Will the UFLPA Prove Good for Human Rights?
There is much work yet to be done.
The editor-in-chief of Politico, John Harris, writes a column for his publication called “Altitude”, where he provides periodic commentary on the goings-on of Washington life. His column is not entirely different than what you might find in other corners of the Washington commentariat, but he does have a unique vantage, having observed and reported on so much political life over a nearly 40 year career. I’m a fan!
I thought about John’s column as I watched the Secretary of Homeland Security, Alejandro Mayorkas, give an interview last month with Michelle Strucke, director for the Humanitarian Agenda and the Human Rights Initiative at the Center for Strategic and International Studies (CSIS). This event commemorated the two year anniversary of the launch of enforcement of the Uyghur Forced Labor Prevention Act, and coincided with the publication of new updates to the strategy for UFLPA enforcement.
Now, I’m no media tycoon (or whatever the editor-in-chief of Politico is), nor do I have 40 years of observational data on my professional landscape. But I am a sucker for trying to see the forest for the trees. And as I turned that interview over in my mind over the last few weeks, I decided to offer my best John Harris take. To try and provide some higher-order perspective on where things stand in the world of forced labor trade enforcement in the United States, two years into the UFLPA. A little altitude.
My insight is simply this: we cannot take for granted that the UFLPA will be good for human rights. Being good for human rights is the highest and best purpose for a forced labor trade law, but it is an outcome we must contend for. If we fail to achieve that objective, we delude ourselves. Or worse, we’ll find ourselves disillusioned.
As I’ve written previously (and hope to revisit elsewhere soon in more detail), for most of the last four decades, the United States has advanced human rights on the international stage primarily through state speech. Which is to say, human rights has been something we’ve talked about. We’ve raised it in state-to-state dialogue, and we’ve promoted it, alongside democracy, through the work of diplomacy and engagement in multilateral institutions. And rightfully so! In 2024, respect for human rights is not only embedded in the founding documents and institutions of the United States, but in the ethos of the American people.
Do you doubt me? Do you doubt America’s commitment to human rights? In America, when we battle over the most contentious issues—abortion, the treatment of trans children, the war between Israel & Hamas—we all seek supremacy in argumentation on the grounds that one outcome or side, rather than the other, offers the very best protections for the rights of the humans involved. Even America’s harshest internal dissenters—those certain that ours has always been a nation beset with structural inequity—ply their case in the court of public opinion with pleas for their fellow citizens to recognize the dignity and inherent worth of specific human lives. They’re certain that is a message that resonates on its face. And they’re not wrong.
A quarter of the way through 21st century America, public support for human rights is having a moment, and everyone can feel it. You can feel it in TikTok reels, and in high school hallways. From the mainstream media, to the fringe. The scientific community orients around its vision of human rights, and the public health establishment too. The Christians, the gays, the New York Times opinionaters and elected officials. Sometimes it can feel like we agree on nothing. But recognition of human rights is the air we breathe. Guys. In America, gun rights are human rights. And so is the 4-day workweek.
For most of the history of the human rights movement (which I prefer to think of as commencing per se during the Enlightenment, being influenced equally, if radically differently, by secular French revolutionists and British Methodists), continuing through the labor rights movement of the 1930s, at least until the civil rights movement of the the 1960s, folks engaged in the work of human rights would tell you the same thing. Their work was to move public opinion to agree that human rights, in one context or another, mattered. And that work was difficult.
This was true for those who worked to expose the horrific realities of the Middle Passage in the late 1700s. They had to create a social conscience, where one did not already exist! This was equally true for those who sought to expose early 20th century American industry’s reliance on exploitative child labor. In both of these instances (and dozens more) the opposition argued, often furiously, that there was no problem here. Nothing was amiss, and there were no rights worth defending. Our beloved civil rights heroes from the 1960s bore the costs of this difficult work through brutality against their own bodies, or they paid for it with their lives.
But something happened as the job of advancing human rights ceased to entail the difficult work of shifting public opinion to agree that human rights matter. What happened is, we’re still running the same playbook as our forbears—public advocacy campaigns, enacting legislation, ramping up enforcement—but with no one to get in our grill about it, we’ve somehow come to think that advancing human rights is easy. Easy like a Staples button.
