Human Trafficking

South Carolina Journal of International Law and Business
Volume 9 Article 6
Issue 1 Fall
2012
Human Trafficking, The Rule of Law, and Corporate Social

Responsibility
Anna W. Shavers
Cline Williams Professor of Citizenship Law, University of Nebraska College of Law
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HUMAN TRAFFICKING, THE RULE OF
LAW, AND CORPORATE SOCIAL
RESPONSIBILITY
Anna Williams Shavers*
INTRODUCTION
The “Rule of Law” is defined in various ways, depending upon the
goal sought by the user of the phrase. One scholar has described these
various definitions as belonging in two categories: “(1) those that
emphasize the ends that the rule of law is intended to serve within
society . . . and (2) those that [focus on the elements] believed necessary
to actuate the rule of law (such as comprehensive laws, well-functioning
courts, and trained law enforcement agencies).”1 The scholar further
identifies for the first category, the five desirable ends: “(1) a
government bound by law, (2) equality before the law, (3) [the
establishment of] law and order, (4) predictable and efficient [justice],
and (5) human rights protections.”2 It is this fifth goal or desirable end
that is endangered by human trafficking, i.e. trafficking in persons.
Below is a definition of the rule of law that is helpful in this context:
Rule of law: equality before the law; laws that are
applied consistently (socially, economically, and
politically); laws that spell out consequences for
illegal activity; laws that serve a conception of
order and regulation; laws that serve and inform
institutions of society that preserve order and
“fairness.”3
* Cline Williams Professor of Citizenship Law, University of Nebraska

College of Law. I appreciate the helpful assistance and comments of the
symposium organizers and the editors of the South Carolina Journal of
International Law & Business.
1
Rachel Kleinfeld Belton, Competing Definitions of the Rule of Law:
Implications for Practitioners, 3 (Carnegie Endowment for Int’l Peace, Paper
No. 52005), available at http://carnegieendowment.org/files/CP55.Belton.
FINAL.pdf.
2
Id.
3
CARR CTR. FOR HUMAN RIGHTS POLICY, IMPLEMENTING THE RULE OF
LAW AND HUMAN RIGHTS IN STABILITY OPERATIONS 2 (2006).
40 SOUTH CAROLINA JOURNAL OF [Vol. 9.1
INTERNATIONAL LAW & BUSINESS
The United Nations has recognized that trafficking in persons is

one of the most egregious violations of human rights. The existence
of trafficking in persons, or modern slavery, indicates that the rule of
law is absent or at least threatened.4 “The rule of law needs to be
strengthened in the fight against human trafficking in order to better
protect victims' human rights and ensure them access to justice.”5
Thus, the existence of human trafficking requires an international
concerted effort of many actors to confront this problem. This
includes the business community. There is increasing acceptance of
the idea that responsible business conduct in a global context
includes a proactive role in preventing human trafficking.
Trafficking exists where social and economic conditions are
facilitated by practices that discriminate against women and other
vulnerable people, ignore human suffering, and diminish human
dignity. Vulnerable persons are denied basic rights to freedom and
self-determination. Traffickers are profiting from the sweat and
drudgery of others forced into or forced to take substandard wages in
mines, farm fields, and factories, performing sex work in hotels, strip
clubs, brothels, mansions, and bars. The complex structure of these
modern day slavery practices include actions by those that benefit
directly from the exploitation of the vulnerable, but we have also
come to recognize that those that benefit indirectly may also be a part
of the problem. In this article, I address particularly those businesses
that benefit indirectly from exploitation, not from the perspective of a
business ethicist or a corporate lawyer or scholar, but rather as a
proponent of human rights.
4
See, e.g., 22 U.S.C. § 7101(b)(8) (2006) (noting that Congress had
found that the Trafficking Victims Protection Act was necessary because
“[t]rafficking in persons is often aided by official corruption . . . thereby
threatening the rule of law”). See generally U.N. OFFICE ON DRUGS &
CRIME, AN INTRODUCTION TO HUMAN TRAFFICKING: VULNERABILITY,
IMPACT, AND ACTION 10 (2008), available at http://
www.ungift.org/docs/ungift/pdf/knowledge/background_paper.pdf
(summarizing Judith Dixon, The Impact of Trafficking in Persons, in U.N.
OFFICE ON DRUGS & CRIME, AN INTRODUCTION TO HUMAN TRAFFICKING:
VULNERABILITY, IMPACT, AND ACTION 81 (2008), and analyzing the global
impact of human trafficking, noting that trafficking violates the rule of law).
5
Maria Grazia Giammarinaro, OSCE Special Representative and Co-
Ordinator for Combating Trafficking in Human Beings, Keynote Address at
the Organization for Security and Co-operation in Europe Meeting: Rule of
Law Framework for Combating Trafficking in Human Beings (May 14,
2012).
2012] HUMAN TRAFFICKING, THE RULE OF 41
LAW, AND CORPORATE SOCIAL RESPONSIBILITY
As legislation and lawsuits aimed at eliminating trafficking in

persons increase corporations must decide whether they would rather
respond to calls for corporate liability or corporate responsibility.
The use of the term “corporate” is for convenience, but is meant to
include all business enterprises, including small and medium-sized
enterprises (SMEs). Part I includes a discussion of the pervasiveness
of human trafficking and its recognition internationally and in the
United States. Part II examines the risks that businesses must
confront when they may indirectly benefit from or facilitate human
trafficking, specifically, focusing on the various pieces of legislation
and lawsuits available to address injuries incurred by victims of
human trafficking. Part III includes a discussion of the option of
developing corporate social responsibility models to address the legal
risks associated with human trafficking, but even in the absence of
real legal risks why businesses should take a proactive approach to
examining and addressing the possibility that there are links to
human trafficking in their operations. Globalization has been a
significant factor in the increasing importance of corporate social
responsibility. Customers, investors, and other stakeholders are
showing increasing interest in how companies are addressing risks
and opportunities related to social and environmental issues.6
International businesses, with their growing links across countries
and firms, are faced with human trafficking as a significant issue
within global supply chains. Accompanying this growth is the need
for companies to proactively manage the risks of human trafficking
associated with globalization. The article concludes with an
examination of voluntary actions taken by various corporations to
address the risks of human trafficking.
6
See generally ERNST & YOUNG, CLIMATE CHANGE AND
SUSTAINABILITY: HOW SUSTAINABILITY HAS EXPANDED THE CFO’S ROLE 1
(2011), available at http://www.ey.com/Publication/vwLUAssets/Sus
tainability_extends_CFO_role/$FILE/CFOSustain.pdf; Michael Hopkins,
Corporate Social Responsibility: An Issues Paper (World Comm’n on the
Social Dimension of Globalization, Working Paper No. 27, 2004), available
at http://ssrn.com/abstract=908181.
I. HUMAN TRAFFICKING AND ATTEMPTS TO ADDRESS ITS

WIDESPREAD AFFECTS
It is estimated by the United States that 2 million to 4 million
people are trafficked each year worldwide,7 and the United Nations
estimates that worldwide as many as 12.3 million adults and children
may currently be victims of trafficking.8 Methods for identifying
trafficking victims are unreliable.9 The result is that there are
varying numbers reported for trafficking victims. For example, Free
the Slaves, a non-governmental organization (NGO), estimates that
there are 27 million “slaves” in the world today.10 A slave is defined
as a “person held against his or her will and controlled physically or
psychologically by violence or its threat for the purpose of
appropriating their labor.”11 The International Labour Organization
(ILO) estimates that human trafficking generates profits in excess of
$32 billion a year, making it the third most lucrative criminal activity
in the world.12 These statistics reflect illegal activity, as well as the
use of products of forced labor by legitimate employers. Traffickers
are involved in the recruiting, contracting, transporting, and
facilitating of goods and services.13 The profits accruing to
traffickers, or resulting from the use of lower cost trafficked goods or
7
ALISON SISKIN & LIANA SUN WYLER, CONG. RESEARCH SERV., RL
34317, TRAFFICKING IN PERSONS: U.S. POLICY AND ISSUES FOR CONGRESS 3
(2012), available at http://digital.library.unt.edu/ark:/67531/metadc87335/;
see also U.N. Global Initiative to Fight Human Trafficking [UN.GIFT],
Human Trafficking: Everybody’s Business (2006) [hereinafter UN.GIFT,
Human Trafficking: Everybody’s Business] (citing United Nations Office on
Drugs and Crime, Trafficking in Persons: Global Patterns (2006)), available
at http://www.ungift.org/docs/ungift/pdf/reports/Story_Survey.pdf.
8
PATRICK BELSER ET AL., INT’L LABOUR ORG., ILO MINIMUM ESTIMATE
OF FORCED LABOUR IN THE WORLD 1 (2005).
9
Id. at 33–35.
10
KEVIN BALES, DISPOSABLE PEOPLE: NEW SLAVERY IN THE GLOBAL
ECONOMY 8-9 (Univ. Cal. Press rev. ed. 2012).
11
Glossary, FREE THE SLAVES (Nov. 28, 2012), https://www.freethesla
ves.net/SSLPage.aspx?pid=305.
12
See ILO Director-General, 98th Session of the International Labour
Conference, Geneva, Switz., June 3–19, 2009, The Cost of Coercion: Global
Report under the follow-up to the ILO Declaration on Fundamental
Principles and Rights at Work, 1 (May 12, 2009)[hereinafter ILO 2009],
available at http://www.ungift.org/docs/ungift/Steering-
committee/ILO_Report _2009.pdf.
13
Id.
services, place some businesses at a distinct disadvantage.14

Because of their higher costs, some businesses lose out on business
unfairly.15
There are several United Nations documents that recognize
human trafficking conduct as an abuse of human rights, including the
fundamental right to be free from slavery.16 These instruments
address the issue of slavery, slave trade, slave-related practices, and
forced labor. One report has categorized them into four categories:
1) those specific international instruments which
have arisen under the law of peace; 2) general
human rights instruments that touch upon the issue
of slavery and its associated practices under the
law of peace; 3) other international instruments
which reference slavery and slave-related practices
under the law of peace; and 4) those international
instruments which address slavery and its related
practices under the law of armed conflicts.17
The most recent, and particularly focused, documents are the
Protocol to Prevent, Suppress and Punish Trafficking in Persons,
Especially Women and Children18 and the Protocol against the
14
Id. at 26.
15
See generally ALEXIS ARONOWITZ ET AL., ORGANIZATION FOR
SECURITY AND COOPERATION IN EUROPE & U.N. GLOBAL INITIATIVE TO FIGHT
HUMAN TRAFFICKING, ANALYSING THE BUSINESS MODEL OF TRAFFICKING IN
HUMAN BEINGS TO BETTER PREVENT THE CRIME 29 (2010) (noting that
reliance on trafficked labor can “generate unfair market competition
allowing businesses which use trafficked persons or exploitative labour and
practices to undercut the cost of legal competitors”).
16
The United Nations adopted the Universal Declaration of Human
Rights (UDHR), which lists the fundamental rights deserving a higher degree
of protection including the right to freedom from slavery. “It sets out, for the
first time, fundamental human rights to be universally protected.” Universal
Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc.
A/RES/217(III) (Dec. 10, 1948), available at http://daccess-dds-
ny.un.org/doc/RESOLUTION/GEN/NR0/043/88/IMG/NR004388.pdf?Open
Element.
17
HEATHER J. CLAWSON ET AL., ICF INTERNATIONAL, PROSECUTING
HUMAN TRAFFICKING CASES: LESSONS LEARNED AND PROMISING PRACTICES
1 (2008).
18
Protocol to Prevent, Suppress and Punish Trafficking in Persons,
Especially Women and Children, supplementing the United Nations
Smuggling of Migrants by Land, Sea and Air,19 which supplements

the United Nations Convention against Transnational Organized
Crime.20 Measures included in these documents are designed to
punish the traffickers, protect the victims, and promote cooperation
among nations to prevent trafficking.21 The United Nations defines
human trafficking as:
the recruitment, transportation, transfer, harboring,
or receipt of persons, 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, for the purpose of exploitation.
Exploitation shall include, at a minimum, the
exploitation or the prostitution of others or other
forms of sexual exploitation, forced labor or
services, slavery or practices similar to slavery,
servitude or the removal of organs.22
The United Nations includes in the list of conduct constituting
human trafficking forced involvement in criminal activities such as
begging, including child begging, forced marriage, illicit adoption,
and exploitation in the military, including child soldiers and forced
participation in armed conflicts.23 Although it is reported that 79%
of human trafficking is connected to sexual exploitation while forced
labor constitutes about 18%, the United Nations has suggested that
Convention against Transnational Organized Crime, G.A. Res. 55/25, Annex

II, U.N. Doc. A/RES/55/25 (Nov. 15, 2000), available at http://www
.unodc.org/pdf/crime/a_res_55/res5525e.pdf.
19
Protocol Against the Smuggling of Migrants by Land, Sea and Air,
supplementing the United Nations Convention against Transnational
Organized Crime, G.A. Res. 55/25, Annex III, U.N. Doc. A/RES/55/25
(Nov. 15, 2000), available at http://www.unodc.org/pdf/crime/a_res_
55/res5525e.pdf.
20
The United Nations Convention against Transnational Organized
Crime, G.A. Res. 55/25, Annex I, U.N. Doc. A/RES/55/25 (Nov. 15, 2000),
available at http://www.unodc.org/pdf/crime/a_res_55/res5525e.pdf.
21
See, e.g., G.A. Res. 55/25, Annex II, supra note 18, at 31.
22
Id. ¶ (a), at art. 3.
23
UN.GIFT, HUMAN TRAFFICKING: AN OVERVIEW 13 (2008), available
at http://www.ungift.org/docs/ungift /pdf/knowledge/ebook.pdf.
the lower percentage of forced labor may be due to under-reporting

