How Activists Think About FLT Laws
And a quick surprise update from Europe!
Well, it’s official: Europe is getting a forced labor trade ban. In a come-from-behind victory few could have predicted, the forced labor law was approved in European Parliament this week by a wider margin than a stripped-down version of the so-called corporate sustainability law (CSDDD), with 555 votes in favor (forced labor) vs. 374 (CSDDD). For those who recall my essay on these proposed European laws from a few months back: the cobra won, but the zebra limped across the finish line nonetheless. Ending trade in slave-made goods really is wildly popular.
I’ll have more to say (much more) on the European forced labor trade ban in month and years to come. After all, this newsletter is dedicated to all the forced labor trade news and analysis that’s fit to print. Unlike some of the other forced labor trade bans already enacted outside the United States, this one will surely be put to good use. But first, a point of “order”.
Henceforth, when discussing forced labor trade laws, I shall dispense with reference to the “rules-based international order” and comparable linguistic formulations. This is not because I’m a skeptic of the concept, but rather because now that the world has two substantially divergent models of forced labor trade ban, and I fear it’s misleading to characterize either of these laws as consistent or inconsistent with that rules-based order. The truth is, when it comes to ending trade in slave-made goods, there is no current order, international or otherwise.
Moreover, given that these overwhelmingly popular laws aren’t inconsistent with WTO rules means the work we have to do is more elemental. How can we make forced labor trade laws to be strong, fair and effective? How can they incentivize the identification and eradication of forced labor from global supply chains?
Folks who are heralding the arrival of the EU forced labor trade ban with visions of a single coherent transatlantic rules-based system banning global trade in slave-made goods need to pinch themselves. A rules-based order is not a birthright. It’s something painstakingly forged through the negotiation of sovereign states with the support of international institutions. It’s an opt in system that can only exist by consent, and by definition, is dependent on rules-based approaches by those sovereign states.
Whether forced labor trade laws will ever reach such a stage remains to be seen. For now, the challenge is distinctly national (or supranational, in the case of the EU). Bluntly, it’s up us.
A few months ago, I was asked to speak at a gathering of worker rights advocates and activists in New York City. It was a great event, even if for an advocate and representative of industry such as myself there were disconcertingly few of my ilk to be found.
I’d been asked to join a panel discussion on the use of trade laws to eradicate forced labor from global supply chains, something to which I dedicate quite a bit of time and attention. But interestingly, I was not asked to play my customary role of delivering an overview of the law and its application. Instead, I sat in the audience while another lawyer provided an eerily decent briefing on the same.
It was eerie because the presenter wasn’t a customs lawyer. Apart from the forced labor import ban, she doesn’t know the first thing about Title 19 of the U.S. Code. And yet, to my surprise (and with just a couple exceptions), she turned out to be pretty darn conversant in most of what I consider to be the relevant nooks and crannies of the law.
Upon taking my seat on the panel, the first question out the gate solicited my reaction to those introductory remarks. My reflexive quip was that I felt like a medical doctor who had just listened to an osteopathic doctor provide … a surprisingly accurate overview of anatomy and pathology. There were a few misstatements and points of confusion, but by and large, the presentation really was pretty good! I had no choice but to choke down my smug self-assurance and give credit where credit is due.
I had the same experience again earlier this month, as I read this article by a law professor at Fordham University, which provides an in-depth examination of the potential of the U.S. forced labor import ban to drive actual solutions to forced labor. This article is a fascinating window into how a whole cadre of labor rights advocates and activists think about the customs law to which—as a customs lawyer—I’ve dedicated my entire career.
Just like during that NYC event, this article contains a few swings and misses. But by and large, it’s just remarkable to hear how this community thinks about this law, and about their relationship to it. If you are seriously invested in the question of how trade laws can help end forced labor in global supply chains, this article is a must read. And I wanted to dedicate this week’s FLT post to responding to it thoughtfully.
To write the article, the author (Professor Jennifer Gordon) conducted the verbal equivalent of a lit review. Which is to say, because there isn’t yet a large body of published case studies examining the forced labor import ban in application, she interviewed a handful of government officials, along with a veritable who’s who of the worker rights advocate, NGO and activist community. Then, she did precisely what you’d want a law professor to do: she endeavored to think about the stories everyone told her from their experience actually working with the law (including points of view that sometimes aligned and sometimes diverged), and to articulate a framework for understanding their strategic approaches to advocacy.
There are plenty of reasons for distrust between the business community and the labor rights activist community. But for purposes of this thought exercise, I’d propose that the business community should set aside that distrust, and give serious consideration to this academic work, for two reasons.
One, Professor Gordon has endeavored to offer the first serious, coherent theoretical understanding of the forced labor import ban and its application to eradicating forced labor from global supply chains. It surely will not be the last such effort, and perhaps it will be improved upon by others. But if the forced labor trade ban is to achieve its ideal state (strong, fair and effective), this type of difficult conceptual work must be undertaken.
Two, no matter what you think of the labor rights activist community—no matter if you find their politics distasteful, or their hostility to capitalism alarming—and no matter even that they undertake tactics designed to cause you pain or harm, remember that their ambitions are both fully disclosed, and (at face value) pretty unobjectionable. In the context of this ecosystem, that means they are the only actors whose sole explicit ambition is in helping to ensure that forced labor trade laws actually achieve their theoretical purpose. Can I say that you don’t have to have a taste for mushrooms to appreciate that fungi play a critical role in forest health? I’m not sure, I’ll have to think about that metaphor.
So without further ado, WELCOME OSTEOPATHIC COLLEAGUES! We’ve been expecting you. Come on into the forced labor trade hobbit hole, I’ve just put on a kettle of mushroom soup, and we’re so glad you’re here. While we’re waiting for the soup to warm, let’s have a seat by the fire and chat about your newfound interest in Title 19 of the United States Code.
