‘Slaves to Fashion’ in Bangladesh and the EU: Promoting decent work?

a. Defining modern slavery

There is no set legal definition of ‘modern slavery’, thus understanding of the term varies. It is separated from labour law but could benefit from greater integration with it. The concept of ‘modern slavery’ is broader than the traditional understanding of slavery. The Bellagio-Harvard Guidelines on the Parameters of Slavery are a useful starting point for understanding the development of the ‘modern’ conceptualisation of slavery. ²¹ The Guidelines incorporate Article 1(1) of the 1926 Slavery Convention in which it is held ‘slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised’. ²² The essential characteristics of slavery are: violent control, exploitation for financial gain and loss of free will. ²³

The Guidelines place possession as foundational to a finding of slavery, being ‘control over a person by another such as a person might control a thing’, with the exercise of powers attaching to the right of ownership. ²⁴ This distinguishes slavery from similar practices. Forced labour is only slavery if there is an exercise of powers attaching to ownership. ²⁵ Likewise, slavery is distinct from practices such as debt bondage, serfdom, servile marriages or child exploitation unless there is such control tantamount to possession. ²⁶ Trafficking is distinct from slavery as it is a ‘process by which slavery can be achieved’. ²⁷

Following the Guidelines should ensure tailored policy responses to ensure the eradication of slavery. The problem is where there exist different perceptions of slavery, internationally and nationally. The point has been made, mistakenly, that ‘formal slavery has become rare’ and so the prohibition of servitude and forced labour is most relevant. ²⁸

The term ‘modern slavery’ recognises that slavery still exists in the 21st century. ²⁹ Modern slavery has been taken to encompass ‘the disparate, yet related, offences of slavery, forced or compulsory labour, servitude and human trafficking’. ³⁰ This broad approach is characteristic of the ILO’s understanding of modern slavery. Modern slavery contrasts with the ILO’s principle that ‘labour is not a commodity’. In modern slavery, labour becomes the commodity that is bought and sold or controlled in a manner tantamount to ownership.

The Alliance 8.7 global estimates of slavery report asserts that modern slavery covers ‘a set of specific legal concepts including forced labour, debt bondage, forced marriage, other slavery and slavery like practices and human trafficking’ as an ‘umbrella term that focuses attention on commonalities across these legal concepts’. ³¹ The commonalities include aspects like threats, violence, coercion, deception and abuse of power. ³² SDG 8.7 places the objective of the eliminating modern slavery on the same level as eradicating forced labour, human trafficking and child labour.

There are international frameworks for the prohibition of modern slavery in addition to the Slavery Convention, albeit these are not expressly ‘modern slavery’ legislative measures. They indicate the place of modern slavery within normative fragmentation between civil and political rights and economic and social rights. First, the International Covenant on Civil and Political Right (ICCPR) ³³ prohibits slavery, servitude and those in forced or compulsory labour. ³⁴ It outlines that everyone also has the right to join and form unions. ³⁵ Forced labour is defined in the ILO’s Convention No.29 as work under the ‘menace of penalty’ which is not done voluntarily. ³⁶ A prohibition of slavery is also found in the Convention on the Rights of the Child (CRC). ³⁷ The Universal Declaration of Human Rights (UDHR) ³⁸ prohibits ‘slavery and the slave trade…in all their forms’ and provides for a right to work.

Article 4 of the European Convention on Human Rights (ECHR) prohibits slavery, servitude and forced or compulsory labour. ³⁹ In Siladin v. France ⁴⁰ in 2005, the European Court of Human Rights (ECtHR), was asked to rule on whether the scope of Article 4 included human trafficking. The applicant was a Tongolese national who, as a minor, lived in Paris as an unpaid servant and had her passport confiscated. She argued that she was a domestic slave in a condition of ‘servitude’ or in ‘forced or compulsory labour’ and received insufficient protection under French criminal law. The ECtHR, following the narrow approach of the Slavery Convention, found that whilst she had been held in servitude and required to carry out forced labour, she had not been in ‘slavery’ as that concept is traditionally understood. Servitude by means of human trafficking was considered a ‘less radical deprivation of freedom’ whereby the victim’s legal personality is not ‘destroyed’. ⁴¹ The ECtHR’s backward-looking approach in Siladin was out of keeping with the trend towards the broader conception of slavery embodied in the ‘modern slavery’ discourse which encompasses the victims of human trafficking.

