The UFLPA will stand, or fall, on the degree of enforcement and global cooperation.
By Ruth Ingram
By striking at the heart of slavery in northwest China, the Uyghur Forced Labor Prevention Act (UFLPA) has set Washington on a collision course with Beijing. At the same time, the act is fraught with loopholes and ambiguities, and a failure to address these could render it meaningless.
The legislation, which came into force in the United States on June 21, presumes that all goods from Xinjiang have been tainted by forced labor unless proven innocent. It requires importers to confirm beyond a shadow of a doubt that their supply chains are clean. One million businesses globally buying and selling everyday products could be impacted by the new law, and the list of key industries implicated runs into thousands.
Companies across the board have been propelled into a minefield of fine print as the U.S. Department of Homeland Security launched its robust mission to “end the abhorrent practice of forced labor around the globe,” with particular reference to Xinjiang and its cotton, clothing, tomato, and polysilicon industries. Weeding out the culprits and their dubious supply chains, while at the same time facilitating lawful trade, promises to be a Herculean task. DNA traceability testing, probing the origins of raw materials, dissecting myriad sub-assembly operations, and determining the extent of outsourcing are some of the issues that will need to be examined with a fine-tooth comb by an enhanced border force that is set to mushroom as the push gets under way.
But the new measures mean nothing without the cooperation of the democratic world. If Canada, Europe, and other countries involved in procurement refuse to pull their weight, goods will simply be redirected and the new law will have little impact on the ground.
Sam Brownback, the U.S. ambassador at large for international religious freedom (IRF) from 2018 to 2021, speaking at a side event of this year’s IRF Summit, backed the legislation wholeheartedly, but urged the world to get on board. Western companies were “propping up China” he said, requiring the global community to “make a choice” and root out human rights violations in commerce.
Jewher Ilham, daughter of imprisoned Uyghur professor Ilham Tohti, who was sentenced to life in prison for separatism in 2014, begged European companies at the same side event not to become a “dumping ground” for Uyghur forced labor. “There is clear and compelling evidence” for slavery, she stressed, urging full supply chain transparency and courage to hold authorities and companies accountable.
But Canada, still holding out on a Xinjiang-specific trade act, could make or break the UFLPA, at least in the initial stages, observed Sarah Teich, an international human rights lawyer based in Canada who has flagged the danger of goods banned in the United States simply rerouting via Canada, which has a free trade agreement with Washington. Checking capacity was lacking, Teich noted, and last year while 1,400 products had been turned away from U.S. borders, the figure for Canada was only one. Canada will be a vital ally in ensuring the effectiveness of the legislation.
The European Parliament, while agreeing wholeheartedly to ban forced labor products from entering its market, still has to run the gauntlet of the European Commission and a specific Uyghur act has yet to be mooted.
The UFLPA, the latest in a catalogue of U.S. efforts to prevent forced labor in its supply chains, goes further than the 1930 Tariff Act in forbidding the import of slavery-tarnished goods, and makes good on the U.S. commitment in 2020 to prohibit goods produced using forced labor from entering the country. In specifically targeting products originating from China’s Xinjiang Uyghur Autonomous Region, where breaches of good labor practice are rife, the act centers on the much documented abuses being meted out on the Turkic peoples in the Uyghur heartland.
Beijing’s Xinjiang policies involve the corralling of hundreds of thousands of Uyghurs into factories and other forms of involuntary labor throughout China to make goods for Western brands, under the guise of poverty alleviation and resettlement of ethnic minority so-called “surplus labor.” The UFLPA’s raison d’etre, according to U.S. Customs and Border Protection (CBP), is to presume that “any goods, wares, articles, and merchandise mined, produced, or manufactured wholly or in part” in Xinjiang were made with forced labor, “and that such goods, wares, articles, and merchandise are not entitled to entry to the United States.”
Data analyst firm Kharon has pinpointed Xinjiang as a central hub for world market raw materials, and thereby numerous industries are unavoidably linked with Uyghur forced labor. Twenty percent of global cotton, 40 percent of the world’s supply of polysilicon for solar panels, and 13 percent of the global output of wind turbines are manufactured in Xinjiang. Twenty-five percent of tomato paste, 11 percent of walnuts, and 10 percent of the world’s rayon also originate from the region.
While the facts are clear, and the need to rein in Beijing’s human rights violations irrefutable, implementation of the act is a mammoth undertaking and one that is likely not only to considerably disrupt U.S. imports, but also threaten supply chains around the world. The act passed amid internal controversy and opposition, according to Michael Sobolik, a fellow at the American Foreign Policy Council. Speaking at the IRF side event, Sobolik said the UFLPA had barely scraped through the U.S. legislative quagmire and that its opponents had “cared more about climate than human rights.”
According to Sobolik, the passing of legislation, while welcome, was barely a beginning. He predicted a rocky, contested road ahead. Western complicity in forced labor-tainted supply chains is indisputable but extricating U.S. and other companies from the maze of complicity in forced labor was another matter. Some companies might feel at the end of the day that it would be easier to take their business elsewhere. Some textile companies, for example, have already decided against using Xinjiang cotton altogether and will source their cotton from further afield, leaving 3 million tonnes of raw cotton languishing in the mills, according to the South China Morning Post.
International law firm Gibson Dunn pointed out that no stone would be left unturned in the implementation of the act and that it would be rigorously enforced. But their report, drawing on analysis by consultancy firm McKinsey & Company, illustrated the depth of minutiae that will be involved. For example, look at the number and variety of suppliers involved in making a car: 250 tier-one suppliers of thousands of components such as semi-conductors, aluminum, glass, engines, and seat fabric, involving 18,000 suppliers across a complete supply chain. Separating out forced labor from this complicated and interlinked supply chain would be a laborious and perhaps impossible task.
Solar panels are also firmly in the sights of human rights activists and campaigners, who have proof of supply chains riddled with Uyghur forced labor. The CBP pointed out in its report to Congress that “these silica-based products may include aluminum alloys, silicones, and polysilicon, which are themselves used in building materials, automobiles, petroleum, concrete, glass, ceramics, electronics, and other goods” in addition to the solar panels. The onus would be on importers whose final products might contain any of those components to be familiar with the entire supply chain – no matter how insignificant or seemingly inconsequential a supplier’s input may be.
In a statement late last week, Robert Silvers, the DHS undersecretary for policy and the chair of the Forced Labor Enforcement Task Force (FLETF), reiterated the U.S. government’s disdain for the importation of goods made using forced labor, describing them as “an affront to human rights and our national values.”
Following the enactment of the law, which he and Senator Jeff Merkley had instigated, Senator Marco Rubio told the BBC that “Congress stands ready to work with President Biden and his administration to ensure this historic law is fully and rigorously implemented.”
“The strategy that we have delivered to Congress will produce meaningful progress in combating the use of forced labor while we continue to facilitate lawful trade,” Rubio added.
Haley Byrd-Wilt, associate editor of The Dispatch, which has just published an in-depth analysis of the process of passing the UFLPA, said that enforcing the act would be a mammoth undertaking. Addressing the IFR side event, Byrd-Wilt pointed out that implementation, while key, would be fraught with logistical complications. Hundreds of extra personnel would need to be hired and she questioned whether officials were ready for the anticipated 11 million shipments that are expected to be turned back.
Speaking to the New York Times, Alan Bersin, a former CBP commissioner who is now the executive chairman at Altana AI, a company that prides itself on “reliable and resilient” supply chains, said that the impact on both the U.S. economy and that of the world would be measured in “the many billions of dollars, not in the millions of dollars.”
“The public is not prepared for what’s going to happen,” he added.