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Forced Labour: Fight or Flight? [Promoted content]

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The Forced Labour Regulation seeks to eliminate forced labour in EU supply chains but may stop short of reducing forced labour globally. How can this Regulation avoid disengagement in riskier regions and instead incentivise addressing violations where they are identified?

The EU’s efforts to mainstream due diligence processes to combat human rights and environmental harm, notably through the Corporate Sustainability Due Diligence Directive, is being complemented by legislation on market prohibitions. First came the EU Deforestation Regulation, which prohibits the marketing of forest-risk commodities linked to deforestation, and more recently, the Commission proposed a Regulation to ban any product linked to forced labour. While such bans aim to ensure that companies do their utmost to ensure there is no risk of harm in their supply chains, there is a risk that they discourage companies from operating in riskier regions instead of incentivising them to combat harm and violations where they are identified.

The Forced Labour Regulation, which is currently in the hands of the European Parliament and the Council, provides an opportunity for the EU to make a positive impact on combatting forced labour within and beyond its borders. If designed with too strong an emphasis on banning, withdrawing, and destroying products rather than preventing and addressing forced labour, it may result in EU supply chains becoming free from forced labour but will not go far in contributing to a global reduction of forced labour. How can the Forced Labour Regulation make a positive difference? Here are a few key recommendations:

Competent authorities should bear the burden of proving that products have been made with forced labour.

The European Commission’s proposed approach enables collaboration between economic operators and the competent authorities to jointly identify and end forced labour risks whereas a reversal of the burden of proof could lead to disengagement from regions with forced labour risks. This is due to the large amount of paperwork and evidence collection that such a reversal represents for operators, especially when combined with a lack of guidance from authorities on what evidence is considered valid and sufficient.

While moving sourcing away from high-risk areas may reduce risk in the supply chain, such disengagement would penalise responsible companies and farmers operating in these regions as well as smaller producers who are less able to adapt their processes or infrastructure to provide sufficient proof of satisfactory working conditions. Disengagement has a limited impact on ending cases of forced labour and often leads to further marginalisation of smallholder producers. Maintaining the burden of proof in line with the European Commission’s proposal would instead create a favourable context for all stakeholders to actively identify and address forced labour risks.

The Regulation should include a role for the European Commission and Member States to engage and collaborate with third countries to support the strengthening and enforcement of existing national legislation at local level to eradicate forced labour.

There is significant potential for this Regulation to generate global improvements in working conditions through regulatory alignment in producing countries outside the EU to ensure continued access to the single market. While company responsibility is key to supporting the eradication of forced labour, companies which are far removed from where the forced labour is taking place cannot achieve this on their own.

Governments need to effectively enforce their human rights laws, while companies should aid Governments by alerting them to forced labour cases identified in their supply chains. The Commission and Member States can contribute to this effort by clarifying the intentions of this Regulation to non-EU countries, supporting the development of effective local capacities for enforcement mechanisms, and promoting multilateral consensus and collaborative actions towards the eradication of the root causes of forced labour. Such engagements are also necessary to avoid the disengagement of European companies from high-risk areas.

The Regulation should mandate the Commission to publish clear implementation guidelines, particularly on the type and standard of evidence that companies should present during pre-investigation and investigation phases.

The lack of such guidelines will lead to confusion and difficulties in implementing the Regulation at a company level, thereby discouraging companies from sourcing in regions which would increase their chances of being investigated. Therefore, in such guidelines, the Commission should outline possible types of documents and evidence economic operators can rely on during an investigation, while taking into account commercially sensitive information. Furthermore, the Commission should outline in what cases certain documents would be required to be presented and from how far along company supply chains such documentation would be needed, considering that companies may have no or limited access to documentation owned by third parties.

The Commission should also outline the purpose of such documents, explaining how they can be used to provide convincing evidence of the absence of forced labour in supply chains. Such information would make it easier for economic operators with complex supply chains to collect evidence at different levels of the supply chain, facilitating collaboration with the competent authorities.

What is clear is that for the Regulation to have a meaningful impact on contributing to a reduction of forced labour worldwide, it should promote a collaborative and complementary approach among companies, competent authorities, and governments of producing countries. The Regulation should be designed to encourage the identification of forced labour in supply chains and to implement corrective measures so that victims’ rights can be addressed and enforced with the support of governments. Fighting forced labour rather than fleeing it is the surest way to make a positive difference worldwide, so we count on the European Parliament and Council to pave the way for meaningful and proactive joint action to end forced labour.

 

 

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