An Evolution in Human Rights
Remarks for WITA's 2024 China Intensive Trade Seminar
Every year (pending the good humor of the President) the White House Correspondents’ Association (WHCA) hosts a gala dinner in D.C. that has come to be known by some as “the Oscars for ugly people”. Washington gets dressed up, and some stellar comedian comes out for a double scoop of reality: not a studio audience, and not an easy gig!
Also every year, the Washington International Trade Association (WITA) hosts an annual gala which may as well be “the WHCA dinner for trade nerds”. Some call it “trade prom.” The comedians wisely steer clear, but I’m told it’s a grand occasion nonetheless.
This week, I was privileged this week to join WITA for an event—not trade prom, nor even a trade homecoming—but rather to present alongside an all-star roster of experts as part of WITA’s China Intensive Trade Seminar. There’s only one WITA. This was a real honor.
Sometimes I think that developing an area of expertise as a trade attorney in DC is a little bit like touring in a band. Wherever you perform, there’s always this tension between playing the hits, workshopping your newest content, and generally figuring out how to be fully present for a different audience, in a different city, every night webinar. I dig it.
The panel I was invited to join linked up the UFLPA with other more established tools for advancing U.S. national security and foreign policy objectives: export controls and investment restrictions. This framing helped new insights come to light.
This was a particularly rich conversation, and as a result, this post (edited lightly for clarity) is longer than normal. Because some of this content will not be new for longtime FLT readers, here’s a quick summary orientation, so you can find what might most interest you.
“Intro to the UFLPA”. I’ve covered this a thousand times, but this one helped me think about the law more clearly than I ever had before. The consumptive demand repeal cancelled both a standing and an injury requirement that had been present in the law before.
The UFLPA, national security and foreign policy. This was the heart of the discussion. We talk a big game about human rights. Is the importation of goods made with forced labor a threat to national security? How a subtle evolution in the law created a massive evolution in the discourse on human rights. Talking vs. doing.
How are other countries are responding to the UFLPA? A running tally of six distinct tacks China has taken in response to international attention on Xinjiang. Totalitarian bingo. And how our allies are responding.
Is the UFLPA “getting it right”? The mistakes Congress made—and has acknowledged making—in drafting the UFLPA. Comparing UFLPA misfires to export controls on toaster ovens. Noteworthy achievements of the law, anyhow.
How an old David Letterman sketch helps answer the number one UFLPA question I’m asked by in-house counsel. A key UFLPA stat cuts two ways.
What should we expect from the USTR’s forthcoming forced labor trade policy?
This event was conducted under Chatham House Rule, meaning content was available for participants to quote without attribution. But I’m executing a Chatham House Waiver, and posting my remarks on FLT.
As always, thanks for your interest.
1. Please give a brief introduction to the UFLPA
The Uyghur Forced Labor Prevention Act has been one of the highest profile developments in the U.S.-China trade relationship over the last four years, and it’s worth trying to understand it in context.
The UFLPA is just an augmentation of the forced labor import ban, also known as “Section 307 of the Tariff Act of 1930”, an underlying trade law that has made it illegal to import goods made wholly or in part with forced or convict labor for nearly a century. Section 307 actually replaced predecessor provisions that had prohibited the importation of goods made with convict labor since the late 19th century.
I emphasize that history just to underscore that, for more than half the history of the United States, and since prior to the birth of Mao Zedong, any trading partner of the United States that was reliant on prison labor to produce exported goods, or that ran a system of reeducation through labor camps, did have to credibly be concerned that any material output of such a system might not be tradeable into the U.S. market.
This was true of the Gulag system during the Soviet Union; it was true of the output of Chinese prison labor in the years preceding China’s accession to the WTO; and it was also true of any content manufactured in the reeducation through labor camps in Xinjiang prior to the enactment of the UFLPA. The forced labor import ban was used to prevent the importation of goods in all three of those contexts, as well as many others.
But in the history of banning trade in goods made with forced or convict labor, two events stand out. One predates (by just a couple years) global awareness of China’s programs targeting Uyghurs and other ethnic minorities in Xinjiang. The second is the UFLPA. Let me explain.