of some forms of exploitation such as forced or bonded labor,
domestic servitude, and warfare.24 It is generally accepted that the
United Nations documents cannot be effective without domestic
efforts to curb human trafficking.25
In the 1988 opinion of United States v. Kozminski, the Supreme
Court recognized the limitations of existing involuntary servitude and
slavery statutes, and invited Congress to expand upon them.26 The
Court held that Congress intended that “involuntary servitude” under
the 1867 Anti-Peonage Act27 refers only to a situation in which the
victim “is forced to work . . . by the use or threat of physical restraint
or physical injury,” thus victims who were held in servitude through
“psychological coercion or trickery” were not covered by the Act.28
On March 11, 1998, President Bill Clinton issued a directive calling
for legislative action to combat human trafficking.29 The directive
outlined a three-pronged strategy that emphasized prevention,
protection, and support for victims.30 Because of the recognition of
the severe worldwide problem of trafficking in persons (TIP), it was
intended that legislation would have an impact in deterring human
trafficking in the United States and abroad.31
Although the United States became a signatory to this Protocol
to Prevent, Suppress and Punish Trafficking in Persons, Especially
24
U.N. OFFICE ON DRUGS AND Crime, A GLOBAL REPORT ON
TRAFFICKING IN PERSONS, 6 (2009) [hereinafter GLOBAL REPORT ON TIP],
available at http://www.unodc.org/unodc/en/human-trafficking/global-
report-on-trafficking-in-persons.html.
25
See generally Kathryn E. Nelson, Sex Trafficking and Forced
Prostitution: Comprehensive New Legal Approaches, 24 HOUS. J. INT'L L.
551, 551–78 (2002).
26
United States v. Kozminski, 487 U.S. 931 (1988).
27
Anti-Peonage Act, ch. 187, 14 Stat. 546 (1867) (codified as amended
at 18 U.S.C. §1581 (2006).
28
Kozminski, supra note 26, at 952.
29
Memorandum on Steps To Combat Violence Against Women and
Trafficking in Women and Girls from Pres. William J. Clinton to Sec’y of
State, Attorney Gen., Admin. of U.S. Agency for Int’l Dev., and Dir. of U.S.
Info. Agency, Pub. Papers 358 (Mar. 11, 1998).
30
Id.
31
See generally Susan Tiefenbrun, Updating the Domestic and
International Impact of the U.S. Victims of Trafficking Protection Act of
2000: Does Law Deter Crime?, 38 CASE W. RES. J. INT'L L. 249 (2006).
Women and Children, on December 13, 2000, U.S. domestic

legislation preceded this when, on October 28, 2000, President
Clinton signed the Trafficking Victims Protection Act of 2000
(TVPA) into law.32 TVPA made human trafficking a federal crime.33
It was enacted to prevent human trafficking overseas, to protect
victims and help them rebuild their lives in the United States, and to
prosecute traffickers of humans.34 Prior to 2000, no comprehensive
federal law existed to protect victims of trafficking or to prosecute
their traffickers.35
The TVPA, as amended, does not define human trafficking per
se. However, it does recognize two forms of trafficking in its
definition of “severe forms of human trafficking”:
[1] sex trafficking in which a commercial sex act is
induced by force, fraud, or coercion, or in which
the person induced to perform such act has not
attained 18 years of age; or [2] the recruitment,
harboring, transportation, provision, or obtaining of
a person for labor or services, through the use of
force, fraud, or coercion for the purpose of
subjection to involuntary servitude, peonage, debt
bondage, or slavery.36
In many ways, the problem of human trafficking is getting
worse. This is due in part to the globalized economy and the
32
Trafficking Victims Protection Act of 2000, Pub. L. No. 106-386,
114 Stat. 1464 (codified as amended in scatter sections of 18, 22 U.S.C.).
The Act was thereafter supplemented by the Trafficking Victims Protection
Reauthorization Act of 2003, Pub. L. No. 108-193, 117 Stat. 2875, the
Trafficking Victims Protection Reauthorization Act of 2005, Pub. L. No.
109-164, 119 Stat. 3558, and the William Wilberforce Trafficking Victims
Protection Reauthorization Act of 2008, Pub. L. No. 110-457, 122 Stat.
5044.
33
Id.
34
See generally, U.S. DEP’T OF JUSTICE, CIVIL RIGHTS DIV., REPORT ON
THE TENTH ANNIVERSARY OF THE TRAFFICKING VICTIMS PROTECTION ACT 4
(2010), available at http://www.justice.gov/crt/about/crm/trafficking_ne
wsletter/tvpaanniversaryreport.pdf.
35
Two bills that would reauthorize the TVPA have received action. S.
1301, 110th Cong. (2011) was reported by the Senate Judiciary Committee
on October 13, 2011, and H.R. 2830, 110th Cong. (2011) was reported by
the House Foreign Affairs Committee on October 5, 2011.
36
See § 103(8), 114 Stat. 1464.
availability of sophisticated technology that can be used to facilitate

trafficking.37 A recent Congressional Research Service (CRS) report
stated that “[h]uman trafficking is an inherently transnational and
multi-dimensional issue that touches on a broad combination of
foreign policy, human rights, criminal justice and national security
priorities.”38 To adequately address the human trafficking problem it
is necessary that in addition to considering the modern methods used,
we also consider our history of slavery. The link between anti-
slavery efforts early in our history and human trafficking is widely
recognized. Eradicating modern-day slavery is linked to the
Thirteenth Amendment which states “neither slavery nor involuntary
servitude . . . shall exist within the United States.”39 For example,
the 2012 CRS report on human trafficking stated:
Current U.S. foreign policy approaches for
addressing human trafficking are a modern off-
shoot of anti-slavery policies that centered initially
on reinforcing international prohibitions on forced
labor during the first half of the 20th century. With
time, U.S. and international perspectives on the
global scope of human trafficking have expanded
to cover a broader range of victims and prohibited
activities, including sex trafficking and the
exploitation of children in labor, armed conflict,
and the commercial sex industry. The ultimate
goal of current U.S. anti-trafficking policy is to
37
See generally KRISTIN M. FINKLEA ET AL., CONG. RESEARCH
SERV., R41878, SEX TRAFFICKING OF CHILDREN IN THE UNITED STATES:
OVERVIEW AND ISSUES FOR CONGRESS 2 (2011) (citing U.S. DEP’T OF
JUSTICE, THE NATIONAL STRATEGY FOR CHILD EXPLOITATION PREVENTION
AND INTERDICTION, available at http://www.justice.gov/ag/annualreports
/tr2009/agreporthumantrafficking2009.pdf) (noting that commercial sexual
exploitation has increased); UN Says Human Trafficking Appears To Be
Worsening, RADIO FREE EUROPE / RADIO LIBERTY, (Feb. 13, 2009),
http://www.rferl.org/content/UN_Says_Human_Trafficking_Appears_To_Be
_Worsening_/1492561.html; MARK LATORENO, UNIV. S. CAL. CTR. ON
COMMC’N LEADERSHIP & POLICY, HUMAN TRAFFICKING ONLINE: THE ROLE
OF SOCIAL NETWORKING SITES AND ONLINE CLASSIFIEDS (2011).
38
LIANA SUN WYLER, CONG. RESEARCH SERV., R42497, TRAFFICKING
IN PERSONS: INTERNATIONAL DIMENSIONS AND FOREIGN POLICY ISSUES FOR
CONGRESS 23 (2012) [hereinafter 2012 CRS Report].
39
U.S. CONST. amend. XIII.
eliminate the problem and support international

efforts to abolish human trafficking worldwide.40
As the U.N. documents and the TVPA reflect, there are three
primary goals, the prosecution, protection and prevention, which are
referred to by the U.S. State Department as the “3P” paradigm.41 The
3Ps require adequate prosecution of those who traffic in human
beings, assistance and protection for trafficking victims in the United
States, and the establishment of preventative measures against
trafficking of humans across U.S. borders.42 The passage of laws
similar to TVPA in other countries, along with work of NGOs around
the world, has made the world aware of the reality of TIP as a
modern form of slavery.43 The public and the media are becoming
aware that humans prey upon humans for money and prosecutions
and convictions are increasing as cases are being brought before the
judiciary.44
Even with the progress made under the 3P paradigm, the United
States recognized that more could be accomplished to combat
trafficking.45 Therefore, in 2009 the Department of State and other
affected agencies added partnership as a fourth element to be
emphasized in this campaign.46 When making the announcement,
Secretary of State Hillary Rodham Clinton stated that the fourth “P,”
partnership, was to serve as a “pathway to progress in the effort
against modern slavery.”47 Thus, the program has four components,
the “four Ps”: prevention, protection, prosecution, and partnership.
The partnerships created between federal, state, local, and
international law enforcement, government agencies, and NGOs have
been acknowledged as “perhaps the most notable” advance made
40
See 2012 CRS Report, supra note 38, at 3.
41
Office to Monitor & Combat Trafficking in Pers., Four "Ps":
Prevention, Protection, Prosecution, Partnerships, U.S. DEPT. OF STATE,
http://www.state.gov/j/tip/4p/prosecute/ (last visited Nov. 29, 2012).
42
Id.
43
Susan W. Tiefenbrun, The Domestic and International Impact of the
U.S. Victims of Trafficking Protection Act of 2000: Does Law Deter Crime?
2 LOY. U. CHI. INTL. R. 193 (2005).
44
See, e.g., GLOBAL REPORT ON TIP, supra note 24, at 6, 37–40.
45
See U.S. DEP’T OF JUSTICE, supra note 34.
46
See Office to Monitor and Combat Trafficking in Pers., supra note
41.
47
Id.
since the TVPA was enacted.48 In addition to the partners

mentioned, it is necessary to include the corporations and businesses
that indirectly benefit from trafficking. Their assistance in
recognizing and reacting to incidents of trafficking can help further
eliminate the problem. The businesses affected can be multinational
corporations with locations in other countries as well as businesses
that are involved with goods or people crossing borders, and having a
substantial international as well as domestic effect.
II. BUSINESS RISKS OF LIABILITY IN HUMAN

TRAFFICKING
In addition to considering corporations as potential partners in
combatting TIP it is also important to recognize that some may be at
risk of violating the law because of the benefits they receive from
trafficking enterprises.
A. ANTI-TRAFFICKING LEGISLATION
In recent years, there has been significant legislation, both at the
federal49 and state50 level, designed to become an important tool in
the fight against human trafficking and intended to strengthen efforts
to prosecute human traffickers for acts occurring in the United
States.51 These laws focus on the criminalization of financial benefit
from human trafficking52 and on allowing victims to take civil action
against traffickers.53 Many of these laws reflect “the gradual
48
See U.S. DEP’T OF JUSTICE, supra note 34, at 3.
49
See § 103(8), 114 Stat. 1464. See generally Tiefenbrun, supra note
43.
50
Press Release, Megan Fowler, Polaris Project, Majority of States
Actively Passing Laws to Combat Human Trafficking (Aug. 7, 2012),
available at http://www.polarisproject.org/media-center/press-releases/634-
majority-of-states-actively-passing-laws-to-combat-human-trafficking
(noting an increase in legislation evidenced by “47 states and D.C., have sex
trafficking criminal statutes, and 49 states and DC have labor trafficking
criminal statutes”).
51
See 18 U.S.C. § 1593 (2006).
52
See generally 22 U.S.C. §§ 7108, 7109 (2006).
53
See 18 U.S.C. § 1595 (2006).
extension of liability to companies for international crimes, under

domestic jurisdiction but reflecting international standards.”54
Criminal prosecutions for all forms of human trafficking with
possible heavy penalties were made possible under the TVPA,55 the
Protect Act56 and the TVPRA.57 These laws criminalized the act of
54
Special Representative of the Secretary-General on the Issue of
Human Rights and Transnational Corporations and Other Business
Enterprises, Business and Human Rights: Mapping International Standards
of Responsibility and Accountability for Corporate Acts, ¶ 84, U.N. Doc.
A/HRC/4/035 (Feb. 19, 2007), available at http://www.ohchr.org/EN/
Issues/Business /Pages/Reports.aspx.
55
New sections of chapter 77 of Title 18 of the U.S. Code created by
the TVPA include: § 1589 (forced labor); § 1590 (trafficking with respect to
peonage, slavery, involuntary servitude, or forced labor); § 1591 (sex
trafficking of children or by force, fraud, or coercion); § 1592 (unlawful
conduct with respect to documents in furtherance of trafficking, peonage,
slavery, involuntary servitude, or forced labor); § 1593 (mandatory
restitution); § 1594 (specifying that attempting to violate 18 U.S.C. §§ 1581,
1583, 1584, 1589, 1590, or 1591 is punishable in the same manner as an
actual violation). The TVPA also increased mandatory minimum sentences
for “peonage,” “enticement into slavery,” and “sale into involuntary
servitude” from ten to twenty years in prison. 18 USC. §§ 1581(a), 1583–
1584. The TVPA also provided for the criminal sanction of a life sentence
for trafficking cases in which kidnapping, sexual abuse or killing (or any
attempt thereof) occurs. Id.
56
Prosecutorial Remedies and Other Tools to End the Exploitation of
Children Today Act of 2003 (PROTECT Act), Pub. L. 108-21, 117 Stat. 650
(codified as amended in scattered sections of 18 U.S.C.).
57
18 U.S.C. § 3271 (2006). TVRPA of 2005 identified the separate
crime of trafficking in persons offenses committed by federal contractors
outside the United States. 119 Stat. 3558. The TVPRA of 2008 criminalized
benefitting financially from peonage, slavery, or trafficking in persons, §
222(d)(1), conspiring in an act of trafficking in persons, § 222(c)(2)(B)–(C),
and fraud in foreign labor contracting, § 222(e)(2). 122 Stat. 5044. See
CHARLES DOYLE, CONG. RESEARCH SERV., R40190, THE WILLIAM
WILBERFORCE TRAFFICKING VICTIMS PROTECTION REAUTHORIZATION ACT OF
2008 (P.L. 110-4457): CRIMINAL LAW PROVISIONS (2009).
knowingly trafficking another as well as knowingly benefitting

financially from trafficking ventures.58
Corporations that engage in trafficking run the risk of losing
government contracts. The TVPRA of 2003 added a provision that
allows a federal department or agency that has entered into a contract
with a private entity to terminate that contract if the private entity “(i)
engages in severe forms of human trafficking, . . . or has procured a
commercial sex act during the period of time that the . . . contract . . .
[was] in effect, or (ii) uses forced labor in the performance of the . . .
contract.”59 The corporation can lose contracts based on the action of
any party for which it is responsible.60
Additionally, numerous civil actions are possible based upon
TIP.61 These actions serve to “provid[e] compensation to victims as
well as [deter] traffickers by increasing financial disincentives.”62
The private right of action established under the TVPRA permits
victims of forced labor, peonage, slavery, involuntary servitude, or
sex trafficking to file a civil action against their traffickers “in an
appropriate district court . . . and [to] recover damages [actual and
punitive] and reasonable attorneys fees.”63 Civil actions provide a
means to reduce the financial profitability of human trafficking, by
imposing civil damages against the traffickers, thus creating a
deterrence effect.64 These civil actions may be stayed during
criminal proceedings.65
58
See, e.g., 18 U.S.C. § 1591(a) (2006).
59
22 U.S.C. § 7104(g) (2006).
60
Id. (e.g. subcontractor or sub-grantee).
61
For an excellent guide on civil liability, see K ATHLEEN K IM &
DANIEL WERNER , C IVIL LITIGATION ON BEHALF OF V ICTIMS OF HUMAN
TRAFFICKING 21 (2005) (a manual for lawyers).
62
Id., at iv.
63
18 U.S.C. § 1595 (2006); see also KIM & WERNER , supra note 61.
64
Kathleen Kim & Kusia Hreshchyshyn, Human Trafficking Private
Right of Action: Civil Rights for Trafficked Persons in the United States, 16
HASTINGS WOMEN’S L.J. 1 (2004).
65
See 18 U.S.C. § 1595(b)(1) (2006); see, e.g., Lunkes v. Yannai, No.
12 Civ. 0630(PKC)(JCF), 2012 WL 2914136, at *3 (S.D.N.Y. July 17,
2012) (memorandum and order granting defendants’ motion to stay civil
Even if entities cannot be held liable based upon the TVPRA,

