forced labor of Uyghurs and other minorities

February 10, 2022 release of ILO report and subsequent U.S. State Department press release on forced labor and other human rights issues in Xinjiang Autonomous Region of China

· February 13, 2022 · forced labor of Uyghurs and other minorities · , , · No Comments

My last post from February 11th on forced labor and U.S. law to stop imports from such labor did not include reference to a report released by the International Labor Organization on February 10, 2022 and the U.S. Department of State media note on the note. See February 11, 2022:  Stopping imports made in whole or in part from forced labor — U.S. law and the looming challenge on goods made from cotton and polysilicon, https://currentthoughtsontrade.com/2022/02/11/stopping-imports-made-in-whole-or-in-part-from-forced-labor-u-s-law-and-the-looming-challenge-on-goods-made-from-cotton-and-polysilicon/

The ILO press release on the report can be found here. ILO releases the 2022 report of the Committee of Experts on the Application of Conventions and Recommendations, Press release, 10 February 2022, https://www.ilo.org/global/about-the-ilo/newsroom/news/WCMS_836668/lang–en/index.htm

The State Department media note can be found here (U.S. Department of State, media note, On the Release of the International Labor Organization’s Committee of Experts Report, February 10, 2022, https://www.state.gov/on-the-release-of-the-international-labor-organizations-committee-of-experts-report/) and is copied below.

“The Department of State welcomes the issuance today of a report by a committee of the International Labor Organization (ILO) calling on the government of the People’s Republic of China (PRC) to review, repeal, and revise its laws and practices of employment discrimination against racial and religious minorities in Xinjiang.

“This report, produced by the ILO’s Committee of Experts on the Application of Conventions and Recommendations, expresses deep concern regarding the PRC’s policies and calls on the PRC government to take specific steps toward eliminating racial and religious discrimination in employment and occupation, and to amend national and regional policies utilizing vocational training and rehabilitation centers for ‘political re-education’ based on administrative detention.

“China joined the ILO in 1919 as one of the founding member states. The United States calls on the PRC to take the steps requested by the Committee of Experts.  We also reiterate our call for the PRC to end its genocide and crimes against humanity perpetrated against the predominantly Muslim Uyghurs and members of other ethnic and religious minority groups in Xinjiang, as well as its use of these groups for forced labor in Xinjiang and beyond. The State Department is committed to working with our international partners and allies to end forced labor and strengthen international action against the ongoing genocide and crimes against humanity in Xinjiang.

“The Committee’s report can be found here – https://www.ilo.org/wcmsp5/groups/public/—ed_norm/—relconf/documents/meetingdocument/wcms_836653.pdf .

“For more information on forced labor in the PRC’s Xinjiang Region, please see the linked July 2021 Fact Sheet on the topic: https://www.state.gov/forced-labor-in-chinas-xinjiang-region/“.

The full title of the ILO report is International Labour Organization, Application of International
Labour Standards 2022, Report III (Part A), Report of the Committee of Experts on the Application of Conventions and Recommendations, International Labour Conference, 110th Session, 2022, https://www.ilo.org/wcmsp5/groups/public/—ed_norm/—relconf/documents/meetingdocument/wcms_836653.pdf. The volume is 870 pages in length and reviews compliance with various standards by individual countries. There are discussions on China at pages 431-433 (Minimum Age Convention, 1973 (No. 138) (ratification: 1999)); 433-434 (Worst Forms of Child Labour Convention, 1999 (No. 182) (ratification: 2002)); 514-521 (Discrimination (Employment and Occupation) Convention, 1958 (No. 111)(ratification: 2006)); and 683-689 (Employment Policy Convention, 1964 (No. 122) (ratification: 1997). It is the latter two sections that talk at length about claims made by the International Trade Union Confederation (ITUC) on practices against the Uyghurs in Xinjiang Autonomous Region, the government of China’s response to the claims, and the concerns of the Committee of Experts with requested actions. For example, looking just at the last section, pages 683-685 outlines the claims by the ITUC on employment practices.

“In its observations of 2020 and 2021, the ITUC alleges that the Government of China has been engaging in a widespread and systematic programme involving the extensive use of forced labour of the Uyghur and other Turkic and/or Muslim minorities for agriculture and industrial activities throughout the Xinjiang Uyghur Autonomous Region (Xinjiang), in violation of the right to freely chosen employment set out in Article 1(2) of the Convention. The ITUC maintains that some 13 million members of the ethnic and religious minorities in Xinjiang are targeted on the basis of their ethnicity and religion 684 Report of the Committee of Experts on the Application of Conventions and Recommendations Employment policy and promotion with a goal of social control and assimilation of their culture and identity. According to the ITUC, the Government refers to the programme in a context of ‘poverty alleviation’, ‘vocational training’, ‘reeducation through labour’ and ‘de-extremification’.

“The ITUC submits that a key feature of the programme is the use of forced or compulsory labour in or around ‘internment’ or ‘re-education’ camps housing some 1.8 million Uyghur and other Turkic and/or Muslim peoples in the region, as well as in or around prisons and workplaces across Xinjiang and other parts of the country.

