Forced labour enforcement efforts are insufficient and improvements are needed, witnesses said at a recent hearing of House Ways and Means Trade Subcommittee.
As reported by Sandler, Travis & Rosenberg, both business and labour groups agreed that processes and procedures involving withhold release orders issued by US Customs and Border Protection should be revamped, among other things
Subcommittee Chairman Earl Blumenauer, D-Ore said that while enforcement of the prohibition on imports of goods made with forced labour has ramped up in recent years, “we’re still a significant distance away from enforcement actions that measure up to the scale and pervasiveness of forced labour across the world.” For example, he noted, the Department of Labor’s latest report highlights violations in more than 75 countries and more than 150 different products, “many of which are used in everyday products across the United States.”
Much anti-slavery legislation relies on businesses to report efforts they are taking to address and prevent forced labour in supply chains. One witness, Genevieve LeBaron, a professor at the University of Sheffield, said “this low-stringency regulatory approach has to date been largely ineffective in achieving its purpose of reducing actual levels of forced labour and human rights abuse in supply chains” due to weaknesses such as a lack of strong sanctions for noncompliance, weak or no enforcement in most jurisdictions, and the ability of corporations to comply without altering commercial practices that create incentives for forced labour in their supply chains.
LeBaron added that there has been a parallel “proliferation of private, voluntary supply chain monitoring tools, including social auditing, ethical certification, and various forms of corporate social responsibility programs” that “can give the impression that forced labour is being addressed” but after 20 years have shown “little evidence of meaningful impact.”
Witnesses also called for transparency in the process of issuing and enforcing WROs.
Suggested improvements include announcing to all involved parties, including importers, when a review based on allegations is deemed to merit investigation; giving companies at least 60 days to respond to allegations, provide information that may be critical or useful to the investigation, or remediate the allegation; and setting timeframes for preliminary and final determinations.
Other changes could include CBP publishing its reasoning for issuing a Withhold Release Order (WRO) along with the number of affected shipments detained and the value of those goods, clarifying the standard and evidentiary burden for revoking a WRO, and sharing information with civil society and labour petitioners through the enforcement phase.
Proposed improvements include:
- CBP could exercise its authorities to levy stiff fines for imports produced with forced labour.
- CBP could stop allowing importers to re-export goods detained in violation of a WRO.
- Additional penalties could be levied on companies subject to a WRO that retaliate against their workers.
- Corporations could be required to (1) map and report their supply chains to raw material levels, particularly for high-risk regions or goods, (2) report on outcomes rather than just processes, and (3) report on their human rights due diligence processes.
- Where companies make claims about corporate social responsibility programs, CBP could request specific information on the impacts of these programs.
- Companies that fail to provide data, or whose data shows the continuation of practices that lead to forced labour, could face WROs and civil penalties.
- Criminal penalties could be assessed under the Trafficking Victims Protection Reauthorization Act on corporations knowingly benefiting from forced labour in global supply chains.
- Trade rules could be reformed to incorporate bans on forced labour, such as by adding it as a general exception within the World Trade Organization’s General Agreement on Tariffs and Trade and prohibiting forced labour within bilateral trade agreements with strong commercial sanctions.
- Governments could target and expand their enforcement efforts around business models and supply chain segments known to make use of or incentivise forced labour (e.g., where sectors are labour-intensive, labour costs comprise a high proportion of total business costs, there are high levels of subcontracting and intermediaries, and there is a focus on low-value-added activities.
- The US could include forced labour as a key part of its trade policies and international diplomacy and consider work being done in other countries in determining how to strengthen existing import restrictions.
Last week the US Senate passed legislation to ban the import of all products, including cotton and apparel fabrics from China’s Xinjiang region, on alleged concerns of forced labour and human rights violations.