While you’re coming in, please be careful not to bump your head. This is an awkward hobbit hole, as those of us who live here know all too well. For example, please do note that the agency you’ve been dealing with is U.S. Customs and Border Protection, and not (as you have assumed) U.S. Customs and Border Patrol. There is no such agency as “Customs and Border Patrol”, and CBP is quite sensitive for folks to get their name right. Just a friendly reminder for next time you’re talking with them, or quoting them in your publications.1
As you settle in—please make yourselves comfortable—let me offer three pieces of feedback on the views you’ve shared.
First, I’m not sure if this has fully occurred to you yet, but do you realize that you are the beneficiaries of the most generous standing rules of any individual law contained within Title 19? Which is to say, you are subject to no standing requirement before you file a petition under Section 307 of the Tariff Act of 1930. You don’t have to show that you speak on behalf of a sufficient quorum of affected workers, or that you represent workers from a given industry, or even that you demonstrate some sort of institutional legitimacy, or meaningful subject matter expertise. You can just file a petition. Anytime, anywhere, anyhow!
It can be easy to forget that this generous offer of standing is a result of the statute Congress crafted, and to start thinking of it as a birthright. But try, if you will, to imagine having any other sort of interest in trade beyond labor violations, such that you might want to file a petition under any other provision of Title 19. If that were the case, you’d have to sweat the standing question quite a bit. That would be true if you wanted to file petitions under Section 337, or Section 701, or Section 731 of the Tariff Act of 1930, or under a provision of the Trade Act of 1974, or Trade Expansion Act of 1962. Everyone seeking to avail themselves of the trade laws of the United States—everyone—has to sweat standing. Except for you.
That’s an important piece of context, because if two guys and phonebook can file a Section 307 petition, you’ll have to forgive U.S. Customs and Border Protection when they challenge you a bit on evidentiary allegations. We know you do good work, but in this article, some of you expressed frustration at preparing a petition and delivering it to CBP, only to have CBP come back later and ask for proof that the allegations remain current. My friends, I guess from my standpoint, that doesn’t sound like a terrible defect in the law or in its enforcement.
Is it inconvenient? Yes. Will it require your philanthropic benefactors to issue larger grants for investigations so you can find more contemporaneous evidence of forced labor? Maybe. But of all the things CBP can ask for while it considers a Section 307 petition, a refresh of contemporaneity stands as pretty unassailable. To be frank, we should insist that CBP maintain such standards if ever it was tempted to overlook them.
Which brings me to my second point. Heretofore, the NGO / labor rights activist community has really leaned into championing the “broad and flexible enforcement powers” of forced labor trade laws that can be pushed into application anytime, anywhere, anyhow. This article from Professor Gordon was the first time I heard a little introspection from the NGO community around the notion that “no rules” really isn’t a great way to run a trade law. It cuts both ways!
If you do great research and find evidence of forced labor, I imagine it would probably be nice not to ship it off and have it disappear into a black box. If CBP has standards for contemporaneity of allegations, it would be great if everyone knew what those are. If CBP is contemplating action against a particular target, maybe there really is value in letting the public know and weigh in before it acts. And if CBP is going to have equitable standards for the modification or rescission of a WRO, wouldn’t it be great to distill those rules into writing?
A fascinating vignette in the article relates to one instance (the Natchi / Eastman case) where CBP issued a WRO against a target for alleged evidence of forced labor. But then—plot twist—the NGOs and brands involved had already entered into an agreement that cured the forced labor in question. This left the NGO community puzzling over who had petitioned CBP to act (there’s that “no standing” phenomenon again), and yielded the maddening result that a WRO not informed on the most current information risked undoing all the progress made and causing real harm! I’ll just say: there isn’t anything here that some basic procedural guardrails around the WRO process wouldn’t solve completely. It’s time for the WRO process to grow up.
Which brings me to my last point, and favorite part of the article.
Look. We have different points of view. In developing your “structural analysis” of forced labor in global supply chains, I think you’ve allowed an important academic critique of the “bad actors” narrative to cause you to overlook the significance of actual bad actors. They’re a huge part of the problem. And I think your anxieties over the perceived incongruity of a “forced labor framework” and the “industrial relations framework” are misplaced entirely.
But what I loved about this article was the detailed accounting of how this law can be (and has been) put to good ends. The sugar case. The rubber gloves. The Indian apparel case. It’s actually incredibly refreshing to hear someone explain how this or that trade disruption was put to exactly the purpose you’d hope for. Because justice is not self-executing. It requires intentionality, specificity and particularity.
At the same time, that satisfaction left me wanting more. Specifically, among all the coherent theories of change advanced by the advocates, there’s not a hint that they have a clue about how to put this “wholly or in part” concept to good use. The forced labor import ban, as the U.S. has conceived it, derives a significant portion of its power from the ability to bring the depth of the supply chain into focus. Yet this article by Professor Gordon, and the activists she quoted therein, don’t mention “wholly or in part” even once.
Given that essentially all UFLPA enforcement at present is targeting importers and Tier 1 producers under theories of upstream supply chain exposure, it really would be great to have some thought leadership around how to make that part of the law powerful and effective towards human & labor rights. If we want to try and measure success on some sort of metric beyond the dollar value of goods not imported, what would good actually look like here?
I took a shot at that question once before, but maybe we can talk about it over dinner.
Yes, I know it makes no sense. There was a U.S. Customs Service, and a U.S. Border Patrol, merged into a single agency in the early 2000s. Why didn’t they name it U.S. Customs and Border Patrol? Unfortunately, in the fog of post-9/11 America, this was not the most egregious turn.