediate effort to curb human rights violations.
Recommendations
Corporate Social Responsibility (CSR) programs integrate a company’s social and environmental advocacy within the goal of turning a profit.[59] Compliance with domestic and international laws coupled with an active commitment to raise the standard of living for all employees (regardless of geographical location) costs corporations revenue in areas of research, analysis, regulation, and the like. However, this paper has shown these costs can be creatively offset by campaigning social responsibility and human rights advocacy to increase both sales and shareholders. With “creative capitalism” companies have limitless potential to influence the world for good and increase both consumerism and human rights education. Starbucks, for example, benefits financially from promoting “free trade only” coffee, while companies which utilize factories with low standards are impacted negatively financially when the fault is globally exposed.[60] Such latter corporations face spending further revenue in the risky attempt to regain lost reputations amongst socially aware consumers and advertising outlets.
The trend to adopt the CSR ideology is positive, in that “sixty-five percent of S&P 100 and 28 percent of S&P 500 companies have board committees dedicated to social responsibility” according to a 2010 survey of board directors.”[61] Thousands of TNCs see the long-term fiscal value in adopting the CSR label, and have adopted “guidelines, standards, and recommendations that apply specifically to international conduct.”[62] In addition, in 2011…
The United Nations Human Rights Council unanimously endorsed the Guiding Principles on Business and Human Rights that operationalize the 2008 U.N. "Protect, Respect and Remedy" framework. These are ground-breaking principles as they express the expectations of the U.N. for corporate accountability.[63]
If, in past practice, corporations curtailed ethics for the sole sake of profit, utilizing the banner of a specific state’s low-standard laws as cover, that is increasingly becoming a thing of the past. Regional and non-profit organizations, shareholders, and the global media are engaged in a collective quest along with international law to assert human dignity and rights around the globe. For instance, the Asian Human Rights Charter states, “business corporations are responsible for numerous violations of rights, particularly those of workers, women, and indigenous peoples.”[64] After a 2013 fire in Bangladesh which killed 1,100 factory workers, stakeholders drafted and signed the “Accord on Fire and Building Safety in Bangladesh” which required signors to “withdraw from suppliers who refused to address safety problems in their factories.”[65] Indeed, creative capitalism which prevents forced labor, human trafficking, child labor, and poor working conditions and regards human rights is becoming increasingly profitable, not to mention compliant with international law.
Finally, the scope of international law has the potential to enforce its provisions upon any or all individuals regarding human rights violations. Corporate governance, CEOs and other senior executives are not immune. It is healthy practice in today’s global “human rights’ activist” landscape to employ international lawyers who genuinely proponent such causes (not those who try to evade them) as a line of defense against misjudgment and error. TNC CEOs and Boards of Directors would be well-advised to weigh the pros and cons of adopting proactive human rights policy within their spheres of influence, as “The failure to ensure good corporate governance can have serious consequences…[t]he stakes can be high—even to the extent of the corporation’s very existence.”[66] Finding and employing ethical and competent legal counsel within the field of international and business law is crucial for multinational or outsourcing businesses. David Nersessian attests:
[T]he failures of a single in-house lawyer at the public accounting firm Arthur Andersen are regarded by some as the dominant cause of the company’s federal conviction (later reversed by the Supreme Court) and the subsequent loss of 85,000 jobs when Andersen folded shortly thereafter. Lawyers who assist in a client’s crimes or who fail to meet all applicable ethical requirements are subject to disciplinary sanctions for this misconduct.[67]
The danger many corporations face is in the unethical attitude of “turning a blind eye” to inequitable injustices, operating under the incorrect guise of being “one-step removed” from human rights violations. This does not equate an adequate legal defense. This paper has communicated the immorality and risk of this stance. Gross human rights violations are morally wrong and international corporations and related individuals will be increasingly held accountable as the fora for prosecution under international law continues to evolve.
