This article is written by Sneha Sethia. This article has been edited by Ojuswi (Associate, Lawsikho). 

This article has been published by Sneha Mahawar.

Introduction

Uyghurs are among the oldest Turkic-speaking peoples coming from central and east Asia. They are among the officially recognised minority groups of China, forming the large majority of the Xinjiang Uyghur Autonomous Region (XUAR) of the People’s Republic of China. Xinjiang has remained culturally distinct and geographically remote from China consisting of a substantial population of Muslim Turkic-speaking Uyghurs. Beijing claims Uyghurs as part of the “great family of the Chinese state” and contends that Xinjiang has been and will be an integral part of Chinese national territory since ancient times. This article examines the Uyghur Forced Labour protection act and its impact on US businesses.

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The conflict between Uyghur Muslims and the Chinese government

Uyghurs believe themselves to be part of a distinct Uyghur nation, having its own history, culture, and language. Uyghurs, believing them to be distinct from Han Chinese culture (population of the rest of China) resisted their incorporation into the Chinese nation-state and sought to establish Xinjiang as a separate Sovereign State. 

This has created tension between the sovereignty and self-determination of the Uyghurs and the Chinese Government. The Chinese government has attempted to overcome the resistance. It is believed that the Chinese government is concerned that Uyghurs hold extremist and separatist ideas, which could become a threat to China’s territorial integrity, government, and population.

Implementation of “Reeducation Camps” and other Programs to stabilise the Uyghur population

To overcome the  “toxicity of religious extremism” the Chinese Government in the year 2017 launched Xinjiang internment camps, which are officially called vocational educational camps in the Uyghur Autonomous Region and are administered by its Chinese Communist Party (CCP) provincial committee. The Chinese officials say that the “reeducation camps” have two purposes: one is to prevent citizens from becoming influenced by extremist ideas, to curb terrorist activities and prevent violence and another is to educate them in Mandarin, vocational skills, and Chinese laws.

The Chinese government has been accused of using the camps for detention and internment, making a massive transformation of the Xinjiang Uyghur Autonomous Region trying to stabilize and control the Uyghur and other Muslim populations and using them for economic purposes. The Chinese Government has arbitrarily detained indigenous citizens of the region in internment camps without trial and is focused on the creation of an enormous forced labour regime. They have the explicit goal of employing every adult citizen with or without their will to increase the economic productivity of the region.

The government has been trying to seek the stability of the population through various measures such as incarceration, detention without trial, and political indoctrination. There’s another program launched by the government to alleviate poverty.

The Chinese Communist Party (CCP) has placed lakhs of indigenous Uyghur and Kazakh citizens from the XUAR into “surplus labour” and “labour transfer” programmes and claims that these programmes are in accordance with the law of the country and that the workers engage for such work voluntarily, in a concerted government-supported effort to alleviate poverty. However, the reports suggest that these programs are coercive and compulsory labour programs.

 In March 2020, the Australian Strategic Policy Institute (ASPI) published a report Uyghurs for sale: ‘Re-education’, forced labour and surveillance beyond Xinjiang, which identified 83 foreign and Chinese companies as allegedly directly or indirectly involved and benefiting from the exploitation of Uyghur workers outside Xinjiang through potentially abusive labour transfer programs. 

The workers under these programs face the constant threat of re-education and internment. They have no choice but to refuse these jobs, and thus the programmes are a way to forcibly transfer populations into enslavement under hostile environments such as severe physical and psychological abuse, sterilization, sexual abuse, genetic analyses, religious persecution, and cultural and political indoctrination leading to crime against humanity.

In the poverty alleviation program, workers who are transferred for work from place to place or factory to factory are severely underpaid, under coercive and surveilled atmosphere which is a cause of concern at a significant level about forced labour. There’s another program in relation to the poverty alleviation program called “pairing” programs.