“The ITUC indicates that, beginning in 2017, the Government has expanded its internment programme significantly, with some 39 internment camps having almost tripled in size. The ITUC submits that, in 2018, Government officials began referring to the camps as ‘vocational education and training centres’ and that in March 2019, the Governor of the Xinjiang Uyghur Autonomous Region described them as ‘boarding schools that provide job skills to trainees who are voluntarily admitted and allowed to leave the camps’. The ITUC indicates that life in ‘re-education centres’ or camps is characterized by extraordinary hardship, lack of freedom of movement, physical and psychological torture, compulsory vocational training and actual forced labour.

“The ITUC also refers to ‘centralized training centres’ that are no re-education camps but have
similar security features (e.g. high fences, security watchtowers and barbed wire) and provide similar
education programmes (legal regulations, Mandarin language courses, work discipline and military
drills). The ITUC adds that the re-education camps are central to an indoctrination programme focused
on separating and ‘cleansing’ ethnic and religious minorities from their culture, beliefs, and religion.
Reasons for internment may include persons having travelled abroad, applied for a passport,
communicated with people abroad or prayed regularly.

“The ITUC also alleges prison labour, mainly in cotton harvesting and the manufacture of textiles, apparel and footwear. It refers to research according to which, starting in 2017, the prison population of Uyghurs and other Muslim minorities increased dramatically, accounting for 21 per cent of all arrests in China in 2017. Charges typically included ‘terrorism’, ‘separatism’ and ‘religious extremism’.

“Finally, the ITUC alleges that at least 80,000 Uyghurs and other ethnic minorities workers were transferred from Xinjiang to factories in Eastern and Central China as part of a ‘labour transfer’ scheme
under the name ‘Xinjiang Aid’. This scheme would allow companies to: (1) open a satellite factory in
Xinjiang or (2) hire Uyghur workers for their factories located outside this region. The ITUC alleges that
the workers who are forced to leave the Uyghur Region are given no choice and, if they refuse, are
threatened with detention or the detention of their family. Outside Xinjiang, these workers live and work
in segregation, are required to attend Mandarin classes and are prevented from practicing their culture
or religion. According to the ITUC, state security officials ensure continuous physical and virtual
surveillance. Workers lack of freedom of movement, remaining confined to dormitories and required to
use supervised transport to and from the factory. They are subject to impossible production
expectations and long working hours. The ITUC adds that, where wages are paid, they are often subject
to deductions that reduce the salary to almost nothing. ITUC further adds that, without these coercively
arranged transfers, Uyghurs would not find jobs outside Xinjiang, as their physical appearance would
trigger police investigations.

“According to the ITUC’s allegations, to facilitate the implementation of these schemes, the Government offers incentives and tax exemptions to enterprises that train and employ detainees; subsidies are granted to encourage Chinese-owned companies to invest in and build factories near or within the internment camps; and compensation is provided to companies that facilitate the transfer and employment of Uyghur workers outside the Uyghur Region.

“In its 2021 observations, the ITUC supplements these observations with information, including testimonies from the Xinjiang Victims Database, a publicly accessible database which as of 3 September
2021 had allegedly recorded the experience of some 35,236 ethnic minority members forcibly interned
by the Government since 2017.”

The Government of China provides its views that the claims are false in each case and provides a review of what its actions are intended to accomplish (pages 685-687). However, the Committee of Experts expresses major concerns and seeks additional action/information from China (687-689 copied below).

“The Committee takes due note of the ITUC allegations, the response and additional information provided by the Government and the various employment and vocational training policies as articulated
in various recent ‘white papers’ referred to by the Government in its report and other legal and policy
documents referred to by United Nations human rights experts.

“The Committee recalls that the Convention’s objective of promoting full employment does not require ratifying States to guarantee work for all who are available for and seeking work, nor does it imply that everyone must be in employment at all times (2020 General Survey on promoting employment and decent work in a changing landscape, paragraph 54). The Convention does, however, require ratifying States to promote freedom to choose one’s employment and occupation, as well as equal access to opportunities for training and general education to prepare for jobs, without discrimination on the basis of race, colour, national origin, religion or other grounds of discrimination covered under Convention No. 111 or other international labour standards such as the Vocational Rehabilitation and Employment (Disabled Persons) Convention, (No. 159).

“In this context, the Committee notes that training facilities that house the Uyghur population and other Turkic and Muslim minorities separate them from the mainstream educational and vocational training, vocational guidance and placement services available to all other groups in the region throughout the country at large. Such separation may lead to active labour market policies in China being designed and implemented in a manner that generates coercion in the choice of employment and has a discriminatory effect on ethnic and religious minorities. Photographs of the facilities, equipped with guard towers and tall surrounding walls topped with barbed wire further reinforce the observation of segregation. The Committee has observed before that some workers from ethnic minorities face challenges in seeking to engage in the occupation of their choice because of indirect discrimination. For example, biased approaches towards the traditional occupations engaged in by certain ethnic groups, which are often perceived as outdated, unproductive or environmentally harmful, continue to pose serious challenges to the enjoyment of equality of opportunity and treatment in respect of occupation (general observation on Convention No. 111, 2019). The Committee addresses other aspects of the particular system for vocational training and education aimed at the deradicalization of ethnic and religious minorities in its comment on the application of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111).