they run the risk of liability based upon laws that provide that third
parties can be held liable. For example, organizations or companies
that could escape criminal prosecution for lack of sufficient evidence
to meet the government’s high burden of proof can be named as joint
employers, joint tortfeasors, or both, in any civil action brought.66
Laws existing prior to enactment of TVPA also provide some
possibilities for actions.67
Recently attention has been focused on the Alien Tort Statute
(ATS)68 and the Torture Victim Protection Act (VPA)69 as possible
bases for lawsuits against entities profiting from TIP. The VPA was
enacted in 1992, and it enables U.S. citizens to bring actions similar
to those available to non-citizens under ATS.70 The VPA provided in
pertinent part:
Liability — An individual who, under actual or
apparent authority, or color of law, of any foreign
nation — (1) subjects an individual to torture shall,
action pursuant to 18 U.S.C. § 1595(b)). See generally KIM & WERNER ,

supra note 61, at 18.
66
KIM & WERNER , supra note 61, at iv.
67
The U.S. Constitution prohibits slavery and arguably this prohibition
applies to modern forms of slavery. See U.S. CONST. amend. XIII § 1
(“[N]either slavery nor involuntary servitude . . . shall exist within the United
States.”); see also Mandatory Victim Restitution Act of 1996, Pub. L. No.
104-132, §§ 201–211, 110 Stat. 1214, (codified in scattered sections of 18
U.S.C.). KIM & WERNER , supra note 61, at 22, 23. See generally KIM &
HRESHCHYSHYN, supra note 64.
68
See generally TERRY COLLINGSWORTH, I NT’ L LABOR R IGHTS
F UND, THE ALIEN TORT C LAIMS ACT – A V ITAL TOOL FOR P REVENTING
CORPORATIONS F ROM V IOLATING F UNDAMENTAL HUMAN RIGHTS (2003),
available at http://lrights.igc.org/publications/ATCA.pdf (discussing the
use of the ATS as an avenue to seek enforceability of international law in
U.S. courts against corporate conduct).
69
VPA is used instead of TVPA to avoid confusion with the
Trafficking Victims Protection Act. See generally Emily M. Martin, Note,
Torture, Inc.: Corporate Liability under the Torture Victim Protection Act,
31 N. ILL. U. L. REV. 175 (2010).
70
Torture Victim Protection Act of 1991, Pub. L. No. 102-256, 106
Stat. 73 (1992) (codified at 28 U.S.C.A. § 1350 note).
in a civil action, be liable for damages to that

individual; or (2) subjects an individual to
extrajudicial killing shall, in a civil action, be liable
for damages to the individual’s legal
representative, or to any person who may be a
claimant in an action for wrongful death.71
The ATS, sometimes referred to as the Alien Tort Claims Act,72
was enacted in 1789 and went largely unused for nearly 200 years
until it was revived in the 1980s73 as a means to provide non-citizens
of the United States the opportunity to bring a civil suit in U.S. courts
for a tort committed in violation of international law.74 Some of the
possible claims include human rights abuses such as torture, slavery,
prolonged arbitrary detention, violence against women, and cruel,
inhuman, or degrading treatment.
Other federal statutes that provide possible liability for
corporations include the Federal Racketeer Influenced and Corrupt
Organizations Act (RICO),75 which can be used against U.S.
corporations with facilities in foreign countries as well as in the
United States if they engage in indirect activities that constitute
human trafficking violations. The TVPRA 2003 added human
trafficking to the list of RICO charges and “trafficking in persons” is
included in the definition of a racketeering activity and can be used
as the basis for criminal or civil liability.76 The purpose of the RICO
statute is "the elimination of the infiltration of organized crime and
racketeering into legitimate organizations operating in interstate
commerce."77 Only a “person” can be held liable under RICO,78 but
71
Id.
72
Id.
73
See discussion infra Part II.C.
74
28 U.S.C. § 1350 (2006).
75
Federal Racketeer Influenced and Corrupt Organizations Act, 18
U.S.C. §§ 1961–1968 (2006).
76
Id. § 1961(1). See generally Kendal Nicole Smith, Note, Human
Trafficking and RICO: A New Prosecutorial Hammer in the War on Modern
Day Slavery, 18 GEO. M ASON L. REV.759 (2011) (discussing criminal
liability); Kelly Patricia O’Meara, DynCorp Disgrace, INSIGHT MAGAZINE,
Feb. 4, 2002. (highlighting a RICO lawsuit filed against DynCorp based
upon corporate actions in Bosnia).
77
S. REP. NO. 91-617, at 76 (1969).
a “person” can be an individual or a corporation.79 RICO defines the

term "person" to “include[] any individual or entity capable of
holding a legal or beneficial interest in property.” 80 Corporations
that unknowingly facilitate a defendant’s criminal activities are often
named as the “enterprise” or part of the enterprise through which the
defendant conducted his pattern of racketeering. However, no
liability can attach to a person or entity that is merely named as a
member of the enterprise or to the enterprise itself.81
Companies may also be subject to labor–related claims with a
nexus to human trafficking under the Fair Labor Standards Act,82 the
Migrant and Seasonal Agricultural Worker Protection Act,83 and the
Immigration Reform and Control Act (IRCA).84
Dodd–Frank Wall Street Reform and Consumer Protection Act
(Dodd–Frank)85 requires persons to disclose whether “conflict
minerals” are used in their products.86 While Dodd–Frank does not
directly apply to trafficking, the presence of conflict minerals in
78
See 18 U.S.C. § 1961 (2006).
79
Id. § 1961(3).
80
Id.; see 18 U.S.C. § 1962(a)–(c) (2006) (using term "person" to
describe violator of acts proscribed under RICO).
81
See United States v. Philip Morris USA, Inc., 566 F.3d 1095 (D.C.
Cir. 2009).
82
29 U.S.C. § 215(a)(1) (2006) (establishing civil money or criminal
penalties based on violations of minimum wage provisions in FLSA section
6(a) and overtime provisions in FLSA section 7(a)(l); and establishing “hot
goods” provision regarding the sale of products produced in violation of
other FLSA sections through section 15(a)(1) of FLSA).
83
29 U.S.C. § 1800 (2006) (requiring agricultural employers to observe
standards for working conditions for migrant and seasonal agricultural
workers).
84
Immigration Reform and Control Act of 1986, Pub. L. 99-603, 100
Stat. 3359 (codified in scattered articles of 8 U.S.C.) (allowing civil money
penalties and criminal penalties to be levied against employers for failure to
comply with IRCA, including hiring, recruitment, and referral violations).
85
Dodd–Frank Wall Street Reform and Consumer Protection Act, Pub.
L. 111-203, 124 Stat. 1376 (2010) (codified as 12 U.S.C. § 5301 (2006)).
86
See discussion infra Part III.A.
products may indicate that forced labor was used to obtain the
minerals and trigger other laws.87
State laws also provide potential liability.88 These include
lawsuits based on intentional torts and negligence, contract and
quasi-contract claims, general criminal statutes and recently enacted
state anti-trafficking laws.89 The number of states, including the
District of Columbia, with anti-trafficking laws has increased from
twenty-eight in 2007 to forty-eight as of July 2012.90
Legislative attempts to hold liable companies that indirectly
benefit from trafficking profits have received some resistance. The
state of Washington enacted Senate Bill 6251 (SB 6251), which was
scheduled to take effect June 7, 2012 and aimed at those companies
that facilitate sex trafficking of minors through their advertising.91
The law would require classified advertising companies to verify the
ages of people in sex-related advertisements.92 In response to a
lawsuit filed by Village Voice Media, on behalf of Backpage.com,93
a federal judge in Washington granted a temporary injunction,
87
See, e.g., Alexandra R. Harrington, Faceting the Future: The Need
for and Proposal of the Adoption of a Kimberley Process-Styled Legitimacy
Certification System for the Global Gemstone Market, 18 TRANSNAT'L L. &
CONTEMP. PROBS. 353, 354–355 (2009) (noting it is likely that other illicit
activities such as human trafficking accompany the mining of diamonds and
other gemstones).
88
See Fowler, supra note 50.
89
Id.
90
See, e.g., Assemb. B. 22, 2005 Gen. Assemb., Reg. Sess. (Cal. 2005)
(criminalizing human trafficking and allowing victims to receive restitution
from the perpetrator(s)); CAL. P ENAL CODE § 236.1 (2008); CAL. P ENAL
CODE § 1202.4 (2008). See generally POLARIS PROJECT, 2012 STATE
RATINGS MAP (2012), available at http://www.polarisproject.org/what-we-
do/policy-advocacy/current-laws.
91
S.B. 6251, 62d Leg., Reg. Sess. § 2(1) (Wa. 2012).
92
Id. § 2(2); See Backpage.com v. McKenna, No. C12-954-RSM, 2012
WL 3064543 (W.D. Wash. July 27, 2012) (complaint to declare invalid and
enjoin enforcement of Washington Senate Bill 6251 for violation of The
Communications Decency Act, the First and Fifth Amendments, and the
Commerce Clause of the U.S. Constitution).
93
See Backpage.com, 2012 WL 3064543.
halting implementation of the law until the case can be heard.94 The
plaintiff has asserted that the statute violates the Commerce Clause
and the First and Fifth Amendments of the U.S. Constitution95 and
that the statute is preempted by section 230 of the federal
Communications Decency Act,96 which limits liability of websites
for postings by third parties.97
Multinational companies are also at risk based upon laws in the
countries where they operate and any duties imposed by international
law. Although there are no human rights instruments that impose
binding human rights obligations on corporations, customary
international law may provide the basis for determining that such
obligations exist.98 The Department of State’s annual Trafficking in
Persons Report (TIP Report), issued pursuant to TVPA, provides one
source for determining how a country approaches human trafficking.
The report details human trafficking prosecutorial efforts in each
country.99 Although there are no statutes in other countries
analogous to the ATS or TVPA, analogous claims may be possible as
tort actions in some countries based upon serious human rights
violations.100 There has not been a comprehensive survey of the
potential success of these possible claims.101 Some of these claims
have been based upon the UN Convention Against Torture. Another
source of reference is the ILO Forced Labour and Human
Trafficking: Casebook of Court Decisions.102 A review of cases
provides some guidance on laws in various countries and regions.
94
Id.
95
Id. at *4.
96
47 U.S.C. § 230 (2006).
97
Backpage.com, 2012 WL 3064543, at *4.
98
See discussion infra at Part III.B.
99
U.S. DEP’T OF STATE, TRAFFICKING IN PERSONS REPORT 2012,
available at http://www.state.gov/j/tip/rls/tiprpt/ 2012/index.htm.
100
See generally Anthea Roberts, The ATS and TVPA in Comparative
Perspective, Remarks at Northwestern Law Public Policy Roundtable: The
Alien Tort Statute and U.S. Enforcement of Foreign Judgments 2 (Apr. 30,
2010) (observing that “[i]n the few jurisdictions where the issue has been
considered, reactions have ranged from outright hostility . . . to cautious
restraint . . . to enthusiastic acceptance. . . .”).
101
Id.
102
See INT ’ L LABOUR ORG., F ORCED LABOUR AND HUMAN
TRAFFICKING: C ASEBOOK OF COURT D ECISIONS (2009), available at
There has been some criticism of the European Commission’s

position that European companies are not liable for human rights
abuse committed by their subsidiaries abroad. The criticism is based
upon the fact that the parent company receives profits from a
subsidiary’s operations without liability for human rights abuses.103
B. ANTI-TRAFFICKING LITIGATION
The U.S. Department of Justice (DOJ) issued a report in 2010
that reviewed TIP cases charged by the DOJ Civil Rights Division
and U.S. Attorneys' Offices. The number of cases has increased from
two in 1998 pre-TVPA, to thirty-five cases in 2005, five years after
its enactment, and fifty-two in 2010.104 In another study conducted
by ICF International, slightly different numbers were reported
because of the research methodology used.105 The ICF study
included interviews with federal prosecutors from ten jurisdictions
and a review of thirty-five cases from those jurisdictions.106 In those
cases, only 9% involved male victims while 94% involved female
victims.107 In 60% of the cases, the defendants were U.S. citizens.108
Foreign nationals were defendants in 57% of the cases.109 It was
reported that there were eighty-one U.S. defendants and seventy-six
foreign national defendants prosecuted across twenty-four cases and
71% of those cases involved sex trafficking.110 While there has been
http://www.ilo.org/sapfl/Informationresources/ILOPublications/WCMS_106
143/lang--en/index.htm.
103
F ILIP GREGOR & H ANNAH E LLIS, EUR . COAL. FOR CORPORATE
JUSTICE, F AIR LAW : LEGAL P ROPOSALS TO IMPROVE C ORPORATE
ACCOUNTABILITY FOR E NVIRONMENTAL AND HUMAN R IGHTS ABUSES 3,
8–20 (2008), available at http://www.corporatejustice.org/IMG/pdf/ECCJ_
FairLaw.pdf.
104
See U.S. DEP’T OF JUSTICE, supra note 34.
105
CLAWSON, supra note 17 (noting that a database of cases was
created based on DOJ bulletins, reports, and press releases; legal and lay
newspapers; law review articles; internet research; and the Public Access to
Court Electronic Records (PACER) system).
106
Id.
107
Id.
108
Id.
109
Id.
110
Id. at 18. But see Kathleen Kim, The Trafficked Worker as Private
Attorney General: A Model for Enforcing the Civil Rights of Undocumented
Workers, 2009 U. CHI. LEGAL F. 247, 310 n.337 (noting that, as of 2009,
an increase in prosecutions under the TVPRA, they typically involve

