In January 2021, the U.S. State Department declared that the Chinese Communist Party (CCP) was committing genocide against the Muslim ethnic minority Uyghurs in the Xinjiang Autonomous Region of China. Soon after, parliaments in Europe and Canada passed resolutions calling on their governments to follow the United States. Underneath the broader claims of genocide have been repeated claims that China is forcing thousands of Uyghurs and other ethnic and religious minorities to work in factories and fields in Xinjiang and other parts of China, in violation of human rights treaties prohibiting the use of forced labor. The size and scope of the activities in Xinjiang has helped galvanize a response to the broader problem of forced labor and pushed countries to reckon with the deep connections between forced labor and international trade. More work needs to be done, however, to modernize the United States’ ability to combat global forced labor.
Countries around the world, led by the Group of Seven (G7), are starting to more closely regulate corporate labor treatment, using tools ranging from import restrictions and public “due diligence” requirements to stern import guidance documents. However, when human rights abuses result from state sponsored activity or longstanding cultural practices or certain economic conditions, traditional trade tools must be embedded within a broader global strategy. The root causes and downstream effects of labor abuse—which include poverty, migration patterns, ingrained economic practices and weakened state authority—cannot be addressed with unilateral actions by trade partners. Resolving these issues requires legislative changes, the strengthening of government and social institutions, collaboration between public and private sector entities, education, and incentives for businesses.
Encouraging countries to carry out these broad initiatives often requires that the United States wield a big stick—such as trade sanctions. The authority to impose sanctions on products produced with forced labor has been on the books in the United States since the Tariff Act of 1930, which requires U.S. Customs and Border Protection (CBP) to stop all goods made wholly or in part with forced labor from entering the commerce of the United States. Initially, this was designed primarily to protect U.S. businesses from the unfair competition of cheap forced labor, but more recently the authority has become a key tool in exposing and addressing labor-related human rights abuses.
In the last five years, CBP has taken action on tobacco from Malawi, seafood caught on numerous Taiwanese fishing vessels, and on numerous organizations operating in the Xinjiang Uighur Autonomous Region. CBP’s long-standing authority was strengthened in 2016 when human rights groups, key stakeholders and CBP came together in support of changes to the program of civil investigation and enforcement actions that begin with the issuance of “Withhold Release Orders” or WROs that block imports suspected of having been made with forced labor.
WROs indicate to the U.S. importing community that there is reasonable evidence that forced labor has been used in the production of shipments likely to pass through a U.S. port of entry and that these goods will be stopped for further evaluation. A WRO, which is not an import “ban” but a preliminary action, will usually get the attention of the business community, human rights organizations, and government representatives of the exporting country. As such, it can serve as a “call to action” for a mitigation strategy.
WROs are issued following a detailed investigation by CBP. These investigations are either triggered by allegations submitted by human rights or labor groups to the agency or are initiated by CBP itself. CBP uses work by investigative reporters, non-governmental organizations, and reports from the U.S. State Department and U.S. Department of Labor to identify potential cases of modern slavery. The CBP Forced Labor Division then gathers information such as victim statements, think tank analyses and supply chain mapping, or uses analytics to identify problem areas. CBP officials may also make field visits to evaluate facilities. Direct evidence of forced labor can be difficult to gather, as victims of modern slavery can be hard to reach or reluctant to come forward for fear of further trauma or retribution, making gathering evidence resource intensive.
Once a WRO has been issued, it is the responsibility of the U.S. importer, within ninety days, to provide evidence that labor used in the supply chain has been treated fairly. This evidence is evaluated against the International Labor Organization’s indicators of forced labor, which includes factors such as restrictions on the movement of laborers, debt bondage, abusive working conditions and withholding of wages. If the importer’s evidence is not compelling, the company must export their goods out of the United States or CBP may seize and destroy the shipment. If there is evidence pointing to the use of forced labor that meets the standard of “probable cause,” CBP may issue a “Finding” in the Federal Register, which provides for the seizure and destruction of similar goods upon importation into the United States. CBP may also issue a civil penalty.
While WROs have brought significant attention to unfair labor conditions, their issuance is currently based on outdated statutory and regulatory provisions that make it harder for both the government and the private sector to effectively identify and respond to forced labor. The current legal framework provides little flexibility, transparency, or predictability for the U.S. business community, which is a critical player in addressing problematic conditions. Ideally, CBP would like to partner with companies in the private sector to identify and address areas of concern, but the existing framework does not allow for sufficient sharing of information and offers limited incentives for companies to come forward to disclose potential violations without penalty.
The decision to issue a WRO, a law enforcement action directed by the CBP Commissioner, carries more weight when it is part of a well-coordinated whole-of-government action. The resources of the federal government – ranging from information, regulatory authorities, international partnerships, and a prominent bully pulpit– can make a significant difference in addressing the conditions that can lead to modern slavery, provided these capabilities are organized and focused on achieving a realistic outcome. This action, when harnessed to the purchasing power of educated consumers and the due diligence of good corporate citizens, would make a tremendous difference in the fair treatment of human beings around the world. The Biden administration made a good start rallying our allies at the G7 Leaders’ Summit, but more must be done in the United States and around the world to modernize the tools needed to stop trade in goods made with forced labor, including the WRO process in the United States.
Brenda Brockman Smith is the former Executive Assistant Commissioner for the Office of Trade at U.S. Customs and Border Protection.
This blog is based in part on comments made at a Council on Foreign Relations roundtable on supply chains and human rights. This event was moderated by Jennifer Hillman, Senior Fellow for Trade and International Political Economy, and featured Brenda Brockman Smith, former Executive Assistant Commissioner for the Office of Trade, U.S. Customs and Border Protection, and Stephen Lamar, President and CEO, American Apparel & Footwear Association.