Forced Labor Like We've Never Seen

Three takeaways from the new ILAB publication, and a little self-awareness.

If you stand on Pennsylvania Avenue on a clear autumn day, halfway between the White House and the Capitol, and you crane your neck to look past the National Archives, you can almost see the Department of Labor, just a few blocks away.

Now, whether you live in the Washington area, or are just visiting, I can’t say that seeing the Department of Labor (praised here as a “slightly bland, symmetrical corporate office building of limestone and steel”) should be high on anyone’s list. But if you did look past the National Archives, what with its original copy of the 13th Amendment, which ended slavery in the United States and simultaneously codified indentured prison labor in the U.S. Constitution, you could almost see that arm of the U.S. government that is statutorily mandated to spot forced labor everywhere else in the world.

I’m speaking of the division of the Department of Labor known as the Bureau of International Labor Affairs, or ILAB. For just over 20 years, the folks at ILAB have been faithfully executing a series of statutory commissions to undertake research and publish important reports on forced and child labor globally. There are several flavors of reports, including “Findings on the Worst Forms of Child Labor”, a biannual must-read called the List of Goods Produced by Child Labor and Forced Labor, and the newest compendium, a list of goods produced by forced or indentured child labor. Light bedtime reading, these are not.

Honestly, my favorite part of ILAB’s output is the bibliographies—the lists of scholarship, reporting, analysis, academic treatise and government survey—which underpin and substantiate ILAB’s findings. The most recent bibliography for the Forced & Child Labor lists has well over 5,000 sources, recorded across its 314 pages.

For instance, it probably won’t shock you that in Afghanistan, bricks are produced under poor labor conditions. You might even guess that they’re produced using forced and child labor. But ILAB doesn’t guess. ILAB has a compendium of almost a dozen and a half sources, meticulously collected over the span of two decades: a pair of Trafficking in Persons (TIP) reports from the State Department twelve years apart; investigative journalism from international outlets like the New York Times (2011), Radio Free Europe (2013), Al-Jazeera (2008), Reuters (2016) and Voice of America (2006); investigative journalism from Afghan outlets like Pajhwok Afghan News; documentation produced by the UN; analysis from Johns Hopkins University; scrappy reporting from obscure nonprofits like the Institute for War and Peace Reporting; and heavy hitting from Human Rights Watch and Amnesty International. All about bricks from Afghanistan, all catalogued & hyperlinked.

It’s been more than two decades since ILAB published its first report in this subject area, and it’s risking severe understatement to say that the legal environment related to forced labor in global supply chains has transformed dramatically over that time.

When ILAB published its first list of goods produced with forced and child labor, there was no “mandatory human rights due diligence”; the concept of human rights due diligence was yet to be invented. Companies did not disclose information about their supply chains; California wouldn’t pilot that naïve legal experiment for several more years. And don’t even get me started on international trade. When the U.S. government, through ILAB, started to “know” things about forced labor in global supply chains, there just weren’t any legal ramifications to doing so. In 2009, it was perfectly legal to trade in slave-made goods.

Last week, ILAB published its eleventh list of goods produced with forced and child labor, and the 23rd edition of the “Findings on the Worst Forms of Child Labor”. According to ILAB’s press release, the Forced & Child Labor Goods List contains a record 72 additions, including 37 goods not previously on the list. Notably, this is not a one way ratchet; ILAB also removed several products from the list. For example, after collecting evidence that Argentina, Cambodia and Mongolia had made meaningful domestic labor reforms, and had achieved substantial improvements in the labor conditions of their blueberry, salt and fluorspar industries, respectively, ILAB removed these product-country combos from the list.

I’m not going to walk through (or even recite here) the most significant product and country additions to this year’s list. If you’d like our write-up on that, send me an email and I’ll send you Kelly Drye’s client advisory, which contains all the details you need to know.

But there are three things that that make this year’s list unique, which everyone with an interest in combatting forced labor—every person, every company, every organization—should know and understand.

1. This year, forced labor trade enforcement is funded.

When it comes to forced labor, the United States may struggle to follow Matthew 7:3-5, (“Why do you look at the speck of sawdust in your brother’s eye and pay no attention to the plank in your own eye? . . . You hypocrite, first take the plank out of your own eye, and then you will see clearly to remove the speck from your brother’s eye”), but we have done a phenomenal job of practicing Matthew 6:3b (“do not let your left hand know what your right hand is doing”). I kid because I love.

Kidding aside, for a country that has made it illegal to import goods made with forced labor, and that has gotten pretty good at spotting foreign goods made with forced labor, there has not always been a very tight match between the ILAB Forced & Child Labor Goods List and CBP’s enforcement of the forced labor import ban. I see three main reasons for this, one of which has now radically changed.

The first reason why CBP may have refrained from taking action against many of the products known to the U.S. government to be made with forced labor is that there is not perfect conceptual alignment between the ILAB lists and CBP’s enforcement purview. ILAB is looking for forced and child labor wherever it may be found (beyond U.S. territorial waters, that is). As such, many of the products listed by ILAB—such as bricks from Afghanistan—aren’t traded internationally in substantial quantities, let alone exported to the U.S. At the same time, for all the voluminous scholarship and reporting ILAB has collected, CBP is frequently looking for even more specific allegations of individual instances forced labor than ILAB has specialized in collecting. (More on that another time.)