individual defendants. These cases include the case of two Filipino
doctors who brought a nineteen-year-old Filipina to their home to
become a domestic servant and then enslaved her for nineteen
years;111 a case where 250 Vietnamese and Chinese workers, mostly
women, were held in involuntary servitude for two years in the U.S.
Territory of American Samoa;112 the prosecution of an individual
who transported Russian girls to Anchorage, Alaska, for illegal
purposes including to dance nude;113 and the prosecution of a
husband and wife who held in peonage and document servitude two
Indonesian women they brought to the country illegally and
subjected to forced labor.114 The DOJ has stated that it will
“vigorously prosecute and convict any perpetrator who engages in or
facilitates human trafficking, whether through the internet or by more
traditional means.”115 However, some prosecutions may face
challenges if charges are brought against defendants who are
facilitators but claim they had no knowledge that they were assisting
traffickers or purchasing goods or services from traffickers. State
prosecutions are an alternative but, as some experts have noted, some
state laws require proof of knowledge that force, fraud, or coercion
was used.116 Some states may recognize such claims against
approximately thirty civil suits have been brought under 18 USC § 1595 and
none of them alleged sex trafficking).
111
United States v. Calimlim, 538 F.3d 706 (7th Cir. 2008).
112
United States v. Lee, 159 F. Supp. 2d 1241, 1243 (D. Haw. 2001)
aff'd, 472 F.3d 638 (9th Cir. 2006).
113
United States v. Kennard, 2002 WL 1994523 (9th Cir. 2002).
114
United States v. Sabhnani, 599 F.3d 215 (2d Cir. 2010).
115
Letter from Ronald Weich, Assistant Att’y Gen., Dep’t of Justice, to
Frank Wolf, Chairman, Subcomm. on Commerce, Justice, Sci., & Related
Agencies, Comm. on Appropriations, U.S. House of Representative (Apr. 25,
2012) (on file with recipient), available at
http://wolf.house.gov/uploads/2012-04 25%20Letter%20to%20Chairman%2
0Wolf.pdf. But see Jennifer M. Chacon, Misery and Mypoia: Understanding
the Failures of U.S. Efforts to Stop Human Trafficking 74 F ORDHAM L. R EV.
2977 (2006) (critiquing prosecutions under the TVPRA and noting where the
alleged conduct of corporations constituted trafficking, but no trafficking
charges were brought).
116
See, e.g., Linda Smith & Samantha Healy Vardaman, A Legislative
Framework for Combating Domestic Minor Sex Trafficking, 23 REGENT U.
L. REV. 265, 265 (2011) (discussing legislative gaps).
companies who indirectly benefit from TIP under theories of agency

and vicarious liability.117
C. Torture Victim Protection Act and ATS Litigation

In October 2011, the Supreme Court granted certiorari in two
cases to determine whether corporations can be sued for torts based
upon actions occurring abroad under either the Torture Victim
Protection Act (VPA) or the Alien Tort Statute (ATS).118 Tandem
oral arguments were heard in both cases on February 28, 2012.119 In
Kiobel v. Royal Dutch Petroleum, the Court had initially granted
certiorari on the issue of corporate liability under the ATS,120 but on
March 5, 2012 ordered Kiobel “restored to the calendar for
reargument,” and requested supplemental briefs addressing the issue
of extraterritoriality—that is, whether the ATS covers violations of
international law committed in foreign countries.121
The Supreme Court eliminated the possibility of claims against
corporations under the VPA when on April 18, 2012, in the Kiobel
companion case, Mohamad v. Palestinian Authority,122 it held the
statute only allows lawsuits against “individuals” that have engaged
in torture. The Court reasoned that because the statute does not
define the term “individual,” the Court must look first to the word’s
117
See, e.g., Doe v. Unocal Corp., Nos. BC 237 980, BC 237 679, at
13–16 (Cal. Super. Ct. Jun. 7, 2002), available at
http://www.earthrights.org/sites/default/files/legal/Unocal-Tort-LiabilityM
SA-Ruling.pdf; Doe v. Unocal Corp., Nos. BC 237 980, BC 237 679, at 13–
16 (Cal. Super. Ct. Jun. 10, 2002), available at http://www.earthrights.
org/sites/default/files/legal/ Unocal-Vicarious-Liability-MSA-Ruling.pdf
(granting Unocal's motions for summary adjudication as to direct liability
only on intentional torts and negligence causes of action, but denying
Unocal's motion as to vicarious liability and the California Business and
Professions Code § 17200 and claims of unjust enrichment).
118
28 U.S.C. § 1350 (2006).
119
Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2010)
(action by Nigerian), cert. granted (U.S. Oct. 17, 2011) (No. 10-1491),
available at http://www.supremecourt.gov/qp/10-01491qp.pdf.
120
Id.
121
Kiobel v. Royal Dutch Petroleum Co., No. 10-1491 (U.S. Mar. 5,
2012) (order for re-argument) available at http://www.supremec
ourt.gov/orders/courtorders/030512zr.pdf.
122
Mohamad v. Palestinian Auth., 132 S.Ct. 1702, 1710 (2011).
ordinary meaning, which indicates that an individual is a human

being and not a corporation or organization.123
Arguably, the VPA is clear that liability attaches to “an
individual.” Conversely, the ATS lacks such express language.124
On this issue, the Second Circuit created a split in the circuits when it
held in Kiobel that corporations are not appropriate defendants in
ATS cases.125 It reasoned that corporations are not currently subject
to penalties for customary international law violations before
international tribunals (or, put differently, that there is no customary
international law norm of imposing liability on corporations).126
In Romero v. Drummond Co., Inc.,127 the Eleventh Circuit
became the first circuit court to directly address the question of
corporate liability under the ATS. The Court found that there was no
express exception for corporations, thus corporations were not
protected from suit under the statute.128 Corporate liability under the
ATS has also been upheld by the D.C., 129 Seventh,130 and Ninth
Circuits.131
The ATS cases starting with Filartiga v. Peña-Irala in 1980,132
“can now be categorized with regard to three broad groups of
defendants: (i) foreign government officials; (ii) corporations; and
(iii) U.S. government officials.”133 The law that has developed in all
123
Id. at 1706-08.
124
28 U.S.C. § 1350 (2006).
125
621 F.3d 111.
126
See id. at 126–45.
127
Romero v. Drummond Co., 552 F.3d 1303, 1315 (11th Cir. 2008).
128
Id.
129
See Doe v. Exxon Mobil Corp., 654 F.3d 11 (D.C. Cir. 2011)
(Indonesian villagers alleging that Indonesian security forces hired and
supervised by Exxon had committed murder, torture, sexual assault, battery,
and false imprisonment).
130
See Boimah Flomo v. Firestone Natural Rubber Co., 643 F.3d 1013,
1024 (7th Cir. 2011) (23 Liberian children alleging that Firestone utilized
hazardous child labor practices; but dismissal is appropriate where plaintiff's
evidence fell short of establishing that defendant violated "customary
international law.").
131
See Sarei v. Rio Tinto, PLC, 671 F.3d 736 (9th Cir. 2011).
132
Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980).
133
DAVID WEISSBRODT ET AL., INTERNATIONAL HUMAN RIGHTS: LAW,
POLICY, AND PROCESS 958 (4th ed. 2006), available at http://www
1.umn.edu/humanrts/intlhr2006/chapters/chapter14.html.
categories is relevant to the question that is currently before the

Supreme Court in Kiobel. In Filartiga, the Court held that deliberate
torture perpetrated under the color of official authority violates
universally accepted norms of international human rights law, and
that such a violation of international law constitutes a violation of the
domestic law of the United States, giving rise to a claim under the
ATS.134
Fifteen years later, the Second Circuit helped further advance the
ATS jurisprudence when it held in Kadic v. Karadzic135 that the
president of a Bosnian–Serb political entity could be held liable
under the ATS.136 The Court found that certain crimes, such as rape,
torture, and summary execution, while ordinarily requiring state
action under the ATS, do not need to be committed under “color of
law” if done so in the furtherance of other more heinous crimes, such
as slave trading, genocide, or war crimes.137
The case law thus established that the ATS reaches the conduct
of private parties where the private actor (1) acted “under color of
law” or (2) violated a norm of international law that is recognized as
extending to the conduct of private parties.
In 2004, the Supreme Court decided Sosa v. Alvarez-Machain,138
the only Supreme Court decision interpreting the scope of the ATS.
In that case the Court unanimously held that a single illegal detention
of less than a day followed by a transfer of custody to lawful
authorities and a prompt arraignment did not violate any treaty or
norm of customary international law, and thus the plaintiff did not
have a valid claim for damages under the ATS.139
134
630 F.2d at 884–86.
135
Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995), cert. denied, 518
U.S. 1005 (1996).
136
70 F.3d at 239–40, 245 (quoting RESTATEMENT (THIRD) OF THE
FOREIGN RELATIONS LAW OF THE UNITED STATES § 404 (1987)). The court
also noted that it was persuaded by the executive branch, which urged in the
case that private parties could be held liable for “acts of genocide, war
crimes, and other violations of international humanitarian law.” Id. at 239–
40.
137
Id.
138
Sosa v. Alvarez-Machain, 542 U.S. 692 (2004).
139
Id. at 697, 738.
In Wiwa v. Royal Dutch Shell,140 the plaintiffs sued two foreign

holding companies. The Second Circuit reversed the district court’s
dismissal which was based upon jurisdictional grounds.141 In
response to their allegations that the companies participated with
Nigerian authorities in human rights violations against them, the
Court did not directly address corporate liability, but extended
corporate liability under ATS to foreign corporations if they
maintained “continuous and systematic” ties to the United States.142
The Court further noted that Congress expressly ratified its holding
in Filartiga when it passed the Torture Victim Prevention Act, which
provides that the U.S. courts have jurisdiction over suits by aliens
alleging torture under color of law of a foreign nation; the Court
added that Congress went further by extending its remedy to any
“individual,” thus covering U.S. citizens.143 In 2009, Shell settled
with the claimants in the Wiwa case for $15.5 million.144 This result
provided support for the possibility that victims of human trafficking
could assert claims against multinational corporations under the
ATS. However, the Supreme Court’s decision in Kiobel could
eliminate this possibility of corporate liability.
Some scholars conclude that it is highly unlikely that the
Supreme Court will find that claims under the ATS are actionable
against corporations145 while others strongly argue for corporate
140
Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88 (2d Cir. 2000),
cert. denied sub nom Royal Dutch Petroleum Co. v. Wiwa, 532 U.S. 941
(2001).
141
Id. at 94 (noting that the district court found personal jurisdiction
but dismissed the action for forum non conveniens).
142
Id. at 98.
143
Id. at 104–05.
144
Press Release, Ctr. for Constitutional Rights, Settlement Reached in
Human Rights Cases Against Royal Dutch/Shell (June 8, 2009), available at
http://ccrjustice.org/newsroom/press-releases/settlement-reached-human-
rights-cases-against-royal-dutch/shell.
145
This view is due in part to the extraterritorial question posed during
oral argument by Justice Kennedy: Whether any other nation “permits its
courts to exercise universal civil jurisdiction over alleged extraterritorial
human rights abuses to which the nation has no connection.” Transcript of
Oral Argument at 3–4, Kiobel v. Royal Dutch Petroleum Co., No. 10-1491
(U.S. Feb. 28, 2012) (citing amicus brief of Chevron), available at
http://www.supremecourt.gov/oral_arguments/argument_transcripts/10-
1491.pdf.
liability.146 As John Ruggie stated, “The implications of the case for

human rights go well beyond multinationals domiciled in countries
other than the U.S.”147 If the Court extends liability to corporations,
ATS litigation will continue to present a powerful risk that
corporations must assess in developing a strategy for corporate social
responsibility.
III. CORPORATE RESPONSIBILITY

A. INCENTIVES FOR CORPORATE SOCIAL RESPONSIBILITY
In the event that the Supreme Court limits liability under the
ATS, prosecution under TVPRA and other statutes mentioned above
are limited to individuals, and there is no new legislation enacted
imposing liability on corporate actions that indirectly affect human
trafficking, the likelihood of corporate liability in criminal or civil
lawsuits may be severely limited to only the most egregious direct
actions of human trafficking. This result, however, does not end the
inquiry with respect to the need for corporate action when indirect
benefits are received from TIP.
Addressing and understanding corporate responsibility in human
trafficking requires an approach that understands the basic business
theory of supply and demand. Demand refers to the quantity of a
given product that consumers will purchase at a given price. Supply
refers to the quantity of a particular product that suppliers, i.e.
146
See, e.g., Wesley V. Carrington, Corporate Liability for Violations
of Labor Rights under the Alien Tort Claims Act, 94 IOWA L. REV. 1381
(2009) (arguing that corporate liability is not likely); Marisa Anne
Pagnattaro, Enforcing International Labor Standards: The Potential of the
Alien Tort Claims Act, 37 VAND. J. TRANSNAT’L L. 203, 209 (2004) (arguing
that corporate liability is possible). The use of the ATS against U.S.
corporations for their conduct overseas has been criticized on the ground that
it could do enormous damage to U.S. foreign trade and investment. See
GARY CLYDE HUFBAUER & NICHOLAS K. MITROKOSTAS, AWAKENING
MONSTER: THE ALIEN TORT STATUTE OF 1789 (2003); Emeka Duruigbo, The
Economic Cost of Alien Tort Litigation: A Response to the Awakening
Monster: The Alien Tort Statute of 1789, 14 MINN. J. GLOBAL TRADE 1, 25–
30 (2004). But see, Steven M. Schneebaum, The Paquete Habana Sails On:
International Law in U.S. Courts After Sosa, 19 EMORY INT’L L. REV. 81,
95–98 (2005).
147
JOHN RUGGIE, HARVARD KENNEDY SCH., KIOBEL AND CORPORATE
SOCIAL RESPONSIBILITY (2012).
producers and sellers, will make available to the market. A market is

created when there are individuals or businesses that are willing to
supply the product demanded by the customers.148 TIP relies on a
triangle of activity: supply, demand, and distribution.149 In sex
trafficking, the supply is provided by the victims of commercial
sexual exploitation, and the consumers provide the demand.150 The
traffickers, i.e. the sellers, provide the distribution, but they are
assisted in the distribution by many legitimate businesses that
facilitate, often unknowingly, the distribution.151 These facilitators
include internet providers, online advertisers, newspapers, hotels, and
transportation providers.152 While some taxi drivers, hotel workers,
and workers at sexual entertainment venues, for example, may
develop purposeful partnerships with traffickers to assist in the
distribution and receive direct remuneration from the traffickers,
others may facilitate the distribution without receiving any
compensation from the traffickers or perhaps not even being aware
that they are important enablers of the distribution of sex
trafficking.153 The taxi, hotel and entertainment venue owners, if
unaware of the activity, receive indirect benefits from the sex
trafficking.154 Others who help facilitate sex trafficking, such as
internet advertisers and dating sites, may not enter into formal
relationships with the traffickers, but are also enablers who help the
traffickers earn profits and allow the facilitators to indirectly benefit
from the trafficking.155
Similarly, manufacturers, retailers, and certain service providers,
i.e., the producers and sellers, facilitate the use of products made by
148
Global Centurion Found., About Global Centurion, GLOBAL
CENTURION http://www.globalcenturion.org/about/mission-statement/ (last
visited Nov. 30, 2012).
149
Id.
150
Some have argued that most efforts to reduce or eliminate sex
trafficking should be aimed at the demand side because without the demand,
there would be no market. See generally SHIVELY ET AL., DEVELOPING A
NATIONAL ACTION PLAN FOR ELIMINATING SEX TRAFFICKING (2010).
151
Global Centurion Found., supra note 148.
152
Linda Smith & Samantha Healy Vardaman, A Legislative
Framework for Combating Domestic Minor Sex Trafficking, 23 REGENT U.
L. REV. 265, 288 (2011).
153
Id.
154
Id.
155
Id.
or services performed by labor trafficking victims.156 Thus, they