The International Covenant on Economic, Social and Cultural Rights (ICESCR) ⁴² does not include the prohibition of slavery. Conversely, it states that everyone has the right to work freely and enjoy certain rights like fair wages, decent living, safe and health workplaces and the right to join a trade union. ⁴³ The ILO’s Resolution on decent work in global supply chains does not integrate ‘modern slavery’ but stipulates the need for employers to take ‘effective measures to identify, prevent, mitigate and account’ for addressing risks of forced and compulsory labour. ⁴⁴

Bales and Trodd outline three forms of modern slavery: chattel slavery, where people are born, captured or sold into slavery; debt bondage, where people pledge themselves against loans for an undefined length of time but cannot reduce the debt; and contract slavery, the essence of which lies in false employment contracts. ⁴⁵ Contract slavery is considered the most rapidly growing. ⁴⁶ All three forms of modern slavery exist in global supply chains. Gold, Trautrims and Trodd assert that in supply chains, modern slavery is defined as ‘the exploitation of a person who is deprived of individual liberty anywhere along the supply chain, from raw material extraction to the final consumer, for the purpose of service provision or production’. ⁴⁷ Labour market exploitation in the form of modern slavery is at the opposite end of the spectrum to decent work.

b. Defining decent work

Decent work is work that does not have any element of the violent control or possession embodied within modern slavery, nor the suppression of rights in child labour, forced labour or debt bondage. Decent work is defined positively by the ILO as work that offers a fair income, workplace security, social protection, better prospects for personal development and social integration and freedom to organise. ⁴⁸ SDG 8.5 sets out the objective of achieving, by 2030, ‘full and productive employment and decent work for all women and men, including for young people and persons with disabilities, and equal pay for work of equal value’ with indicators of average hourly earnings and the unemployment rate. Additionally, SDG 8.8 aims at safe and secure working environments for all, including migrant workers and those in precarious employment. It is not a fixed concept, rather an ‘objective to be aspired to’ and unlikely to be immediately achievable. ⁴⁹ The concept is subjective. What might be considered ‘decent’ to some, such as a five-day working week, might not be so considered by others.

Decent work is a concept that straddles the divide between standard and non-standard employment. Non-standard work is defined by the ILO as an umbrella term for ‘different employment arrangements that deviate from standard employment’, like agency workers. ⁵⁰ The most precarious forms of non-standard working, ⁵¹ such as zero-hour contracting, in which there is no certainty as to working hours, can amount to ‘unacceptable forms of work’, ⁵² or work that has elements of unacceptability. ⁵³ Even standard forms of work might involve elements of ‘unacceptability’. ⁵⁴ Fundamental to a contract of employment is liberty, a concept which has been conventionally upheld by common law systems yet conflicted by the endorsement in those systems of legal norms justifying subordination and exploitation. ⁵⁵

International recognition that decent work is the goal for all those workers who are subject to the varying depths and types of exploitation certain types of work can involve, is significant. It sets decent work at the opposite end of the spectrum from modern slavery. It has been suggested that modern slavery is a separate practice distinct from forced labour. ⁵⁶ Failure to recognise modern slavery as part of the labour market spectrum suppresses the scale of the problem and denies the opportunity to tackle modern slavery with a labour law response. There needs to be an acknowledgement that modern slavery is the worst current form of work.

a. Country context

Bangladesh is a case study that provides an opportunity to analyse modern slavery within global fashion supply chains and the responsibility of the EU to address this, through use of its trade and development policies. Whilst this article shows that there are modern slaves existing in the garment industry, it cautions against overuse of the term in respect of Bangladesh’s garment industry.

Bangladesh is a UN-classified LDC. ⁵⁷ Having retained this status since 1975, it is aiming to become a Middle-Income Country (MIC) by 2021. ⁵⁸ It has progressed socially and economically, meeting UN Millennium Development Goal targets like cutting extreme poverty and hunger, reducing child mortality and achieving almost universal primary education. ⁵⁹ The garment industry influenced this. It was developed and expanded as a result of national export-oriented strategies of the 1970s and 80s, and influenced by the regulation of quotas on textiles and clothing. ⁶⁰ The majority of the industry exists in urban areas, mainly Dhaka and Chittagong, in both purpose-built factories and residential buildings. ⁶¹ A number of factories are located in Bangladesh’s eight Export Processing Zones (EPZs), special zones which provide financial incentives for foreign investors. ⁶² Women comprise between 50-80% of the workforce. ⁶³

Bangladesh is a leading exporter of clothing. In 2018, 49.1% of its exports went to the EU, 91.9% of these in clothing. ⁶⁴ These exports benefit from tariff preferences. As an LDC, Bangladesh is a beneficiary of the EU’s GSP ‘Everything But Arms’ (EBA) arrangement whereby the EU provides duty-free and quota-free access to the EU market for all products except arms and ammunition. ⁶⁵ This has fuelled notable growth in exports to the EU. ⁶⁶ There is a possibility of withdrawing the tariff preferences under the GSP EBA if the EU finds there are ‘serious and systematic’ violations of standards contained in an annexed list of Conventions, including the eight ILO fundamental Conventions. ⁶⁷ Withdrawing preferences is a form of ‘negative conditionality’. Among 49 EU GSP EBA beneficiaries, Bangladesh alone accounted for 66% of all EBA preferential imports in 2016, ⁶⁸ representing the extent of reliance of the garment industry on the EU trade preferences and the economic leverage of the EU. There is thus a connection between modern slavery in the industry, where it exists in Bangladesh, and the fashion supply chain to the EU.

