Forced labor has received renewed attention in the context of China’s horrific repression of the Uighur minority in Xinjiang, which includes cultural genocide, imprisonment and torture. A number of investigations and reports from the region have shed light on government-sponsored forced labor camps, the number of camps only increasing over time. Numbers are hard to come by, but human rights organizations estimate that up to 1.5 million Uyghurs, Kazakhs and other Turkish minorities are imprisoned in up to 1,000 concentration camps across Xinjiang.
The beneficiaries of the abysmal human rights abuses in China include a long list of companies operating in the region, including many suppliers to Western companies. A March report by the US Congressional Executive Committee on China included a list of companies “suspected of directly employing forced labor or sourcing from suppliers suspected of doing forced labor,” including Adidas, Nike, Coca- Cola, Costco, H&M, Kraft Heinz, Nike and Patagonia.
With human rights in China one of the few issues on which the US has a non-partisan agreement, the US House of Representatives passed the Uyghur Forced Labor Disclosure Act of 2020 and the Uyghur Forced Labor Prevention Act with almost in September unanimous support. Both bills aim to address the increasing use of forced labor in global supply chains. While the first company in the US would be required to provide quarterly reports on operations in the Xinjiang area, the second company would face criminal proceedings if forced labor was found in their supply chains.
Given growing concerns and the bipartisan deal, as well as President-elect Joe Biden’s promise to make human rights more prominent in US foreign policy, the elimination of forced labor in the US market could be one of the few issues Biden directly addresses could build on the outgoing government work. In June, President Donald Trump signed the 2020 Human Rights Policy Act, aimed at Chinese government officials responsible for human rights abuses in the Uyghur Autonomous Region of Xinjiang. Shortly after it went into effect in July, the law was used to impose sanctions on Xinjiang Communist Party Secretary Chen Quanguo.
While sanctions against Chinese officials don’t seem to change Beijing’s stance on human rights, there are other measures Washington has taken against Chinese forced labor. The US Customs and Border Protection (CBP) quickly issued a series of withhold release orders to US companies importing from the Xinjiang region. These orders will stop all imports into the United States if CBP has reason to believe that the products were made using forced labor. And on October 20, CBP released its first forced labor finding since 1996, targeting stevia production from China. This was a significant step, as such a determination requires conclusive evidence that it is forced labor, while an order to withhold release requires only reasonable conviction. To date, 13 such orders have been placed with importers. One of them, PureCircle, closed a $ 575,000 settlement with CBP earlier this year. Should the two new Congressional bills go into effect, CBP will play a critical role in targeting the private sector and these orders are expected to grow significantly.
For US and other Western companies that manufacture in or import from China, human rights violations in the country could turn out to be a major risk – not just in terms of reputation, but also in terms of operations, legal and financial issues. This could be one reason Apple and other companies have reportedly lobbied against the forced labor laws related to Xinjiang on Capitol Hill.
Human rights in China has also been one of the few issues the outgoing government has engaged the international community on, despite having focused for the past four years on undermining international institutions and their mandates. Far from the traditional stance, the Uighur Law for the Prevention of Forced Labor contains a provision on whether crimes against humanity or genocide are committed in Xinjiang. The United States has had a complicated relationship with the International Criminal Court (ICC) long before Trump took office – where such crimes are brought to justice. In 2000, then-President Bill Clinton signed the Rome Statute establishing the ICC, but the agreement was never submitted to the US Senate for ratification. President George W. Bush then withdrew Clinton’s signature. This would put the US government in the delicate position of convicting crimes found by a court of which it does not recognize jurisdiction.
If the Senate passes the bills, it would set a really special precedent. Previous attempts to incorporate Rome Statute wordings into US law have failed – such as the Crimes Against Humanity Act of 2010, which was never voted on. And while the term “genocide” appears in Section 1091 of the US Code, the words “crimes against humanity” are nowhere to be seen. In March, the Congressional Report on Forced Labor included two pages highlighting how China’s systematic abuse led to crimes against humanity, demonstrating lawmakers’ continued confidence in the international legal framework for these crimes, even though the United States was not involved .
Many have wondered if the US-China trade war inadvertently advanced Washington’s stance on international criminal and human rights law. Although the motives for the forced labor legislation are likely to be to harm China economically, the bills take a human rights-based approach. While many rightly argue that the outgoing government is gentle on human rights and continually violating international treaties, the conflict with China has led the United States to use forced labor and human rights abuses as a sword against Beijing.
The new government of Biden appears to give priority to human rights and to re-establish relations with foreign governments and international institutions, and is expected to promote compliance with international law. Alongside obvious moves like re-entering the Paris Climate Agreement, Biden can further strengthen the U.S. position internationally by effectively being the leading nation in condemning human rights abuses in China. It would not be difficult to take this priority one step further and condemn and target other countries for their abuse, not just China in Xinjiang.
The effects would be felt worldwide, not just among US companies. With tough customs laws and a greater willingness to sanction companies than most other countries, the US government has already stopped foreign and domestic companies from operating in Xinjiang. This is especially true of the current rules that allow CBP to assume importers are guilty until they prove otherwise.
While the two bills are likely to become law, the big question is whether “crimes against humanity” will be included in the final text. The current bills both contain references to “the international community,” signaling an attempt to portray the United States as a human rights defender, even if the legislation is short-sightedly aimed at China rather than covering forced labor on a global scale. It may be a little over-optimistic to see the terminology in the new legislation – and the new administration’s emphasis on human rights – as a sign of Washington’s willingness to embrace international criminal law. But attitudes evolve over time, and there’s no reason to believe that they can’t change in the U.S. either. After all, it has been almost two decades since Bush withdrew US support for the ICC.