profit from the business of trafficking. In labor trafficking, a
business may at times be the customer providing the demand for the
trafficked labor and at other times the enabler who facilitates the
transmission of the services or products of the trafficked labor to the
ultimate consumers.157 These activities reach every aspect of the
economy and include the use of labor that a trafficker-recruiter
obtained in another country, the transporters who brought the
workers from the source to the destination, and the goods or products
produced by trafficked labor.158 While multinational companies may
more likely be affected, a business of any size can be affected by
TIP.
One method for addressing supply and demand in human
trafficking is to reduce profits and raise risks and costs of
trafficking.159 Changes in supply and demand can be produced by a
number of factors,160 including social factors that change the demand
for a product. Corporate social responsibility (CSR) can be one of
those factors. CSR is considered to be an “evolving concept,” but
generally refers to the integration of “social, environmental, and
economic concerns” into business operations. 161 This integration
156
Id.
157
Id. at 266–67.
158
159
See ARONOWITZ, supra note 15, at 68–71. (noting methods of
reducing profits that include reducing the supply of potential victims by
addressing situations which make people vulnerable such as poverty,
homelessness and gender discrimination; reducing demand for labor
exploitation through increased monitoring of employment situations and
campaigns aimed at reducing consumer purchases of goods produced by
trafficked labor; and reducing demand for sexual exploitation by educating
customers about the negative consequences of prostitution).
160
Primarily economic and legal factors.
161
See generally Corporate Social Responsibility, INDUSTRY CANADA,
GOVERNMENT OF CANADA, http://www.ic.gc.ca/eic/site/csrrse.nsf/eng/
rs00129.html (last visited Nov. 30, 2012); Carole Ramsay, Corporate
Social Responsibility: A Framework for Understanding the Legal Structure,
57 ROCKY MTN. MIN. L. INST. 17-A (2011); CSR EUROPE, A GUIDE
TO CSR IN EUROPE: COUNTRY INSIGHTS BY CSR EUROPE’S NATIONAL
PARTNER ORGANISATIONS 4 (2010), available at http://www.csreurope.org/
data/files/2342aguidetocsr02.pdf (observing, for example, that “growing
attention is being paid to the voluntary actions that companies take as part of
results in a business approach that considers responsibility and

accountability along with profitability.162 CSR builds on a base of
compliance with legislation and regulations,163 but can occur
independently of a legal requirement.
The idea of corporate commitment to social responsibility is not
new, and it is not always driven by changes in the law or the
possibility of corporate liability. Some scholars have defined CSR as
“actions that appear to further some social good, beyond the interests
of the firm and that which is required by law.”164 The European
Commission has defined CSR as “a concept whereby companies
integrate social and environmental concerns in their business
operations and in their interaction with their stakeholders on a
voluntary basis.”165 CSR has been the focus of a successful business
model since the 1970s,166 but has been the subject of a more intense
their CSR strategies to manage their economic, social and environmental

impacts”).
162
163
See generally Corporate Social Responsibility, supra note 161.
164
Abagail McWilliams et al., Corporate Social Responsibility:
Strategic Implications, 43 J. MGMT. STUD., 1 (2006) (quoting Abagail
McWilliams & Donald Siegel, Corporate Social Responsibility: A Theory of
the Firm Perspective, 26 ACAD. MGMT. REV. 117 (2001)).
165
Communication from the Commission Concerning Corporate Social
Responsibility: A Business Contribution to Sustainable Development, at 3,
COM (2002) 347 final (July 2, 2002), available at http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2002:0347:FIN:en:PDF
(citing Green Paper Promoting a European framework for Corporate Social
Responsibility, at 6, COM(2001) 366 final, available at http://eur-
lex.europa.eu/LexUriServ/site/en/com/2001/com2001_0366 en01.pdf.
166
See generally David Silverstein & Daniel C. Hohler, A Rule-of-Law
Metric for Quantifying and Assessing the Changing Legal Environment of
Business, 47 AM. BUS. L.J. 795 (2010) (citing Keith Davis, The Case for and
Against Business Assumption of Social Responsibilities, 16 ACAD. MGMT. J.
312, 312–13 (1973)); Robert Hay & Ed Gray, Social Responsibility of
Business Managers, 17 ACAD. MGMT. J. 135, 141–43 (1974); Rama
Krishnan, Business Philosophy and Executive Responsibility, 16 ACAD.
MGMT. J. 658, 665–68 (1973). Some have suggested that CSR was
established much earlier. See, e.g., Archie B. Carroll, Corporate Social
Responsibility: Evolution of a Definitional Construct, 38 BUS. & SOC’Y 253,
270 (1999) (quoting HOWARD BOWEN, SOCIAL RESPONSIBILITIES OF THE
BUSINESSMAN 6 (1953) (“the obligations of businessmen to pursue those
policies, to make those decisions, or to follow those lines of action which
focus since the exposure of numerous unprincipled business practices

in the 1990s.167 In the late 1990s, for example, Nike was subjected to
public disapproval, loss of profits, and loss of reputation when it was
reported that Nike engaged in exploitative employment practices in
overseas factories.168 Nike subsequently adopted a corporate social
responsibility plan and implemented strict supply chain controls.169
Although some have argued that CSR is not consistent with the
primary economic objectives of a business,170 the enhanced view of a
corporation’s reputation and credibility, which flow from a CSR
business plan, can lead to increased profits. An examination of the
relationships between CSR, corporate financial performance, and
other methods of performance, such as the satisfaction of internal
stakeholders including employees, may lead a company to realize the
benefits of CSR actions.171 One central question involved in the
change of business operations to address human rights exists: If costs
increase, will the consumers be willing to pay a premium for CSR
actions that produce a public good?172 While these actions may not
are desirable in terms of the objectives and values of our society”(emphasis

added))).
167
See Radu Mares, Defining the Limits of Corporate Responsibilities
Against the Concept of Legal Positive Obligations, 40 GEO. WASH. INT'L L.
REV. 1157, 1159 (2009) (citing DAVID VOGEL, THE MARKET FOR VIRTUE:
THE POTENTIAL AND LIMITS OF CORPORATE SOCIAL RESPONSIBILITY (2005)).
168
See Randall L. Waller & Roger N. Conaway, Framing and
Counterframing the Issue of Corporate Social Responsibility, 48 J. Bus.
Comm. 83, 97–103 (2011), available at http://www.sagepub.com/
cornelissen3e/Online%20reading%20pdfs/ Waller.pdf.
169
See, e.g., NIKE, INC. CODE OF CONDUCT (2010), available at
http://www.nikeresponsibility.com/report/uploads/files/Nike_Code_of_Cond
uct.pdf; NIKE, INC. CODE OF CONDUCT (2007), available at
http://www.itglwf.org/lang/en/documents/ Nike_Code_of_Conduct.pdf.
170
See Milton Friedman, Op-Ed, The Social Responsibility of Business
Is to Increase Its Profits, N.Y. TIMES, Sept. 13, 1970, at SM17, available at
http://www.umich.edu/~thecore/doc/Friedman.pdf ; MILTON FRIEDMAN,
CAPITALISM AND FREEDOM, 133 (1962) (“Few trends could so thoroughly
undermine the very foundations of our free society as the acceptance by
corporate officials of a social responsibility other than to make as much
money for their stockholders as possible.”).
171
See McWilliams et al., supra note 164, at 4 (discussing CSR viewed
as a “form of strategic investment” or as a “form of reputation building or
maintenance”).
172
Id. at 13 (raising the question and noting difficulty in measuring
consumer demand for CSR).
lead to a competitive advantage because competitors are likely to

imitate their strategy, it will have the positive effect of standardizing
CSR and respect for human rights in the industry, which should
eliminate any disadvantage that a business might suffer from
adopting CSR standards.173 The increased attention to human rights,
including human trafficking, has led companies to consider the CSR
implications involved in cross-border trade and global supply chains,
especially among multinational and multi-divisional companies.
These companies must focus on CSR as it relates to their operations
in the United States and other countries and the implications for
internal stakeholders such as employees as well as customers and
partners. One expert has suggested that the impact of international
law has created the concept of International Corporate Social
Responsibility (ICSR),174 which is now embraced by the adoption of
guidelines, standards and recommendations that apply specifically to
international conduct and activities by multinational corporate
enterprises.175
Some CSR actions are precipitated by legislation or
recommendations by national or international bodies. For example,
173
See, e.g., Kevin Banks & Elizabeth Shilton, Corporate
Commitments to Freedom of Association: Is There a Role for Enforcement
under Canadian Law?, 33 COMP. LAB. L. & POL'Y J. 495, 544 (2012) (citing
David Doorey, In Defense of Transnational Domestic Labor Regulation, 43
VAND. TRANSNAT'L L.J. 953, 994–995 (2010)), (noting that “Nike Inc.'s
decision to post the names and addresses of all of its global supplier factories
in 2005 . . . prompted Levi-Strauss to do the same, which then put other large
apparel companies that did not disclose this information on the defensive”).
174
See Peter Muchlinski, Corporate Social Responsibility, in THE
OXFORD HANDBOOK OF INTERNATIONAL INVESTMENT LAW 637 (Peter
Muchlinski et al. eds., 2008). See also, Sabine Schlemmer-Schulte,
Fragmentation of International Law: The Case of International Finance &
Investment Law Versus Human Rights Law, 25 PAC. MCGEORGE GLOBAL
BUS. & DEV. L.J. 422 (2012) (using the term on reference to international
finance/investment law and human rights); Larry Catá Backer, Multinational
Corporations, Transnational Law: The United Nations' Norms on the
Responsibilities of Transnational Corporations as a Harbinger of Corporate
Social Responsibility in International Law, 37 COLUM. HUM. RTS. L. REV.
287 (2006) (discussing the internationalization of CSR); Paulette L. Stenzel,
The US and Mexico Sin Fronteras—Without Borders: Sustainable
Development from a Local Perspective, 27 WM. & MARY ENVTL. L. &
POL’Y REV. 441, 469 (2003).
175
See discussion infra, Part III.B.
the Sarbanes–Oxley Corporate Responsibility Act,176 which was

enacted in 2002, includes a requirement that company executives
certify and report on a public corporation's activities, including
whether the company has an ethics code.177 Regulations adopted by
the Securities and Exchange Commission (SEC) pursuant to the
Dodd-Frank Wall Street Reform and Consumer Protection Act
(Dodd–Frank)178 enacted in 2010 provide detailed reporting
requirements regarding the use of conflict minerals.179 Dodd–Frank
also included authorization in its whistleblower provisions for the
SEC to provide monetary awards to eligible individuals who come
forward with high-quality original information regarding corporate
wrongdoing that leads to certain SEC enforcement actions.180 The
United Kingdom’s Public Interest Disclosure Act of 1998181 provides
protections for employees who “blow the whistle,” i.e., disclose
176
Sarbanes–Oxley Act of 2002, Pub. L. 107-204, 116 Stat. 745
(codified as amended in scattered sections of 15, 18 U.S.C.).
177
Code of Ethics for Senior Financial Officers, 15 U.S.C. § 7264(a)
(2006).
178
Dodd–Frank Wall Street Reform and Consumer Protection Act,
Pub. L. 111-203, 124 Stat. 1376 (codified as amended in scattered sections of
the U.S. Code). Title XV, section 1502 of the Act added § 13(p) (codified at
15 U.S.C. § 78m(p)) to the Securities Exchange Act of 1934 (requiring
persons “to disclose annually . . . whether [any] conflict minerals that are
necessary” to the production or functioning of a product of the person, as
defined in the provision, “originate[d] in the Democratic Republic of the
Congo or an adjoining country and, [if so, to provide a report describing,
among other matters,] the measures taken [] to exercise due diligence on the
source and chain of custody of [those] minerals”).
179
“The term ‘conflict mineral’ is defined in Section 1502(e)(4) of the
Act as (A) columbite-tantalite, also known as coltan (the metal ore from
which tantalum is extracted); cassiterite (the metal ore from which tin is
extracted); gold; wolframite (the metal ore from which tungsten is extracted);
or their derivatives; or (B) any other mineral or its derivatives determined by
the Secretary of State to be financing conflict in the Democratic Republic of
the Congo or an adjoining country.” Conflict Minerals, 77 Fed. Reg. 56,274,
56,2705 n.6 (Sept. 12, 2012) (to be codified at 17 C.F.R. pt. 240 and 249(b)).
180
For example, § 922 applies to the reporting of securities violations.
There are a number of other “whistleblower” laws including those enacted at
the state level. Dodd–Frank Wall Street Reform and Consumer Protection
Act § 922.
181
Public Interest Disclosure Act, 1998, c.23 (U.K.), available at
http://www.legislation.gov.uk/ukpga/1998/23/contents.
wrongdoing of their employer.182 There are six covered areas of

protected disclosures, including information about the employer’s
“breach of a legal obligation” or “miscarriage of justice.”183 CSR is
also encouraged by anti-corruption laws such as the U.K. Bribery
Act, which came into force July 1, 2011.184 The act creates offenses
for offering or receiving bribes.185 Methods for combatting the risks
of bribery are likely to be included in a business plan that includes
CSR.186 These are just a few of the numerous national laws and
international norms that motivate companies to embrace CSR.
B. STANDARDS, GUIDELINES, AND RECOMMENDATIONS

