Report

In Rare Unanimity, Biden Could Double Down on Trump’s Uighur Sanctions

A bipartisan crackdown on Chinese forced labor has put Western corporations on notice—and could pave the way for Washington to finally support the International Criminal Court.

Workers walk by the perimeter fence of what is officially known as a vocational skills education center in Dabancheng in Xinjiang, China, on Sept. 4, 2018.
Workers walk by the perimeter fence of what is officially known as a vocational skills education center in Dabancheng in Xinjiang, China, on Sept. 4, 2018. Thomas Peter/Reuters

Forced labor has gotten new attention as part of China’s horrific repression of its Uighur minority in Xinjiang, which also includes cultural genocide, imprisonment, and torture. A number of investigations and reports from the region have shed light on state-sponsored forced-labor camps, with the number of camps only growing with time. Numbers are hard to come by, but human rights organizations estimate that up to 1.5 million Uighurs, Kazakhs, and other Turkic minorities are being detained in as many as 1,000 concentration camps across Xinjiang.

The beneficiaries of China’s abysmal human rights abuses include a long list of companies operating in the region, many of them suppliers to Western corporations. A report issued by the U.S. Congressional-Executive Commission on China in March included a list of companies “suspected of directly employing forced labor or sourcing from suppliers that are suspected of using forced labor,” including Adidas, Coca-Cola, Costco, H&M, Kraft Heinz, Nike, and Patagonia.

With human rights in China one of the few topics on which there is bipartisan agreement in the United States, the U.S. House of Representatives in September passed the Uyghur Forced Labor Disclosure Act of 2020 and the Uyghur Forced Labor Prevention Act with almost unanimous support. Both bills seek to address the growing use of forced labor in global supply chains. While the first would require U.S.-based companies to provide quarterly reports of operations in the Xinjiang region, the second would expose companies to criminal proceedings should forced labor be found in their supply chains.

Forced labor has gotten new attention as part of China’s horrific repression of its Uighur minority in Xinjiang, which also includes cultural genocide, imprisonment, and torture. A number of investigations and reports from the region have shed light on state-sponsored forced-labor camps, with the number of camps only growing with time. Numbers are hard to come by, but human rights organizations estimate that up to 1.5 million Uighurs, Kazakhs, and other Turkic minorities are being detained in as many as 1,000 concentration camps across Xinjiang.

The beneficiaries of China’s abysmal human rights abuses include a long list of companies operating in the region, many of them suppliers to Western corporations. A report issued by the U.S. Congressional-Executive Commission on China in March included a list of companies “suspected of directly employing forced labor or sourcing from suppliers that are suspected of using forced labor,” including Adidas, Coca-Cola, Costco, H&M, Kraft Heinz, Nike, and Patagonia.

With human rights in China one of the few topics on which there is bipartisan agreement in the United States, the U.S. House of Representatives in September passed the Uyghur Forced Labor Disclosure Act of 2020 and the Uyghur Forced Labor Prevention Act with almost unanimous support. Both bills seek to address the growing use of forced labor in global supply chains. While the first would require U.S.-based companies to provide quarterly reports of operations in the Xinjiang region, the second would expose companies to criminal proceedings should forced labor be found in their supply chains.

Given growing concern and agreement across the aisle—as well as President-elect Joe Biden’s promise to give human rights greater weight in U.S. foreign policy—eradicating forced labor from the U.S. market may be one of the few issues where Biden could build directly on the outgoing administration’s work. In June, President Donald Trump signed the Human Rights Policy Act of 2020, which targets Chinese government officials deemed to be responsible for human rights abuses in the Xinjiang Uighur Autonomous Region. Soon after taking effect, the act was applied in July to impose sanctions on Xinjiang’s Communist Party Secretary Chen Quanguo.
For companies manufacturing in or importing from China, human rights violations could soon turn into a major operational, legal, and financial risk.