Now, it’s beyond the scope of this illustrious Substack to trace all the sociological threads that have led us to suspect that standing for human rights is easy, but consumer culture, pocket computers, and social justice meme accounts certainly all play a role. The fact that we’ve spent 40 years in the international arena mostly talking to other countries about how they could do better at human rights certainly hasn’t helped.1 Whatever the reasons, we’re certainly far afield from the wild and wooly roots of human rights as action.
In 18th century Britain, human rights were promoted through the prim and proper work of the Society for the Reformation of Public Manners. In 18th century France, human rights were advanced (?) through the considerably bloodier off-with-their-heads Jacobin egalitarianism. Either way, advancing human rights meant there was work to do! Suffice it to say, no one in the history of the human rights movement thought that retweets could get the job done.
Without casting a single aspersion, I think it’s important to realize that this is the world into which the UFLPA was born. It is a world in which other laws called “modern slavery acts” required covered entities to engage in no action at all. A world in which, quite literally, speech was considered a full substitute for action, and we could pat ourselves on the back and say great job fighting modern slavery you civil rights icon. In two years time, moving from the enactment of the UFLPA to a full-blown enforcement apparatus is a real achievement for the U.S. government, and for CBP in particular. But if the UFLPA is to prove good for human rights, we have miles to go before we rest.
I’ve spent a lot of time thinking about how to put the UFLPA in proper historical context. Where does this actual anti-slavery law stack up in a pantheon that includes such icons as the Slave Trade Act of 1807, and the Civil Rights Act of 1964? What I’ve settled on is the perhaps surprising conclusion that the UFLPA’s closest human rights relative also happens to be the most recent piece of major human rights legislation enacted in the United States: the 1990 Americans with Disabilities Act (ADA).2
Similar to the ADA, the UFLPA is likely—eventually—to grace nearly every corner of the economy with its fairy dust. And if it’s implemented correctly, it will cause subtle-but-noticeable changes everywhere it goes. These laws each have, at their core, a set of obligations that are at once breathtakingly pedestrian and highly technical—angles of wheelchair ramps, widths of doorframes, quantities of handicapped parking spaces, requirements for traceability packages, isotopic ratios demonstrating origin, and supply chain data on the distributed ledger. Complying with these requirements can sometimes be done easily, and other times only at frustrating cost. But in hindsight, the changes required are almost always valuable, often intrinsically so, and eventually we’ll marvel at how we lived before their impact. Do you remember when folks in wheelchairs had no predictability what hotels they could sleep in? One day you’ll ask, do you remember how we used to conduct global trade without ubiquitous deep knowledge and control over the supply chain?
At this stage in the UFLPA’s history, I have two main concerns about the law. One is that, drunk on the sweet nectar of achievement, the U.S. government mistakes having the UFLPA, and even enforcing the UFLPA as a comprehensive success, even though it is obviously not. Say what you will about the 1990s, but two years after the ADA was passed, the Secretary of Housing and Urban Development did not hold a press conference with a disability advocacy group in front of a Mission Accomplished banner.
In 1992, we understood that having an ADA, and even getting some of the basic apparatuses from the law up and running, well, it wasn’t tantamount to success. Success was equipping business owners, contractors, landlords and communities across the country with the resources they needed to Make America Disability Friendly Again for the first time. And sure, enforcement was a part of that, because there’s some bad apples in every bunch. But if you want America to build wheelchair ramps that don’t look like ski jumps, you have to get real specific about what you want.
Do you ever tire of UFLPA metaphors? I do, but here’s another one anyhow. The UFLPA is like the ADA, if the ADA was only 1 paragraph long, and it says only that everything in America has to be ADA compliant, and HUD has published contractor guidance that says this means wheelchair ramps, and door frames, and braille lettering, but no contractor in America actually knows what angle to build the ramps, or when you have to have an elevator, or whether all door frames have to be wide, or just some of them, or whether every word in your store has to be presented in braille, or just some of them, and every time a contractor asks a question about this, Marco Rubio jumps out and yells what is your problem, do you love slavery??
My friends, I think it goes without saying that if the ADA was in such a posture, it would not be good for disability rights. And by extension, it would not prove good for human rights. This is, of course, the current posture of the UFLPA, hence my concern. It was good for human rights to enact the UFLPA, full stop. And it’s been good for human rights that DHS and CBP have managed to get UFLPA enforcement up and running. But if we think that merely having and operating a law about slavery is, on its face, good for human rights? We might just be casualties of the era in which we live.