[I]n global commerce, there is real potential for…remoteness from the actual perpetration. To use an historical example, “bean counters” in Germany fulfilling purchase orders to supply industrial gas ovens abroad and the genocidaires at concentration camps…”[68]
Under the veil of international law, the world is becoming increasingly small. The defense of human rights is the responsibility of every human member of the planet and every corporate community is obligated to embrace human rights advocacy on every conceivable level.
Conclusion
The right to lead a blessed, free and honorable life is granted to all people by God Himself. Genesis 1:27 (Amplified Bible, Classic Edition). The modern human rights movement is fueled by the ethical morality founded within a biblical worldview. Matthew 25:33-40 (Amplified Bible, Classic Edition). Businesses are based first and foremost upon people, and love and generosity should always prevail over corruption and greed. Human rights treaties are based upon treating others right, as derived from every individual’s inherent right to live life as granted by God. John 10:10 (Amplified Bible, Classic Edition). These international human rights treaties, protocols and customary norms are the basis for enforceable international law and the legal doctrines and precepts set forth within them are applicable to states, corporations, and all individual actors. The anti-trafficking and anti-forced labor movements are gaining jurisdictive momentum globally, yet the legal field cannot adequately combat the age-old atrocity of slavery alone. The unfortunate facts are that slavery was not entirely abolished so many years ago as many think, but has grown and changed form to include a sex trafficking trade of women and children that is a most atrocious evil. Corruption is rampant in the fallen world and economic factors greatly influence the human-trafficking and forced labor situations—for better or worse. Genesis 3:1a (Amplified Bible, Classic Edition). TNCs are positioned to be at the influential forefront of this issue. The choices made within transnational corporations can either harm or maximize human rights, both locally and around the world.
The Word of God is a perfect guidebook for business ethics and human rights advocacy, both…
Do not be deceived and deluded and misled; God will not allow Himself to be sneered at (scorned, disdained, or mocked by mere pretensions or professions, or by His precepts being set aside.) [He inevitably deludes himself who attempts to delude God.] For whatever a man sows, that and that only is what he will reap. Galatians 6:7 (Amplified Bible, Classic Edition).
So then, whatever you desire that others would do to and for you, even so do also to and for them, for this is (sums up) the Law and the Prophets. Matthew 7:12 (Amplified Bible, Classic Edition).
Whatever you do, work at it with all your heart, as working for the Lord, not for human masters, since you know that you will receive an inheritance from the Lord as a reward. It is the Lord Christ you are serving. Colossians 3:23-24 (New International).
No one can serve two masters. For you will hate one and love the other; you will be devoted to one and despise the other. You cannot serve God and be enslaved to money. Matthew 6:24 (New Living).
Through careful consideration of profits, legality and biblical ethics, this paper has provided a glimpse of the benefits transnational corporations and their stakeholders stand to gain by providing economic opportunity and showcasing humanitarian efforts that promote the quality of life for all individuals. This paper has also shown the potential downfalls for TNCs which allow or associate with conduct contrary to the global human rights goal. Legal, and indeed biblical, consequences are real and lasting. TNCs, now more than ever before in human history, can undertake a significant leadership role in the human rights movement within their spheres of influence, combining free trade with biblical freedom and morality. This paper has appealed to the three primary areas of transnational business—profits, legal compliance, and ethics; to the fundamental principles of international law; and to the basis of morality found within biblical principles to assert that today’s TNCs have a prominent, not passive, obligation to support the anti-slavery movement in the modern world.
For further reading on this topic, see David Vogel, The Market for Virtue: The Potential and Limits of Corporate Social Responsibility, 1-2 (2005); David Nersessian, Business Lawyers as Worldwide Moral Gatekeepers: Legal Ethics and Human Rights in Global Corporate Practice, 28 Geo. J. Legal Ethics (2015); and, the U.S. Department of State Trafficking in Persons Report 153-157 (June, 2020), https://www.state.gov/wp-content/uploads/2020/06/2020-TIP-Report-Complete-062420-FINAL.pdf.
