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  Forced Labor
 
Bergman, Jessica, "The Alien Tort Statute and Flomo v. Firestone Natural Rubber Company: The Key to Change in Global Child Labor Practices?", Indiana Journal of Global Legal Studies v. 18 no1 (Winter 2011) p. 455-479

Abstract:
In this article, the author considers the obstacles and arguments that have prevented uniform and enforceable international law on child labor. She discusses the Sosa v. Alvarez-Machain case, in which, the US Supreme Court severely limited the application of the USA's Alien Tort Statute (ATS). There the Court said a cause of action must be as rooted in a clear international norm such as one which would give rise to personal liability when the ATS was enacted in 1789. Despite the Sosa case, the author argues that domestic legislation like the ATS provide a mechanism to punish American exploiters of child workers abroad. The article gives, an example, a recent case in the U.S. Federal District Court, Flomo v. Firestone Natural Rubber Company, which found that allegations of forced and hazardous child labor at a Liberian rubber plant rose to the level of customary law and thus provided jurisdiction sufficient to invoke ATS. While the Flomo court ultimately ruled for the defendants, the author contends that the case affirms the possibility that plaintiffs can use ATS legislation to ensure corporate compliance with child labor norms around the world.

Subjects: Alien Torts Claims Act, Child Labor, Extraterritorial Application of Law, Forced Labor, Labor Rights as Human Rights
Newsletter: Vol 11, Issue 6
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Bernier, Barbara, "Symposium: Global Human Rights: Panel Remarks: Sugar Cane Slavery: Bateyes in the Dominican Republic", New England Journal of International and Comparative Law v. 9 no17 (2003) p. 17-45

Abstract:
This article discusses the enslavement of Haitians on sugar cane plantations in the Dominican Republic and proposes that international human rights laws regarding the use of forced labor be used to prevent such abuses. Part I introduces the existence of the problem. Part II details the process of sugar cane slavery and describes how Haitians end up working on the plantations and the illegal conditions they face while there. Part III situates this modern day atrocity in its historical context, recounting a brief history of Haiti and the Dominican Republic to provide an understanding of present events. Part V details the legal status of Haitians in the Dominican Republic, while Part VI discusses the international covenants and conventions that could be invoked to protect the Haitians and asserts that there is a role for the U.S. in this process. Part VII concludes by summarizing various steps that must be taken to resolve the problem of Haitian enslavement in the Dominican Republic.

Subjects: Case Studies: Country-Specific, Forced Labor
Newsletter: Vol 3, Issue 2
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Chacón, Jennifer M., "Misery and Myopia: Understanding the Failures of U.S.Efforts to Stop Human Trafficking", Fordham Law Review v. 74 (2006) p. 2977-3040

Abstract:
This article describes the Victims of Trafficking and Violence Protection Act of 2000 (TVPA), contextualizes it in the history of U.S. migration legislation and law enforcement, and critically evaluates its impact. The author argues that although the Act yields a few positive outcomes for the most exploited trafficking victims, the TVPA suffers from systemic flaws. In practice, she maintains, the TVPA and its antecedents actually facilitate trafficking and exploitation by focusing on border interdiction strategies, harshly penalizing migrant workers, and providing insufficient labor protections. Part I defines trafficking, contrasting the international law and more narrow TVPA definitions. Part II, a history of the TVPA, argues that it and the legal regime on which it is built facilitate trafficking into and within the U.S. Part III shows that under the TVPA, very few victims have been identified, few cases have been prosecuted; and trafficking has not been suppressed. The author then asks why the TVPA has failed. She contends that the causes for the failure are (1) the presumptive criminality of migrants, (2) the enforcers' sacrifice of migrant protection to the agenda of furthering criminal prosecution, (3) the conflation of trafficking and prostitution, (4) a general racial bias in the conception of trafficking, and (5) the Act's focus on border interdiction rather than internal enforcement.

Subjects: Forced Labor, Immigration, Sex Workers, Women’s Rights
Newsletter: Vol 5, Issue 10
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Chang, Grace & Kim, Kathleen, "Reconceptualizing Approaches to Human Trafficking: New Directions and Perspectives from the Field(s)", Stanford Journal of Civil Rights & Civil Liberties v. 3 (2007) p. 317-344

Abstract:
There is a growing consensus among anti-human trafficking advocates that the current U.S. policies and practices are too narrowly focused on enforcement and prostitution. This article explores the national and international consequences of this approach. It also evaluates the impact of these policies and practice on prostitution, labor migration, and sexual and reproductive health rights. It then uses that analysis to facilitate the development of a new anti-trafficking paradigm designed to situate trafficking within a broader framework and create new strategies to protect the rights of trafficked persons. The article concludes that human rights advocates approaching anti-trafficking advocacy from different sectors should identify guiding principles, expand the existing anti-trafficking coalition, and change the rhetoric used to discuss the problem. By executing these changes, human rights advocates will be able to more effectively protect the rights of trafficked persons.