Economic and social development in Bangladesh is tainted by corruption. The country has a rank of 149/180 in Transparency International’s Corruption Perceptions Index 2018. ⁶⁹ This manifests in bribes for union registrations, ⁷⁰ or close ties between factory owners and government members. ⁷¹ Corruption is a factor causing a shrinking space for civil society, where criticism of the government is becoming more challenging. ⁷² Corruption extends to the unregulated informal economy, which, in 2010, covered 87% of the workforce. ⁷³ Work undertaken in the informal economy typically consists of subcontracted tasks like the embroidery of garments. ⁷⁴ As the informal economy lacks regulation and enforcement, it is more prone to instances of modern slavery. ⁷⁵

b. Labour rights

Expansion of the garment industry in Bangladesh has not been coupled with improvements in labour law and enforcement, despite condemnation after the Rana Plaza factory collapse. Modern slavery flourishes in such an environment and insufficient labour rights are a push factor for practices like human trafficking. ⁷⁶ This environment is not caused by a lack of ratification of international labour standards.

Bangladesh has ratified 35 ILO Conventions, of which 31 are in force. ⁷⁷ It has ratified seven of the eight ILO fundamental Conventions - excepting the Minimum Age Convention 1973 (No. 138) - and therefore has obligations to respect rights such as freedom of association and collective bargaining. ⁷⁸ Countries that have not ratified the eight fundamental Conventions are those that are more likely to be at risk of modern slavery; of the 2018 GSI’s list of countries which were identified to be at risk of forced labour, only one has ratified all eight Conventions – Argentina. ⁷⁹ Bangladesh has ratified other international Conventions including the UDHR and the ICESCR, both of which support the right to work and decent work in various forms.

The Bangladeshi Constitution pronounces that it is the state’s responsibility to protect workers from ‘all forms of exploitation’ and guarantee fundamental human rights and freedoms. ⁸⁰ There are two dominant labour laws: the Bangladesh Economic Zones Act 2010 (BEZA), which is specific to EPZs, and the Bangladesh Labour Act 2006 (BLA). ⁸¹ The BLA was amended in 2013 and implementing rules were adopted in 2015. As Bangladesh has international labour obligations, there is an expectation that these rules will be effective in ensuring labour rights for garment workers, including those most vulnerable.

Nevertheless, there are concerns over freedom of association and collective bargaining that have attracted the attention of the international community. These are rights contained in two of the fundamental ILO Conventions, Nos. 87 and 98, respectively. They are vital to the ability of workers to voice their concerns and attempt to improve rights and working conditions. If workers can organise and effectively bargain with employers, they are more likely to be engaged in decent work. Those in modern slavery do not have the opportunity to exercise these rights as they are under control without liberty, as opposed to being in a voluntary, but exploitative, working relationship with an employer. This might be accompanied by ‘violent force, deception and/or coercion’. ⁸² There are legislative and practical issues relevant to these rights.

First are the legislative hurdles. The BEZA prohibits the formation of free and independent unions. ⁸³ In their place are Worker Welfare Associations which are typically employer-led. ⁸⁴ Where unions are permitted outside the EPZs, the BLA includes a requirement that workers wishing to form a union must have a minimum of 30% of workers in a factory sign up. ⁸⁵ Unions find this restrictive, ⁸⁶ and even if a union meets the requirement, the government has discretion to reject its registration. ⁸⁷ The ILO has found that unions are ‘fake, paper-based, organised without workers’ support, initiated by employers or dissolved’, ⁸⁸ particularly in relation to the increase in union registrations following the Rana Plaza factory collapse.

Second, where unions form, they face anti-union discrimination and violence. As of 2019, there are two cases before the ILO’s Committee on Freedom of Association (CFA). ⁸⁹ Each involves similar violations, identifying anti-union violence to opposition to large-scale strikes. For example, in January 2019, efforts to increase the minimum wage by striking were met by water cannons and tear gas. ⁹⁰ An earlier incident in December 2016, in Ashulia, Dhaka, involving thousands of striking workers, resulted in arrests of workers’ rights activists and the dismissal of workers. ⁹¹ Union offices were closed or damaged after the incident. ⁹²

Enforcement is essential to ensuring labour rights. Labour inspectors are central to enforcement, and pivotal to identifying labour rights abuses and modern slavery. The justice system should then administer sanctions for offenders and remedies in cases of modern slavery and labour rights violations. ⁹³ Bangladesh’s labour courts lack capacity to take this on, with only seven courts (as of April 2017) and a backlog of 15,128 cases in September 2016. ⁹⁴ Actors in the enforcement process need education and guidance to identify practices of modern slavery and those similar to slavery.

Violations of labour rights rose to the level of a special paragraph at the ILO’s Committee on the Application of Standards (CAS) in 2016, a form of ILO condemnation. ⁹⁵ CAS urged the government to undertake steps to improve freedom of association and collective bargaining, including amending the labour law, requiring that the EPZ law enables full, free and independent union membership, investigating ‘all acts of anti-union discrimination’ and ensuring applications for union registration are acted upon quickly and not denied. ⁹⁶ Modern slavery, forced labour or other coercive practices like child labour, was not an area of focus of the ILO’s condemnation.

