Dissents :: Idealism vs. Realism in FLT
Point, Counterpoint
In my first Substack post last June (concurrent with launch of the UFLPA), I included some guidance around what you should expect from FLT. I’ve always viewed my writing as an invitation to public discourse, which is why I encourage you to email me with “questions, comments, and dissents”, which I’ve promised to address herein.
It’s taken a few months, but a few intrepid readers are starting to engage more substantively, and I couldn’t be more delighted. And so, as time allows, I’m going to try to cobble together some of these comments and dissents and *try* to have them out to you in time for a Saturday or Sunday morning coffee.
To be clear, I’m not talking about comments like these:
Sir, this is an Arby’s.
A true human rights expert reached out a few weeks ago with this observation:
Happy New Year! It took me a while but I got to looking at the WRO list. Something interesting is that it seems pretty easy to get off the WRO list if you make a modicum of effort. Here's an Indian garment company that got off in a single month:
Top Glove took a little more time, but it's been off since 2021.
It looks like the entities removed from the list are also stricken from the website over a period of time, giving a false sense that entities are never removed (Top Glove isn't listed on the link you showed; it's just a company I knew about from other work).
Seems like the real problem might be that no one from these long-languishing companies sticks around to solve the problems. We see this in garment manufacturing factories facing . . . scrutiny: factories are shuttered then reopen with new names, rather than address the problems.
I think the concern is well founded, as I argued in my post this week. There’s always a balance to be struck between preserving confidentiality, and ensuring sufficient transparency to ensure that interested stakeholders know what is working and what is not.
It’s fair to say that the importing community would like A LOT more transparency than we have at present state, and it sounds like the NGO community is in agreement. Perhaps there’s some common ground here.
CBP is asking for a lot of trust. Trust that they can find forced labor without disclosing what exactly they’ve found (except in the most general terms) or how they found it. Trust that they can police the remediation process and guarantee good outcomes for vulnerable workers. Trust that they’re making consistent decisions across contexts. Sort of a counter-Reagan premise. “I’m from the government and I’m here to help. Trust me, and don’t verify what I say or do.”
The law could require much more transparency, and it should.
Right on cue, concurrent with my post yesterday laying out how truly dubious I find the notion that Section 307, in current form, could result in a good outcome for vulnerable workers, CBP issued a substantial public dissent! Specifically, it took action to remove one of the largest “Findings” under Section 307 that has been issued in the modern era, and has claimed precisely the victory I argued was unlikely.
The Finding had been issued against Malaysian palm producer Sime Darby in January 2022, on the basis that CBP had determined Sime Darby was using forced labor to harvest palm oil. As of yesterday, CBP has officially reversed course. Here’s CBP, yesterday, in the Federal Register, laying out all the salient details:
Since that time, the Sime Darby Plantation has provided additional information to CBP, which CBP believes establishes by satisfactory evidence that the subject palm oil and derivative products are no longer mined, produced, or manufactured in any part with forced labor. 19 CFR 12.42(g).
Black hole, indeed.
For the real detail, CBP Executive Assistant Commissioner Anne-Marie Highsmith spoke with Reuters:
CBP Executive Assistant Commissioner AnnMarie Highsmith told Reuters that Sime Darby Plantation had taken action to correct 11 International Labor Organization indicators of forced labor that the agency had found at the company's operations.
Among these steps, the firm has set aside $20 million to refund "exorbitant" recruitment fees paid by workers to secure jobs the company's plantations. These fees acted as a form "debt bondage" to the company, Highsmith said, adding that some 15,000 current employees and 19,000 former employees will be repaid.
She said the lifting of the import ban "indicates what we hope are two things, really - a permanent improvement in work and living conditions for Sime Darby's thousands of employees, and it's another indication of a trend that we're seeing towards elimination of forced labor conditions in our international supply chain."
Sime Darby Plantation said the decision indicated CBP's recognition of the firm's efforts "in the last two years to review, revise and... upgrade its protocols for recruiting, managing and working with its workers".
"Today, our commitment to all our stakeholders is vigilance and a continuing responsibility to produce palm oil that is free of forced labour," the company's Group Managing Director Mohamad Helmy Othman Basha said in a statement.
I’m keen to be both honest broker, and fair dealer, and so will give credit where credit is due. This sounds like a pretty remarkable high-level read out, which leaves me with many more questions and intrigues.
I also suspect that this might just be the exception that proves the rule. The number of instances where forced labor is occurring in a comparable fact pattern seem limited.
But enough from me! I’d love to hear from you. Email me here, or track me down on LinkedIn.
Last, one dissent of my own. In my inaugural post, I offered an invitation and a promise:
If you appreciate the commentary, I hope that you will subscribe and share generously. No paid subscription requests will be forthcoming; this is just a labor of love. My best analysis and advice isn’t for a paywall, it’s for clients!
It’s come to my attention that Substack has been adding at the bottom of these emails solicitations for you to tell me you want to pay me to read my work.
These solicitations have been added without my knowledge or consent, and frankly I was shocked. My invitation and promise remain unaltered. Please disregard auto-generated footnotes suggesting anything contrary.
really glad you started doing this John!