Companies that express a desire to observe human rights can
look to the documents commonly referred to as the International Bill
of Rights, which is comprised of the Universal Declaration of Human
Rights, the International Covenants on Civil and Political Rights, and
on Economic, Social and Cultural Rights, as well as the International
Labor Organization conventions to determine which rights should be
182
An employment tribunal ruled that Kathryn Bolkovac’s employer
unfairly dismissed her from her job as a U.N. police officer in Bosnia after
reporting an alleged prostitution racket involving her colleagues. Her
employer, DynCorp Technical Services, is an American company whose
branch in the United Kingdom, DynCorp Aerospace Operations Ltd., dealt
with the contracts of the American officers working for the international
police force in Bosnia. The employee contracts contained a clause requiring
that any lawsuits be brought in the United Kingdom. Tony Robson, Bosnia:
The United Nations Human Trafficking and Prostitution, WORLD SOCIALIST
WEB SITE (Aug. 21, 2002), http://www.wsws.org/articles/2002/aug
2002/bosn-a21.shtml.
183
Public Interest Disclosure Act, c.23.
184
Bribery Act, 2010, c.23 (U.K.), available at http://www.legisl
ation.gov.uk/ukpga/2010/23/contents; accord Organization for Economic
Co-operation & Development, Convention on Combating Bribery of Foreign
Public Officials in International Business Transactions, Nov. 21, 1997,
available at http://www.oecd.org/investment/briberyininternationalbusines
s/antibriberyconvention/38028044.pdf; U.S. Foreign Corrupt Practices Act
of 1977 (FCPA), 15 U.S.C. §§ 78dd–1 to –3 (2006).
185
Bribery Act, c.23.
186
PAUL HOHNEN, CORPORATE SOCIAL RESPONSIBILITY: AN
IMPLEMENTATION GUIDE FOR BUSINESS 59 (Jason Potts ed., 2007), available
at http://www.iisd.org/pdf/2007/csr_guide.pdf.
included in a CSR plan.187 They may remain uncertain about their

obligations under these documents. Some commentators have
argued that human rights documents impose obligations only on
states and governments,188 while others have argued for the extension
of human rights obligations to corporations.189 Corporate obligations
may now be clarified by recent United Nations documents.
After the U.N. Commission on Human Rights created the “Draft
Norms on the Responsibilities of Transnational Corporations and
Other Business Enterprises with Regard to Human Rights,”190 and
187
Fact Sheet, U.N. Office of the High Comm’r of Human Rights, Fact
Sheet No. 2 (Rev. 1), The International Bill of Human Rights (June 1996),
available at http://www.ohchr.org/Documents/Publications/FactSheet2Rev
.1en.pdf; see, e.g., International Labour Organisation, Worst Form of Child
Labour Convention, 1999, Jun. 17, 1999, I.L.O. No. 182 available at
http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---declaration/docum
ents/publication/wcms_decl_fs_46_en.pdf.
188
See generally SHELL INT’L PETROLEUM GRP., BUSINESS AND HUMAN
RIGHTS: A MANAGEMENT PRIMER 15 (1998), available at
http://www.shell.com/static/envirosocen/downloads/manageme nt_primers
/business_and_human_rights_primer.pdf (noting that the traditional view
among business leaders was that “human rights are an issue for governments
and NGOs, not for business, whose primary responsibility is to earn
economic returns for the benefit of their employees and shareholders”
(emphasis omitted)); Denis G. Arnold, Transnational Corporations and the
Duty to Respect Basic Human Rights, 20 BUS. ETHICS Q. 371, 374–76 (2010)
(noting that attempts to create human rights “nonvoluntary norms” for
corporations was viewed as overreaching by the business community);
ADIDAS GROUP, HUMAN RIGHTS AND RESPONSIBLE BUSINESS PRACTICES:
FREQUENTLY ASKED QUESTIONS (2011), available at http://www.adidas-
group.com/de/sustainability/assets/governance/Human_Rights_Responsible
_Business_Practices_Q&A_July_2011.pdf (noting much debate about
companies and human rights).
189
See THOMAS DONALDSON, THE ETHICS OF INTERNATIONAL BUSINESS
(1991); John Bishop, The Limits of Corporate Human Rights Obligations
and the Rights of For-Profit Corporations, 22 BUS. ETHICS Q. 119 (2012);
Wesley Cragg, Human Rights and Business Ethics: Fashioning a New Social
Contract, 27 J. OF BUS. ETHICS 205 (2000).
190
The U.N. Working Group on the Working Methods and Activities
of Transnational Corporations, a group of independent experts, presented the
Draft Norms to the Sub-Commission on the Promotion and Protection of
Human Rights, which the Sub-Commission then adopted. See Sub-Comm’n
on the Promotion and Prot. of Human Rights, Norms on the Responsibilities
of Transnational Corporations and Other Business Enterprises with Regard
to Human Rights, U.N. Doc. E/CN.4/Sub.2/2003/12/Rev. 2 (Aug. 26, 2003)
most of the business community opposed the Draft Norms, Professor

John Ruggie was appointed as a Special Representative on Business
and Human Rights to the Secretary-General of the United Nations
(SRSG) in July 2005.191 The opposition was based in large part on
the view that the Draft Norms attempted to impose human rights
obligations on corporations rather than just States.192 The Special
Representative was tasked with identifying standards of corporate
responsibility and accountability, enhancing understanding and
recognition of these standards, and issuing recommendations on
future United Nations work pertaining to business and human rights
issues.193 Ruggie took the approach that human rights law did not
impose the extensive human rights duties on businesses that were
contained in the Draft Norms.194 Instead, he clarified that existing
human rights instruments aimed at corporate responsibility were of a
voluntary nature for businesses,195 but some instruments did impose
[hereinafter Draft Norms], available at http://www1.umn.

edu/humanrts/links/NormsApril2003.html; see also Commentary on Draft
Norms, U.N. Doc. E/CN.4/Sub.2/2003/38/Rev. 2 (2003), available at
http://www1.umn.edu/humanrts/links/commentary-Aug2003.html; David
Weissbrodt & Muria Kruger, Norms on the Responsibilities of Transnational
Corporations and Other Business Enterprises with Regard to Human Rights,
97 AM. J. INT’L L. 901 (2003).
191
John Ruggie, a Harvard professor, helped establish the Global
Compact when he served as assistant secretary-general for strategic planning
under former Secretary-General Kofi Annan. His appointment continued
under Secretary-General Ban Ki-Moon through 2011. See Special
Representative of the Secretary-General, Interim Report of the Special
Representative of the Secretary-General on the Issue of Human Rights and
Transnational Corporations and Other Business Enterprises, ¶ 55, U.N.
Doc. E/CN.4/2006/97 (Feb. 22, 2006) [hereinafter 2006 Interim Report],
available at http://www1.umn.edu/humanrts/business/RuggieReport2006
.html. For other reports of the Special Representative and related documents
see http://www.business-humanrights.org/SpecialRepPortal/Home.
192
See, e.g., 2006 Interim Report, supra note 191, at ¶ 60; Bishop,
supra note 189, at 122 (citing Carolin F. Hillemanns, UN Norms on the
Responsibilities of Transnational Corporations and Other Business
Enterprises with Regard to Human Rights, 4 GER. L.J. 1065, 1070 (2003)).
193
See Commission on Human Rights Res. 2005/69, Human Rights
and Transnational Corporations and Other Business Enterprises,
E/CN.4/RES/2005/69 (Apr. 20, 2005), available at http://www.unhcr.org
/refworld/docid/45377c80c.html.
194
See 2006 Interim Report, supra note 191, at ¶ 61.
195
Id.
a duty on states to prevent private actors from violating human

rights.196 He also acknowledged that evolving principles of
customary international law suggest that corporations “may be held
liable for committing, or for complicity in, the most heinous human
rights violations amounting to international crimes, including
genocide, slavery, human trafficking, forced labor, torture and some
crimes against humanity.”197 In his 2008 report198 to the U.N.
Human Rights Council, Ruggie presented a framework that clarified
the human rights duties and obligations under a framework of
“Protect, Respect and Remedy” based on three pillars:
[(1) T]he State duty to protect against human rights
abuses by third parties, including business . . . [(2)]
the corporate responsibility to respect human
rights, which means to act with due diligence to
avoid infringing on the rights of others, and to
address such adverse impacts [that occur] . . . [and
(3)] greater access by victims to effective remedy,
both judicial and non-judicial.199
On June 16, 2011, the U.N. Human Rights Council endorsed
Guiding Principles on Business and Human Rights (Guiding
Principles) as submitted by Ruggie and based upon the “Protect,
Respect and Remedy” framework.200 There is evidence that the
Guiding Principles have had an impact on exiting standards and
196
Id. (listing the Convention on the Elimination of All Forms of
Discrimination Against Women, the OECD and UN anti-bribery
Conventions, and some ILO labor standards as imposing these obligations).
197
Id.
198
Special Representative of the Secretary-General, Protect, Respect
and Remedy: a Framework for Business and Human rights, U.N. Doc.
A/HRC/8/5 (Apr. 7, 2008), [hereinafter H.R.C. 8/5 Report], available at
http://www.reports-and-materials.org/Ruggie-report-7-Apr-2008.pdf.
199
Special Representative of the Secretary-General, Guiding Principles
on Business and Human Rights: Implementing the United Nations “Protect,
Respect and Remedy” Framework, ¶ 6, Human Rights Council, U.N. Doc.
A/HRC/17/31 (Mar. 21, 2011), available at http://daccess-
ods.un.org/TMP/5794962.64457703.html.
200
Human Rights Council Res. 17/4, Rep. of the Special Representative
of the Secretary-General on the Issue of Human Rights and Transnational
Corporations and Other Business Enterprises, 17th Sess., U.N. Doc.
A/HRC/RES/17/4 (July 6, 2011), available at http://daccessods.un.
org/TMP/1883139.16325569.html.
guidelines, and that corporations are adopting CSR due diligence

policies based upon this non-obligatory framework.201 For example,
the International Finance Corporation (IFC), a member of the World
Bank Group, has revised its standards and developed an online guide
entitled “Guide to Human Rights Impact Assessment and
Management” based upon the framework and designed for use by
companies.202
Some of the other non-legislative actions that foster CSR actions
include recommendations from the European Commission (EC). For
example, in order to direct investors towards enterprises in the light
of their CSR results, the EC encourages the following adoptions:
“codes of conduct (concerning workers' rights, human rights,
protection of the environment, etc.); management standards (in order
to integrate social and environmental aspects into the day-to-day
activities of enterprises); instruments for measuring performance
(such as internal evaluation reports); labels on products; and
standards for Socially Responsible Investment (SRI).”203 The EC has
not adopted or proposed binding legislation on CSR,204 but it has
201
INTERNATIONAL FINANCE CORPORATION, GUIDE TO HUMAN RIGHTS
IMPACT ASSESSMENT AND MANAGEMENT 11 (June 2010), available at
http://www1.ifc.org/wps/wcm/connect/8ecd35004c0cb230884bc9ec6f601fe4
/hriam-guide-092011.pdf?MOD =AJPERES.
202
Id.; see also Special Representative of the U.N. Secretary-General
for Business & Human Rights, Applications of the U.N. “Protect, Respect
and Remedy” Framework (Jun. 30, 2011), available at http://www.business-
humanrights.org /media/documents/applications-of-framework-jun-2011.pdf
(identifying instances of practical applications of the UN Framework).
203
Communication from the Commission Concerning Corporate Social
Responsibility: A Business Contribution to Sustainable Development, COM
(2002) 347 final (July 2, 2002), available at
http://europa.eu/legislation_summaries
/employment_and_social_policy/employment_rights_and_work_organisatio
n/n26034_en.htm.
204
See Communication from the Commission to the European
Parliament, the Council and the European Economic and Social Committee:
Implementing the Partnership for Growth and Jobs Making Europe a Pole of
Excellence on Corporate Social Responsibility, COM (2006) 136 final
(March 22, 2006), available at http://eur-lex.europa.eu/
LexUriServ/LexUriServ.do ?uri=COM:2006:0136:FIN:en:PDF.
announced a project to develop guidance based upon the United

Nations “Protect, Respect and Remedy” framework.205
Intergovernmental bodies—such as the International Labour
Organization (ILO), the United Nations Global Compact, the
Organization for Security and Co-operation in Europe, the
International Organization for Standardization, and the Organisation
for Economic Co-operation and Development—and national as well
as local nongovernmental organizations have also created compacts,
declarations, guidelines, principles and other instruments that outline
standards for responsible business.206
The ILO is an international organization with the mission of
“promoting social justice and internationally recognized human and
labour rights.”207 The ILO is unique because it is the only tripartite
United Nations agency—having government, employer, and worker
representatives.208 There are 185 member states in the ILO.209 The
ILO’s 2005 and 2009 International Labour Conference reports on
forced labor document that forced labor is a severe problem with a
global scope.210 The reports noted increased allegations that major
205
Communication from the Commission to the European Parliament,
the Council, the European Economic and Social Committee and the
Committee of the Regions: A Renewed E.U. Strategy 2011-14 for Corporate
Social Responsibility, ¶ 4.8.2, COM (2011) 681 final (Oct. 25, 2011),
available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri= CO
M:2011:0681:FIN:EN:PDF.
206
See, e.g., CSR Worldwide Week, The Netherlands, Nov. 3–10,
2004, A Call for Globally Accountable Business, available at
http://germanwatch.org/tw/kw-csr04.pdf; SINGAPORE COMPACT, http://csrsin
gapore.org/c/ (last visited Dec. 1, 2012) (including members such as, big and
small companies, institutions, government agencies, trade unions,
associations, academia and NGOs).
207
Mission and Objectives, INT’L LAB. ORG., http://www.ilo.org/g
lobal/about-the-ilo/mission-and-objectives/lang--en/index.htm (last visited
Dec. 1, 2012).
208
Who We Are, INT’L LAB. ORG., http://www.ilo.org/global/about-the-
ilo/mission-and-objectives/lang--en/index.htm (last visited Dec.1, 2012).
209
Id.
210
See ILO 2009, supra note 12; International Labour Conference,
Geneva, Switz., May 31–June 16, 2005, A Global Alliance Against Forced
Labour: Global Report Under the Follow-up to the ILO Declaration on
Fundamental Principles and Rights at Work [hereinafter A Global Alliance
Against Forced Labour], available at http://www.ilo.org/
public/english/standards/relm/ilc/ilc93/pdf/rep-i-b.pdf.
mainstream industries benefit from forced labor.211 The ILO defines