Subjects: Forced Labor, Labor Rights as Human Rights, Sex Workers, Women’s Rights
Newsletter: Vol 7, Issue 3
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Diamond, Stephen F. , "The PetroChina Syndrome: Regulating Capital Martkets in the Anti-Globalization Era", Iowa Journal of Corporate Law v. 29 no41 (2003) p. 39-102

Abstract:
This piece begins by recounting the attempt by investment banks and the Chinese government to list an initial public offering of the giant Chinese oil company, PetroChina on the U.S. stock exchange, and the campaign by labor union activists and NGOs to block the listing on the basis of the company's use of forced labor in its operations in the Sudan and China's human rights violations. The campaign culminated in the controversial "Unger letter" that requires foreign companies seeking to list on U.S. exchanges to disclosure to potential investors their activities in countries that are involved in human rights violations. Professor Diamond describes the dramatic campaign that led to the "bombshell" letter and then asks the important question: does the injection of human and labor rights considerations into capital markets impedes the functioning of those markets? In answering that question, the author presents the objections that were raised to the Unger letter and demonstrates how the different types of objections fall into the different post-Cold War political camps of neo-liberalism, neo-mercantilism, national interest grouping, and new internationalism. The author then looks at the issue of injecting human rights concerns into capital markets from a different perspective. He says that we are witnessing the demise of the Keynsian industrial relations system in which wage increases and productivity increases go hand-in-hand; a system that has brought rising standards of living to the industrial working class and labor peace and stability to employers. Diamond claims that this industrial relations system and the macro-economic structures that supported it collapsed in the 1970s, so that subsequent reforms in currency regulations and capital markets permitted new levels of capital mobility that have undermined labor unions and working class living standards in the developed world. The demise of the industrial relations model also created a crisis in legitimacy. Without the wage-productivity bargain and a strong labor movement, many citizens in both the advanced and developing world no longer see the international global economic system as one that embodies what Clark Kerr calls "a sense of fair play." The growing sense of unfairness and the lack of consensus have fueled the anti-globalization movement all around the world.

Subjects: Case Studies: Company-Specific, Case Studies: Country-Specific, China, Forced Labor
Newsletter: Vol 4, Issue 1
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Eizenstat, Stuart E., "Imperfect Justice: Looted Assets, Slave Labor and the Unfinished Business of World War II", Vanderbilt Journal of Transanational Law v. 37 no2 (March 2004) p. 333-351

Abstract:
In this article, Stuart Eizenstat, former U.S. Ambassador to the European Union, discusses the mediated settlements between several European countries and the victims of World War II over compensation for slave labor in Germany and Austria, property restitution, and recognition of insurance policies and bank accounts. The author specifically focuses on the negotiations that led to settlement in which the Swiss National Bank agreed to return some of the looted gold and assets that it held and in which Germany and Austria agreed to pay $7500 in compensation to each slave laborer who was forced to work for Hitler's reign. The article, originally a speech in Vanderbilt University's 26th Annual Holocaust Lecture Series, includes a transcribed question and answer session in which former Ambassador Eizenstat discusses the implications of the slave labor settlement for issues of reparations for African-American slavery, American-Indians disenfranchisement, and Japanese-American internment.

Subjects: Case Studies: Company-Specific, Forced Labor
Newsletter: Vol 3, Issue 10
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Ellinikos, Maria, "American MNCs Continue to Profit from the Use of Forced and Slave Labor. Begging the Question: Should America take a Cue from Germany?", Cornell International Law Journal v. 35 no1 (Fall 2001) p. 1-33

Abstract:
This note discusses the dismal record of judicial enforcement of international labor rights violations committed by American multinational corporations (MNCs). Part I discusses the current status of American litigation of international labor rights violations under the Alien Tort Claims Act (ATCA) in light of the recent line of cases involving the Unocal Corporation and the pending Saipan labor suits involving U.S.-based retailers. Part II considers the German initiative to compensate victims of Nazi labor rights violations through the Foundation established by the German government, German industry, and several foreign nations. Part III concludes that ATCA is not the best means to combat international labor rights violations committed by American MNCs. The author concludes instead that the U.S. government and American MNCs should develop an initiative similar to the German model. Under such an initiative, American MNCs would accept moral and legal responsibility for their actions and take proactive steps to eliminate the use of forced and slave labor globally.

