On Wednesday, the European Commission officially released its proposal for banning products made with forced labor from entering EU markets. While the proposed regulation does not single out a specific country, it is widely seen as a response to mounting evidence of forced labor in China, particularly in Xinjiang, that has tainted supply chains for global consumers. It may take several years before the EU mechanism comes into force, but the steady progress on its development signals Europe’s growing resolve to confront human rights abuses stemming from China. Philip Blenkinsop from Reuters reported on the proposal’s essential principles:

The European Commission is proposing national agencies in the 27-member EU should establish if forced labour has been used to make a product. The Commission would publish decisions on a website to guide customs authorities.

The ban should apply to all products, including components, and to all levels of production from extraction or harvest to manufacturing as well as to EU-made products and EU exports.

[…] The European Parliament and EU governments will almost certainly modify the proposal and will need to agree before it enters force. [Source]

At Politico, Sarah Anne Aarup, Stuart Lau, and Samuel Stolton described how the EU proposal would function in practice:

EU countries will determine what constitutes forced labor and use either their own customs agency and/or a dedicated market surveillance authority to implement the ban. The Commission will try to coordinate the different authorities by setting up a so-called Union Forced Labour Product Network and offer a non-binding guide for making such decisions based on a database of information on conditions.

NGOs, citizens, companies or other authorities could tip off enforcers about potentially problematic products with a response required “within 30 working days.” The Commission would keep a dedicated list of “forced labour risk areas or products” for importers and buyers to refer to.

It will be up to the “competent authorities” rather than the company to prove whether a product was made under duress within 30 working days from the moment they receive information from the suspected company. If there is proof, the company will be given “a reasonable time” to get rid of the product. The business would then have to ensure such goods are “destroyed, rendered inoperable or otherwise disposed of … which excludes re-export in case of non-Union goods.” [Source]

China is an implicit target of the proposal. The proposal does not mention any region or country of origin, but it does refer to a resolution by the European Parliament that explicitly mentions Xinjiang. This indirect language appears partly out of caution in order to comply with World Trade Organization rules on nondiscrimination. “Our aim is to eliminate all products made with forced labor from the EU market, irrespective of where they have been made,” said Valdis Dombrovskis, an Executive Vice President of the European Commission and head of trade for the EU. But as Finbarr Bermingham reported for the South China Morning Post, many members of the European Parliament viewed the proposal primarily through the lens of human rights abuses in Xinjiang:  

Christophe Hansen, spokesperson for international trade at the centre-right European People’s Party, the parliament’s largest group, said the proposal showed that “we no longer tolerate inhumane behaviour”.

“No more products from prison camps, no more products made by forced labour from so-called re-education camps, no more slave labour,” Hansen said. “And yes, this may come at an initial cost to consumers, but the defence of our values comes at a price.”

[…] “I especially welcome the fact that this instrument is WTO-compatible,” said Samira Rafaela, the forced labour negotiator from the centrist Renew Group, which said on Wednesday it was “shocked by the unspeakable treatment of Uygurs in China”.

[…] “This is not what we wanted,” [Reinhard Buetikofer, Green Party member and head of the parliament’s delegation to China,] said. “The proposal … falls short of the example which the US Congress established with the Uygur Forced Labour Prevention Act. [Source]

The differences between U.S. legislation and the EU’s proposed mechanism to ban forced-labor-produced goods is indeed a point of contention. Monika Pronczuk from The New York Times highlighted some of these differences and the alleged shortcomings of the EU’s proposal:

The European proposal would make the national authorities of the bloc’s 27 members responsible for enforcing the ban. But critics say that failing to identify the regions or industries that are the biggest culprits, as well as leaving individual nations to determine how to implement the policy, stood out as major weaknesses.

In the United States, the authorities are empowered to seize goods suspected of being the products of forced labor coming from Xinjiang. But in Europe, the authorities have to prove that the goods are in breach of the rules, and only then can they withdraw them from the market. The administrative and legal burden on the European authorities, which have varying capacities and political commitment to this cause, will most likely weaken the implementation, analysts said.

“A lot will depend on the political will of national governments,” said Niclas Poitiers, a trade researcher at Bruegel, a Brussels-based research institute. “I wouldn’t be surprised if we see a very different application in Germany than in Hungary,” he added. (Hungary’s prime minister, Viktor Orban, has built a close relationship with Beijing, facilitating sprawling Chinese investment in his country.) [Source]

Lack of rebuttable presumption is the main difference to the U.S. import ban on all goods from Xinjiang, and will mean that each product or sector will have to be separately implicated.

— Adrian Zenz (@adrianzenz) September 14, 2022

Adding to critics’ complaints is the long timeline before the EU’s proposed regulation takes effect. Once the European Parliament and EU governments conclude negotiations on the final text—by next year, at the earliest—it will take two more years before the ban enters into force. Noting another critique of the proposal, Silvia Ellena at Euractiv described how activists called for additional measures to support victims of forced labor:

According to Katharine Bryant from the human rights group Walk Free, the effort to ban goods produced by forced labour is “encouraging”. However, in her view, due diligence rules should also make sure that those who have been exploited can access remedies.

Similarly, other NGOs called for remediation for victims of forced labour.