“The Committee recalls that, while the Convention requires ratifying States to declare and pursue as a major goal an active policy designed to promote full, productive and freely chosen employment with the objective of stimulating economic growth and development and meeting manpower requirements, employment policy must also promote free choice of employment by enabling each worker to train for employment which can subsequently be freely chosen, in accordance with Article 1(2)(c) of the Convention.

“Article 1(2)(c) provides that the national employment policy shall aim to ensure that ‘there is freedom of choice of employment and the fullest possible opportunity for each worker to qualify for, and to use his skills and endowments in, a job for which he or she is well suited, irrespective of race, colour, sex, religion, political opinion, national extraction or social origin’. In its 2020 General Survey on promoting employment and decent work in a changing landscape, paragraphs 68–69, the Committee noted that ‘the objective of freely chosen employment consists of two elements. First, no person shall be compelled or forced to undertake work that has not been freely chosen or accepted or prevented from leaving work if he or she so wishes’. Second, all persons should have the opportunity to acquire qualifications and to use their skills and endowments free from any discrimination. Moreover, the Committee recalls that the prevention and prohibition of compulsory labour is a condition sine qua non of freedom of choice of employment (2020 General Survey, paragraph 70).

“The Committee notes the Government’s statement that the ITUC observations are based on individual statements and are unsubstantiated; however, it notes that the ITUC observations also append additional sources containing statistical data; references to first-hand testimonies, testimonies of eyewitnesses, family and relatives; research papers; and photographs of vocational training and education centres.

“The Committee also notes that, on 29 March 2021, a number of United Nations human rights experts (including Special Rapporteurs and thematic working groups mandated by the UN Human Rights Council) expressed serious concern with regard to the alleged detention and forced labour of Uyghur and other Turkic and/or Muslim minorities in Xinjiang. The UN experts indicate that Uyghur workers have been held in ‘re-education’ facilities, with many also forcibly transferred to work in factories in Xinjiang. They further indicate that Uyghur workers have allegedly been forcibly employed in low-skilled, labour-intensive industries, such as agribusiness, textile and garment, automotive and technological sectors.

“The Committee recognizes and welcomes the strong commitment of the Government to the eradication of poverty. However, it is the Committee’s firm view that poverty eradication and the realization of the right to work to that end encompasses not only job placement and job retention but also the conditions under which the Government executes such placement and retention. The Convention does not only require the Government to pursue full employment but also to ensure that its employment policies do not entail any direct or indirect discriminatory effect in relation to recruitment, conditions of work, opportunities for training and advancement, termination, or any other employment-related conditions, including discrimination in choice of occupation.

“The Committee is of the view that at the heart of the sustainable reduction of poverty lies the active enhancement of individual and collective capabilities, autonomy and agency that find their expression in the full recognition of the identity of ethnic minorities and their capability to freely and without any threat or fear choose rural or urban livelihoods and employment. The obligation under the Convention is not to guarantee job placement and retention for all individuals by any means available but to create the framework conditions for decent job creation and sustainable enterprises.

“The Committee takes due note of the view expressed in the Government’s report that ‘some forces recklessly sensationalize the so-called ‘forced labour’ issue in Xinjiang on various occasions’, adding that this is ‘nothing but a downright lie, a dirty trick with ulterior motives’. The Committee is bound to observe, however, that the employment situation of Uyghurs and other Muslim minorities in China provides numerous indications of coercive measures many of which arise from regulatory and policy documents.
The Government’s references to significant numbers of ‘surplus rural labour’ being ‘relocated’ to industrial and agricultural employment sites located inside and outside Xinjiang under ‘structured Employment policy and promotion conditions’ of ‘labour management’ in combination with a vocational training policy targeting deradicalization of ethnic and religious minorities and at least in part carried out in high-security and high-surveillance settings raise serious concerns as to the ability of ethnic and religious minorities to exercise freely chosen employment without discrimination. Various indicators suggest the presence of a ‘labour transfer policy’ using measures severely restricting the free choice of employment. These include government-led mobilization of rural households with local townships organizing transfers in accordance with labour export quotas; the relocation or transfer of workers under security escort; onsite management and retention of workers under strict surveillance; the threat of internment in vocational education and training centres if workers do not accept ‘government administration’; and
the inability of placed workers to freely change employers.

“The Committee urges the Government to provide detailed updated information on the measures taken or envisaged to ensure that its national employment policy effectively promotes both productive and freely chosen employment, including free choice of occupation, and effectively prevents all forms of forced or compulsory labour. In addition, the Committee requests the Government to take immediate measures to ensure that the vocational training and education programmes that form part of its poverty alleviation activities focused in the Uyghur Autonomous Region are mainstreamed and delivered in publicly accessible institutions, so that all segments of the population may benefit from these services on an equal basis, with a view to enhancing their access to full, productive and freely chosen employment and decent work. Recalling that, under the Employment Promotion Law (2007) and the Vocational Education law (1996), workers have ‘the right to equal employment and to choose a job of their own initiative’ and to access vocational education and training, respectively, the Committee asks the Government to provide detailed information on the manner in which this right is effectively ensured, particularly for those belonging to the Uyghur minority and other Turkic and/or Muslim minorities. The Government is also requested to provide detailed information, including disaggregated statistical data, on the nature of the different vocational education and training courses offered, the types of courses in which Uyghur minorities have participated, and the numbers of participants in each course, as well as the impact of the education and training on their access to freely chosen and sustainable employment.