The second reason I suspect CBP has refrained from taking action against certain products is because the forced labor import ban is a highly rudimentary tool. CBP could take splashy action against huge swaths of a product, but the next day hangover would be straight-up brutal. There is essentially no coherent framework—certainly not one set out in statute or regulation—for how CBP can delineate clean goods from goods tainted with forced labor. Imagine a town with a small number of arsonists on the loose. But the sheriff’s only option for enforcement is to round up the entire town, mothers and children, childless cat ladies and cats, and place them in corrals in the football stadium, interviewing citizens one by one before approving dismissals. This is, to say the least, a disincentive to action.

Notwithstanding those two largely static barriers, the main reason I expect CBP’s forced labor enforcement to expand, and to more closely track the ILAB list over the next two years is that CBP cashed up. At the time of ILAB’s last published report, in 2022, CBP had just received $10M for forced labor enforcement, and another $27.5 million for UFLPA enforcement. Now, not only has that amount of dedicated forced labor enforcement funding now more than tripled beyond that level, but CBP has two more years of experience deploying its budget to bring the law to bear against instances of forced labor. The days of ILAB’s forced and child labor lists being the quirky purview of labor activists and responsible sourcing folks appear to be waning. More budget means better coordination, and commercial impact cannot be far behind.

2. ILAB has published UFLPA-enforcement-ready information

The last list of goods made with forced and child labor was published by ILAB in 2022. While it was technically published after the UFLPA was in effect, the UFLPA was far too new for ILAB to have contributed meaningfully to enforcement. But now, with the 2024 list, ILAB has published information that is tailor-made for supporting UFLPA enforcement.

The UFLPA did not invent the notion of whole-of-supply-chain enforcement—that is, enforcing against a downstream product, based on forced labor occurring in an intermediate stage, or in raw material production. This concept is found directly in the forced labor import ban itself (Section 307 of the Tariff Act of 1930). But the UFLPA has been the proximate cause of CBP figuring out how it is going to enforce a whole-of-supply-chain import ban.

Specifically, CBP has been detaining goods from numerous jurisdictions (probably well over a dozen at this point) based on theories of upstream supply chain exposure. What this means is that CBP is regularly looking for evidence that suggests which downstream products it should be detaining. As of last week, the ILAB forced and child labor lists dumped a whole bunch new arrows into CBP’s quiver.

For those who know ILAB or follow its work closely, this is not surprising. ILAB holds the Department of Labor’s vote as a member of the Forced Labor Enforcement Task Force (FLETF), and along with DHS, oversees FLETF’s entity listing process. In June, we learned that ILAB had inked a contract with Sayari for access to supply chain data. ILAB has been funding downstream tracing projects or a couple years, including a cotton and garment tracing project in India (by Verité), and a traceability pilot involving Pakistan cotton and DRC cobalt supply chains (by Elevate).

This year’s ILAB forced and child labor lists may contain the most detailed roadmap for UFLPA enforcement of any publication by the U.S. government to date. If you are wondering how your products square against the goods highlighted by ILAB as “downstream” exposed, you’d probably like to read our client advisory. Slide on into our DMs inbox, and we’ll get you squared away.

3. Forced labor isn’t increasing; we can just see it better.

When you’ve been publishing reports on forced labor in global supply chains for a few decades, and suddenly you drop a report with a double-digit percentage increase in both the variety of goods on the list and country-product combinations, the most natural inference to draw is that the incidence of forced labor must be increasing around the globe. But with the possible exception of China (which is reported to have ramped up forced labor transfer activity since closing reeducation through labor camps) the evidence doesn’t really seem to suggest that this is the case.

So what’s different? I think the best account is that the law changed, and we changed as a result.

In the earliest version of the list of goods made with forced and child labor, the only reference to “law” or “laws” pertain to domestic legal instruments—that is, our assessment of the efforts of another country to enforce labor laws within its own borders. There were discussions of other countries’ legislative frameworks, and whether or not those countries were effectively enforcing their own laws.

The downsides of this approach were many, but chief among them was the simple truth that forced labor in a global supply chain was both someone else’s problem, and someone else’s responsibility to fix. On occasion, American pluck has done the world some good, and this was one such moment. It wasn’t until America decided that forced labor in a foreign supply chain destined for America was actually an American problem to solve, that we really started being able to see forced labor for all that it is, and everywhere that it is.

Well, almost everywhere. In the press release announcing the publication of the new lists, Acting Secretary of Labor Julie Su described the elephant in the room quite poignantly:

“Sadly, the U.S. is not immune to these abuses amid a significant increase here in the number of children employed illegally. We will use our education and enforcement powers to hold U.S. employers accountable and to work with global partners to eradicate the scourge of child and forced labor wherever it exists.”

-Julie Su

That’s some admirable candor. To its credit, ILAB has been including a section called “The U.S. Experience” in the forced and child labor list report for the last several years. It highlights the number of child labor violations that the U.S. Department of Labor has successfully spotted and enforced (a figure with an alarming 88% increase in the last 5 years).

But alas, the scope of the ILAB report is constrained by statute, and it will not surprise you to learn that the report contains no discussion of forced labor in the U.S. private sector. It hazards no estimates about the volume of child labor violations that may go unreported an undetected by U.S. authorities. And as for that now-reviled carveout for forced prison labor in the 13th Amendment? Forget about it. No really, it’s easy to forget. You just have to crane your neck.

Now, I’m sure that if Canada decided to try and “help us out” with the speck in our eye by applying its new forced and child labor import ban against goods from the United States, the next administration’s U.S. Trade Representative would join members of Congress in writing the Canadian trade minister a thank-you note for helping us achieve a much needed level of self-awareness. The USTR definitely wouldn’t carry a crowbar into the USMCA negotiations and drop it menacingly on the desk.

But you know what? That’s international trade.