My second concern is merely a corollary of the first. Because the UFLPA is a strong trade law, and only history will tell us if it is too strong. My fear is that in the ebb and flow of political power in a democratic republic such as ours, that some political actors will one day alight upon the UFLPA as the easiest means for sanctioning large Chinese companies, or large Vietnamese companies, or companies in just about any jurisdiction they very well please, forced labor be damned.
The UFLPA can be used to sanction companies not alleged to have engaged in forced labor. Already the risk of this seems afoot. Among the biggest names that have been floated for potential UFLPA Entity Listing are companies for which there are no public allegations of having engaged in forced labor. Read the letters, it’s quite clear.3
Ultimately, my concern is less about the Entity Listing of any individual company than it is in ensuring the sanctity and inviolability of the forced labor trade ban. One thing the ADA had going for it was that instances of parties (whether in the private sector or in the government) looking to weaponize the ADA were few to nonexistent. Amid a strong contingent of anti-China and anti-trade sentiment, the same cannot be said of the UFLPA.
When I speak of the sanctity and inviolability of a forced labor trade ban, what I mean is that a forced labor trade ban can and should only ever do one thing. That thing is to prevent the importation of goods made with slave labor. Full stop. If the duly elected officials of a democratic republic want to sanction foreign entities, there are many existing authorities to do so, and more could be created. But use the forced labor trade ban to cause irreparable harm to parties not engaged in forced labor, in the service of some ancillary trade objective or geopolitical agenda? I’ll go mitts off.
Why? Because other than those cherished fundamental labor rights and protections that were codified the 1930s, the forced labor trade ban has the potential to be the most important and consequential anti-slavery law since the abolition of slavery itself. But only if we choose to make it so. And that can only be done by working to ensure that the law is effective in achieving its stated ambition: preventing the importation of goods made wholly or in part with forced labor.
At this moment in history, we’ve received a tremendous gift. The forced labor import ban upon which the UFLPA rests, and without which it would not exist, is an actual, literal relic from the human rights activists in the 1930s, themselves many generations descended from the Methodists and Jacobins who kick-started all this (and who were, in turn, conceptual descendants of Moses and Hammurabi). We greet it in a different era—arguably the first in human history in which positively everyone, in this societal context, anyhow, knows in their bones the importance of respecting human rights.
The widespread public embrace of human rights that we take for granted today—the fact we have no need to persuade a skeptical public that trading in slave-made goods is wrong—would have shocked that generation. But if it is to actually count for our benefit, we must accept that this change has not given us less work to do, only different work. We have to commit to remembering what those forebears would never have doubted: that justice is not self-executing.
Thank you for reading! Good to be publishing again after a Summer hiatus.
I know you come here for the hot takes, so here’s one: maybe the Universal Declaration of Human Rights shoulders some of the blame. If preparing an ur-text for human rights had any downside, maybe it was in causing us to think of human rights as a matter of orthodoxy (right belief) rather than orthopraxy (right conduct). That happens more frequently than you might think in creedal environments!
Speaking of righteousness-by-signature, anyone want to guess which country is the *newest signatory* to the two ILO fundamental conventions on forced labor? One guess, no peaking. Okay, click here to find out how you did! But I digress.
One could argue that the UFLPA is only the most important U.S. human rights legislation since the Violence Against Women Act (VAWA - 1994) or the Trafficking Victims Protection Act (TVPA - 2000), and one wouldn’t be wrong. In the long term, as important as those laws are, and for all the good they’ve done, I think the UFLPA will ultimately prove to be more consequential. It also has much less in common with those laws, which actually deliver tangible human rights protection to specific victims of harm, than it does with the ADA.
I suppose the counterargument is that well, these companies might not be bad actors, but they’ve done business with bad actors, and so they should be penalized. And besides, the UFLPA applies to all merchandise, wholly or in part.
But have these companies done business with bad actors? As I’ve written at length, supply chain associations to bad actors are incredibly easy to allege, and much harder to prove.
And should they be banned from providing goods to the U.S. market before we’re sure? There are certainly less destructive means of assessing whether such companies are, in fact, shipping goods made with forced labor into the United States. (I speak of CBP’s detention authority under the UFLPA, rather than UFLPA Entity Listing.)