Governmental commitments were made, influenced by the CAS special paragraph and the EU’s trade and development policies. It has proposed, for example, that the 30% requirement for union formation should be graduated depending on the size of the factory, the maximum remaining at 30% for factories with less than 2,000 workers and 20% in factories with more than 7,500 workers. ⁹⁷ As the ILO asserts, this continues to fall short of its standards and violates freedom of association and collective bargaining rights, being unlikely to impact many factories. ⁹⁸

The minimum wage has increased. As of 2018, workers receive a minimum wage of BDT 8,000 per month (EUR 86). ⁹⁹ Civil society calls for a minimum wage of BDT 16,000 (EUR 171). ¹⁰⁰ The minimum wage exemplifies poor living conditions as workers make homes in slums near factories. In addition, minimum wage increases have been coupled with excessive overtime and an increased workload, ¹⁰¹ in effect cancelling the benefits of a higher minimum wage. Further violations include a lack of occupational health and safety, and poor structural integrity of buildings. There are recurrent factory fires, one of the most fatal in recent decades being the Tazreen Fashions Fire in 2012, where more than 100 workers died. ¹⁰² The industry is characterised by ‘faulty fire equipment, no fire escapes, factories stacked in increasingly high-rise buildings, staircases and doorways encumbered by bales of flammable material or finished goods awaiting dispatch’. ¹⁰³

c. Modern slavery

Although modern slavery is the most severe form of labour exploitation on the spectrum, there is often a separation between laws addressing modern slavery and labour law. In the UK, for example, there is separation between legislative responses to employment law within the Employment Rights Act 1996 and the Modern Slavery Act 2015. ¹⁰⁴ Practices like modern slavery and forced labour exist in the civil and political rights context and forced labour overlaps with economic and social rights. It may benefit from being in the same legal framework, allowing for similar routes to enforcement and identification of labour rights violations across the spectrum of forms.

Bangladesh has ratified the main ILO Conventions on forced labour. It has not ratified Protocol 2014 to the Forced Labour Convention. ¹⁰⁵ National provisions condemn modern slavery. The Penal Code criminalises the practice of forced labour, slavery and habitual dealing in slaves. ¹⁰⁶ A ‘slave’ is not defined in the general explanations to the Code. It establishes punishment for those who compel a person to work against their will. ¹⁰⁷ More recently, in 2012, the government introduced a new anti-trafficking law, the Human Trafficking Deterrence and Suppression Act. ¹⁰⁸ This criminalises all forms of human trafficking, forced labour and debt bondage. There are three elements to human trafficking within the Act: an act, means and purpose. This can encompass a situation of recruitment by ‘fraud or deception, or abuse of any person’s socio-economic, environmental or other types of vulnerability’ for the purposes of labour exploitation. ¹⁰⁹ Therefore, this criminalises situations of work that are instances of labour exploitation but not necessarily slavery under the Bellagio-Harvard Guidelines. It also sets out the possibility of protection, rehabilitation and social integration of slavery victims. ¹¹⁰

Notwithstanding the introduction of the Act, the government has been criticised for failing to meet minimum standards for eliminating trafficking, having convicted only one trafficker in 2017. ¹¹¹ It follows findings that criminal law on modern slavery has fallen short, with a small number of investigations, prosecutions and convictions compared to the extent of the issue. ¹¹² Perhaps criminal law is not the best strategy to address violations and instead labour law should be used. ¹¹³ This may mean express integration of modern slavery offences into the labour law, with regard to the Bellagio-Harvard definition of slavery and practices similar to slavery, like forced labour and debt bondage. This would commence with an improvement to the labour law to bring it into line with ILO standards.

d. Garment workers as ‘modern slaves’?

Accounting for the extent of labour exploitation, its ILO condemnation, and the practices of modern slavery that exist in Bangladesh, the question is: are Bangladeshi garment workers ‘modern slaves’?

Several factors are relevant, pointing towards the possible existence of modern slavery within the garment industry. Modern slavery is more likely to exist in supply chains in countries where there is inadequate worker protection, enforcement and government accountability, a high percentage of working poor and social acceptance of worker exploitation. ¹¹⁴ These are all features characteristic of Bangladesh. In addition, the manufacturing sector makes up 15% of identified forced labour exploitation, ¹¹⁵ and garments are an item ‘at risk’ of being produced by slavery in the GSI. Women constitute 71% of victims of modern slavery, whilst debt bondage affects half of all victims of forced labour imposed by private actors, ¹¹⁶ and the garment industry workforce is mainly women. Forced labour and child labour has been found to exist in garment production in the region and in Bangladesh. ¹¹⁷

After Rana Plaza, there were assertions that garment workers were engaged in modern slavery. Anti-slavery campaigners were working alongside labour rights groups to identify and publicise human rights abuses in the fashion supply chain. ¹¹⁸ It is reported that the EU Trade Commissioner described conditions in Bangladesh’s garment industry as ‘modern slavery’. ¹¹⁹ There is a concern, however, that there is mislabelling of garment workers as slaves. ¹²⁰ There is a danger that labelling garment workers as slaves will reduce the opportunity to see the issue as a decent work one, a deficiency in labour legislation and labour rights in practice.