TABLE OF AUTHORITIES
Cases
Aragon v. Ku., 277 F. Supp. 3d 1055 (U.S. Dist. Dist. MN 2019).
Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (U.S. App. 2010).
Other Authorities
Bonny Ling, Human Trafficking and China: Challenges of Domestic Criminalization and Interpretation, 17 Asia-Pac. J. H.R. L. (2016).
Dana Raigrodski, Creative Capitalism and Human Trafficking: A Business Approach to Eliminate Forced Labor and Human Trafficking from Global Supply Chains, 8 WM. & Mary Bus. L.Rev. (2016).
Daniel M. Warner, Ethics in the Business World, 13 J. L. Stud. Educ. (1995).
David Nersessian, Business Lawyers as Worldwide Moral Gatekeepers: Legal Ethics and Human Rights in Global Corporate Practice, 28 Geo. J. Legal Ethics (2015).
David Weissbrodt and Anti-Slavery International, Abolishing Slavery and Its Contemporary Forms OHCHR U.N.H.R./PUB/02/4 (2002).
David S. Weissbrodt, Fionnula Ni Aolain, Joan Fitzpatrick, and Frank Newman, International Human Rights: Law, Policy, and Process (4th ed. 2009).
David Weissbrodt, Joan Fitzpatrick, Frank C. Newman, Marci Hoffman, and Mary Rumsey, Selected International Human Rights Instruments and Bibliography for Research on International Human Rights (4th ed. 2001).
Don Mayer, Community, Business Ethics, and Global Capitalism, 38 AM. Bus. L.J.
(2001).
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[1] I.L.O. Forced Labour, Modern Slavery, and Human Trafficking (2017), https://www.ilo.org/global/topics/forced-labour/lang--en/index.htm. [2] Id. [3] Texas Advisory Committee to the U.S. Commission on Civil Rights, Human Trafficking in Texas: More Resources and Resolve Needed to Stem Surge of Modern Day Slavery 1 (August 2011). [4] Lori Fisler Damrosch & Sean D. Murphy, International Law: Cases and Materials 479 (6th ed. 2014). [5] Id. [6] Dana Raigrodski, Creative Capitalism and Human Trafficking: A Business Approach to Eliminate Forced Labor and Human Trafficking from Global Supply Chains, 8 Wm.&Mary Bus. L Rev. 71, 74-80 (2016). [7] Id. [8] Id. [9] Id. [10] Id. at 81. [11] Id. [12]Upendra Baxi, Market Fundamentalisms: Business Ethics at the Altar of Human Rights, 5 H.R. L.Rev. 1, 2 (2005). Note: emphasis, author’s. [13] Id. [14] David S. Weissbrodt, Fionnula Ni Aolain, Joan Fitzpatrick, and Frank Newman, International Human Rights: Law, Policy, and Process 54 (4th ed. 2009). [15] Id. [16] David Weissbrodt and Anti-Slavery International, Abolishing Slavery and Its Contemporary Forms 3-4, OHCHR U.N.H.R./PUB/02/4 (2002). [17] Id. [18] Id. Author Note: See U.S. Dept. of State, Trafficking in Persons Report 153-157 (June 2020), https://www.state.gov/trafficking-in-persons-report-2020/. [19] Weissbrodt, et al., Int’l Human Rights, supra, at 55. [20] Id. at 63. [21] Id. at 64. [22] U.S. Const. amend. XIII. Universal Declaration of Human Rights, art. 4. [23] U.N.H.R., Ratification Status for United States of America, U.N. Treaty Body Database (accessed Nov. 11, 2020), https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/Treaty.aspx?CountryID=187&Lang=EN. [24] Raigrodski, supra, at 79. [25] U.N.H.R., Ratification Status for China, U.N. Treaty Body Database (accessed Nov. 11, 