“forced labour” as “all work or service which is exacted from any
person under the menace of any penalty and for which the said
person has not offered himself voluntarily.”212 Forced labor is
distinguished from instances of “low wages or poor working
conditions” that are not accompanied by “a severe violation of
human rights and restriction of human freedom.”213 The reports
highlight that the international activities of a multinational company
can involve the use of forced labor.214 In the 2009 report, as an
example of the need for CSR, there is a discussion of the 2008 case
involving a UK-based company, Afrimex (UK) Ltd., which the
British government censured for not applying due diligence “in
sourcing minerals from mines that used forced labor.”215 The report
recommends that organizations concerned with advancing CSR in
certain industries provide assistance to businesses by adopting
industry-wide codes of conduct or other instruments that provide
guidance.216 These guidelines should recommend the adoption of
company policies that are clear with respect to conduct expected of
211
ILO 2009, supra note 12, at 3.
212
International Labour Organization, Forced Labour Convention,
1930, art. 2(1), Jun. 28, 1930, available at
http://www.ilo.org/wcmsp5/groups/public/---asia/---ro-bangkok/---ilo-
yangon/documents/genericdocument/wcms_191413.pdf.
213
ILO 2009, supra note 12, at 5 (noting that this standard can be met
by various kinds of menace, including physical violence or restraint, death
threats, psychological threats, and threats to report victims to immigration
authorities).
214
Id. at 51–52.
215
Id. at 15 (citing U.K. National Contact Point, Final statement by the
UK National Contact Point for the OECD Guidelines for Multinational
Enterprises: Afrimex (UK) Ltd, (Aug. 28, 2008), available at
http://www.oecd.org/investment
/guidelinesformultinationalenterprises/43750590.pdf). “The statement was
made in response to a complaint brought in 2007 by Global Witness, a UK-
based civil society organization that investigates the links between natural
resources exploitation, armed conflict and corruption.” Id. at n.6; see also
Global Witness, Complaint Against Afrimex (UK) Ltd under the Specific
Instance Procedure of the OECD Guidelines for Multinational Enterprises
(Feb. 20, 2007), available at
http://www.globalwitness.org/sites/default/files/import/afrimex_ncp_complai
nt_en.pdf.
216
See ILO 2009, supra note 12, at 50.
all enterprises in the company’s product and supply chains.217 The

report also includes a list of ten “[p]rinciples for business leaders to
combat forced labour and trafficking.”218 The principles provide
suggestions for proactive conduct that should avoid labor-trafficking
problems. For example, employers are advised to “[t]reat migrant
workers fairly [and m]onitor carefully the agencies that provide
contract labour, especially across borders, blacklisting those known
to have used abusive practices and forced labour.”219 The principles
are intended to benefit all businesses and not just those in the
“industries commonly perceived to be at risk, such as the agriculture
and the garment industry.”220 The complex supply chains that exist
for the goods used in many products cause a wide range of industries
to be at risk.221 The ILO suggests a program of action initiated by the
organization but including close work “with the academic
community and major policy institutions.”222
The United Nations Global Compact office223 adopted ten
principles as guidance for business practice, which can support the
establishment of good CSR practices in the areas of human rights.
Several are relevant to human trafficking. The two basic principles
are: (1) “Businesses should support and respect the protection of
internationally proclaimed human rights; and (2) make sure that they
217
Id. at 50, box 4.1.
218
Id.
219
Id.
220
Id. at 54.
221
Id. at 54.
222
Id. at 82.
223
In July 2000, then U.N. Secretary-General, Kofi Annan, launched
the Global Compact. UN Global Compact Participants, UNITED NATIONS
GLOBALCOMPACT, http://www.unglobalcompact.org/ParticipantsAndStakeho
lders/index.html (last updated Oct. 23, 2012). Today, seven U.N. agencies
support the office: (1) the Office of the High Commissioner for Human
Rights; (2) the United Nations Environment Programme; (3) the
International Labour Organization; (4) the United Nations Development
Programme; (5) the United Nations Industrial Development Organization;
(6)the United Nations Office on Drugs and Crime; and (7) the United
Nations Entity for Gender Equality and the Empowerment of Women. The
aim of the office is to encourage corporations to abide by basic principles on
“human rights, labour, environment, and anti-corruption.” Overview of the
UN Global Compact, UNITED NATIONS GLOBAL COMPACT,
http://www.unglobalcompact.org/about theGC/index.html (last updated Dec.
1, 2011).
are not complicit in human rights abuses.”224 If forced labor is a

possibility, principles 3, 4, 5, and 6 are also implicated:
Principle 3: Businesses should uphold the freedom
of association and the effective recognition of the
right to collective bargaining;
Principle 4: the elimination of all forms of forced
and compulsory labour;
Principle 5: the effective abolition of child labour;
and
Principle 6: the elimination of discrimination in
respect of employment and occupation.225
Finally, if corruption is involved, Principle 10 is implicated. It
provides that “[b]usinesses should work against corruption in all its
forms, including extortion and bribery.”226 To further emphasize the
connection between the ten principles and TIP, the Global Compact’s
lists six reasons for a proactive role in addressing human trafficking:
“because human trafficking is morally unacceptable; to comply with
international standards and national law; to manage risk and
reputation; to promote codes of conduct and CSR; to enhance
stakeholder relationships; [and] to protect global supply chains.”227
The Organisation for Economic Co-operation and Development
(OECD)228 has adopted guidelines for multinational enterprises,
which include non-binding principles and standards for responsible
224
The Ten Principles, UNITED NATIONS GLOBAL COMPACT, http://ww
w.unglobalcompact.org/AboutTheGC/TheTenPrinc iples/index.html (last
visited, Dec 30, 2012).
225
Id.
226
Id.
227
See UN.GIFT, Human Trafficking: Everybody’s Business, supra
note 7, at 2.
228
The Convention on the OECD was signed in Paris on December 14,
1960 when the Organisation for European Economic Co-operation (OEEC)
(formed in 1947 to administer aid under the Marshall Plan for the
reconstruction of Europe after World War II) was reconstituted as the OECD
in order to “ensure lasting peace [by] encourage[ing] co-operation and
reconstruction” between the nations. The Convention came into force on
Sept. 30, 1961. Thirty-four countries, including the United States are now
party to the Convention. History, OECD, www.oecd.org/history (last visited
Dec. 30, 2012).
business conduct in a global context.229 These guidelines were

updated in 2011230 from their last revision in 2000.231 The 2011
guidelines made substantial revisions to human rights, supply chain
and due diligence responsibilities.232 Peter Muchlinski notes that
since due diligence is a concept usually associated with investment
risks, as pointed out by the SRSG, “it requires a shift from
considering the risk to the company to risk to potential victims of
corporate action.”233 This revision is based on the Guiding Principles
adopted by United Nations Human Rights Council and developed by
the SRSG.
The Organization for Security and Co-operation in Europe
(OSCE) issued a report on using the business model approach to help
prevent TIP.234 One of its recommendations is that private industry
adopt self-regulation codes of conduct regarding fair trade practices
and supply-chain management.235
Several organizations and NGOs also developed standards for
CSR. The World Business Council for Sustainable Development
(WBCSD), a CEO-led global association of 200 companies dealing
with business and sustainable development issued a report on the
229
OECD, Guidelines for Multinational Enterprises (2011), available
at http://dx.doi.org/10.1787/9789264115415-en.
230
Id.; see also PETER MUCHLINKSKI, ADVOCATES FOR INT’L DEV. , THE
2011 REVISION OF THE OECD GUIDELINES FOR MULTINATIONAL
ENTERPRISES: HUMAN RIGHTS, SUPPLY CHAINS AND THE “DUE DILIGENCE”
STANDARD FOR RESPONSIBLE BUSINESS (2011), available at
http://a4id.org/sites/default/files/%5BA4ID%5D%20Human%20Rights,%20
Supply%20Chains%20and%20the%20%E2%80%9CDue%20Diligence%E2
%80%9D%20Standard%20for%20Responsible%20Business%20-
%20Peter%20Muchlinski.pdf.
231
OECD, Guidelines for Multinational Enterprises (2000), available
at http://www.oecd.org/investment/guidelinesformultinationalenterprises/192
2428.pdf.
232
See Muchlinkski, supra note 230, at 3.
233
Id. at 6 (citing Special Representative of the Secretary-General,
Business and Human Rights: Further Steps Toward the Operationalization
of the “Protect, Respect and Remedy” Framework, ¶¶ 81–83, U.N. Doc.
A/HRC/14/27 (Apr. 9, 2010), available at http://www.reports-and-
materials.org/Ruggie-report-2010.pdf).
234
ARONOWITZ ET AL., supra note 15.
235
Id. at 70.
benefits of CSR.236 The report is based upon a two-year study and

concludes that human rights were one of the top five priority areas
that should be addressed in CSR.237 The other areas are employee
rights, environmental protection, community involvement, and
supplier relations.238 All of the areas except environmental
protection are directly related to TIP concerns. The report concludes
that companies benefit from CSR policies and also provides some
practical tools to assist with the creation of a CSR policy.239
The European Coalition for Corporate Justice (ECCJ) is an
organization that represents over 250 civil society organizations,
including NGOs, trade unions, consumers’ organizations, and
academic institutions and promotes corporate accountability in
Europe.240 The ECCJ has taken the position that the European
Commission should provide legislation to guarantee human rights.241
While not technically aimed at developing guidelines or
recommendations for CSR, the California Supply Chain
Transparency Act encourages CSR. The law became effective on
January 1, 2012, and requires certain corporations to provide
information to the public regarding the steps they are taking to ensure
that their supply chains are free from trafficked labor.242 Initial
reports show that companies are imposing new requirements on their
suppliers so that accurate determinations can be made about supply
236
RICHARD HOLME & PHILIP WATTS, WORLD BUS. COUNCIL FOR
SUSTAINABLE DEV., CORPORATE SOCIAL RESPONSIBILITY: MAKING GOOD
BUSINESS SENSE (2000), available at http://www.wbcsd.c h/DocRoot/IunS
PdIKvmYH5HjbN4XC/csr2000.pdf.
237
Id. at 10.
238
Id.
239
Id. at 14–29.
240
About ECCJ, EUROPEAN COAL. FOR CORPORATE JUSTICE, http://ww
w.corporatejustice.org/-about-eccj,012-.html?lang=en (last visited Dec. 30,
2012).
241
Press Release, European Coal. for Corporate Justice, The EU Must
Take Further Steps to Hold Companies Accountable, (Oct. 25, 2011),
available at http://www.corporatejustice.org/csr-communication-eccj-
reaction.html?lang=en.
242
CAL. CIV. CODE § 1714.43 (West 2012). The law applies to
companies doing business in California with annual worldwide gross receipts
exceeding $100,000,000. The disclosures must be accessible through a
"conspicuous and an easily understood link" on the company’s homepage.
Id. § 1714.43(b).
chains.243 U.S. Representative Carolyn Maloney of New York

introduced a bill in the 112th Congress similar to the California
law.244 The law would require companies to include in the annual
report to the SEC information on the company’s efforts “to identify
and address conditions of forced labor, slavery, human trafficking,
and the worst forms of child labor within the company's supply
chains.”245
C. SELF-IMPOSED CSR ACTIONS AGAINST HUMAN TRAFFICKING

The SRSG, John Ruggie, has warned of the dangers faced by
companies that do not respect human rights: “Failure to meet this
responsibility can subject companies to the courts of public
opinion— comprising employees, communities, consumers, civil
society, as well as investors—and occasionally to charges in actual
courts.” 246
This warning appears to have been taken seriously by a number
of companies and industries concerned about human trafficking.
These companies have perhaps observed that the warning is
supported by the fact that other companies have seen their image
badly tarnished by allegations that they have used child labor or
conflict minerals, or otherwise have tainted supply chains. These
allegations have affected a number of industries including
technology, steel, electronics, footwear, food and beverages,
transportation, manpower recruitment, and textiles.247 Some
243
REMSEN KINNE ET AL., K&L GATES LLP, CALIFORNIA
TRANSPARENCY IN SUPPLY CHAINS ACT – FIRST 90 DAYS (2012), available at
http://www.jdsupra.com/legalnews/california-transparency-in-supply-chains-
85821/.
244
Business Transparency on Trafficking and Slavery Act, H.R. 2759,
112th Cong. (2011).
245
Id.
246
H.R.C. 8/5 Report, supra note 198, ¶ 54.
247
See ILO 2009, supra note 12, at 51; see also, e.g., John D. Sutter,
Tech Companies Make Progress on ‘Blood Phones’ and ‘Conflict Minerals,’
CNN (Aug. 16, 2012), http://www.cnn.com/2012/08/16/tech/gaming-
gadgets/congo-blood-phones-report/index.html; Editorial, Forced Labor,
N.Y. TIMES, Sept. 7, 2010, available at http://www.nytimes.com/2010/
09/08/opinion/08wed2.html; Susan Ferriss, Coca-Cola Accused of Links with
Child Labour, SYDNEY MORNING HERALD, June 11, 2004, available at
http://www.smh.com.au/articles/2004/06/10/1086749841441.html; John H.
companies realize that not only will allegations affect the particular
company but may also negatively affect the entire industry.248 Even
when there have been no allegations, some individual companies and
industries have taken a proactive approach to guard against human
trafficking, and run their business operations in a socially responsible
manner by complying with national laws in the countries in which
they operate for which they could be held liable, and also by
complying with non-binding international guidelines and
standards.249 Such actions can help potential victims as well as help
the company avoid the risk of human trafficking. Some of them are
discussed below. A report by the Global Initiative to Fight Human
Trafficking recommends that companies “[take] steps to make it
harder for traffickers to traffic people using their products, premises
or services and by helping raise awareness of the problem [and by]
adopting and implementing corporate policies with commitments to
respect human rights, labour standards and anti-corruption.”250
In February 2008, a conference on forced labor was hosted by
the Coca-Cola Company in Atlanta, Georgia and sponsored by the
U.S. Council for International Business, the U.S. Chamber of
Commerce, and the International Organization of Employers in
Cooperation with the ILO.251 The stated purpose of the conference
was to “draw on the experience and knowledge of participants in
helping to formulate a practical program for employers that can be
used to identify forced labor, to provide means for its elimination and
to give guidance on its remediation.”252 The attendees were
government officials, NGO representatives, the ILO, and eighty
representatives from employers’ organizations and individual
Cushman, Jr., International Business: Nike Pledges to End Child Labor And
Apply U.S. Rules Abroad, N.Y. TIMES, May 13, 1998, available at
http://www.nytimes.com/1998/05/13/business/international-business-nike-
pledges-to-end-child-labor-and-apply-us-rules abroad.html?pagewanted=all
&src=pm. See generally Corporate Legal Accountability Portal, BUS. &
HUMAN RIGHTS RES. CTR., http://www.business-humanrights.org/LegalP
ortal/Home (for listing of lawsuits).
248
See ILO 2009, supra note 12, at 51.
249
See infra notes 250–83 and accompanying text.
250
UN.GIFT, HUMAN TRAFFICKING: EVERYBODY’S BUSINESS, supra
note 7, at 2.
251
Meeting Agenda, Coca-Cola Co. et al., Engaging Business:
Addressing Forced Labour (Feb 20, 2008), available at http://www.
ilo.org/sapfl/Events/ILOevents/WCMS_092171/lang--en/index.htm.
252
Id. at 1.
companies.253 The participants discussed case studies of alleged

forced labor, the need to address forced labor and methods for
implementing business strategies to address forced labor.254 Similar
meetings were scheduled around the world.255 A subsequent meeting
focusing on human trafficking was held in Atlanta on February 14,
2012.256 In connection with the meeting, ManpowerGroup and
Verite released a report detailing a framework for combatting human
trafficking and forced labor.257 The partnerships formed at or as a
result of these meetings have led to other efforts to combat
trafficking. In a speech focusing on the need to shift the focus in
addressing human trafficking from corporate liability to corporate
social responsibility, Dr. Mohammed Mattar, executive director of
the Protection Project, The John Hopkins University School of
Advanced International Studies, recognized representatives from
Coca-Cola, LexisNexis, and Delta Airlines for their efforts to combat
human trafficking.258
The hospitality and tourism industry has been recognized as a
facilitator of TIP.259 However, the hospitality industry can also be
253
See Engaging Business: Addressing Human Trafficking in Labor
Sourcing, INT’L LABOUR ORG. (Feb. 14, 2012), http://www.ilo
.org/sapfl/Events/ILOevents/WCMS_092170/lang--en/index.htm.
254
Multi-Stakeholder & Multi-Brand Engagement, VERITÉ, http://www
.verite.org/helpwanted/toolkit/brands/multistakeholder-multibrand-
engagement (last visited Dec. 1, 2012).
255
Engaging Business, supra note 253.
256
Meeting Agenda, supra note 251.
257
See Press Release, PR Newswire, ManpowerGroup and Verite
Release Ethical Framework to Combat Human Trafficking and Forced Labor
in Cross-Border Recruitment (Feb. 15, 2012), available for download at
http://www.bizjournals.com/prnewswire/press_releases/2012/02/15/CG5447
2; An Ethical Framework for International Labor Recruitment, VERITE,
http://www.verite.org/ethical-framework-for-intl-recruitment (last visited
Dec. 1, 2012).
258
Mohamed Mattar, Engaging Business in International and Domestic
Anti-Trafficking Legislation, Remarks at Engaging Business: Addressing
Human Trafficking in Labor Sourcing (Feb. 14, 2012), available at
http://www.protect ionproject.org/speeches/.
259
See ILO 2009, supra note 12, at 79; see also UNODC, UNWTO
Stress Need for Tourism Industry Cooperation in Combatting Human
Trafficking, U.N. GLOBAL INITIATIVE TO FIGHT HUMAN TRAFFICKING,
http://www.ungift.org/knowledgehub/ stories/april2012/unodc-unwto-stress-
need-for-tourism-industry-cooperation-to-combat-human-trafficking.html.
used to combat trafficking. At the twenty-first session of the