Nevertheless, there are indications of slavery or slavery-like practices in the industry. The ILO noted that indications of forced labour in garment supply chains include bonded labour, withholding of wages, restriction of movement, lengthy overtime and abusive working and living conditions. ¹²¹ Workers are subjected to excessive working hours and production targets, at times high recruitment fees and the illegal retention of passports, which is more likely where garment workers have been trafficked from a neighbouring country. ¹²² A Better Work report found that a minority of garment workers reported a threat of deportation and lack of control of passports. ¹²³ Trafficking into Bangladesh’s garment industry is less widely reported than trafficking of Bangladeshi women to the Middle East. ¹²⁴

In addition, there is some evidence of restrictions on freedoms in the industry. A damning report in January 2019 of workers making ‘Spice Girl T-shirts’ pointed to fainting, sickness and being forced to work late in an intimidating environment. ¹²⁵ A factory supplying the UK retailer Tesco found a woman beaten up by management and threatened with murder. ¹²⁶ The locking of doors is a further common practice - a practice which increased deaths in the Tazreen Fashions fire. ¹²⁷ Other restrictions on freedom of movement are found in hostels or accommodation provided for the workers. ¹²⁸ These indicate a loss of control over the nature, environment and conditions of work. ¹²⁹

The withholding of wages is a central issue in the garment industry. At the Rana Plaza factory complex workers were threatened with the deduction of a month’s wages if they did not work the day of the collapse even with cracks in the building being reported the day before. ¹³⁰ In a garment industry survey, 92% of workers said there were unrealistic targets that had to be fulfilled and if they were not, they were scolded, and threatened with being fired or receiving reduced pay. ¹³¹ Workers may face fines and deductions from the official wage, and withheld bonuses and money for overtime. ¹³² In forced labour, 25% of workers experience the withholding or threatened withholding of wages. ¹³³

There is a need to recognise these forms of labour exploitation and bring them to the foreground in the pursuit of decent work. Arguably these workers cannot walk away because they rely on the income provided by the garment work and would otherwise be living in poverty, one of the critical push factors for modern slavery. ¹³⁴ Are these workers the possession of the factory owner/manager? It is likely that there will be situations where workers are owned, or where they become the commodity, because Bangladesh has all the necessary conditions for modern slavery to grow. Taking into account the Slavery Convention and the Bellagio-Harvard Guidelines, slavery in garment factories could manifest as a situation where workers are bought and sold, remaining under the possession of the factory management, or where workers are deceived, coerced or physically restrained. ¹³⁵

However, the terminology of modern slavery should not be applied loosely to labour exploitation in the industry as a whole, whether in producing countries or within the supply chain. Asserting that all workers who produce garments are slaves may be damaging for workers, who may be empowered by the work, even where it is exploitative. Modern slavery is a suppression of choice and there are female garment workers in Bangladesh that have made a decision to earn outside the home, going against long-standing practices of female exclusion in their culture. ¹³⁶ Even practices that might appear as slavery to the Western consumer, such as the locking of factory gates, is influenced by a culture whereby garment work should be undertaken in a protected environment. ¹³⁷ A focus on attaining decent work should be the primary objective, involving the elimination of modern slavery whilst recognising the choice that has led some women to the garment industry.

a. Attributing responsibility for modern slavery in supply chains

Thus, modern slavery does exist in the Bangladeshi garment industry, but one needs to be cautious about applying this generally to all forms of labour exploitation therein. Attributing responsibility for modern slavery in supply chains is contentious, not least because of the difficulty of identifying practices of modern slavery, its distinction from other forms of labour exploitation, and the lack of transparency in the supply chain. ¹³⁸ According to the Walk Free Foundation, governments, businesses and the community (including consumers) have an interest in eliminating modern slavery from the supply chain as it is seen as ‘morally repugnant’, a ‘litigation risk’ and a ‘brand and reputational risk’. ¹³⁹ Slavery in the supply chain is often seen as a brand and retailer issue and in response some states have adopted measures aimed at supply chain transparency as a mechanism to address slavery.

A leading example of this is the UK’s Modern Slavery Act 2015 (MSA), which calls for companies with a global turnover of at least GBP 36 million (EUR 42 million) that trade in the UK to produce an annual slavery and human trafficking statement including details of the steps they have taken to identify and eradicate modern slavery from their businesses and supply chains. ¹⁴⁰ It is envisaged the statement will contain information about slavery policies, parts of the supply chain that are at risk of slavery and trafficking, and the steps taken to address these. The MSA has been described as a ‘game-changer’. ¹⁴¹ The resultant statements are expected to encourage informed decision-making, increase consumer choice and encourage companies to manage risks and the impact of supply chains, ¹⁴² alongside creating an opportunity for collaboration between businesses in areas such as audits. ¹⁴³ This assists with tackling the issue that practices like forced labour can bring about, namely, a failure to identify the true workings of the factories in normal auditing. ¹⁴⁴ Whilst the statements concern modern slavery, they are designed to tackle labour rights violations of lesser types, typically encompassing objectives of providing a fair living wage. The anti-slavery mantra of the Act may embolden brands and retailers to act. However, it has been criticised for its failure to increase prosecutions, a heavy reliance on criminal law and its weak obligations on businesses to address modern slavery in their supply chains. ¹⁴⁵