“Article 3 of the Convention. Consultation. The Committee requests the Government to indicate
the manner in which representatives of workers and employers organizations were consulted with
respect to the design, development, implementation, monitoring and review of the active labour
market measures being taken in the Uyghur Autonomous Region. In addition, and given the focus of
the active labour market measures on the Uyghur and other Turkic/Muslim minorities, the Committee
requests the Government to indicate the manner in which the representatives of these groups have
been consulted, as required under Article 3.

“The Committee is raising other matters in a request addressed directly to the Government.”

The ILO Report references a report from the UN Committee on the Elimination of Racial Discrimination. See United Nations, International Convention on the Elimination of All Forms of Racial Discrimination, Committee on the Elimination of Racial Discrimination, Concluding observations on the combined fourteenth to seventeenth periodic reports of China (including Hong Kong, China and Macao, China), CERD/C/CHN/CO/14-17, 19 September 2018, pages 7-8 (paras.40-42, copied below), https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CERD/C/CHN/CO/14-17&Lang=En.

“Xinjiang Uighur Autonomous Region

“40. The Committee notes the statements delivered by the State party delegation concerning the non-discriminatory enjoyment of freedoms and rights in the Xinjiang Uighur Autonomous Region. The Committee is, however, alarmed by:

“(a) Numerous reports of the detention of large numbers of ethnic Uighurs and other Muslim minorities, held incommunicado and often for long periods, without being charged or tried, under the pretext of countering religious extremism. The Committee regrets the lack of official data on how many people are in long-term detention or who have been forced to spend varying periods in political “re-education camps” for even non-threatening expressions of Muslim ethno-religious culture, such as a daily greeting. Estimates of the number of people detained range from tens of thousands to over a million. The Committee also notes that the delegation stated that vocational training centres exist for people who have committed minor offences without qualifying what that means;

“(b) Reports of mass surveillance disproportionately targeting ethnic Uighurs, such as frequent baseless police stops and the scanning of mobile phones at police checkpoint stations; additional reports have been received of the mandatory collection of extensive biometric data in the Xinjiang Uighur Autonomous Region, including DNA samples and iris scans, of large groups of Uighur residents;

“(c) Reports that all residents of the Xinjiang Uighur Autonomous Region are required to hand over their travel documents to police and apply for permission to leave the country, and that permission may not come for years. This restriction particularly affects those who wish to travel for religious purposes;

“(d) Reports that many Uighurs who had left China have allegedly been returned to the country against their will. There are fears for the current safety of those returned to China against their will.

“While acknowledging the State party’s denials, the Committee takes note of reports that Uighur language education has been banned in schools in the Hotan (Hetian) prefecture in the Xinjiang Uighur Autonomous Region (arts. 2 and 5).

“42. The Committee recommends that the State party:

“(a) Halt the practice of detaining individuals who have not been lawfully charged, tried and convicted for a criminal offence in any extralegal detention facility;

“(b) Immediately release individuals currently detained under these circumstances, and allow those wrongfully held to seek redress;

“(c) Undertake prompt, thorough and impartial investigations into all allegations of racial, ethnic and ethno-religious profiling, holding those responsible accountable and providing effective remedies, including compensation and guarantees of non-repetition;

“(d) Implement mandatory collection and analysis of data on the ethnicity of all individuals stopped by law enforcement, the reasons for and outcome of those stops, report publicly on the information collected at regular intervals and include it in its follow-up report;

“(e) Ensure that all collection, retention and use of biometric data is regulated in law and in practice, is narrow in scope, transparent, necessary and proportionate to meeting a legitimate security goal, and is not based on any distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin;

“(f) Eliminate travel restrictions that disproportionately affect members of ethnic minorities;

“(g) Disclose the current location and status of Uighur students, refugees and asylum seekers who returned to China pursuant to a demand made by the State party in the past five years;

“(h) Provide the number of persons held against their will in all extralegal detention facilities in the Xinjiang Uighur Autonomous Region in the past five years, together with the duration of their detention, the grounds for detention, the humanitarian conditions in the centres, the content of any training or political curriculum and activities, the rights that detainees have to challenge the illegality of their detention or appeal the detention, and any measures taken to ensure that their families are promptly notified of their detention.”

As China seems intent on pursuing its policies described above and in the other sections of the ILO Report against the Uyghurs and other minorities, there will remain increased global tensions including trade actions to address what others view as unacceptable actions towards the minorities.