In pairing programs, the Chinese provinces tie up with specific regions of the  Xinjiang Uyghur Autonomous Region, focusing on the sectoral needs of paired mainland Chinese Industries. In this program, the companies are expected to set up their factories in the regions of  XUAR based on their needs and demands. Poverty alleviation and pairing programs both rely on labour transfers, in which the XUAR Department of Human Resources and Social Sciences plays a key role. Due to these programs and detention camps, there is a higher chance that the products manufactured in China could be part of XUAR-linked forced labour.  

Use of forced labour to manufacture products

The XUAR region exports a variety of manufactured and raw products across the globe. XUAR fulfils 20% of the world’s cotton demand and also contributes to the majority of the world’s supply of polysilicon which is used to produce solar panels, other major products that China exports globally are minerals, oil, footwear, agriculture products, hair products, construction material, cell phones, cleaning supplies, etc. All these products reportedly use forced labour. To meet these ostensible ends, the Chinese Communist Party (CCP) has already placed millions of Uyghur and Kazakh citizens from the XUAR into “surplus labour”  and “labour transfer” programmes and the number of Uyghurs under forced labour is increasing significantly. 

The US takes steps to combat modern slavery and human rights abuses

With the growing use of forced labour and genocide by the Chinese Government in Xinjiang, the US has taken steps to Combate Modern Slavery and Human Rights Abuses, strengthen US legislation and protect human rights, trade and has updated its foreign policy perspective to fight against the widespread use of forced labour in the global supply chains. Actions include the issuing of Withhold Release Orders by U.S. Customs and Border Protection (CBP), the addition of entities to the U.S. Department of Commerce Entity List, the imposition of visa restrictions by the U.S. Department of the State, the imposition of economic sanction by the U.S. Department of Treasury, as well as the inclusion of various goods to the U.S. Department of Labor’s List of Goods Produced by the use Child Labor or Forced Labor.

On July 1, 2020, the US Department of State in conjunction with the US Department of the Treasury, the US Department of Commerce, and the US Department of Homeland Security issued an updated Xinjiang Supply Chain Business Advisory to strengthen its policy against doing business in the XAUR region. 

The advisory points out the risks that businesses and individuals should consider when they are involved in a business partnership in, funding in, sourcing from, or providing investments and other support to businesses operating in Xinjiang, linked to Xinjiang, or with labourers from Xinjiang. The US bans imports from the Xinjiang Uyghur Autonomous Region in the north-west of China, except where the importer can provide ‘clear and convincing evidence that their goods were not produced by forced labour. The International Labour Organisation(ILO) report of 2017 estimates that in 2016 about 25 million people were victims of different forms of forced labour. 

Article 2 of the 1930 ILO Forced labour Convention defines the term forced or compulsory labour shall mean all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily. China and the US are not parties to the International Labour Organisation but are bound by a related ILO Declaration. ILO prohibits US imports of mined goods, cultivated, or produced wholly or partly in any foreign country by convict labour or forced labour or indentured labour under penal sanctions.

However, the law was only in existence as it was rarely used as it contained a ‘consumptive demand’ clause, which allowed forced labour imports if comparative products were not made or not made in sufficient quantities in the US. In 2015, Congress made certain amendments and closed the loophole by excluding the consumptive demand clause through the Trade Facilitation and Trade Enforcement Act. 

This gave a remarkable boost to enforcement action by Customs Border Protection (CBP) in ‘withhold release orders’ (WROs), prohibiting the entry of goods made using child labour and forced labour in the US, allowing Customs Border Protection to seize and detain imports. The US administration’s updated Xinjiang Supply Chain Business Advisory of July 2021 emphasises that given the prevalence of forced labour the XUAR, ‘corporates and individuals that do not exit supply chains, ventures and investments connected to Xinjiang could be at a high risk of violating US law’. 

Legal risks include: violating statutes that criminalise forced labour including knowingly profiting from engaging in a venture while having the knowledge or in reckless disregard of the fact that the venture has participated in forced labour and human trafficking; violations of sanctions if dealing with designated persons involved in the use of forced labour; export control breaches; and breach of the prohibition of importations of goods produced in part or whole with forced labour or convict labour.