An actor that has not been central to the fight against modern slavery to date is the EU. The EU, as a supranational actor, is obligated to act against modern slavery and for decent work in supply chains. Article 3(5) of the Treaty on European Union (TEU) requires the EU, in its ‘relations with the wider world’, to contribute to ‘sustainable development’, ‘the protection of human rights, in particular the rights of the child’ and ‘the strict observance and the development of international law’. ¹⁴⁶ It is implicit that this obligation includes acting to eradicate modern slavery and advancing labour rights. The EU drives exports in garments from Bangladesh to its single market, and is interconnected to the garment industry through trade and development policies. Addressing modern slavery in supply chains in the context of trade and development requires a context-specific approach that tackles labour rights violations with a view to eliminating modern slavery and bringing about decent work.

b. EU normativity, decent work and modern slavery

The EU, as Bangladesh’s largest trading partner and with the majority of its imports from Bangladesh consisting of clothing, was ‘duty bound, morally, legally and normatively, to act’ after the Rana Plaza disaster. ¹⁴⁷ Morally, the international community expected ‘generosity’ ¹⁴⁸ from the EU to tackle the negative effects of trade liberalisation; legally, the exercise of negative conditionality through withdrawal of tariff preferences in the GSP EBA was a real possibility; normatively, ‘as an international standard-setter, the EU had an imperative to act in a manner that would demonstrate its influence and effectiveness as a global actor’. ¹⁴⁹

The EU is a normative power with the ability to set and define standards internally and externally. ¹⁵⁰ Human rights have been described as the silver thread woven through the EU’s external relations. ¹⁵¹ Treaty provisions provide a baseline for this. Article 21(1) TEU establishes that the EU’s external action ‘shall be guided’ by the principles of, inter alia, the ‘universality and indivisibility of human rights and fundamental freedoms’ and that the EU shall develop relations and build partnerships with third countries and international, regional or global organisations, in particular promoting ‘multilateral solutions to common problems’ in the framework of the UN. The EU has thus committed to work with the ILO, a specialised agency of the UN, to implement decent work. ¹⁵² The EU-ILO relationship is vital to EU pursuit of decent work, being a ‘centrifuge’ for practices like experimentalist governance, emboldening bottom-up approaches to labour rights promotion and protection internally and externally. ¹⁵³ Labour rights within the ‘broad domain of economic, social and cultural rights are put, at least notionally, on the same footing as civil and political rights’ in the EU’s Charter of Fundamental Rights. ¹⁵⁴

The ambitions of Article 21(1) TEU are applied to the EU’s Common Commercial Policy (CCP) and its development cooperation policies. EU trade policies are an area of the Union’s exclusive competence and its development policies are an area of shared competence with the Member States. ¹⁵⁵ In the European Commission’s ‘Trade for All’ policy, one of the main aims is to ensure economic growth is coupled with ‘social justice, respect for human rights, high labour and environmental standards and health and safety protection’. ¹⁵⁶ Trade and development cooperation policies, if combined effectively with human rights policy, are important vessels for eliminating modern slavery.

The EU carries out its normative objectives in the supply chain through interconnected policies, aiming at promoting sustainable garment supply chains, human rights and democracy. These provide a framework for more specific country-based measures on trade and development.

Firstly, the EU, after Rana Plaza, accelerated its actions for sustainable garment supply chains. It sees this as an industry-specific way of implementing the UN’s 2030 Agenda. ¹⁵⁷ Thematic priorities for garment supply chains are for women’s economic empowerment, decent work and living wages, and transparency and traceability. ¹⁵⁸ It identifies forced labour, child labour and trafficking as social challenges in the industry, acknowledging the UK’s MSA without including modern slavery as a specific thematic priority. Instead, the Commission puts decent work as a high priority on the EU’s agenda, recognising ‘more can be done to foster ratification and effective implementation of ILO conventions in garment-producing countries’. ¹⁵⁹ Accordingly, intervention areas include: providing financial support, along the lines of international cooperation to improve sustainable business practices and working conditions; promoting social and environmental best practices through multi-stakeholder approaches; and reaching out to consumers and raising awareness. ¹⁶⁰ The EU has, albeit inadvertently, separated modern slavery as an issue that is not central to the pursuit of decent work. In order to effectively ensure decent work in its external relations, it must acknowledge the existence of modern slavery in supply chains.