“The proposal lacks explicit requirement of companies to remedy workers – that is, for example, to provide them with pay, passports and protection,” said Hélène de Rengerve, EU advisor at Anti-Slavery International. [Source]

❌ We are concerned about the lack of clear procedures around instances of state-imposed forced labour, such as in #Turkmenistan and the #Uyghur Region @adalatseeker @UyghurProject @UyghurCongresshttps://t.co/dD0FdFZ9O7

(4/8)

— Anti-Slavery International (@Anti_Slavery) September 14, 2022

The @EU_Commission just announced a ban on products made by forced labour.

Weak spots:
👎no remedy for victims
👎burden to investigate and provide evidence will be on EU authorities, not companies
👎weak supply chain mapping and disclosure obligationhttps://t.co/YGk1JcI0kz

— European Coalition for Corporate Justice (@ECCJorg) September 14, 2022

Johnson Yeung, a coordinator for the Clean Clothes Campaign, noted that the crackdown on labor watchdogs, NGOs, independent unions, and auditors in China has made it almost impossible for victims to seek remedy on their own, and that the EU therefore cannot rely on Chinese labor organizations to hold European companies accountable for labor violations:

Since 2015, Labour watchdogs and NGOs in China are enduring heavy crackdown, any attempts from workers to set up independent unions resulted in arbitrary detention and torture. https://t.co/2tkO0Rtztg

— Johnson Yeung 楊政賢😷 (@hkjohnsonyeung) September 11, 2022

I am 100% in support to enforceable agreement between independent unions and companies like the Bangladesh Accord, as suggested in Papier's article, but we are missing independent unions and NGOs in an authoritarian China, making such scrutiny unenforceable.

— Johnson Yeung 楊政賢😷 (@hkjohnsonyeung) September 11, 2022

Enforcement of the EU’s proposed regulation will be difficult, given that even the supposedly stricter American regulations specifically targeting goods from Xinjiang have failed to prevent certain products of Uyghur forced labor from entering the U.S. market. At The Wire China late last month, Eliot Chen highlighted the case of Xinjiang-grown dates for sale in several American cities, despite the tighter restrictions. That same week, the Uyghur Human Rights Project (UHRP) released a report on the subject, “Fruits of Uyghur Forced Labor: Sanctioned Products on American Grocery Store Shelves.” Here are some its key findings:

UHRP finds that 20 percent of red dates in the global supply chain are likely tainted by Uyghur forced labor. 

The Xinjiang Construction and Production Corps (XPCC) or “Bingtuan” holds a majority stake in at least 13 red date producing companies, which account for more than 25 percent of red date production in China. The XPCC, a major paramilitary and corporate organization, is responsible for carrying out mass internment, surveillance, and forced labor in East Turkistan. 

Between February and August 2022, local and online grocery stores in the Washington, DC metropolitan area stocked over 70 brands of red dates grown or processed in East Turkistan, including at least three with “Bingtuan” on their labels. Other products sourced from the Uyghur homeland, including raisins and walnuts, are also sold in U.S. grocery stores. [Source]

Earlobe Red Dates are selling in European market. It's produced in Uyghur Homeland by Uyghur forced labour, it is really sad to see in front of your eyes people are buying these products linked to Uyghur forced labour and helping Chinese government to build more forced lab camps pic.twitter.com/0rWWIWzi64

— Abduweli Ayup (@AbduwelA) September 4, 2022

Forced labor in Xinjiang has been meticulously documented by various UN bodies. In February, the International Labor Organization’s annual report expressed “deep concerns” about the Chinese government’s labor policies in Xinjiang, including “coercive measures” indicative of forced labor. In mid-August, the UN Special Rapporteur on Contemporary Forms of Slavery issued a report stating that it is “reasonable to conclude” that there is forced labor in Xinjiang, which in certain instances “may amount to enslavement as a crime against humanity.” In late August, UN High Commissioner for Human Rights Michelle Bachelet published her report on Xinjiang, which concluded that the Chinese government may be committing “crimes against humanity” in Xinjiang due to, among other “serious human rights abuses,” labor schemes that “involve elements of coercion.”

Speaking to the European Parliament on Monday, Dilnur Reyhan, President of the European Uyghur Institute, stressed that “hundreds of international brands are implicated in this slave work. […] Among the Western brands, we know brands like Apple, Volkswagen, Nike, Zara, Uniqlo – they are very much implicated in Uyghur forced labor.” Government action is an important step in holding these businesses accountable, argues Jewher Ilham, a member of the Coalition to End Uyghur Forced Labour. Jewher’s father, the renown Uyghur economist Ilham Tohti, was sentenced in 2014 to life in prison, and in 2019 he was awarded the European Parliament’s Sakharov Prize for Freedom of Thought. In an article in Teen Vogue on Monday, introduced by Karissa Mitchell, Jewher Ilham called on young consumers to dismantle the politics of fashion of forced labor at the systemic level:

As consumers, it’s important to be educated, and I am encouraged by the growing number of people taking a serious interest in the origins and ethics of everything they purchase. But the onus shouldn’t be on the consumer to perform hours of research attempting to unearth and vet the obscure suppliers of every brand they wear. Rather, consumers can make clear their expectation that brands and retailers uphold their responsibility to ensure their business model does not rely on forced labor. [Source]