For the first 86 years of the forced labor import ban’s history, it contained a clause—written, confusingly, as a double negative—which effectively imposed both a standing requirement and an injury requirement to the operation of the law. The law could only be applied against forced labor imports if there existed a domestic industry that could credibly claim it was able to satisfy U.S. consumptive demand, but for the existence of unfair competition from forced labor goods. In 2016, that clause—and the standing and injury conditions it had imposed—was eliminated from the law.
This was a consequential development because since 2016, it has been illegal to import goods made wholly or in part with forced labor, full stop. Sure, domestic industries might kvetch about forced labor imports louder than anyone else, but forced labor imports don’t have to harm U.S. workers or businesses to be actionable. There is no standing requirement, and no injury requirement. The only fact of salience to the application of the law is the existence of a U.S.-bound supply chain linked to forced or convict labor. The United States asserts jurisdiction over the merchandise as it crosses the border, and labor conditions throughout the supply chain thereby become actionable by the law.
Against that backdrop, it’s now possible to understand the second major development—the UFLPA—in proper relief. It didn’t establish an import ban. The UFLPA wasn’t needed in order for the forced labor import ban to apply to an instance of state-sponsored forced labor. It didn’t even create (that is, invent) the use of the rebuttable presumption in forced labor trade enforcement. What it did was to codify such a presumption in statute, so that any goods with a supply chain link to Xinjiang or a Listed Entity are now presumptively in scope of the forced labor import ban.
In doing so, it eliminated any incentive (let alone plausible pathway) to argue about whether China’s social programs targeting Uyghurs constitute forced labor for purposes of U.S. law. Since the UFLPA, we must simply attend to the parties (and geography) attendant in a supply chain.
The other major accomplishment of the UFLPA was that it invited a trade enforcement funding bonanza, the result of which has an armada of forced labor trade enforcement officials at CBP, and over $3 billion in trade being targeted for enforcement across the first ~2 years in effect.
2. What is the true intent behind the UFLPA, and how does this law relate with U.S. national security priorities and foreign policy objectives?
I’m going to tackle the second part first—the relationship between the UFLPA and U.S. national security and foreign policy objectives—before circling back to explain what I understand as the true intent of this legal regime.
I love this question because it highlights a paradox. In one sense, what could be more American, and more connected to our national security and foreign policy, than defending human rights, particularly on the world stage, and especially vis-à-vis an economic and geopolitical rival that struggles to countenance the existence of individual rights, let alone human rights? But on the other hand, just on the plain meaning of the terms, it’s a little difficult to get my head around the notion that the importation of goods made with forced labor is actually a threat to U.S. national security.
So I took a closer look at official U.S. articulations of national security strategy and foreign policy toward China to see if it would help resolve that paradox. The Biden-Harris Administration’s national security strategy is full of references to forced labor, and defending human rights. It explicitly calls out China’s “genocide and crimes against humanity in Xinjiang” and makes clear that the administration is thinking of these issues, at least in part, through a national security lens.
On the foreign policy side, the same is true of Antony Blinken’s May 2022 speech setting out the Biden Administration’s foreign policy toward China. There, too, Amb. Blinken called out China’s genocide and crimes against humanity in Xinjiang, and, citing the U.N. Charter and Universal Declaration of Human Rights, forcefully rebutted China’s claim that this matter is an internal Chinese affair.
So there is certainly a relationship between defending the subject matter of the UFLPA, and U.S. national security and China policy.
But if the importation of goods with supply chain links to forced labor presents a threat to U.S. national security, then it’s certainly a different kind of threat than many others. It exists on an altogether different plane, than, say, ensuring China does not put AI in the command and control of its nuclear arsenal. National Security Advisor Jake Sullivan has interpreted the Biden administration’s national security strategy at length. In his retelling of the most pressing priorities, combatting forced labor in supply chains didn’t make the cut. (In my view, rightly so. There are bigger national security fish to fry.)
If you compare this to export controls and investment restrictions, the difference is stark and instructive. How do those tools advance U.S. national security objectives? I liked Secretary Raimondo’s succinct articulation in a speech from November 2023, with Xi Jinping sitting directly in front of her. We adopt “narrow precise protections,” she said, “to protect our most sensitive technology, quite frankly so it can't be used against us.” If you want to understand why the U.S. is restricting semiconductor sales to China, or why Treasury is adopting new rules to limit certain outbound investments that could benefit China’s military, that’s compelling logic. It also doesn’t really translate to the UFLPA at all.