Subjects: Alien Torts Claims Act, Forced Labor
Newsletter: Vol 1, Issue 1
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Gjerdingen, Erick, "Suffocation Inside a Cold Storage Truck and Other Problems with Trafficking as “Exploitation” and Smuggling as “Choice” Along the Thai-Burmese Border", Arizona Journal of International and Comparative Law v. 26 no3 (Fall 2009) p. 699-737

Abstract:
In April of 2008, Thai police encountered a refrigerated truck that had been carrying 121 Burmese migrant workers bound for Thailand’s Phuket province. Fifty-four passengers had died, while many of the rest were jailed for immigration violations. Departing from the national debate that ensued in Thailand after this tragedy, this article offers a critique of recently-developed international law on human trafficking and smuggling. UN protocols dealing with trafficking and smuggling have placed a priority on protecting trafficking victims, but not those who are smuggled. In Thailand, the author argues, this view is particularly troublesome because Burmese immigrants are fleeing political and economic crises en masse. Hence the smuggling/trafficking dichotomy is inapplicable because even seemingly voluntary migration into Thailand is being compelled by oppressive elements in the Burmese homeland. Furthermore, he argues, even where immigrants are not tied to a particular Thai employer en route, the extremely brutal nature of Burmese immigrant jobs shows that the population is largely being exploited, and thus should be considered to have been trafficked rather than smuggled. To remedy this failure of the law, the author suggests that the UN strengthen its Smuggling Protocol to better protect victims; meanwhile, it says, the Thai government should better tailor its smuggling/trafficking protections to the situation of the migrant Burmese.

Subjects: Case Studies: Country-Specific, Forced Labor, Immigration, Undocumented Workers, United Nations (UN)
Newsletter: Vol 10, Issue 5
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Haberstroh, John, "In re World War II Era Japanese Forced Labor Litigation and Obstacles to International Human Rights Claims in U.S. Courts", Asian Law Journal v. 10 no253 (May 2003) p. 253-294

Abstract:
This article discusses In re World War II Era Japanese Forced Labor Litigation (“Forced Labor”), a case in which Chinese and Korean victims of Japan’s forced labor camps unsuccessfully pursued civil claims against Japanese corporations in the U.S. The claims were brought under California Code of Civil Procedure (CalCCP) section 354.6 – a provision created specifically for such claims -- and the Alien Tort Claims Act. Part I outlines the historical background of the case, the laborers’ efforts to seek redress in Japan, and the creation of a cause of action in California. Part II examines the two grounds on which the Forced Labor claims were rejected – the unconstitutional intrusion of CalCCP 354.6 into the federal government’s exclusive foreign affairs power, and the expiration of the statute of limitation on the ATCA claims. Part III discusses additional obstacles to ATCA claims that did not arise in the Forced Labor litigation but that could be pertinent to future international human rights claims in U.S. courts under ATCA. The author concludes by noting that although laborers are most passionate about receiving an apology, not monetary damages, to the extent that forced apologies deter future misconduct less effectively than restitution and retribution, ATCA claims may still be the most effective avenue of redress.

Subjects: Alien Torts Claims Act, Forced Labor, Japan
Newsletter: Vol 3, Issue 4
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Hyde, Alan, "The International Labor Organization in the Stag Hunt for Global Labor Rights", Law & Ethics of Human Rights v. 3 (2009) p. 154-179

Abstract:
The author uses a game theory perspective to argue that the ILO would achieve greater success, and better maximize its resources, if it targeted practices from which countries derive no long-term, comparative advantage in global trade, such as child labor, coercive labor, and poor health and safety standards. As a transnational agency, the ILO is in a position to help states counter the collective action problems that discourage them from improving standards in these types of areas. Hyde discusses the limitation of the ILOs current work, which is narrowly focused on promulgating uniform conventions for specific industries. These conventions do not distinguish practices which are sources of comparative advantage from those that are not. Further, he maintains that general, universal conventions that are based on practices from which some members might derive a comparative advantage do not bring out international adherence and shared commitment but rather distrust and suspicion by nations about other nation's intentions and therefore lead to non-compliance with conventions or defections from them. The author urges the ILO to design future efforts with the principles of game theory in mind in order to overcome the collective action deadlock. In line with these principles, he recommends the ILO engage in more regional-level efforts and increase transparency, in addition to incorporating workers' views and waging enforcement campaigns against egregiousť corporate violators.