Internally, the EU has adopted two legislative measures that are the starting point to the pursuit of sustainable garment supply chains, namely, the 2011 Directive on Preventing and Combating Trafficking in Human Beings and Protecting its Victims, ¹⁶¹ and the 2014 Directive on Non-Financial Reporting and Diversity Information Disclosure. ¹⁶² The former stresses the importance of human dignity, and the prohibition of slavery and practices like forced labour and trafficking. ¹⁶³ Although it does not directly impact garment workers in Bangladesh, it provides a starting point for the EU to pursue the elimination of modern slavery in its external relations. The 2011 Directive is a preliminary step to showing the ‘much-needed’ leadership over businesses to identify human rights violations and address them, a role Anti-Slavery International considers the EU can take up. ¹⁶⁴

The 2014 Directive resembles the UK’s MSA, but it does not go as far. The Directive requires large businesses across the EU to make statements in their management reports on their performance on aspects like social issues. ¹⁶⁵ Where undertakings prepare a non-financial statement, they need to include actions to ensure gender equality, implement the ILO’s fundamental Conventions, improve working conditions, enhance social dialogue, and promote respect for workers’ rights, trade unions and health and safety. ¹⁶⁶ It takes a ‘minimum harmonisation approach’ to reporting standards for disclosures, without detailed rules. ¹⁶⁷ Thus, it has been criticised for being ‘inadequate’ as a mechanism to focus attention on modern slavery. ¹⁶⁸ Where implemented with garment stakeholder engagement, these Directives can initiate ‘experimentalist spillover’, the pursuit of experimentalist governance externally, by empowering civil society to act to tackle slavery. ¹⁶⁹

Secondly, the EU has human rights and democracy objectives which will influence its country-specific measures. Through the Action Plan on Human Rights and Democracy 2015-2019, the EU aims to foster a comprehensive agenda to promote economic, social and cultural rights, including the ILO’s fundamental Conventions, and to support the ‘ratification and implementation of key international conventions concerning trafficking in human beings and the issue of forced labour’. ¹⁷⁰ It utilises development funding to carry out these objectives. For example, the EU is co-funding an ILO project aimed at eliminating child labour and forced labour in the cotton, textile and garment supply chains. ¹⁷¹

c. The EU’s GSP EBA: Trade conditionality as a response to modern slavery?

Trade conditionality is integral to the EU’s response to human rights violations, both instances of modern slavery and of labour rights violations. The ‘stamping out of the slave trade’ acted as a precedent for ‘regulating international trade on moral grounds’. ¹⁷² The EU has a longstanding trade relationship with Bangladesh, providing it with the GSP EBA which is described as the ‘showpiece’ of the EU’s trade policy. ¹⁷³ Intended to facilitate economic development, its attachment to conditionality ensures that the EU has a human rights role through trade.

The Commission has made a commitment to prioritising work to implement the fundamental ILO Conventions and health and safety at work in the GSP implementation process. ¹⁷⁴ It maintains that trade can be a ‘powerful tool’ against supply chain issues like child labour and forced labour. ¹⁷⁵ The EU’s GSP comprises a list of Conventions, including the ICESCR, ICCPR and the eight ILO fundamental Conventions (the ILO Conventions against forced labour), which includes a prohibition of slavery and slavery-like practices alongside labour rights violations. ¹⁷⁶ Serious and systematic violations of these Conventions can trigger GSP withdrawal. ¹⁷⁷ The list does not include the Slavery Convention, nor does the Commission refer to the use of conditionality against modern slavery. This is despite the fact it was included in the 2001 GSP Regulation as a reason for withdrawal. ¹⁷⁸ When the GSP Regulation is next revised, it should include the Slavery Convention as a condition and identify the elimination of slavery as a goal. The Bellagio-Harvard Guidelines should be acknowledged in Commission Staff Working Documents, Communications and the Preamble to the Regulation.

There are problems with using conditionality as a means to eliminate modern slavery in the supply chain. First, modern slavery would need to be identified, and violations both ‘serious’ and ‘systematic’. Coupled with a monitoring programme, the EU might be able to identify and address instances of modern slavery. ¹⁷⁹ This would require a policy acknowledgement of the need to root out modern slavery. Cooperative and collaborative relationships with the ILO and brands and retailers could combine knowledge of practices of modern slavery to lead to a GSP investigation, or to otherwise plunge development funding and responsible business conduct policies into factories, regions or countries. Small scale violations of modern slavery in the garment industry are unlikely to lead to GSP withdrawal but should instead lead to implementation of tailored development cooperation policies.

Secondly, negative conditionality leading to EU GSP withdrawal has been exercised on only three occasions: in Sri Lanka (2010), Belarus (2006), and Myanmar (2000). The withdrawal against Myanmar was due to forced labour, reflecting the possibility of withdrawing tariff preferences in response to slavery or slavery-like practices. ¹⁸⁰ Whilst condemning the situation, it did not have a weighty impact, owing to the small amount exports to the EU – less than 3%. ¹⁸¹ The GSP was only reinstated in Myanmar in 2013 when the ILO recognised progress. ¹⁸² These instances are ones in which the government has been uncooperative and even hostile to the EU, which is not the case in Bangladesh. The EU could have initiated the GSP investigation with regards to Bangladesh’s violations of freedom of association and collective bargaining, warranting continued ILO condemnation in the CFA and the CAS. Indeed, there is now a case with the EU Ombudsman over the EU’s failure to initiate a GSP withdrawal investigation in Bangladesh, submitted by the International Trade Union Confederation and supported by Clean Clothes Campaign. ¹⁸³ Nevertheless, the EU has not taken the route of GSP withdrawal.

