Congress Isn’t Leading on Human Rights in China

The Biden team needs to step up and push new initiatives

Pro-democracy activists in Hong Kong
Pro-democracy activists march backward to the Chinese liaison office during China's National Day in Hong Kong on Oct. 1. May James/AFP via Getty Images

Members of the U.S. Congress say they want to be tougher on China and move human rights to the forefront of the relationship. But representatives have failed to use the body’s strongest legislative levers in response to crises like the Xinjiang labor camps and Hong Kong’s new national security law. Conversations with more than 20 Republican and Democratic staffers make clear that, without direction from the executive branch, Congress is not likely to act forcefully by itself. The Biden administration will need to push Congress if it wants tough legislation to deal with Chinese human rights abuses.

Many members of Congress have expressed horror at China’s forced detention and labor camps for Uighur and other ethnic minorities in Xinjiang. The Uyghur Forced Labor Disclosure Act and the Uyghur Forced Labor Prevention Act (both 2020), the two strongest pieces of legislation aimed at removing the products of forced labor from American supply chains, would presumably be no-brainers for most lawmakers looking to pick a fight with China. However, 163 House Republicans voted against the Disclosure Act, and although it passed the House it faces little chance of being picked up by the Senate. The Prevention Act, the narrower of the two, garnered near-unanimous approval from the House, but it also may very well not see a vote in the Senate.

The principal obstacle is that the bills bring new scrutiny to American business supply chains in Xinjiang. The Prevention Act designates imports from Xinjiang as guilty of being produced by forced labor until proven innocent, requiring that Customs and Border Protection (CBP) have “clear and convincing” evidence that any imports from the region are clean. The Disclosure Act goes a step further, putting the onus on public companies to actively audit supply chains in Xinjiang.

The U.S. Chamber of Commerce, which represents the interests of American businesses in Washington, came out against the bills. The Chamber argues that the bills would cause American companies to shun businesses in Xinjiang altogether, ultimately harming Uighurs rather than helping them. “A well-intentioned effort to resolve abuses related to the mining of conflict minerals in the Democratic Republic of the Congo (DRC) in many cases worsened the situation on the ground,” the Chamber wrote in an open letter to Congress. “[It] caused many companies to implement a de facto embargo against material sourced in the region which then hurt legitimate miners.”

The Chamber’s claims run contrary to the findings of the United Nations Group of Experts on the Congo, who determined that the U.S. measures there “had a massive and welcome impact” and “should not and must not be thrown away or weakened.” Nor does the Congolese case make a good point of comparison. There, only some warlords were using forced labor; in Xinjiang, it is official policy. But the bill’s impact on Uighurs is not the Chamber’s ultimate concern. The group is presumably more worried about reputational and regulatory risks the bills pose to American companies, as well as the cost associated with cleaning out supply chains.

Regardless of the rationale for the Chamber’s opposition, the message got across. In late September, 163 members of the House voted against the Disclosure Act, sponsored by Democratic Rep. Jennifer Wexton. Republicans were arguing on the floor that this would somehow hurt the Uighurs because it would cause companies to stop sourcing materials from the region,” Mike Lucier, legislative director for Wexton, said. “But that’s sort of the point. We should be pushing companies to reevaluate their supply chains in Xinjiang.”

Both bills face uphill battles in the Senate, where lobbyists from firms like Nike and Apple are striving to water them down or nix key provisions. Hill staffers close to the Senate Committee on Foreign Relations said that, faced with such opposition, its Chairman Jim Risch might not introduce the bills at all.

CBP’s decision yesterday to ban most cotton produced in Xinjiang from U.S. imports does not leave Congress off the hook. CBP’s 15-person Forced Labor Division does not have the capacity to enforce such a measure. More funding to support investigations of firms skirting the law, as well as penalties involving fines and naming and shaming firms caught importing illicit goods, would likely require congressional action.

On Hong Kong, too, Congress has shied away from maximalist policy options. The new national security law, imposed from Beijing, heralds the end of China’s “one country, two systems” principle that allowed Hong Kong to enjoy relative political freedoms for the past two decades. Journalists, opposition lawmakers, and protest leaders have been arrested for behavior deemed legal only months ago. In response, this past summer Congress enacted the Hong Kong Autonomy Act, revoking Hong Kong’s special status and empowering the Trump administration to sanction responsible officials.

It has not, however, moved on bills that would directly help Hong Kongers. The Senate’s Hong Kong Safe Harbor Act, for example, creates new refugee allocations for Hong Kongers fearing political persecution. In the House, Democrat Tom Malinowski and Republican Adam Kinzinger introduced the more ambitious Hong Kong People’s Freedom and Choice Act, creating up to 250,000 visa spots over five years for highly skilled Hong Kongers. According to the logic behind the bill, by creating this special visa category the United States would put pressure on China not to let conditions in Hong Kong deteriorate further, lest it drive away more of the city’s skilled population. If Beijing continues to tighten its grip on the region, the legislation will position the U.S. firmly behind people impacted on the ground. Similar moves by the United Kingdom clearly got under Beijing’s skin.

But neither bill has seen a floor vote. Efforts to add the Hong Kong People’s Freedom and Choice Act to the National Defense Authorization Act, in effect fast-tracking its passage, were ignored by House leadership. Senate staffers who worked on the Safe Harbor Act doubt it will see a vote this year.

This all means that the Biden administration cannot sit back and expect Congress to drive aggressive human rights policies to deal with China. Instead, it will need to actively push Congress to do so, acting with executive powers when necessary.

This would reverse the traditional relationship between the executive branch and Congress on Chinese human rights issues. Since the Tiananmen Square protests, every president has sought to shield economic cooperation from Congress’s human rights concerns. Former President George H.W. Bush, against strong congressional opposition, tried to decouple trade and human rights. Former President Bill Clinton butted heads with large congressional majorities in support of Taiwan that would have imperiled China’s ascension to the World Trade Organization. Under outgoing President Donald Trump, the Uighurs and Hong Kong have been thrown under the bus in pursuit of a trade deal.

President-elect Joe Biden comes into office having already labelled Xinjiang a genocide, but cannot count on Congress to drive action. Thankfully, the president will have significant latitude to move. For instance, on Xinjiang, he could direct the Department of Homeland Security to implement new due diligence requirements on imports without Congress. On Hong Kong, Biden could unilaterally lift the refugee cap for applicants from the region, or direct consuls to expedite Hong Kongers’ visa applications. Biden could also raise the profile of human rights causes by building an international coalition of countries to boycott the 2022 Beijing Winter Olympics.

While these actions would achieve valuable policy objectives, they would lack the long-term institutional staying power and the symbolic weight of congressional legislation. To get U.S. policy on China back on a strong human rights footing, the Biden administration would do better to light a small fire behind Congress. Bipartisan coalitions have put forward productive policy responses to Chinese human rights abuses. The Uyghur Forced Labor Disclosure Act and the Uyghur Forced Labor Prevention Act would end the abhorrent reality of detained Uighurs making goods for American consumers. The Hong Kong People’s Freedom and Choice Act would give vulnerable people a means of getting out. These measures merely await committee approvals and floor votes; a slight push from Biden could get them over the line.

Jordan Schneider is the host of the ChinaTalk podcast and newsletter as well as an adjunct fellow at the Center for a New American Security.

Coby Goldberg is a researcher at the Center for a New American Security.

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