Stopping imports made in whole or in part from forced labor — U.S. law and the looming challenge on goods made from cotton and polysilicon

· February 11, 2022 · forced labor of Uyghurs and other minorities · , · No Comments

In prior posts, I have reviewed the challenges to international trade from forced labor practices in a number of countries and actions by the United States in 2021 to increase the focus on forced labor in China’s Xinjiang Uyghur Autonomous Region. See December 19, 2021:  Forced labor and trade — U.S. Congress passes legislation to address China’s treatment of Uyghurs, https://currentthoughtsontrade.com/2021/12/19/forced-labor-and-trade-u-s-congress-passes-legislation-to-address-chinas-treatment-of-uyghurs/; April 27, 2021:  WTO and forced labor in cotton — Commentary by Amb. Dennis Shea, former Deputy U.S. Trade Representative, https://currentthoughtsontrade.com/2021/04/27/wto-and-forced-labor-in-cotton-commentary-by-amb-dennis-shea-former-deputy-u-s-trade-representative/; March 24, 2021:  When human rights violations create trade distortions — the case of China’s treatment of the Uyghurs in Xinjiang, https://currentthoughtsontrade.com/2021/03/24/when-human-rights-violations-create-trade-distortions-the-case-of-chinas-treatment-of-the-uyghurs-in-xinjiang/; January 25, 2021:  Child labor and forced labor in cotton production — is there a current WTO mandate to identify and quantify the distortive effects?, https://currentthoughtsontrade.com/2021/01/25/child-labor-and-forced-labor-in-cotton-production-is-there-a-current-wto-mandate-to-identify-and-quantify-the-distortive-effects/; January 24, 2021:  Forced labor and child labor – a continued major distortion in international trade for some products, https://currentthoughtsontrade.com/2021/01/24/forced-labor-and-child-labor-a-continued-major-distortion-in-international-trade-for-some-products/.

U.S. legislation was signed into law on December 23, 2021, Pub. L 117-78, “To ensure that goods made with forced labor in the Xinjiang Uyghur Autonomous Region of the People’s Republic of China do not enter the United States market, and for other purposes”. The legislation includes working with USMCA partners (Canada and Mexico) and developing a strategy for addressing imports with priority sectors including cotton, tomatoes and polysilicon. As reviewed in a Peterson Institute for International Economics policy paper,

“The Xinjiang economy is still peripheral, accounting for only 1.4 percent of China’s gross domestic product. However, it is a major producer of two products, cotton and polysilicon, that are key parts of global supply chains. Xinjiang accounts for nearly 20 percent of global cotton production, with
annual production greater than that of the entire United States.9 Its position in polysilicon—the material from which solar panels are built—is even more dominant, accounting for nearly half of global production.10 Its position in polysilicon stems not from a dominant position in the raw material (silicon
being among the most abundant minerals on Earth) but from the massive amounts of energy used in the refining process and Xinjiang’s low, albeit carbon intensive, energy costs.

“9 See the International Cotton Advisory Committee, https://icac.org/DataPortal/DataPortal?Year=2019/20%20for (accessed on May 21, 2021).

“10 Dan Murtaugh, “Why It’s So Hard for the Solar Industry to Quit Xinjiang,” Bloomberg Green,
February 10, 2021, http://www.bloomberg.com/news/articles/2021-02-10/why-it-s-so-hard-for-thesolar-
industry-to-quit-xinjiang.”

PIIE Policy Brief, Cullen S. Hendrix and Marcus Noland, 21-14 Assessing Potential Economic Policy Responses to Genocide in Xinjiang at 5 (June 2021), https://www.piie.com/publications/policy-briefs/assessing-potential-economic-policy-responses-genocide-xinjiang.

The complicating factor for U.S., Canadian, Mexican and other authorities attempting to prohibit imports of products made in part or in whole from forced labor is that multiple countries are involved in many value chains. Thus, while 85% of China’s cotton production comes from the Xinjiang Autonomous Region, China not only uses the cotton internally for producing products (clothing, towels, etc.) but also exports cotton and textile products to many countries for further manufacture and consumption or export.

For example, cotton is covered by Chapter 52 of the Harmonized System of tariff classifications. In 2020, according to data from the UN COMTRADE data base, China exported cotton products classified under HS Chapter 52 to Bangladesh ($1.69 billion), Vietnam ($1.5 billion), Philippines ($846 million), Nigeria ($815 million), Cambodia ($430 million), Hong Kong ($420 million), Pakistan ($369 million) and Indonesia ($298 million) among other countries. See Trend Economy, Annual International Trade Statistics by Country , China, Cotton, https://trendeconomy.com/data/h2/China/52. These countries, as well as China, utilize the cotton products covered by Chapter 52 for producing other interim and finished products covered by other HS Chapters. The products produced are consumed in country or exported. Looking at just one such chapter, Chapter 61, covering some clothing products, and looking at imports in 2021 into the United States of items listed as containing cotton in that Chapter, shows the following dollar values potentially involved (in large part for China and for some parts for other countries).

China$ 3,651,051,704
Vietnam$ 4,311,944,342
Bangladesh$ 1,880,676,205
Cambodia$ 1,536, 029,654
Indonesia$ 1,436,846,321
Pakistan$ 1,164,854,604
Philippines$ 193,641,125
Hong Kong$ 35,811,289
Nigeria$ 77,091
Subtotal$14,210,932,335 (57.74% of total)
All Countries$24,613,797,890

The individual 10-digit HTS categories covered above are shown in the enclosed data from the USITC data we for China for the years 2016-2021.

cotton-Ch-61-imports-from-China.xlsx

The same problems exist for polysilicon and solar products made from polysilicon. Indeed, actions were taken last summer in the U.S. banning such products from a particular company in China. See, e.g., New York Times, U.S. Bans Imports of Some Chinese Solar Materials Tied to Forced Labor, June 24, 2021 updated August 2, 2021, https://www.nytimes.com/2021/06/24/business/economy/china-forced-labor-solar.html (“The White House announced steps on Thursday to crack down on forced labor in the supply chain for solar panels in the Chinese region of Xinjiang, including a ban on imports from a silicon producer there.”).