Thirdly, GSP withdrawal can harm the population. It is a sanction designed to punish the state violating an international obligation to influence governmental behaviour, ¹⁸⁴ but trade sanctions can have devastating effects. In the mid-1990s, the U.S. threatened a bill that would ban imports from factories using child labour, resulting in the dismissal of two-thirds of children in the garment industry and their employment elsewhere in ‘more hazardous occupations’. ¹⁸⁵ Instead, GSP withdrawal needs to be a decision about ‘whether to attach the highest priority to the “worst” human rights abuses or to the cases that cause the greatest economic harm’. ¹⁸⁶ The EU, by virtue of the high proportion of Bangladeshi exports destined for it, has considerable economic leverage in Bangladesh.

Moreover, the ILO has recommended that buyers ‘stay with Bangladesh’, as exiting is deemed to have negative consequences for workers. ¹⁸⁷ It reflects other assertions that when addressing modern slavery in supply chains, companies should be pursuing engagement not sanctions. ¹⁸⁸ Withdrawing sourcing activities upon a finding of modern slavery could ‘substantially worsen the socio-economic situation’ and turn a back on slave labour as opposed to tackling it. ¹⁸⁹

d. The Bangladesh sustainability compact: A country-specific, decent work measure?

Instead of GSP withdrawal, the EU took the route of ‘deep engagement’ ¹⁹⁰ reflecting a policy based on dialogue and enhanced engagement. ¹⁹¹ Deep engagement led to the Bangladesh Sustainability Compact, ¹⁹² a bridge between trade and sustainable development. It is a soft-law initiative driven by the EU and the ILO and including Canada, the U.S., Bangladesh, civil society organisations, trade unions and employers as Compact Partners. The multi-stakeholder nature of the Compact, alongside the monitoring it provides through dialogue, brought it forwards as an instrument of ‘experimentalist governance’. ¹⁹³ In short, it has provided a unique opportunity to address labour rights violations in the context of the labour market spectrum, starting from the elimination of modern slavery to the pursuit of decent work.

The Compact has three pillars: respect for labour rights, including freedom of association and collective bargaining; the structural integrity of buildings and occupational health and safety; and responsible business conduct by all stakeholders engaged in the Ready-Made Garment and knitwear industry in Bangladesh. In its efforts to tailor a response to the garment industry, the EU lost sight of modern slavery in the industry, focusing instead on the freedom of association and collective bargaining, which may, albeit indirectly, address the issue. The Compact provides a framework of support for development projects such as the ILO’s Better Work programme, an industry-specific project aiming to create safe workplaces and aimed at promoting dialogue and harmonious industrial relations in the garment industry. ¹⁹⁴

The pillars have seen some progress, showing a level of effectiveness. The first pillar has overseen the adoption of standard operating practices on anti-union discrimination and union registrations, proposed amendments to labour law and the establishment of several development cooperation projects. ¹⁹⁵ The second pillar has led to the inspection of all export-oriented factories, and Corrective Action Plans being drawn up. ¹⁹⁶ The third pillar, although more oriented around support for responsible business conduct, as opposed to Compact Partners implementing policies for businesses, supports the Accord, a major initiative focused on workplace safety involving European brands, retailers, international unions and civil society. The Accord has been described as an ‘industrial relations breakthrough’. ¹⁹⁷ It has even terminated business with uncooperative factories. ¹⁹⁸ Transparency has been adopted, seeing the publication of supplier lists.

Nevertheless, the Compact has weaknesses. The Bangladesh government has been unwilling to make fundamental changes to strengthen its inadequate labour law, which led to the 2016 ILO special paragraph, and continued stalemate in labour rights’ improvements. Moreover, prevalent anti-union discrimination and violence sheds doubt on the Compact’s impact, whilst funding for factory safety still falls short. Retailers would take on small losses to fund these safety improvements. ¹⁹⁹ At the same time, it is considered that garment producers are ‘obscenely, extravagantly rich’. ²⁰⁰ The Accord is facing governmental opposition, meaning it is unlikely to continue its operations in Bangladesh even though the government is not yet ready to implement measures to ensure the safety of workplaces.

The EU could have addressed modern slavery in the garment sector in the pillars of the Compact, drawing up plans with Compact partners to identify modern slavery in the supply chain and address it, not just in the formal industry but also the informal industry. Findings of modern slavery might have led to the rehabilitation of victims, including in the provision of a job characteristic of decent work, or education and training to achieve a decent position. Providing information and raising awareness about slavery and slavery-like practices would be a step towards decent work and could form part of future Compact-style initiatives. Measures like those contained in the UK’s MSA, could have been adopted to foster collaboration between brands and retailers and a better understanding of labour rights violations that lead to or disguise modern slavery.