What the UFLPA has done—perhaps more than anything else—is to effectuate an evolution in what the United States means when it speaks of human rights. The Historical Office in the Office of the Secretary of Defense maintains a digital record of every U.S. national security strategy dating back to 1987. This record is replete with references to Human Rights. Across that nearly 40 year span, despite changes in administrations, massive political and economic changes in the world, and significant adjustments in the strategies themselves, the language around human rights is remarkably consistent.
For the last four decades, the U.S. has regarded the advancement of human rights primarily as a matter of State speech. We “speak out against human rights”, both on our own and “in partnership with other democratic nations” and through multilateral institutions. In almost every national security strategy of the last 40 years, the term “human rights” appears as the second half of a couplet that begins “democracy and . . . .” This is true from Ronald Reagan through Clinton, Bush and Obama.
Even Donald Trump, though he diverged in significant ways from his predecessors, only managed to put a Trumpian spin on the theme of using State speech to advance human rights. (“We will not remain silent in the face of evil. We will hold perpetrators of genocide and mass atrocities accountable.”)
And why wouldn’t we? The recognition of human rights is the through-line that differentiates the United States from such disparate regimes as late-20th century Soviet Union, mid-20th century Germany, early 21st-century China and late 18th-century Britain. It is also the singular conceptual thread that links together our proudest domestic achievements: the abolition of slavery, universal suffrage, the New Deal and the success of the civil rights movement. The United States speaks about human rights because we know this history to be true, even if, for a solid generation protecting human rights hasn’t required us to do very much at all.
But now, since sometime between early 2016 and mid-2022, the defense of human rights has come to mean something altogether different—something it hasn’t ever meant before. With a few subtle changes in the law, human rights has ceased to be just a matter of State speech. In so doing, it has become the purview of the most blue collar subspecialty of the trade law community, customs lawyers. And it has become the purview of “the guys in the blue jumpsuits” as we like to call them: U.S. Customs and Border Protection.
So what is CBP doing, when it enforces the UFLPA? It is protecting U.S. consumers from inadvertent complicity in human rights abuses by stopping the importation of goods made with forced labor. A forced labor import ban is a consumer protection law, which, if faithfully executed, will promote U.S national security and foreign policy interests. And while it hasn’t supplanted the role of State speech in defending human rights, it has imbued the term with entirely new meaning.
3. How have foreign parties—including both China and U.S. trading allies—reacted to U.S. forced labor trade laws?
If you recall, the story of China’s programs targeting Uyghurs and other ethnic minorities in Xinjiang was, at one point, news. It was a story that broke. There was a time before we knew these programs existed, and a time since. And if you follow the sequence of China’s public responses following that disclosure, I think it’s instructive.
China’s first response was that there was no program in Xinjiang, and that the evidence didn’t stack up. The second response was “well, what about slavery and George Floyd, and how France has handled anti-terrorism?”. The third response was that this is an internal affair, but then the fourth response was that “our approach to Xinjiang was ‘totally correct’”. That was followed quickly by an accusation that this is “the lie of the century”, before landing us at response number six: we ended the program, and there’s nothing to see here. When you line it all up, it sort of reads like totalitarian bingo.
As far as friends and allies are concerned, the European Parliament just struggled through a wave of skepticism about the Corporate Sustainability Due Diligence Directive (CSDDD), and ultimately decided to consider concurrently whether it would enact a forced labor import ban. And while the CSDDD limped across the finish line in greatly diminished form, Europe enacted a forced labor trade ban on a vote of 555 to 6, with a couple dozen abstentions.
Europe definitely does not know what direction it is heading vis-à-vis China on an economic policy or foreign policy basis, but it’s fair to say that European politicians are as enamored at U.S. politicians with the idea of ending trade in slave-made goods.
4. Can you assess the success of the UFLPA? Is the U.S. Government “getting it right”?
There are some obvious deficiencies in UFLPA enforcement. Folks like to give CBP a hard time, and I’ll admit to being one of them. But I’ll also admit to being defensive on their behalf.
From a trade law standpoint, CBP has been given an inconceivable mandate as it tries to enforce the UFLPA. What I mean by that is that the UFLPA was predicated on a severe misunderstanding by the drafters of the law.