Commission on Crime Prevention and Criminal Justice held in
Vienna, Austria in April 2012,260 a representative of Marriott Hotels
International, discussed the hotel chain's proactive approach to
training staff and reporting instances of trafficking or sexual
exploitation.261 The hotel chain is taking an approach which
addresses the supply side to trafficking.262 They have adopted a
Youth Career Initiative in their economic empowerment program to
address the belief that the root cause of the available supply is
poverty.263
Delta Airlines has taken the initiative to educate employees
about red flags in product supply chains or actions of customers that
may indicate that the airline is being used to facilitate trafficking.264
Delta was also the first airline to sign the End Child Prostitution,
Child Pornography, and Trafficking of Children for Sexual Purposes
(ECPAT) Code of Conduct.265 ECPAT states that its Tourism Child-
Protection Code of Conduct, a joint venture between ECPAT and the
tourism private sector, “is the only voluntary set of business
principles travel and tour companies can implement to prevent child
sex tourism and trafficking of children.”266 The Code of Conduct
provides that companies that sign on will receive assistance from
ECPAT to, among other things, work on issues to create alerts and
educate employees to recognize trafficking.267 The prevalence of
trafficking in the hotel industry has been highlighted in part by
260
Commission on Crime Prevention and Criminal Justice, U.N.
OFFICE ON DRUGS AND CRIME (Apr. 23–27, 2012), http://www.unodc
.org/unodc/en/commissions/CCPCJ/session/21.html.
261
Need for Tourism Industry Cooperation, supra note 259 (noting
remarks by Barbara Powell, Senior Director, International Social
Responsibility and Community Engagement, Marriott Hotels International).
262
See id.
263
Id.
264
See Human Sex Trafficking in U.S. Raises Concern, FOX NEWS,
http://www.foxnews.mobi/quickPage.html?page=27677&content=63919099
&pageNum=-1.
265
Id.
266
The Tourism Child-Protection Code of Conduct, END CHILD
PROSTITUTION, CHILD PORNOGRAPHY & TRAFFICKING OF CHILDREN FOR
SEXUAL PURPOSES U.S.A., http://ecpatusa.org/what-we-do/the-code/ (last
visited Dec.1, 2012).
267
Id.
efforts of a meeting planner in St. Louis, Missouri.268 Based on her

expertise and familiarity with the hotels in the area, she recognized
specific hotel rooms in Backpage.com’s escorts section which were
being used by sex traffickers. 269 As a result, she has directed her
efforts to convincing hotel managers to sign the Tourism Child-
Protection Code of Conduct and has helped her firm create a code for
meeting planners.270
Voluntary actions are also being taken by companies that might
experience goods produced by trafficked labor in their supply chains.
In attempt to address the supply side of trafficking, Microsoft has
created an “Unlimited Potential” program in Asia, which awards grants
to projects in communities where trafficking is concentrated.271 It has
also assisted local NGOs with the establishment of 135 community
technology centers.272 “The program[] has [also] been used as a
rehabilitative tool for trafficked victims.”273 OSCE reports that
Bettys & Taylors of Harrogate (United Kingdom), a traditional
family business specializing in coffees and teas, has developed a
system to monitor conditions in their supply chains.274 Its coffee
buyers are trained as social auditors, accredited by the Ethical
268
Katia Hetter, Fighting Sex Trafficking in Hotels, One Room at a
Time, CNN (Mar. 1, 2012), http://www.cnn.com/2012/02/29/travel/hotel
sextrafficking/index.html?eref=rss_travel&utm_source=feedburner&utm_me
dium=feed&utm_campaign=Feed%3A+rss%2Fcnn_travel+%28RSS%3A+T
ravel%29.
269
Id.
270
Id.; see also Press Release, Nix Conference & Meeting
Management, Meeting Planning Firm Leads the Charge to End Child Sex
Trafficking (Dec. 19, 2011), http://www.nixassoc.com/more-about-nix/press-
releases/.
271
See JUDITH GILMORE, CTR. FOR INFO. & SOC’Y, UNIV. OF
WASHINGTON, EVALUATION OF THE MICROSOFT UNLIMITED POTENTIAL ANTI-
TRAFFICKING PROGRAM IN ASIA (2008), available at http://www.childtr
afficking.com/Docs/ gilmore_08_microsoft_0309.pdf.
272
ARONOWITZ ET AL., supra note 15, at 69 (noting that this
information was obtained from Microsoft at the UN.GIFT conference in
Vienna, March 13–15, 2008); see also Unlimited Potential, MICROSOFT,
http://www.microsoft.com/india /msindia/msindia_unlimited_potential.aspx
(last visited Dec. 1, 2012).
273
ARONOWITZ ET AL., supra note 15, at 69.
274
Bettys & Taylors of Harrogate - Sustainable Coffee Sourcing
Programme, BUS. IN THE CMTY., http://www.bitc.org.uk/resources/case_
studies/afe_1363_bettys.html.
Trading Initiative.275 The buyers visit farms that grow tea and coffee
purchased by the company, to ensure that workers throughout their
supply chain are fairly treated.276 They report that their product sales
have grown and all of their suppliers receive a fair sustainable
price.277 Other efforts include the use of a Due Diligence Dashboard
database created by LexisNexis.278 The database allows government
and corporate procurement officers to search the database to uncover
supply chain risks.279 The director of Corporate Responsibility, Rule
of Law at LexisNexis reports that a search in the database of
Foxconn, a Chinese factory and Apple’s main supplier, uncovered
negative information dating back to 1997.280 The Apple incident
involving Foxconn, although not alleged to be forced labor,
illustrates that even if a company has adopted preventive measures
through a CSR plan, sometimes a company, in order to protect its
image, will be required to respond to specific allegations.281
Following media reports of forced labor conditions at Foxconn,
Apple immediately engaged an independent auditing company to
launch an on-site investigation and Foxconn subsequently made
some changes in its working conditions.282
275
Id.
276
Id.
277
Id; see also ARONOWITZ ET AL., supra note 15, at 70 (citing ALEXIS
ARONOWITZ, HUMAN TRAFFICKING, HUMAN MISERY: THE GLOBAL TRADE IN
HUMAN BEINGS (2009)).
278
LexisNexis Introduces Due Diligence Dashboard, LEXISNEXIS (July
18, 2011), http://www.lexisnexis.com/community/ legalbusiness/blogs/best-
practices/archive/2011/07/18/lexisnexis-introduces.aspx.
279
Id.
280
Government Info Pro, LEXISNEXIS (March 2012), http://www.g
overnmentinfopro.com/federal_info_pro/2012/03/uncov ering-human-
trafficking-in-supply-chains-with-lexisnexis-due-diligence-dashboard.html;
see also Lee Chyen Yee, Rights Group Says Apple Suppliers in China
Breaking Labor Laws, REUTERS, June 28, 2012,
http://www.reuters.com/article/2012/06/28/us-apple-china-suppliers-
idUSBRE85R0EA20120628.
281
See, e.g., Kate Knibbs, Apple Heads Off Criticism with Foxconn
Factory Inspections, MOBILEDIA (Feb. 13, 2012), available at
http://www.mobiledia.com/news/127854.html.
282
Auditors Find Improved Working Conditions at an Apple Supplier,”
N.Y. TIMES, Aug. 22, 2012, http://www.nytimes .com/2012/08/23/
technology/23iht-apple23.html.
Voluntary efforts by these companies and others283 demonstrate

that by focusing on supply and demand to develop market reduction
approaches, companies can prosper while improving the conditions
that might otherwise lead to more victims being subjected to
trafficking.
CONCLUDING REMARKS
As demonstrated by the issues regarding ATS claims284 and
efforts by states to reach companies who facilitate trafficking,285 the
law is unsettled regarding corporate liability for activities that result
in indirect benefits from human trafficking. Although additional
laws that might extend liability to these entities are continuing to be
considered286 and adopted,287 even if no criminal or civil liability is
established, revelations about a company’s reliance on trafficked
goods or services could be injurious to its reputation. The
283
See Janet Koven Levit, Bottom-Up International Lawmaking:
Reflections on the New Haven School of International Law, 32 YALE J. INT'L
L. 393, 407–08 (2007) (noting voluntary CSR efforts by companies
including Shell Interntional Petroleum, Amerada Hess Corporation,
Starbucks, and the Gap); Jernej Letnar Černič, Corporate Obligations Under
The Human Right To Water, 39 DENV. J. INT'L L. & POL'Y 303, 341 (2011)
(listing British Petroleum, Chevron, Citigroup, Coca-Cola, Exxon Mobil,
Total, General Motors, Wal-Mart, Conoco-Philips, Daimler-Chrysler, and De
Beers as companies with codes of conduct that focus on human rights
issues).
284
See discussion supra in Part II.A.
285
See, e.g., supra notes 91–92 and accompanying text (discussing
Washington’s bill, S.B. 6251).
286
See, e.g., PREVENTION OF AND REMEDIES FOR HUMAN TRAFFICKING,
Nat’l Conference of Comm’rs on Unif. State Laws 2011 (draft of proposed
model state law; imposing liability on businesses for certain acts). See
generally 2012 Top Ten List of Emerging Business and Human Rights Issues,
INST. FOR HUMAN RIGHTS & BUS. (Dec. 2011), http://www.ihrb.org/top10/
business_human_rights_issues/2012.html (discussing need for legal redress
for business participation in human rights violations);
U.N.H.R.C., Guiding Principles on Business and Human Rights:
Implementing the United Nations “Protect, Respect and Remedy”
Framework, HR/PUB/11/04 (2011), available at http://shiftproject.org/
sites/default/files/GuidingPrinciples BusinessHR_EN.pdf.
287
See, e.g., South Carolina Trafficking in Persons Law enacted 2012,
S.C. CODE ANN. § 16-3-2010 (1976) (violators include a “business owner
who uses his business in a way that participates in a violation”).
recommendations for domestic and international corporate social

responsibility plans should be implemented not only for the benefit
that accrues to the company, but also for the benefits that may be
realized by existing and potential victims through a reduction in the
supply and demand for trafficked goods or services. Assistance is
now readily available for companies desiring to adopt anti-trafficking
measures and comply with CSR guidelines such as the Guiding
Principles. 288 While additional research may be needed in many
areas addressed here, including the effect on businesses that adopt
corporate social responsibility plans when their competitors do not,
business enterprises can help combat human trafficking while
benefitting from the adoption of CSR plans and actions rather than
simply trying to avoid corporate liability.
288
See, e.g., U.N.H.R.C., The Corporate Responsibility To Respect
Human Rights: An Interpretive Guide (2012), HR/PUB/12/02,
http://www.ohchr.org/Documents/Publications/HR.PUB.12.2_En.pdf.

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South Carolina Journal of International Law and Business

Human Trafficking, The Rule of Law, and Corporate Social

Follow this and additional works at: https://scholarcommons.sc.edu/scjilb

* Cline Williams Professor of Citizenship Law, University of Nebraska

The United Nations has recognized that trafficking in persons is

As legislation and lawsuits aimed at eliminating trafficking in

I. HUMAN TRAFFICKING AND ATTEMPTS TO ADDRESS ITS

services, place some businesses at a distinct disadvantage.14

Smuggling of Migrants by Land, Sea and Air,19 which supplements

Convention against Transnational Organized Crime, G.A. Res. 55/25, Annex

the lower percentage of forced labor may be due to under-reporting

Women and Children, on December 13, 2000, U.S. domestic

availability of sophisticated technology that can be used to facilitate

eliminate the problem and support international

since the TVPA was enacted.48 In addition to the partners

II. BUSINESS RISKS OF LIABILITY IN HUMAN

extension of liability to companies for international crimes, under

knowingly trafficking another as well as knowingly benefitting

Even if entities cannot be held liable based upon the TVPRA,

action pursuant to 18 U.S.C. § 1595(b)). See generally KIM & WERNER ,

in a civil action, be liable for damages to that

a “person” can be an individual or a corporation.79 RICO defines the

There has been some criticism of the European Commission’s

an increase in prosecutions under the TVPRA, they typically involve

companies who indirectly benefit from TIP under theories of agency

C. Torture Victim Protection Act and ATS Litigation

ordinary meaning, which indicates that an individual is a human

categories is relevant to the question that is currently before the

In Wiwa v. Royal Dutch Shell,140 the plaintiffs sued two foreign

liability.146 As John Ruggie stated, “The implications of the case for

III. CORPORATE RESPONSIBILITY

producers and sellers, will make available to the market. A market is

or services performed by labor trafficking victims.156 Thus, they

results in a business approach that considers responsibility and

their CSR strategies to manage their economic, social and environmental

focus since the exposure of numerous unprincipled business practices

are desirable in terms of the objectives and values of our society”(emphasis

lead to a competitive advantage because competitors are likely to

the Sarbanes–Oxley Corporate Responsibility Act,176 which was

wrongdoing of their employer.182 There are six covered areas of

B. STANDARDS, GUIDELINES, AND RECOMMENDATIONS

included in a CSR plan.187 They may remain uncertain about their

most of the business community opposed the Draft Norms, Professor

[hereinafter Draft Norms], available at http://www1.umn.

a duty on states to prevent private actors from violating human

guidelines, and that corporations are adopting CSR due diligence

announced a project to develop guidance based upon the United

mainstream industries benefit from forced labor.211 The ILO defines

all enterprises in the company’s product and supply chains.217 The

are not complicit in human rights abuses.”224 If forced labor is a

business conduct in a global context.229 These guidelines were

benefits of CSR.236 The report is based upon a two-year study and

chains.243 U.S. Representative Carolyn Maloney of New York

C. SELF-IMPOSED CSR ACTIONS AGAINST HUMAN TRAFFICKING

companies.253 The participants discussed case studies of alleged

used to combat trafficking. At the twenty-first session of the

efforts of a meeting planner in St. Louis, Missouri.268 Based on her

Voluntary efforts by these companies and others283 demonstrate

recommendations for domestic and international corporate social

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