The following fictitious legal opinion was written in the perspective of a legal expert of an NGO for the protection of human rights in the field of international business and trade. The facts are entirely fictitious. The aim of the article is to briefly analyze the legal implications stemming from the violation of international labor rights, with particular reference to forced labor.
An international meeting is convened after the release of a study by the UN that reports the flow of fish products obtained with forced labor to Europe and US from South East Asia. It has been proven that those products are processed and distributed by the US and European food multinational corporations.
It was stated by the latest United Nations report on labour conditions in South East Asia, that forced labour has been used in the fishing sector. Some fish products of the region have been imported in the US and Europe where they were, and are, used by food multinational corporations. This situation raises serious concerns with regard to international trade law and human rights law. Indeed, on the one hand there is the State duty to protect human rights and to carry out the proper measures to prevent multinational corporations under its jurisdiction to benefit from products obtained with forced labour; on the other hand, there is a responsibility for business enterprises to respect human rights, stemming from the Guiding Principles on Business and Human Rights.
Article XX, Letter A of GATT: a ban on fish products obtained through forced labour is legitimate
Under the World Trade Organization system – to which both Europe and US are members – State parties are allowed to adopt measures protecting public morals when they do not amount to arbitrary or unjustifiable discrimination between countries or to a disguised restriction on international trade. Indeed, article XX, which is entitled “general exceptions”, provides States with a power to interfere with the generally free trade in case a sufficient social or economic policy justification exists. Among the exception listed there is the «necessity to protect public morals», which has more than once been used as a basis for measures concerning human rights, labour standard and therefore forced labour. Australia, for instance, held a strong position in the Tuna-Dolphin case according to which a trade ban could be posed on products causing inhuman treatment to animals.
Likewise, a violation of human rights, such as poor working conditions, does satisfy the definition of inhumane treatment of workers. In addition, in this case the “public morals” to be protected are internationally recognised by the Universal Declaration on Human Rights, the International Covenant on Social, Economic, and Cultural Rights, the International Covenant on Civil and Political Rights and the ILO core labour standards. It must be inferred that if a State is part to any of those multilateral treaties it has an obligation to ensure that decent working condition is granted to everyone under its jurisdiction and to eliminate any use of forced labour within its territory or benefiting its economy. In practice, in order to enact a ban of a product obtained by forced labour, a State party must demonstrate that the policy meets the standards of non-discrimination. In this situation US and Europe can easily prove that they are not discriminating, in the sense that fish products obtained through forced labour have some different characteristics in the process and production method compared to fish products obtained with protected employees.
Secondly, the State party must show that the use of forced labour is in contrast with public morals –and in this case it is, as shown above. Finally, the State must prove that the ban is necessary in order to protect human rights by halting forced labour employment. In the case at stake, the only effective measure –at least in the short run– that a State can adopt is a ban on importation.1 The US and Europe have the duty to protect human rights by imposing a temporary ban on importation of fish products obtained with forced labour.
ILO Declaration on Fundamental Principles and Rights at Work
The United States and Europe are part to the ILO and ratified its 1957 Abolition of Forced Labour Convention, following a path toward the full elimination of forced labour. Subsequently they were involved in the draft of the 1998 ILO Declaration on Fundamental Principles and Rights at Work, which applies to all ILO Member-States. This document States under principle 2 that the international Labour Conference declares all member States to have an obligation «to respect, to promote and to realize: [...] b) the elimination of all forms of forced or compulsory labour». As a consequence, the US and Europe as a whole have the duty to prevent and to fight forced labour. This implies that, whenever a corporation under their jurisdiction is responsible, directly or indirectly, of the violation of the above-mentioned obligation, those States have the duty to take proper measures.
Guiding Principles on Business and Human Rights, the State’s Responsibility
This document opens with principle 1 stating the States’ duty to «protect against human rights abuse within their territory and/or jurisdiction by third parties, including business enterprises». In order to do so, States shall adopt «effective policies, legislation, regulations and adjudication». However, this duty to protect is a standard of conduct. This means that States are held responsible where a violation of human rights can be attributed to them. Also, States may be in breach of their duty under international human rights law if they fail to take proper measures to «prevent, investigate, punish and redress» the abuse. Moreover, principle 2 extends that duty to the operations carried out by all businesses domiciled in the State’s territory or under the State’s jurisdiction. As a result, even if States are not generally held responsible for human rights abuses perpetrated outside their territory, they should take measures in that sense, also to preserve their international reputation.