Congress has not been shy about acknowledging this. The CECC wrote a letter to CBP about 9 months into enforcement angrily demanding to know why the law wasn’t being enforced the way they thought it would. (The answer is that CBP is enforcing the law Congress enacted, not the law Congress thought or wished it enacted.)
The law kicks in mid-stream, if you will. It applies a statutory presumption of forced labor to goods that are wholly or in part manufactured in Xinjiang, or by a UFLPA Listed Entity. But there’s this assumption that CBP can automatically tell which goods coming across the border have such a supply chain link. Of course it cannot do this. And since importers are neither required nor permitted to make any sort of advance declaration of relevance, CBP has no choice but to conduct detention-by-educated-guess.
Now, all things considered, I don’t think CBP is doing a terrible job at detention-by-educated-guess. Which is to say, I think that they’re doing their level best to pick out targets for enforcement for which there exists a plausible basis for believing there may be such a supply chain link to forced labor. But this approach to enforcement—which is the only real way to enforce a law that jumps in mid-stream, as the UFLPA does—has created two significant problems, which I’ve written about extensively and recap briefly here.
One: importers aren’t navigating the UFLPA according to terms that aren’t sent out in the law itself. They aren’t subject to the presumption of the UFLPA, and aren’t attempting to rebut that presumption. Over 99.95% of all detention activity has been meted out on a different basis, as importers seek to prove that the merchandise stopped by Customs is not subject to the UFLPA. This is a showing not covered by the UFLPA, or any administrative regulation promulgated by CBP.
And two: Based on CBP statistics, at least half of everything CBP has detained under the UFLPA has, on review by CBP, been proven—typically at great effort and expense by the importer—not to have a supply chain link to forced labor.
Imagine, if you will, export controls targeting advanced semiconductors, but half of all exports impacted by the control turned out to be cell phones and toaster ovens. That might be a fair comparison to the UFLPA’s success rate in stopping goods with a supply chain link to forced labor.
Nevertheless, companies have responded to this law by conducting greater levels of supply chain mapping and tracing and due diligence than ever before. And in that regard, I think the law’s been really been transformational.
5. How should companies navigate the challenge presented by conflicts of law as between the U.S. and China?
Probably the number one question I get about the UFLPA is how to navigate compliance in the context of conflict of laws. The answer that always comes to mind—which sometimes I manage to restrain, but sometimes I say out loud—is to reference that old David Letterman bit about putting a humidifier and dehumidifier in a room and letting them battle it out. If you’re a multinational corporation, subject to a sanctions regime in one jurisdiction and an anti-sanctions regime in another jurisdiction, that’s a challenge you’re just going to have to confront.
But there’s another important insight from the statistic I most often point to when I’m giving CBP a hard time—that half of everything they’ve detained under the UFLPA has turned out to be not subject to the UFLPA. That same statistic can be interpreted differently. Namely, that for half of everything that has been detained under the UFLPA, whatever anti-sanctions compliance looks like in China, such compliance has not prevented the collection of information from Chinese sources that would be relevant to CBP for purposes of review of a traceability package in order to obtain release. So in practice, it seems that most companies aren’t finding China’s anti-sanctions law to present a material obstacle to compliance with the U.S. regime.
6. What should we expect from the planned USTR strategy on combating goods made with forced labor, and will this be a source of meaningful leadership for U.S. forced labor trade law enforcement?
The USTR of course plays a leading role in the Executive Branch when it comes to defining U.S. trade policy. But I don’t think the USTR is the right place to look for leadership when it comes to what is next for forced labor trade laws.
I applaud the development of a forced labor strategy by USTR. As is the case with export controls or investment restrictions, it absolutely makes sense to coordinate with like-minded allies. But we’re at such an inchoate stage of development when it comes to enforcing the forced labor import ban, the development of a trade strategy around the topic is premature. To put it simply: we have not figured out how to do this yet.
Europe is taking a completely different approach to their forced labor import ban. So the impulse that the USTR needs to be engaged in harmonizing with other jurisdictions? It’s the right impulse, but the cadence is off.
To coin a phrase, workshopping the forced labor import ban here in the United States, and getting it to a more sophisticated state of operation: that’s an internal affair.