Subjects: Child Labor, Corporate Accountability, Forced Labor, Health and Safety, International Labour Organization (ILO)
Newsletter: Vol 8, Issue 10
 
Inglis, Shelley Case, "Expanding International and National Protections Against Trafficking for Forced Labor Using a Human Rights Framework", Buffalo Human Rights Law Review v. 7 (2001) p. 55-104

Abstract:
This article discusses how the current process of redefinition and debate concerning trafficking is broadening the scope of traditional conceptions of trafficking and bringing into focus this phenomenon. Section I assesses the contours of current international legal norms concerning trafficking and forced labor. Section II examines the limitations of existing protections and presents contemporary suggestions from international actors for redefining trafficking. Section III reviews the current proposed solutions initiated by governmental, intergovernmental and non-governmental entities to address this considerable human rights problem. Turning to a discussion of the policy implications emerging from these proposed solutions, Section IV analyzes the most controversial aspects of the trafficking issue and highlights ways to reconceptualize international protections. Finally, Section V concludes with a set of recommendations to effectively combat trafficking within a human rights framework.

Subjects: Forced Labor, Women’s Rights
Newsletter: Vol 1, Issue 1
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Kelley, Thomas, "Unintended Consequences of Legal Westernization in Niger: Harming Contemporary Slaves by Reconceptualizing Property", American Journal of Comparative Law v. 56 (2008) p. 999-1034

Abstract:
This article describes how, in response to pressure from donor countries and international development experts, the Republic of Niger has adopted an aggressive program of legal "westernization" aimed at codifying and clarifying private property rights and how, in turn, these reforms have dramatically altered customary land tenure practices and undermined the ability of hereditary slaves to gain access to agricultural land. As it developed over the course of European colonization and formal decolonization in the 19th and 20th Centuries, slavery in Niger involved a complex set of mutual obligations between slaves and slaveholders, including providing slaves with limited access to agricultural land thereby allowing them to provide for their own livelihoods, so long as they paid annual tribute to their masters. Even as the government of Niger has adopted constitutional reforms formally abolishing slavery, the slaveholding practices have largely continued in Niger because of the inability of the central government to rule without the tacit support of noble landholding families in the countryside. With the introduction of western legal concepts, including private ownership in land, the government of Niger has sided with traditional nobles, including slaveholders, in determining that they, rather than the slaves occupying farm land, are the rightful "owners." The author argues that western legal reforms, including concepts of private property, should not be forced on developing countries without regard to actual local customs and practices on the target countries without producing unintended and often counterproductive results.

Subjects: Case Studies: Country-Specific, Comparative Labor Law, Forced Labor
Newsletter: Vol 7, Issue 10
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Larson, Jane E., "Prostitution, Labor and Human Rights", University of California Davis Law Review v. 37 (February 2004) p. 673-700

Abstract:
This article, originally a lecture, explores prostitution as a form of work that has been historically condemned and which can provide a current barometer of human rights. The article begins by contrasting the positions of abolitionists, who argue all prostitution constitutes human rights violations and should be abolished, and autonomists, who argue that prostitution is a means of economic survival and historically, a more efficient one for women than most menial labor. The article uses these positions to delve into the distinction between contract and bondage in labor. The author then asks whether the dichotomy of prostitution as work (where labor rights apply) or a condition of bondage (where human rights apply) is appropriate, given that many would posit labor as a human right. Finally, the article concludes that prostitution is a powerful laboratory for examining labor rights as human rights, by raising the question of when voluntary labor is so exploitative and dangerous as to violate the worker's human rights. Many international labor and human rights treaties refer to the welfare of forced sex laborers, but say nothing about the standards of women who choose prostitution, underscoring an antiquated dichotomy between notions of helpless women and children who need saving, and women of iniquity who've chosen their fate.

Subjects: Forced Labor, Women’s Rights
Newsletter: Vol 3, Issue 12
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Mariconda, Stephanie L., "Breaking the Chains: Combating Human Trafficking at the State Level", Boston College Third World Law Journal v. 29 no1 (Winter 2009) p. 151-187

Abstract:
Recognizing a human rights crisis in human trafficking within the U.S., Mariconda argues that, while there is some federal legislation that combats human trafficking, additional state measures are required in order to effectively combat this crisis. Arguing that better protection of human trafficking victims can only be accomplished by understanding the economies that benefit from trafficking, Part I summarizes the industries -- sexual slavery, domestic servitude, and forced hard labor -- in which trafficking is the most pervasive, analyzes the factors that contribute to continued human trafficking, and quickly surveys the effects of human trafficking on victims. Part II appraises three pieces of federal legislation that currently provide relief to victims of human trafficking: the Mann Act, the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today (PROTECT) Act of 2003, and the Trafficking Victims Protection Act (TVPA). Finally, in Part III, Mariconda argues that state legislation is needed to supplement federal anti-trafficking legislation; describes a Massachusetts anti-trafficking bill currently under consideration, and contrasts the Massachusetts bill with state anti-trafficking law in other states. Mariconda urges the Massachusetts legislature to pass anti-trafficking bill and urges other states to quickly follow suit.

