The forced labour tariffs imposed by the Trump administration on 60 trading partners have elevated the response to this global crime to the highest levels of political and economic interest.

The immediate reaction in some countries may be to introduce new forced labour import bans, including measures that reverse the onus of proof on importers. Others may point to existing models as sufficient to deter forced labour goods from entering their markets.

Those positions may change if countries remain subject to tariffs or are otherwise denied access to important markets. In short, every country must now address this issue, and urgently.

But before legislatures embrace new legal approaches, there is another possibility worth serious consideration: aligning tried and tested laws with the fight against forced labour.

The New vs Old debate

A new law is expensive to run. It requires penalties for specified action or inaction, an inspection or enforcement authority, a prosecution authority, and the legal expense of court time and process. It must seamlessly align with the rest of the legal system. But in some countries, finding the resources to enforce existing laws is already difficult, let alone creating new enforcement infrastructure.

New legislation can take years to agree and pass – or may never pass at all. They have their place when required to introduce an entirely new concept into a legal system or extant laws are no longer fit for purpose. But those circumstances are rare.

It is usually easier, less controversial, and faster to amend an existing law than to create an entirely new one. Existing laws are already understood, often sit at the core of the legal system and are also likely to have inspection and enforcement mechanisms already in place.

 If the objective is also maximum influence, foundational laws – such as company, competition, employment, securities and health and safety – may offer greater opportunities for international alignment than modern slavery laws, given that many countries have adopted very different models for addressing forced labour.

Finally, amending existing law is likely to offer better value for taxpayers than building an entirely new enforcement regime.

Leveraging corporate governance

The UK’s Labour government recently proposed an enforcement regime targeting senior executives with personal liability for corporate transparency failures. But given that company law provides a natural vehicle for incorporating human rights analysis into corporate decision-making, this move raises an important question: is a new penalty regime necessary?

There are many ways the existing system could be modified to achieve substantially the same objective. For example, why not amend the Directors’ Strategic Report Regulations so that they also cover human rights in supply chains? It would take only five words to do this.

An additional 50 words or so would align directors’ duties under all common law Companies Acts with the prevention of forced labour across multiple countries. Commonwealth countries could potentially all make the same changes simultaneously if they could be persuaded to fight this crime together.

There are features of company law that are close to universal across all types of legal systems. Board approval creates a direct nexus with core statutory duties of directors, including obligations to act in good faith and promote the success of the company for the benefit of relevant stakeholders. Those considerations can include the company’s reputation and its impact on the community.

Including human rights within corporate governance in any legal system changes the character of the issue. It moves forced labour from a voluntary corporate narrative into a mandatory governance consideration – one that is subject to review by auditors and legal advisers.

Misleading public reports can, in many jurisdictions, already trigger civil liability for companies and directors where third parties suffer losses.

Directors’ duties provide another potential lever. Directors are generally required to act with loyalty, honesty, and in good faith, exercising reasonable care, skill, and diligence in the process. When a director makes a public statement concerning forced labour, that statement represents that the board has genuinely engaged with the relevant risks.

If indicators of forced labour are ignored to protect profit margins, existing legal principles may already provide a route to personal liability. Depending on the jurisdiction and circumstances, directors may potentially become personally, jointly, and severally liable – sometimes to the company itself as well as to third parties.

For public companies, the stakes can be particularly significant. If systemic slavery is exposed and basic due diligence would have uncovered it, shareholders in many jurisdictions can potentially bring derivative actions alleging that negligent board approval caused serious financial, regulatory and reputational harm.

That is a powerful enforcement mechanism and obtaining it does not necessarily require entirely new laws. It is true that any systemic shield from modern slavery must also bind organisations that are not public companies, but that is not a good reason to ignore the momentum that company law can give to this defence.

No public company wants to profit from modern slavery. Companies and directors already understand and respect their serious obligations under company law. That is precisely why clever use of existing legal frameworks may provide such a faster, cheaper, more familiar and more effective route to change.

Enforcement is the real test

The question should therefore not simply be: what new law can we pass? It should be: what can the laws we already have do if we deliberately align them against forced labour?

Make no mistake – the traffickers are winning. Every day that countries delay implementing and properly enforcing laws that disrupt traffickers, people will continue to suffer. Some die; others are abused or endure another day without freedom or dignity.

The political response must be both ambitious and practical. We need to fight smarter and use what we already have to win. The objective is not to create the most impressive new statute. It is to take the profits out of forced labour by denying its products market access and aligning the entire existing legal architecture against those who profit from the immoral treatment of others.

So before we build new laws, we should look carefully at the ones already on the books. We have more tools than most realise and we need to fight a lot smarter.