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Laying Down the Law: Using strategic litigation to tackle modern slavery

May 27, 2021

Strategic litigation – as a tool to drive corporate accountability – has a unique power to compel business action to tackle modern slavery in global supply chains. Forced labour and human trafficking are most prevalent in countries with weak legal frameworks and lax enforcement, enabling multinational corporations to turn a blind eye to modern slavery in their overseas operations and supply chains. Yet, legal liability and the associated financial, operational and financial damage of being implicated in human rights violations can be a powerful deterrent by increasing the risk of inaction. As well as providing a route for individuals to seek justice for harms caused by corporate actors, strategic litigation can be a catalyst for broader systems change by triggering reforms in legislation, policy and practice.

Five years ago, the Freedom Fund published the report Ending Impunity, Securing Justice, drawing attention to the potential of strategic litigation against states and private actors to eradicate modern slavery. Since then, funding anti-slavery strategic litigation has become a cornerstone of our Legal Strategies initiative, through which we have supported a range of groundbreaking legal efforts to advance corporate accountability across the globe. Slowly but surely, we are seeing a case law develop that is building pressure on companies to proactively take measures to prevent modern slavery. For example, last year the Canadian Supreme Court in the Nevsun case held that Canadian companies could be liable for violations of customary international law, including forced labour, in their overseas operations.

Nevertheless, strategic litigation remains an under-utilised tool in the anti-slavery movement.  As we reflect on half a decade of engagement on this work, we are committed to continuing to promote strategic litigation and finding new ways to test and expand its impact.

As part of this reflection, we hosted a conversation among three lawyers that have been at the forefront of global modern slavery legal efforts, to discuss the ways in which they have been using litigation to end corporate impunity.  Martina Vandenberg (Human Trafficking Legal Center), Sandra Cossart (Sherpa) and Archana Kotecha (The Remedy Project) highlighted the growing momentum around modern slavery strategic litigation, and the opportunities to strengthen this burgeoning movement through legislative frameworks such as mandatory human rights legislation and the U.S. Tariff Act. However, all three also noted ongoing hurdles to successful litigation, including the use of threats, reprisals and judicial intimidation (such as strategic lawsuits against public participation) against human rights defenders.

One of the key takeaways from the discussion was the need to grow and diversify the field of actors engaged in anti-slavery strategic litigation. Despite positive progress in building accountability through lawsuits against multinational corporations headquartered in the U.S, Canada and Europe, there are significant barriers preventing NGOs and lawyers in the Global South from participating in these efforts.  Dedicated resources to strengthen local-global case referral pipelines and build the capacity of local NGOs and lawyers to identify, investigate and pursue corporate accountability legal actions could help to build a global legal movement to end modern slavery.

The Freedom Fund is committed to continuing to support strategic litigation as an integral part of our global strategy. We believe that funding investigations, case development and litigation can help to dismantle the business of forced labour. But it is clear that we have only just begun to scratch the surface of what is possible in this area. Increased investment in legal efforts, including through donor collaboration, is essential to push forward the global accountability agenda and end impunity for human rights abuses.

Read the briefing, “From local to global: Building a strategic litigation ecosystem to address modern slavery in supply chains”. 

Photo credit: Tim Mossholder on Unsplash

Written by
Nick Grono