Subjects: Forced Labor, Immigration, Sex Workers, Slavery
Newsletter: Vol 9, Issue 12
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Martinez, Jenny S., "Antislavery Courts and the Dawn of International Human Rights Law", Yale Law Journal v. 117 no4 (January 2008) p. 550-561

Abstract:
The author begins by examining the process by which the slave trade was abolished in the 19th century. She describes the treaties between Britain and several other countries that led to the establishment of international courts which successfully abolished the slave trade. The author contends that while most legal scholars today believe that international courts and international human rights law began post-WWII with the Nuremberg trials of Nazi war criminals, these antislavery courts were in fact the first international human rights courts. The author explains that modern international courts are currently ineffective at combating human rights violations by non-state actors such as transnational corporations because non-state actors have generally been considered outside the reach of international human rights laws. However, she contends that the abolishment of the slave trade demonstrates the ability of international courts to combat illegal actions by non-state transnational actors. The author proposes that an international court could therefore be used to effectively address modern instances of slave labor and human trafficking. She points out, however, that Britain was successful in abolishing the slave trade in part because it was willing to use its economic and military power to support the treaties it made with other countries. But the author also notes that the simple existence of international treaties and courts aimed at abolishing the slave trade influenced public opinion to oppose the slave trade. Taking similar measures today could likewise increase public opposition to human rights violations.

Subjects: Case Studies: Country-Specific, Extraterritorial Application of Law, Forced Labor, Slavery
Newsletter: Vol 8, Issue 9
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Nagle, Luz Estella, "Selling Souls: The Effect of Globalization on Human Trafficking and Forced Servitude", Wisconsin International Law Journal v. 26 (Spring 2008) p. 131-162

Abstract:
“Selling Souls” is primarily concerned with the inextricability of human trafficking from globalization. Nagle argues the rise in trafficking is an unintended consequence of globalization—the “supply and demand of transportable commodities,” including human beings, across national borders. Traffickers prey on people’s poverty and hope for a better life at the behest of an international economic order driven by profit margins predicated on low labor costs. Trafficked individuals, forced to work for little or nothing in manufacturing, agriculture, and the sex trade, are the ultimate cheap labor and can be found throughout the world. Nagle contends trafficking is endemic because “everyone benefits”: “mom and pop” traffickers and large criminal syndicates paid to recruit unwitting migrants, source countries relieved of the destitute, government agents bribed to look the other way, multi-national corporations profiting off cheap labor, and first world consumers availing themselves of cheap goods and services at home and abroad. Nagle urges political leaders to take account of the “nexus” between globalization and trafficking when fashioning responses to combat the crime. She underscores that any serious response must involve efforts by state, corporate, and civil society actors in both source and recipient countries, and invoke international human rights norms.

Subjects: Forced Labor, Immigration, Sex Workers, Undocumented Workers
Newsletter: Vol 8, Issue 6
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Nam, Jennifer S., "The Case of the Missing Case: Examining the Civil Right of Action for Human Trafficking Victims", Columbia Law Review v. 107 (November 2007) p. 1655

Abstract:
The Trafficking Victims Protection Act (TVPA) was amended in 2003 to create a private right of action under which trafficking victims may sue their traffickers for damages. The author surveys every case brought under this right of action. She finds that in the years since the law’s enactment, only 18 suits for damages have been brought against human traffickers. She hypothesizes that the reason for this paucity of cases may be that trafficking victims are afraid of their traffickers, who often have ties to the victim’s home country and may threaten the victim’s family. In addition, the author notes that because T-Visas are difficult to obtain, particularly for victims whose cases do not result in criminal prosecution of traffickers, the victims may be unable to remain in the United States long enough to file suit or see a civil action through. In addition, the TVPA requires that plaintiffs prove they were subject to a ‘severe form of trafficking’ in order to have standing. This may prove too high a bar, and too nebulous a standard, for most trafficking victims.

Subjects: Forced Labor, Labor Rights as Human Rights, Social & Economic Rights
Newsletter: Vol 13, Issue 4
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Note, "Remedying the Injustices of Human Trafficking Through Tort Law", Harvard Law Review v. 119 (June 2006) p. 2574

Abstract:
The author of this unsigned note outlines victims’ possible remedies for human trafficking. The author notes that 13th Amendment jurisprudence has narrowed the definition of slavery; victims must have suffered physical or legal force to state a 13th Amendment claim. This excludes most victims of contemporary human trafficking, who are often kept in bondage through psychological coercion. The author similarly criticizes the Trafficking Victims’ Protection Act, which provides redress for victims of ‘severe’ forms of trafficking only, which similarly excludes many victims who were intimidated into remaining in bondage. The author proposes that victims seek redress through state tort law, and outlines how a trafficking victim might state a claim for false imprisonment, intentional infliction of emotional distress, and fraud.