Guiding Principles on Business and Human Rights, Business Enterprises’ Responsibility
For what concerns the multinational corporations a responsibility to respect human rights raises under the Guiding Principles. In particular, reference should be made to principles 11, 12 and 13. The first establishes a general duty to respect human rights, which are specified in principle 12 to be the so-called “internationally recognised” human rights. The minimum core is set by reference to the International Bill of Human Rights and the ILO’s Fundamental Principles and Rights at Work – both include the prohibition of forced labour. It is important to notice that the responsibility stemming from the Guiding Principles is independent from issues regarding legal liability and enforcement, which are related to national jurisdiction. Principle 13 introduces a more extensive duty, which encompasses all the production chain. More specifically, letter a) imposes the responsibility to prevent negative impacts caused by the corporation itself and to address them once they occur. Letter b) extends such responsibility to adverse human rights impacts attributable to "operations, products or services by their business relationships, even if they have not contributed to those impacts."
In the context of the Guiding Principles “business relationships” are to be intended as including all relationships with any economic entity involved in the enterprise’s business operations, products or services. In addition, principle 15 states that business enterprises should establish “policies and processes appropriate to their size and circumstances” so as to meet their responsibilities. Finally, the following principles, the so-called operational principles, lay down some guidelines with the intent to provide business enterprises with the means to establish a well functioning framework encompassing policy commitments, due diligence and remediation with the aim to prevent human rights violations.
The Role of Sustainable Development in Interpreting WTO Law
The treaty establishing the World Trade Organization makes an explicit reference to the objective of sustainable development. More specifically, the optimal use of world’s resources should be carried out «in accordance with the objective of sustainable development». This implies that the sustainable development framework and its principles should be taken into account when interpreting international trade law2. In particular, a balancing process should be adopted when economic interests are in conflict with environmental or social considerations. Human rights are the core of the social pillar of sustainable development. As a consequence, when economic activities –directly or indirectly– result in an abuse of human rights a balancing process should intervene. In this case, it is evident that the prohibition of forced labour cannot perish under the freedom of trade.
Another Consideration on the Primacy of Human Rights Law
In case of a conflict between human rights law and trade law the former should prevail. In particular, in the case at stake the prohibition of forced labour should prevail over the freedom of trade. This primacy of Human Rights law stems from the Vienna Conference of Human Rights in which it was stated that «their protection and promotion is the first responsibility of governments»; and which is confirmed by the fact that certain Human Rights –including the prohibition of forced labour3– are of an imperative character (jus cogens).
The US and Europe have a solid tradition of respect of human rights. However, major issues have arisen with regard to the behaviour of business enterprises domiciled in their territories. In particular, it is noticeable a lack in measures susceptible to prevent the occurrence of bad practices along the process and production methods. This is especially true when row materials or products in general come from remote places. In this case, the US and Europe have failed to prevent the importation of forced labour- obtained fish products contributing de facto to a violation of Human Rights, thus violating:
- Principle 2 of the ILO Declaration on Fundamental Principles and Rights at Work;
- Principles 1 and 2 of the Guiding Principle on Business and Human Rights;
- The right to decent working condition stemming from the International Bill of Human Rights.
The US and Europe shall take immediate measures by imposing a temporary ban on the importation of forced labour-obtained fish products from South East Asian countries in breach of the internationally recognised prohibition of forced labour. Business enterprises involved in forced labour-obtained fish products are in breach of their responsibility to avoid any violation of human rights under:
- Principles 11, 12, 13, 14 and 15 of the Guiding Principle on Business and Human Rights.
These business enterprises shall take immediate measures to halt the use of forced labour- obtained fish products; they shall also adopt an organizational structure that allow them to detect any human rights violation occurring at any level of their productive chain.
B. SALMAN, 2001, International Free Trade Agreements and Human Rights: Reinterpreting Article XX of the GATT, 10 Minn. J. Global Trade 62.
G. MARCEAU AND F. MOROSINI, 2013, The Status of Sustainable Development in the Law of the World Trade Organization, in Arbitrage e Comercio Internacional.
N.L. LYUTOV ET AL., 2014, Norms of Jus Cogens and International Labor Law, in Lex Russica.
UNITED NATIONS, 2011, Guiding Principles on Business and Human Rights, Implementing the United Nations “Protect, Respect and Remedy” Framework.