Stringency of US Forced Labor Law Is Crucial to Its Success

For far too long, many companies have been able to hide behind opaque supply chains replete with human rights abuses. Business as usual, however, is no longer a given in light of the crisis occurring in the Xinjiang Uyghur Autonomous Region (Uyghur Region), where the government of China is targeting the Uyghur population and other Turkic and Muslim-majority peoples, on a massive scale, with multiple forms of involuntary labor. Import prohibitions with broad and flexible enforcement powers are absolutely essential in the fight against these kinds of practices.

The good news is that the United States has passed the strongest piece of legislation globally to address state-imposed Uyghur forced labor, focusing on U.S.-facing supply chains: the Uyghur Forced Labor Prevention Act (UFLPA), which entered into force on June 21, 2022. This puts the United States at the forefront of a worldwide effort to combat human rights abuses in the Uyghur Region. The new law established a “rebuttable presumption” against the importation of any goods mined, produced, or manufactured wholly or in part in the Uyghur Region, or produced by certain listed entities. When the presumption applies, goods cannot come into the United States unless Customs and Border Protection (CBP) determines that the importer has provided clear and convincing rebuttal evidence.

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Despite claims that some companies face significant challenges in ramping up their compliance programs, we should not threaten the success of the UFLPA by imposing new requirements on the government agencies tasked with enforcing it. Importers should by now be well aware that the sine qua non of genuine compliance is tracing their entire supply chains down to the raw material level and being able to provide full documentation to CBP on each link in these chains. This level of traceability is necessary for any company to know whether they are sourcing goods made with Uyghur forced labor, or any type of forced labor for that matter.

The UFLPA and related customs laws give CBP—a law enforcement agency—the necessary flexibility to respond nimbly to changing commercial conditions. This flexibility is a feature, not a bug, of the statutory scheme, as the industries utilizing forced labor are a moving target and the techniques employed for circumventing import restrictions are not static. Since the law entered into force, CBP officials have stopped thousands of shipments from at least 10 countries because of links to the Uyghur Region and forced labor. These goods come from a variety of industries and include solar, apparel, base metals and agricultural products. As of March 2023, shipments from the Uyghur Region to the United States had reportedly decreased by 90 percent.

Given the challenges some companies claim to face in adjusting to this law, they might view its flexibility as unwarranted and advocate that the government be required to set out all of the circumstances triggering the rebuttable presumption. They might even seek to weigh down the CBP decision-making process with burdensome procedures. Either of those approaches would return the United States to square one in the fight against systemic forced labor in the Uyghur Region and beyond.

The role in this process played by civil society is to provide information and perspective to CBP and other government agencies tasked with enforcement responsibilities. To that end, we will continue to insist that, in situations of state-imposed forced labor, where widespread, systemic and egregious human rights violations are committed by state actors, it is a practical impossibility for a business to undertake credible due diligence on the ground or use its leverage to prevent, mitigate, or remedy abuse within its supply chains. Therefore audits, accreditation schemes, and/or supplier attestations should not be seen as sufficient evidence from importers that suppliers and/or sub-suppliers are not using forced labor.

In sum, the new approach embraced by Congress in enacting the UFLPA and the Administration’s efforts to implement it are beginning to show results. Although enforcement of this law is a large undertaking and certainly involves significant responsibilities for industry, that undertaking and those responsibilities are necessary preconditions for success in achieving Congress’s laudable human rights goals. Now is not the time to turn our backs on those who bear the burden of state-imposed forced labor. That burden is incalculably greater than any conceivable compliance difficulty faced by corporations.

 Dean Pinkert, Special Advisor to Corporate Accountability Lab, is a former Commissioner (and Vice Chairman) of the U.S. International Trade Commission.

Charlotte Tate is the Advocacy Lead at the Coalition to End Forced Labour in the Uyghur Region.