The Policy Rationale for Forced Labor Trade Laws

And distinguishing it from "worker-centered trade policy". Remarks prepared for the American Society of International Law 2024 Annual Meeting

As a Midwesterner who studied exclusively in the Ohio Valley and Great Plains, the idea of the Washington establishment has always held a certain mystique to me. So when I received an invitation to speak on a panel this week at the American Society of International Lawyers (ASIL), my first thought was: is this my first run-in with the establishment?

As it turns out, ASIL has a cool history. It’s one of the oldest international legal associations (founded in 1906), and it received a “charter” by Congress in 1950. The practice of Congress chartering nonprofit organizations (I learned) is “essentially a 20th-century phenomenon”, which aimed to provide an “official imprimatur” of the United States to the activities of the organization, enhancing their prestige.

So yes! ASIL is officially, technically, part of the establishment. By this metric, Girl Scouts and Little League are too, but still! This week, it was an ancillary conference room deep in the basement of the DC Hilton. Tomorrow, it’s mahogany-paneled walls and smoke-filled drawing rooms. #madeit

I thought about reposting my remarks on FLT in full, but most of it was content that FLT readers are already quite fluent in.¹ So instead, I want to focus on the portion of my remarks in which I covered new territory, and also to recap some of the interesting Q&A at the end.

Every year, ASIL invites a distinguished legal guest to deliver a keynote address at their annual meeting. RBG had the gig a few years back, as did Condoleezza Rice. This year, the keynote address was delivered by the U.S. Trade Representative, Ambassador Katherine Tai, who used the forum to unpack the Biden administration’s worker-centered trade policy.² Our panel, on “​​International Labor Rights and Supply Chain Regulation” took the side stage as soon as she was off.

While the official description for our panel was a bit leftie for my sensibilities, I thought the back-to-back sequencing with Amb. Tai’s presentation invited the opportunity to compare and contrast the current administration’s trade policy with what I understand to be transpiring in the implementation and enforcement of domestic forced labor trade laws. So that’s where I devoted my attention.

Though obviously not unrelated, President Biden’s worker-centered trade policy and forced labor trade laws differ in scale, quantifiability of success, permanence, and perhaps most surprisingly, policy rationale.

On scale, you first have to appreciate that the Biden administration has done more to enforce labor commitments secured in trade agreements than any previous U.S. administration. Chiefly (though not exclusively), this has involved enforcing the facility-specific rapid-response labor mechanism under the U.S.-Mexico-Canada Agreement (“RRM”), a novel tool allows the U.S. to take action against violations of fundamental labor rights at Mexican manufacturing facilities. This tool has now been put to use almost two dozen times, and the frequency of actions is picking up. Forced labor trade laws, on the other hand, have captured the attention and imagination of so many as a consequence of the magnitude of their impact (now affecting over $3 billion of trade and counting in the short modern era of enforcement).

But size, of course, is no proxy for success. To help quantify success of its trade policy, the Biden administration has released a great deal of information about RRM enforcement, much of it painting a compelling picture of good outcomes achieved. On the forced labor trade enforcement side, Section 307 has had a few notable public successes (but has produced far more head-scratchers). UFLPA successes are almost impossible to quantify.

On the question of permanence, every President must, in consultation with Congress, set trade policy for his or her administration. Here’s how I described the permanence of forced labor trade laws to ASIL:

More than any individual administration’s trade policy, forced labor trade laws are here to stay. They are older than President Biden, and will be here long after his administration leaves office. They will remain even if Trump returns with a new administration, and will abide after he departs.  Unless repealed, amended or superseded, these laws—duly enacted by United States Congress and signed by the President—are poised to be a fixture of the trade landscape for the duration of the Republic.

Now when it comes to policy rationale, you’ll be forgiven for thinking that the justification for having forced labor trade laws is the same as the Biden administration’s “worker-centered trade policy.” But here too, I think there is a critically important distinction worth recognizing. From my ASIL remarks:

The rationale for the Biden administration’s trade policy is embedded in the slogan you all know and love: it is trade policy for the workers. This includes workers in the Mexico at direct risk of suffering labor rights violations, but also workers in the United States who face unfair competition as a result.

While the protection of workers from forced labor is obviously a focus of forced labor trade laws, and it can be deployed to try and protect domestic industries, these are not the true policy rationale for having such laws. For that we must look to the protection of consumers. Specifically, these laws seek to protect consumers from unintentional participation in immoral economic activity.

I’ll just go ahead and say it: economic exploitation is immoral. Human degradation in any context, not least in an economic context, is immoral. Forced labor is immoral. And engaging in economic activity that causes forced labor to happen carries its own moral culpability as well.

While the word “morality” has flagging caché in public discourse, the conviction that economic exploitation and human degradation are wrong —particularly as it manifests in forced labor—is one of the few remaining near-universal bases of public ethical consensus within American society. Depending on who you caucus with, you might phrase it differently. But this conviction unites left and right, secular humanists and people of faith, the LGBTQI+ community, and yes, even populists. An unrepentant globalist won’t commit to supporting forced labor trade laws, but even he will concede the moral rightness of opposing forced labor. Is it any wonder that these laws enjoy overwhelming political support?