For both product groups, banning imports will present administrative challenges and will also pose challenges for purchasers looking for alternative sources of supply. It is critical for there to be adequate resources to implement the ban as well focus by purchasers on identifying alterative sources of supply.

The U.S.’s and other countries’ concerns with the Chinese practices involving the Uyghurs and other minorities in Xinjiang Autonomous Region are serious as the claims of genocide make clear. The increased use of Section 307 of the Tariff Act of 1930 by the U.S. Administration and efforts at coordination with trading partners are important steps to accompany increased diplomatic engagement to address the human rights challenges in China that have now been well documented.

While human rights violations don’t always carry with them trade implications, that is not the case where forced labor is the issue and the labor is engaged in producing products or services. While China’s actions against the Uyghurs and other minorities are the focus of the recent legislation, forced labor is a much broader trade problem in fact as recognized in the U.S., in Europe and elsewhere.

Forced labor and trade — U.S. Congress passes legislation to address China’s treatment of Uyghurs

· December 19, 2021 · forced labor of Uyghurs and other minorities · , , , , , , , , · No Comments

In prior posts I have reviewed how concerns over perceived human rights abuses (particularly forced labor) have trade implications. See, e.g., April 27, 2021:  WTO and forced labor in cotton — Commentary by Amb. Dennis Shea, former Deputy U.S. Trade Representative, https://currentthoughtsontrade.com/2021/04/27/wto-and-forced-labor-in-cotton-commentary-by-amb-dennis-shea-former-deputy-u-s-trade-representative/; March 24, 2021:  When human rights violations create trade distortions — the case of China’s treatment of the Uyghurs in Xinjiang, https://currentthoughtsontrade.com/2021/03/24/when-human-rights-violations-create-trade-distortions-the-case-of-chinas-treatment-of-the-uyghurs-in-xinjiang/; January 25, 2021:  Child labor and forced labor in cotton production — is there a current WTO mandate to identify and quantify the distortive effects?, https://currentthoughtsontrade.com/2021/01/25/child-labor-and-forced-labor-in-cotton-production-is-there-a-current-wto-mandate-to-identify-and-quantify-the-distortive-effects/; January 24, 2021:  Forced labor and child labor – a continued major distortion in international trade for some products, https://currentthoughtsontrade.com/2021/01/24/forced-labor-and-child-labor-a-continued-major-distortion-in-international-trade-for-some-products/.

There have been a number of reports generated by various groups over the years on the depth of the human rights problems in China’s Xinjiang Uyghur Autonomous Region and the treatment of ethnic minorities — particularly the Uyghurs. See, e.g., Australian Strategic Policy Institute and International Cyber Policy Centre, Uyghurs for sale, ‘Re-education’, forced labour and surveillance beyond Xinjiang (authors Vicky Xiuzhong Xu with Danielle Cave, Dr James Leibold, Kelsey Munro, Nathan Ruser), Policy Brief Report No. 26/2020, https://ad-aspi.s3.ap-southeast-2.amazonaws.com/2021-10/Uyghurs%20for%20sale%2020OCT21.pdf?VersionId=zlRFV8AtLg1ITtRpzBm7ZcfnHKm6Z0Ys.

The U.S. State Department releases an annual report on Human Rights issues in other countries, including China. The 2020 report on China contains the following excerpts relevant to the human rights concerns in the Xinjiang Region and the question of forced labor.

“CHINA 2020 HUMAN RIGHTS REPORT

“EXECUTIVE SUMMARY

“* * *

“Genocide and crimes against humanity occurred during the year against the predominantly Muslim Uyghurs and other ethnic and religious minority groups in Xinjiang. These crimes were continuing and included: the arbitrary imprisonment or other severe deprivation of physical liberty of more than one million civilians; forced sterilization, coerced abortions, and more restrictive application of China’s birth control policies; rape; torture of a large number of those arbitrarily detained; forced labor; and the imposition of draconian restrictions on freedom of religion or belief, freedom of expression, and freedom of movement.

“Significant human rights issues included: arbitrary or unlawful killings by the government; forced disappearances by the government; torture by the government; harsh and life-threatening prison and detention conditions; arbitrary detention by the government, including the mass detention of more than one million Uyghurs and other members of predominantly Muslim minority groups in extrajudicial internment camps and an additional two million subjected to daytime-only ‘re-education’ training; political prisoners; politically motivated reprisal against individuals outside the country; the lack of an independent judiciary and Communist Party control over the judicial and legal system; arbitrary interference with privacy; pervasive and intrusive technical surveillance and monitoring; serious restrictions on free expression, the press, and the internet, including physical attacks on and criminal prosecution of journalists, lawyers, writers, bloggers, dissidents, petitioners, and others as well as their family members, and censorship and site blocking; interference with the rights of peaceful assembly and freedom of association, including overly restrictive laws that apply to foreign and domestic nongovernmental organizations; severe restrictions and suppression of religious freedom; substantial restrictions on freedom of movement; refoulement of asylum seekers to North Korea, where they have a well founded fear of persecution; the inability of citizens to choose their government; restrictions on political participation; serious acts of corruption; forced sterilization and coerced abortions; forced labor and trafficking in persons; severe restrictions on labor rights, including a ban on workers organizing or joining unions of their own choosing; and child labor.