Subjects: Employment Law, Forced Labor, Labor Rights as Human Rights
Newsletter: Vol 13, Issue 4
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Note, "Counteracting the Bias: The Department of Labor’s Unique Opportunity to Combat Human Trafficking", Harvard Law Review v. 126 (February 2013) p. 1012-1033

Abstract:
The author argues that efforts to combat human trafficking in the United States have been largely ineffective because officials view trafficking through an anti-prostitution frame. This is inappropriate because sex trafficking represents a small minority of human trafficking cases. The majority of trafficking in the United States is labor trafficking. The author begins by describing the negative effects of labor trafficking, which extend beyond harm to the trafficked individual. When labor trafficking is prevalent, entire employment sectors in the United States and abroad begin to see increased incidence of depressed wages, dangerous workplaces, and poor working conditions. Combating labor trafficking is especially difficult because, unlike victims of sex trafficking, victims of labor trafficking are often more difficult to identify as they often work ‘in plain sight’ at otherwise-legal service or manufacturing jobs. Further, efforts to combat labor trafficking are made more complicated by the departments that oversee immigration and sex trafficking enforcement: the Department of Homeland Security (DHS) and the Department of Justice (DOJ). Both departments often detain, investigate, and sometimes prosecute trafficking victims who have committed immigration and criminal offenses. These consequences have a chilling effect on victims who might otherwise report trafficking offenses. The author argues that the Department of Labor (DOL) has a unique opportunity to combat labor trafficking through the Wage and Hour Division, whose investigators have experience uncovering the exploitation of workers. Thus, unlike the DHS and the DOJ, who are obliged to prosecute victims who may also be in violation of immigration and criminal statutes, the DOL only has the authority to address worker exploitation. As a result, trafficked workers may be more likely to contact the DOL to report workplace abuses than they would be to contact other law enforcement authorities.

Subjects: Forced Labor, Labor Rights as Human Rights, Undocumented Workers
Newsletter: Vol 12, Issue 6
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Pati, Roza, "States' Positive Obligations with Respect to Human Trafficking: The European Court of Human Rights Breaks New Ground in Rantsev v. Cyprus and Russia", Boston University International Law Journal v. 29 (Spring 2011) p. 79-142

Abstract:
This article discusses the recent case of Rantsev v. Cyprus and Russia in which the European Court of Human Rights defined human trafficking as a form of modern day slavery, and imposed positive obligations on states to prevent it. The author recounts how European laws and treaties have addressed human trafficking primarily through criminal law, while the United States has addressed trafficking through regulation of labor contracts. The author argues that both of these approaches are inadequate. Criminal law rarely reaches across national borders to address instances of human trafficking that are international in nature, and it does not provide redress for the victims. Regulation through private law better addresses victims’ needs by providing private remedies such as monetary damages and administrative remedies such as immigration status. The author argues that a human rights approach, taken by adherents to the Council of Europe Convention on Action Against Human Trafficking, is the preferred approach because it addresses trafficking as “modern day slavery,” and thus imposes heavy international criminal penalties, as well as positive and remedial obligations on signatory nations. The Ranstev case is significant because it marks the broadest adoption of the human rights approach from a criminal court. The author argues that activists should build off the Ranstev holding and push for countries to adopt a wide variety of positive preventative measures.

Subjects: European Union, Forced Labor, Slavery
Newsletter: Vol 12, Issue 9
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Ramasastry, Anita, "Corporate Complicity From Nuremberg to Rangoon: An Examination of Forced Labor Cases and Their Impact on the Liability of Multinational Corporations", Berkeley Journal of International Law v. 20 no1 (2002) p. 91-151

Abstract:
The article looks at nature and degree of complicity that gives rise to liability on the part of multinational corporations (MNCs) that operate in countries with repressive regimes. Specifically, it examines lawsuits in United States against these MNCs for violations of public international law under the federal Alien Torts Claim Act (ATCA). It also views the historical origins of corporate complicity, and examines the outcomes of British and American war crimes tribunal set up after the Second World War. Further, the article compares and contrasts these historical cases with the recent case brought in the federal district court against Unocal Corporation for alleged use of force labor in its pipeline project in Burma. The article provides a critique of the most recent court decision on Unocal on the grounds that the decision did not distinguish between the wartime and non-wartime violations. The author argues that the cases involving corporate complicity during wartime are not directly analogous to cases related to MNC investment activities in modern conflict zones or in countries that continue to repress the rights of their people.