People misinterpret the political popularity of the UFLPA, which passed Congress over the objection of just a single representative in the House. Yes, the fact that China was involved didn’t hurt. But plenty of legislation adverse to China’s interests will never become law. Rather, it was the unanimous moral approbation of forced labor which carried the bill past every uncertainty and counterargument, legitimate or otherwise, and even the Biden administration’s own queasiness over the risks it posed to climate objectives.

There is not just an undeniable nexus, but a straight line between individual consumer behavior (purchasing) and production in supply chains across the globe. So when goods are produced, mined or manufactured wholly or in part with forced labor, the physical result of such immorality ends up in our hands, or on our bodies, or in our homes.

Forced labor trade laws recognize that the culpability of any individual consumer in such conduct is negligible. They also recognize that the power of any individual consumer, or even a dedicated group of consumers, to ameliorate such harm, is small to non-existent. These laws are therefore premised on the notion that there exists public moral obligation to protect consumers from participating in, contributing to, or even indirectly causing conduct that—in 2024—everyone in America recognizes to be immoral.

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I’ll offer two brief points as a coda to this post.

For me, one of the great puzzles of the last few years has been the scant attention paid to forced labor trade laws by what I regard as the trade establishment. (My preoccupation! Guilty as charged!) I used the occasion of the ASIL annual meeting to probe this publicly:

Forced labor trade laws are laws that matter a great deal to workers around the world in circumstances of forced labor.  They matter a lot to people who have dedicated their careers to working on behalf of worker rights and human rights.  I can also assure you these laws matter a lot to companies, as corporations endeavor to stay compliant with all relevant laws, all the time, and employ relatively large teams of professionals to do so.

. . .

But if you're looking for expertise on forced labor trade laws, I would challenge you to try to find it amongst the trade establishment. Go and peruse the think tanks and organizations that serve as gatekeepers of public discourse on trade, and see what focused discussions have taken place on forced labor trade laws.  What robust policy discussions can you find?  If you do find any, please let me know, because I would like to hear what they have to say.

As I’ve now exhaustively established, it’s not as if these laws are going anywhere, or are having a trivial impact, or are so undeniably successful in meeting their stated goals as to render analysis and debate unnecessary. So where is that debate? And why isn’t it happening?

Indeed, far more ink has been spilled on the less permanent, more modest, and arguably successful dimensions of the current administration’s trade policy than on forced labor trade laws. Is it just that old establishment habits die hard?

In my remarks at ASIL, I surmised that perhaps the trade establishment has stayed quiet out of discomfort with a discourse about morality. To be honest, I get that. I thought long and hard before cracking that can open in a public forum. For decades, the discourse of trade has been dominated by the notions of “liberalized trade” and “protectionism”. Trying to metabolize forced labor trade laws into that dialectic is impossible; to do so is to indulge a category mistake.³ To speak intelligently and effectively about these laws requires a different vocabulary, and a different manner of thought. I’m trying to help with that.

But perhaps there’s a more charitable explanation for the establishment’s silence. Perhaps they just don’t know what to say, because their customary rubric for evaluating aberrant trade activity turns up no hits. Meaning, forced labor trade laws don’t violate WTO rules!

During the Q&A after our ASIL event, someone asked how the United States would defend forced labor trade laws if challenged at the WTO, and my answer was: “Easy.”

First, the U.S. forced labor import ban predated even the GATT 1947 (by 17 years), and obviously the U.S. would not have negotiated the GATT in a manner that would undermine an existing trade law. (Especially if it didn’t subsequently amend such law to bring it into GATT/WTO conformity, and hasn’t been challenged for 94 years. That’s some strong non-textual evidence of compatibility.) But more importantly, anyone want to guess what the first allowable “general exception” in the GATT is?

If you guessed “measures necessary to protect public morals” you’re right. Maybe you’re even a member of the trade establishment.

The first and most important exception to the GATT is one we’ve never really taken the time to unpack. And why would we? If ever there was a quaint turn of phrase in the world of global trade, public morals is it.

It occurred to me recently that I’ve been using the phrase “rules based international order” in a different manner than folks are accustomed to. When I say the UFLPA isn’t consistent with the rules based international order, I don’t mean it isn’t WTO compliant; I mean it’s lacking in things like basic procedural safeguards, notice, transparency, due process, fact-based decision-making and the like. Figuring out how to improve forced labor trade laws is going to require a return to first principles.

I’m sure there are members of the establishment out there who could refine my thinking on this, and maybe even tell me where I’m wrong on one point or another. But until I goad them into discussion, I’ll just have to leave you with sagacious counsel from a different establishment:

[UFLPA’s] got ninety-nine problems, but [WTO conformity] ain’t one.

1. What makes forced labor trade laws powerful? Wholly or in part! The reversal of the burden of proof! The adversarial process!

What ails them? The absence of written rules! The impossibility of forward-looking compliance! CBP’s stunning failure rate for shipment targeting!

2. A trade policy which—speaking of the establishment—has left said establishment puzzled and perplexed.

3. One practical consequence of this is that actors involved in trade—states, firms—primarily think of trade laws either as obstacles to the state of nature (“Free trade forever! Down with protectionism!”) or tools to be wielded in the service of protecting a domestic industry “Long live protectionism! No trade is free!”). Forced labor trade laws can’t be understood in such terms.