While sanctions targeting Chinese officials do not seem to alter Beijing’s stance on human rights, there are other measures Washington has been taking on Chinese forced labor. U.S. Customs and Border Protection (CBP) has been swiftly issuing a number of so-called withhold release orders to U.S. companies importing from the Xinjiang region. These orders halt any imports into the United States if CBP has reason to believe the products were produced with forced labor. And on Oct. 20,, CBP issued its first finding on forced labor since 1996, targeting stevia production from China. This was a significant step, since such a finding requires conclusive evidence that forced labor is involved, while a withhold release order only requires reasonable belief. As of this writing, 13 such orders have been issued to importers. One of them, PureCircle, entered into a $575,000 settlement with CBP earlier this year. Should the two new congressional bills become law, CBP will play a pivotal role in targeting the private sector, and a substantial increase in these orders can be expected.

For U.S. and other Western companies manufacturing in or importing from China, human rights violations in the country could thus turn out to be a major risk—not just reputational but also operational, legal, and financial. That may be one reason why Apple and other companies are reported to have lobbied against Xinjiang-related forced labor legislation on Capitol Hill.

Human rights in China has also been one of the few issues where the outgoing administration has been engaging the international community, despite its focus over the past four years on undermining international institutions and their mandates. In a far from traditional stance, the Uyghur Forced Labor Prevention Act includes a provision on the determination of whether crimes against humanity or genocide are being committed in Xinjiang. The United States has had a complicated relationship with the International Criminal Court (ICC)—where such crimes are tried—since long before Trump took office. In 2000, then-President Bill Clinton signed the Rome Statute establishing the ICC, but the agreement was never submitted to the U.S. Senate for ratification. President George W. Bush then withdrew Clinton’s signature. This would put the U.S. government in the delicate position of condemning crimes determined by a court whose jurisdiction it does not recognize.

If the Senate passes the bills, it would create a truly peculiar precedent. Previous attempts to include wording on human rights from the Rome Statute in U.S. legislation have failed—such as the Crimes Against Humanity Act of 2010, which never received a vote. And while the term “genocide” shows up in Section 1091 of the U.S. 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 abuses resulted in crimes against humanity, thus showing continued faith by legislators in the international legal framework on these crimes despite the United States not being a party to it.
Unintentionally, the U.S.-Chinese conflict may have progressed Washington’s stance on international criminal and human rights law.

Many have wondered whether the U.S.-Chinese trade war has unintentionally progressed Washington’s stance on international criminal and human rights law. Although the motives behind forced-labor legislation likely include hurting China economically, the bills take a human rights-based approach. While many rightfully argue that the outgoing administration has been soft on human rights and a perennial violator of international agreements, the conflict with China has led the United States to use forced labor and human rights violations as a sword against Beijing.

The incoming Biden administration seems to prioritize human rights and reestablishing relations with foreign governments and international institutions, and it can be expected to promote the respect of international law. Besides obvious steps such as rejoining the Paris climate agreement, Biden can further bolster the U.S. position in the international arena by effectively being the lead nation in condemning human rights abuses in China. It would not be difficult to take this priority one step further and start condemning and targeting other countries for their abuses as well, not just China in Xinjiang.

The effects would be felt worldwide, not just by U.S. corporations. With strong customs laws and a greater willingness to sanction corporations than most other countries, the U.S. government has already steered foreign and domestic companies away from operating in Xinjiang. This is especially the case with the current regulations, which allow CBP to presume importers to be guilty until they prove otherwise.

While the two House bills are likely to become law, the big question is whether “crimes against humanity” will be included in the final versions’ wording. The current bills both contain references to “the international community,” signaling an attempt to portray the United States as a human rights advocate, even if the legislation is myopically focused on China instead of covering forced labor on a global scale. It may be a little too optimistic to see the terminology included in the new legislation—and the new administration’s emphasis on human rights—as a sign of Washington’s readiness to embrace international criminal law. But views do evolve over time, and there is no reason to believe they can’t change in the United States as well. After all, it’s now been almost two decades since Bush withdrew U.S. support for the ICC.

Pierfilippo M. Natta is an independent researcher on international and human rights law and an international trade consultant. Twitter: @piernatta

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