Subjects: Alien Torts Claims Act, Forced Labor
Newsletter: Vol 2, Issue 1
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Richelson, Sarah, "Trafficking and Trade: How Regional Trade Agreements Can Combat the Trafficking of Persons in Brazil", Arizona Journal of International and Comparative Law v. 25 (Fall 2008) p. 857-898

Abstract:
Richelson provides an overview of human trafficking, a “rapidly expanding” crime that generates over nine billion dollars in global annual revenue. Brazil is the largest exporter of women and children, often trafficked into sex work worldwide, and also a destination country for trafficked workers. Richelson discusses Brazil’s efforts to combat trafficking in the “triple frontier” region between Brazil, Argentina, and Paraguay, and argues none of Brazil’s responses alone is sufficient. For instance, though Brazil has stepped up the enforcement of anti-trafficking laws and created agencies dedicated to trafficking, Richelson argues police and government corruption inhibits the efficacy of these efforts. The human rights framework, which includes government-sponsored shelters and toll-free help-lines, focuses too exclusively on sex trafficking and ignores labor rights. The author suggests that regional free trade agreements (FTAs) would be a better approach to combating trafficking. FTAs could incorporate a human and labor rights framework and also provide a mechanism to hold governments accountable. They would also change the underlying economic conditions that foster trafficking.

Subjects: Child Labor, Forced Labor, Free Trade Agreements, Sex Workers, Undocumented Workers, Women’s Rights
Newsletter: Vol 8, Issue 7
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Shamir, Hila, "A Labor Paradigm for Human Trafficking", UCLA Law Review v. 60 (October 2012) p. 76-136

Abstract:
Recent legislation addressing human trafficking, such as the US Trafficking Victims Protection Act of 2000 (TVPA) and the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons (Protocol), are framed to address the human rights of trafficking victims. The author argues that anti-trafficking statutes framed around human rights are of limited effectiveness because such statutes primarily focus on rehabilitating victims and punishing offenders. This focus is problematic for several reasons: first, the focus is necessarily limited to trafficking and not the breadth of labor exploitation, second, it gives redress only the most severe cases, third, by focusing on the most severe cases it normalizes less severe labor exploitation. The author argues calls for a paradigm shift: she suggests anti-trafficking measures be viewed from a labor framework. A labor framework would empower workers to combat exploitive treatment on their own, and would re-set the balance of power between labor and capital, thus removing the economic incentive in labor exploitation. The author describes five measures for implementing the labor approach: 1) prevent criminalization and deportation of trafficking victims, 2) eliminate binding, or status-dependant labor agreements, 3) reduce recruitment fees and the power of middlemen, 4) guarantee the right to unionize, 5) extend and enforce the application of labor and employment laws to all workers.

Subjects: Forced Labor, Labor Rights as Human Rights, Labor Rights in General (Misc.)
Newsletter: Vol 12, Issue 6
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Tiefenbrun, Susan W, "Sex Slavery in the United States and the Law Enacted to Stop it Here and Abroad", William and Mary Journal of Women and Law v. 11 (2005) p. 317-378

Abstract:
Professor Tiefenbrun discusses the impact of the U.S. Trafficking Victims Protection Act (TVPA), enacted in 2000. The author observes that in the U.S. the statute has refocused government on assisting trafficking victims and punishing the perpetrators, rather than treating the victims as criminals under the prostitution and immigration laws. Tiefenbaum notes that the TVPA has spurred the enactment of new criminal statutes that streamline prosecution and provide harsher penalties for traffickers; train immigration and law enforcement personnel to recognize potential victims; and provide victims with "T-visas" and witness protections programs. Internationally, the author argues that the TVPA has led to increased cooperation between the United States and other countries to eliminate sex trafficking. Finally, Tiefenbaum discusses the impact of reports that TVPA requires the Department of State publish each year detailing other nations' efforts and success at reducing trafficking. The author contends that these reports have caused many countries to increase their anti-trafficking efforts, in part because the U.S. began issuing economic sanctions in 2003 against low-ranking countries.

Subjects: Forced Labor, Immigration, Women’s Rights
Newsletter: Vol 4, Issue 8
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Tomlinson, Ashley V., "Slavery in India and the False Hope of Universal Jurisdiction", Tulane Journal of International and Comparative Law v. 18 no1 (Winter 2009) p. 231-261

Abstract:
This Comment explores solutions to the problem of India’s growing slave population and, particularly, the concept of universal jurisdiction that is garnering growing support from the international community. The author describes the legal history of slavery in India, the characteristics of modern slavery as differentiated from traditional slavery, and the historical and modern-day role of slavery in India. While slavery is illegal in India, widespread poverty and a desire for market competitiveness in the form of cheap production costs encourages the use of modern slavery in the forms of bonded labor, child labor and forced prostitution. This comment considers the multiple causes of modern slavery in India and stresses that adherence to the traditional caste system in India “a system in which an entire class of people is expected to perform demeaning, compulsory work for little or no pay“ is perhaps the most daunting obstacle to the eradication of modern slavery in India. It argues that the deeply rooted belief in the caste system underlies the refusal of the Indian government to find violations or enforce adequate remedies in practice. The author considers a universal jurisdiction regime to address the problem, in which willing states would have the authority to prosecute slavery violations as violations of customary international law and jus cogens norms. Ultimately, the author concludes that the assertion of universal jurisdiction through national statutes is not a realistic solution to the problem of modern slavery in India.