The Uyghur Forced Labour Prevention Act

In December 2021, the US passed The Uyghurs Forced Labour Prevention Act US that creates a rebuttable Customs Border Protection presumption that all imports from the XUAR are made using forced labour under Section 307 of the 1930 Tariff Act and are thus prohibited from entry into the US. The law broadens the scope of the US prohibition from selected goods through WROs to all goods made in the XUAR.

The firms importing goods from XAUR have to show that their imported goods from the XUAR are not made using forced labour by,

  • complying with government guidance,
  • completely replying to inquiries, and
  • providing clear and convincing evidence.

The law provides for sanctions against foreign persons under the Uyghur Human Rights Policy Act of 2020, as amended, Section 6. Imposes sanctions such as asset blocking, ineligibility for visas, admission and parole. It instructs US diplomatic strategy to raise awareness of forced labour in the XUAR and to address it with US allies and partners challenges for the enforcement of US forced labour legislation on the XUAR.

Anti-Foreign-Sanctions Law by China and what it means for US business

In response to the laws banning Chinese Products, China in June 2021 enacted an Anti-Foreign-Sanctions Law Issued by the People’s Republic of China (PRC) to protect China’s integrity, sovereignty, security, peace, internal affairs, and development interests by countering foreign sanctions, particularly countering U.S. sanctions targeting Chinese trade and individuals.

The law prohibits the firms operating in China from complying with foreign sanctions and laws targeting China and it has prepared its large consumer base to retaliate with boycotts. Anti-Foreign-Sanctions Law allows the People’s Republic of China to take countermeasures “if a foreign country violates international law and basic norms of international relations…, or adopt[s] discriminatory restrictive measures against Chinese citizens and organizations, and interfere[s] in [the PRC]’s internal sanctions. The US forced labour legislation and other prohibitions have put trade relations affairs.”

The law aims to reduce the effectiveness and impact of U.S. trade between China and the US conflict. Given the XUAR’s important role in some global supply chains, businesses have warned of the impact of bans, notably of supply chain disruptions leading to excessive costs for manufacturers, overpricing for consumers and financial burden for farmers in the US. Making American companies shift supply chains to other parts of Asia, leading to stock market instability due to the economic conflict, creating fears that the trade war would lead to a US-China economic ‘decoupling’.

Conclusion

Whilst globalization and digitalisation have taken command of supply chains across the globe, and human rights practices are being respected with more strict conviction, the burden to eradicate child labour, forced labour and modern slavery from global supply chains have shifted from the States to corporations. In China’s western region of Xinjiang considering the severity and extent of the abuses, including widespread forced labour sponsored by the state and intrusive surveillance taking place amid ongoing genocide, forbidden from participating in religious observances. and crimes against humanity in Xinjiang, Businesses and Companies must stand in order to fulfil their corporate commitment, they should conduct thorough human rights due diligence on their setup and factory labour in the State of China to fight against the practice of human trafficking and forced labour, fulfil their responsibility to respect human rights as defined in international principles such as the UN Guiding Principles on Business Conduct and Human Rights.

Although the USA is a huge importer of the products being manufactured in XUAR (including products whose parts originate in the XUAR, but are finished in other countries), many other countries are huge exporters of these goods as well, including a significant number of domestic markets within China. Central Asian countries and Russia have significant contributions to the importation of products manufactured in China and make up the top five destinations for XUAR products, with more than fifty percent of shipments from the XUAR going to these countries such as Kazakhstan. Germany, Poland, the Netherlands, France, and Hungary all are huge markets for XUAR products. The effect of the U.S. ban will be significantly diminished without parallel support for import bans in other importing countries. For this reason, this law’s implementation must be accompanied by an effective diplomatic strategy that encourages other countries to implement similar restrictions.

References

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