“* * *

“Section 7. Workers’ Rights

“* * *

“b. Prohibition of Forced or Compulsory Labor

“The law prohibits forced and compulsory labor. The law provides a range of penalties depending on the circumstances, including imprisonment, criminal detention, administrative blacklisting, and fines. Penalties were commensurate with those for analogous serious crimes, such as kidnapping. The law was not effectively enforced.

“The PRC used state-sponsored forced labor in detention camps, prisons, and factories in and outside Xinjiang.

“There is evidence of forced labor exacted by the use of force, threats of detention or other abusive practices against workers laboring in the camps, large industrial parks, and residential locations in Xinjiang. There are also reports of individuals ‘graduating’ from ‘vocational training centers’ and then being compelled to work at nearby facilities or sent to factories in other parts of China.

“China’s State Council issued a white paper on employment and labor rights in Xinjiang Uyghur Autonomous Region on September 17, 2020, in which it acknowledged that the Chinese Government has provided ‘vocational training’ to an average of 1.29 million workers in Xinjiang every year from 2014 to 2019.

“Xinjiang government documents indicate the existence of a large-scale PRC government plan, known as the ‘mutual pairing assistance’ program, where 19 cities and provinces, mostly in eastern China, have established factories in Xinjiang. There is significant risk that these factories are using camp labor and other exploitative labor practices.

“Persons detained in internment camps in Xinjiang (see section 6) were subjected to forced labor. The detainees worked in factories producing garments, hair accessories, and electronics and in agricultural production, notably picking and processing cotton and tomatoes. In March an Australian Strategic Policy
report stated the PRC government transferred Uyghur and other ethnic minorities from Xinjiang to technology, clothing, and automotive factories across the country; conditions for many transferred workers strongly suggested forced labor. A New York Times investigation published on April 15 stated some Chinese companies used forced labor to produce personal protective equipment. In December a Center for Global Policy report detailed the PRC’s coercive labor training and transfer schemes that led to forced labor of nearly half a million people in the Xinjiang cotton harvest.

“A December 2020 Jamestown report used evidence from public and nonpublic Chinese government and academic sources indicating that labor transfers of ethnic minorities in Xinjiang to other regions and other provinces are part of a state-run scheme to forcibly uproot them, assimilate them, and reduce their population. Using Chinese government documents, the report estimates that up to 1.6 million transferred laborers are estimated to be at risk of being subjected to forced labor as a result of the government policy that intends to ‘displace’ populations deemed ‘problematic’ by the government.

“Chinese-flagged fishing vessels subjected workers from other countries to forced labor. On August 26, an Indonesian social media outlet posted a video of three Indonesian fisherman pleading for rescue from a PRC-flagged fishing vessel. The fishermen claimed they were subjected to physical violence, forced to work 20-hour days, and not paid for their work.

“Although in 2013 the NPC officially abolished the re-education through labor system, an arbitrary system of administrative detention without judicial review, numerous media outlets and NGOs reported forced labor continued in prisons as well as drug rehabilitation facilities where individuals continued to be detained without judicial process. An August, Epoch Times article stated prison labor was used in apparel, artificial flowers, and cosmetic production in Shenyang, Liaoning. There were reports of forced labor in other provinces in the production of items such as bricks, coal, and electronics.

“Also see the Department of State’s Trafficking in Persons Report at https://www.state.gov/trafficking-in-persons-report/.”

U.S. Department of State, CHINA 2020 HUMAN RIGHTS REPORT, pages 1, 78, 81-82 (March 2021 updated in November), https://www.state.gov/reports/2020-country-reports-on-human-rights-practices/china/.

U.S. law for more than 90 years has banned the importation of goods made with forced labor. The problem of forced labor is not limited to China and the U.S. Customs and Border Protection in recent years has taken action to deny entry to imports from a number of countries of goods suspected of being made with forced labor. See, e.g., Testimony of Jennifer (JJ) Rosenbaum, JD, Executive Director, Global Labor Justice – International Labor Rights Forum, Before the House Committee on Ways and Means Subcommittee on Trade, The Global Challenge of Forced Labor in Supply Chains: Strengthening Enforcement and Protecting Workers, Wednesday July 21, 2021, https://waysandmeans.house.gov/sites/democrats.waysandmeans.house.gov/files/documents/Witness%203%20Jennifer%20Rosenbaum%20Testimony.pdf (citing various USCBP Withhold Release Orders under Section 307 of the Tariff Act of 1930 on products from Malawi, Democratic Republic of Congo, Turkmenistan, Malaysia as well as China).

With the broader concern about the perceived extreme human rights abuses against the Uyghurs and other ethnic minorities in the Xinjiang Uyghur Autonomous Region and reports of dozens of multinationals apparently “benefitting” from forced labor of Uyghurs, Congress held hearings in 2021 and in December passed legislation directed at improving the enforcement of Section 307 of the Tariff Act of 1930 including creating a presumption of use of forced labor for products coming from Xinjiang Province. See, e.g., Inside U.S. Trade’s World Trade Online, Uyghur Forced Labor Prevention Act heads to Biden’s desk, December 16, 2021, https://insidetrade.com/daily-news/uyghur-forced-labor-prevention-act-heads-biden%E2%80%99s-desk.