Subjects: Forced Labor, India, Sex Workers, Slavery
Newsletter: Vol 11, Issue 1
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Vachhani, Radha Tilva, "Côte d'Ivoire and India: Stricter Enforcement and Unanimous Compliance Required to End Child Labor", New England Journal of International and Comparative Law v. 15 (2009) p. 125-150

Abstract:
This article focuses on child labor in India's beedi cigarette industry and Côte d'Ivoire's cocoa industry. In Côte d'Ivoire, the author reports that child labor is widespread in the cocoa industry despite the country's strict labor laws. The author argues that the government industry tasked with enforcement has hindered national efforts to enforce these laws. Child labor is also prevalent in the making of beedi cigarettes in India, with many children being bonded into labor to pay family debts. India has laws forbidding most forms of child labor, but due to loopholes and lack of enforcement, child labor is still prominent. In response to these evils, all three branches of the U.S. government are working to eliminate consumer demand for products made with child labor. However, the enforcement mechanisms are weak, so the practice goes on. To remedy this, the author advocates stronger enforcement mechanisms in the relevant international instruments.

Subjects: Case Studies: Country-Specific, Case Studies: Industry-Specific, Child Labor, Forced Labor, India
Newsletter: Vol 11, Issue 5
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Wolff, Tobias Barrington, "The Thirteenth Amendment and Slavery in the Global Economy", Columbia Law Review v. 102 (2002) p. 973-1050

Abstract:
This Article argues that the knowing use of slave labor by U.S. based corporation in their foreign operations constitutes the presence of "slavery" within the United States, as that term is used in the Thirteenth Amendment, and hence that this practice renders such U.S. entities subject to the prohibitory authority of American courts through a private civil action. Part I examines the Court's translation of the Thirteenth Amendment to the changing industrial conditions of the late nineteenth and early twentieth centuries - the peonage cases - and provides an overview of the exploitation of forced labor in the emerging context of today's global economy. Part II employs an historical analysis of key elements of the American institutions of slavery and peonage to identify the principles underlying the Amendment's mandate that slavery "not exist" within the United States. Part II.A examines interjurisdictional slavery disputes - cases where slaves were carried to free jurisdictions - and recovers the conclusion, reached by nineteenth-century jurists, that slavery creates a robust social relation affecting the status of both master and slave. Part II.B traces the history of American efforts to prohibit illegal participation in the foreign slave trade and examines the Supreme Court's application of those prohibitions to certain supporting institutions - shipwrights and provisioners - that permitted illegal slave trading to flourish. Part II.C turns to the relationship between slavery and industrial forces, surveying the recognition by both jurists and scholars that slavery often arises because certain industries have intentionally created markets for forced labor. Part II ends by examining the proposed application of these principles to the foreign slave practices of contemporary American corporations. Finally, Part III considers this foreign slavery doctrine in light of prior treatments of the extraterritorial application of American law.

Subjects: Extraterritorial Application of Law, Forced Labor
Newsletter: Vol 1, Issue 2
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Zuppi, Alberto L, "Slave Labor in Nuremburg's I.G. Farben Case: The Lonely Voice of Paul M. Herbert", Louisiana Law Review no66 (Winter 2006) p. 495-526

Abstract:
This article is a historical treatment of Paul Herbert, who wrote the lone dissenting opinion in the 1948 decision to acquit several directors of I.G. Farben, Germany's largest chemical conglomerate, of participating in war crimes and crimes against humanity. Although the case involved several allegations, Herbert's dissenting opinion focused on the majority's failure to return convictions against most of the defendants for the firm's widespread use of slave labor. Herbert argued that the use of slave labor was a corporate policy of I.G. Farben, and that therefore culpability for the firm's use of slave labor extended to all of its directors, not just the five individuals who happened to be in charge of the Firm's most notorious facility at Auschwitz-Buna. He also argued that the defense of "necessity" could not excuse guilt, but only mitigate the punishment. The author suggests that the majority's decision to acquit most of the defendants was the result of several factors , including complacency among the prosecutors because of the overwhelming evidence that I.G. Farben's directors were aware of and approved of the use of slave labor by the firm.

Subjects: Corporate Accountability, Forced Labor
Newsletter: Vol 5, Issue 10
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