2020), https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/Treaty.aspx?CountryID=187&Lang=EN. [26] U.S. Dept. of State, Trafficking in Persons Report 153-157 (June 2020), https://www.state.gov/trafficking-in-persons-report-2020/. [27] United Nations Convention against Transnational Organized Crime and the Protocols Thereto, United Nations Office on Drugs and Crime (November 15, 2020) https://www.unodc.org/unodc/en/organized-crime/intro/UNTOC.html. [28] Weissbrodt and Anti-Slavery Int’l, supra, at 22. [29] Bonny Ling, Human Trafficking and China: Challenges of Domestic Criminalization and Interpretation, 17 Asia-Pac. J. H.R. L. 148, 177 (2016). [30] Weissbrodt and Anti-Slavery Int’l, supra, at 29. [31] Id. at 484. Alien Tort Statute, 28 U.S.C. § 1350 (2012). Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (U.S. App. 2010). [32] Id. [33] Aragon v. Ku., 277 F. Supp. 3d 1055 (U.S. Dist. Dist. MN 2019), https://advance-lexis-com.ezproxy.liberty.edu/api/document?collection=cases&id=urn:contentItem:5PMD-P681-F04D-J0W3-00000-00&context=1516831. Author Note: emphasis, author’s. [34] Weissbrodt, et al., Int’l Human Rights, supra, at 90. [35] U.N. Global Compact, https://www.unglobalcompact.org/what-is-gc/mission/principles. [36] U.N. GIFT, Human Trafficking and Business: Good Practices to Prevent and Combat Human Trafficking, 11 (2010). [37] Weissbrodt, et al., Int’l Human Rights, supra, at 86. [38] Id. [39] Neil Hamilton, Understanding the Intersection of Business and Legal Ethics, 1 U. St.Thomas L.J. 781, 781-783 (2003). [40] George G. Brenkert, Business Ethics and Human Rights: An Overview, 1 Bus. H.R. J. 277, 305 (2016). [41] Daniel M. Warner, Ethics in the Business World, 13 J. L. Stud. Educ. 203, 208 (1995). [42] Id. at 207. Author Note: emphasis, author’s. [43] Universal Declaration of Human Rights, preamble, ¶1. [44] Manuel Velasquez, Natural Law and International Business Ethics, 22 Soc. Resp: Bus. Journalism L.Med. 5, 23 (1996). [45] Don Mayer, Community, Business Ethics, and Global Capitalism, 38 AM. Bus. L.J. 215, 216 (2001). [46] U.N. GIFT, supra, 48. [47] Id. at 59. [48] Id. [49] Damrosch & Murphy, supra, 483. [50] Id. [51] U.N.O.D.C. Factsheet on Human Trafficking, https://www.unodc.org/documents/human-trafficking/UNVTF_fs_HT_EN.pdf. [52] Maudisa McSween, Investing in the Business against Human Trafficking: Embracing the Fourth P – Partnerships, 6 Intercultural H.R.L.Rev. 283, 284-285 (2011). [53] U.N.O.D.C., supra. [54] Id. [55] Security Council Condemns Human Trafficking in Strongest Terms, Unanimously Adopting Resolution 2331, US Official News (Dec. 21, 2016), https://advance-lexis-com.ezproxy.liberty.edu/api/document?collection= news&id=urn:contentItem:5MFM-56R1-J9XT-P46X-00000-00&context=1516831. [56] Texas Advisory Committee, supra, at 5. [57] Id. [58] McSween, supra. [59] Raigrodski, supra, at 88. [60] Id. at 89. [61] Id. at 91-91. [62] Id. [63] Id. at 91-91. [64] Damrosch & Murphy, supra, 484. [65] Id. [66] David Nersessian, Business Lawyers as Worldwide Moral Gatekeepers: Legal Ethics and Human Rights in Global Corporate Practice, 28 Geo. J. Legal Ethics 1135, 1183-1185 (2015). [67] Id. [68] Id.
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