The U.S. Trade Representative issued a statement on December 16th about the legislation going to the President.

“This bill represents our country’s commitment to protecting human dignity and leading the fight against forced labor. We have a moral and economic imperative to eliminate this practice from our global supply chains, including those that run through Xinjiang, China, and exploit Uyghurs and other ethnic
and religious minorities.

“This fall in London, the G7 trade ministers released a Joint Statement affirming our belief that there is no place for forced labor in a rules-based multilateral trading system. By passing this bill with strong, bipartisan support, the United States can set an example for the world to follow.

“I am grateful to Congress for its leadership and look forward to continuing this necessary work with our trading partners and allies to ensure every worker is treated with respect and dignity – no matter where they live.”

USTR Press Release, STATEMENT BY AMBASSADOR KATHERINE TAI ON THE PASSAGE OF THE UYGHUR FORCED LABOR PREVENTION ACT, December 16, 2021, https://ustr.gov/about-us/policy-offices/press-office/press-releases/2021/december/statement-ambassador-katherine-tai-passage-uyghur-forced-labor-prevention-act.

The bill as passed by the House and Senate is enclosed below. It is expected that President Biden will sign the legislation in the coming days.

uyghur-forced-labor-compromise

The legislation consists of six sections. The first is a statement of policy including the strengthening the porhibition against importation of goods made with forced labor, leading international efforts to end forced labor, coordinating with Canada and Mexico implementation of Art. 23.6 of the USMCA prohibiting the importation of goods manufactured with forced labor, working to end human trafficking, regarding the prevention of atrocities as in the U.S. national interest, and addressing gross violations of human rights in the Xinjiang Uyghur Autonomous Region through diplomatic channels, multilateral institutions, by using all authorities available to the U.S. government including visa and financial sanctions, export restrictions and import controls.

Section 2 details a strategy to enforce Section 307 of the Tariff Act of 1930 (prohibiting the importation of goods made through forced labor in Xinjiang). There will be opportunity for public comments, a public hearing and development of a strategy by the Formed Labor Enforcement Task force (established by Sec. 741 of the USMCA Implementation Act) in consultation with the Department of Commerce and the Director of National Intelligence. The strategy will include elements that assess the risk of importing prohibited goods from Xinjiang and procedures to be implemented to reduce the risks, a factual description of various practices in China on forced labor including a list of entities using forced labor or working with the government on forced labor, a list of products made with such labor, a list of entities that exported such goods to the U.S., information on third parties using such goods, a list of high-priority sector (including at a minimum cotton, tomatoes and polysilicon) and other matters including additional resources needed by USCBP to enforce the law and guidance to importers. Within 180 days of enactment of the legislation, the strategy report shall be submitted to the appropriate Congressional Committees. The strategy will be updated annually.

Section 3 creates a rebuttable presumption that imports of goods mined, produced or manufactured in the Xinjiang Uyghur Autonomous Region is produced with forced labor. There are exceptions but CBP needs to submit a report to appropriate Congressional Committees within 30 days after determining an exception applies. The section takes effect 180 days after enactment of the legislation.

Section 4 deals with having a diplomatic strategy to address forced labor in the Xinjiang Uyghur Autonomous Region. The Secretary of State will submit a strategy within 90 days to the appropriate Congressional Committees including plans to enhance bilateral and multilateral coordination among other matters.

Section 5 deals with sanctions relating to forced labor in the Xinjiang Uyghur Autonomous Region. The President is to identify any official of China’s Government who is determined to be responsible for serious human rights abuses in connection with forced labor in the Xinjiang Uyghur Autonomous Region and shall impose sanctions on such individuals.

Section 6 sunsets Sections 3-5 eight years after enactment or when the President determines the Chinese Government has ended the human rights abuses in the Xinjiang Uyghur Autonomous Region, which is earlier.

Comments

Historically, human rights issues have not been viewed through a trade lense. Many human rights abuses are not easily addressed through trade and may have marginal trade effects. That is not true of the issue of forced labor which affects the costs of goods and services where such labor is involved either in an end product or service or in an upstream product or service.

The United States under the Biden Administration is working to address some of the trade distortions flowing from forced labor as can be seen in the ongoing Fisheries Subsidies negotiations. The human rights issues reportedly flowing from treatment of Uyghur and other minorities in the Xinjiang Uyghur Autonomous Region have caused concerns in many countries. Treasury, Commerce, Customs and Border Protection are all taking actions to address trade distortions caused by forced labor whether from China or elsewhere. The legislation sent to the President last week (that will likely be signed by President Biden by the end of the year) is an important step in raising awareness and trying to address the underlying situation in the Xinjiang Uyghur Autonomous Region.

While China is reacting negatively and now has legislative tools to take retaliation (regardless of WTO inconsistency), the U.S. and other countries have to address the human rights problems flagged in the Xinjiang Uyghur Autonomous Region and ensure that trade distortions from forced labor are neutralized.