In Episode 3, we hear from Anasuya Syam, Human Rights and Trade Policy Adviser at the Human Trafficking Legal Centre. James asks Anasuya about US import bans on goods made with Xinjiang forced labour, and the Uyghur Forced Labor Prevention Act.

 

Transcript

James Cockayne  0:00  

Welcome to Xinjiang Sanctions, a podcast looking at the global response to forced labour in Xinjiang, China. I'm James Cockayne, a Professor of Global Politics and Anti-Slavery at the University of Nottingham. I've been working on modern slavery and forced labour issues for the last decade and researching Xinjiang forced labour for the last year. You can see the results of that research at www.xinjiangsanctions.info. In this short podcast series, I speak with global experts to understand why forced labour emerged in Xinjiang and what governments and business are doing to try to address it. My guest today is Anasuya Syam, Human Rights and Trade Policy Advisor at the Human Trafficking Legal Center. Welcome Anasuya. 

Anasuya Syam  0:43  

Thanks, James. It's a pleasure to be here.

James Cockayne  0:44  

Tell us a bit about the Human Trafficking Legal Center, Anasuya.

Anasuya Syam  0:48  

Thanks, James. The Human Trafficking Legal Center is a nonprofit based in Washington DC. We serve as a pro bono clearing house that connects trafficking survivors with highly skilled legal representation to hold traffickers accountable. One of our primary areas of focus is labour trafficking in global supply chains. And we do this by conducting cutting edge research to identify gaps in services and system failures. And we also seek to transform systems to prevent forced labour in global supply chains. So a lot of our trade work fits into that. The, the idea that we want to have systems change to address forced labour.

James Cockayne  1:28  

So you mentioned supply chains there and your title is Human Rights and Trade Policy Advisor. What does trade policy have to do with human trafficking and especially in a place like Xinjiang? 

Anasuya Syam  1:41  

So trade policy for years now has had some links to addressing forced labour in global supply chains, the US has had an import prohibition against products made using forced labour, prison labour and forced child labour since 1930. So that's been 90 years in the books. But it's only really been since 2016, that the law was enforced by US Customs and Border Protection to the extent that we're seeing today. And what we're seeing right now is the start of a global trend. And this goes back to one of our core areas of work that I mentioned when I introduced the Centre, which is about transforming systems to prevent forced labour in global supply chains. And we're seeing trade policy rise up to that level to transform systems and the way business is done to make sure that this prevents the occurrence of forced labour in the future. So import bands are really coming up right now. And we can see these debates happening in the EU, in Australia, in Canada, and in many other countries. It's a very topical issue.

James Cockayne  2:52  

So as you said, there's been an import ban in place on the books in the United States for almost a century now. What is that? How does that work? Tell us a bit about the relevant law and how that's enforced. 

Anasuya Syam  3:06  

So the import ban is enshrined in Section 307 of the US Tariff Act of 1930. It has its roots in protectionism. When we are talking about when the law came about in 1930, it was to protect domestic US manufacturing. But since then, and as I mentioned earlier, when the law was improved in 2015, by an amendment under the Obama Biden administration, there was a loophole in the law that had kind of swallowed enforcement efforts. Because the import ban had an exception - goods that were not made in the United States to meet American demand, even if they were made using forced labour or prison labour overseas, they could still be imported into the country to meet that demand. So once that loophole, the consumptive demand loophole was removed. we saw US Customs now having access to this tool and NGOs being able to leverage this tool and incorporate it into their campaigns to address forced labour. So we saw petitions coming in from NGOs, like Global Labor Justice, International Labor Rights Forum, those were some of the first petitions that we saw in 2016 on cotton from Turkmenistan, because it’s systemic state sponsored forced labour in Turkmenistan. We saw a petition on cotton from Uzbekistan, and then we realised, okay, this is something that CSOs can really get behind. Because this law relies quite a bit on external sources to share information about forced labour happening around the world. CBP relies on external sources, they do have the power to self initiate actions, based on their own investigations into forced labour. But by and large, we see a reliance on NGO partners, on unions, on worker representatives around the world to share this information.

James Cockayne  4:59  

So US Customs and Border Protection is looking to these civil society organisations to understand which shipments coming into the United States might potentially be made with forced labour. Is that right?

Anasuya Syam  5:12  

Well, more so for the evidence on forced labour that's happening on the ground in so many different regions around the world, but also to a certain extent to identify shipments that are coming to the United States. But of course, access to trade databases is not something that's available to a lot of different organisations. Because, you know, it's prohibitively expensive to some, but where possible, where that information is available on the ground at that factory level or the unit level. it's known that that entity exports to the United States, that's definitely information that is fed into US Customs investigations.

James Cockayne  5:53  

And is this tool that you're referring to, is this, is this what we sometimes hear referred to as Withhold Release Orders? What does that mean? 

Anasuya Syam  6:00  

Yes, so Withhold Release Order is the technical term for a detention order that US Customs can issue once it is convinced reasonably, that there is forced labour in the product that it is investigating. So once the investigation is complete, the Commissioner of US Customs and Border Protection issues instructions to directors at all US ports of entry, detailing the Withhold Release Order that is in effect, the product, the region, if the specific factory or facility information about that, and instructing the directors at port and port officials to stop these goods at the border.

James Cockayne  6:42  

And what happens to the goods once they stop? 

Anasuya Syam  6:45  

So the goods are detained for a certain period of time. And the law gives importers the right to either contest the detention and say, hey, our products are not produced using forced labour and here's the evidence, or in the alternative, they are allowed to re-export the goods to other countries.

James Cockayne  7:04  

So they can send those goods that the US Customs and Border Protection has concluded, are more likely than not made with forced labour, they can send them to some other market to be sold there?

Anasuya Syam  7:15  

Exactly any market that does not have an import ban. So it lacks import restrictions on forced labour. And we, we’re seeing trends in this re-exportation because this is an option that most importers would like to use, rather than contesting the detention order, which requires you to have extensive supply chain documentation in place.

James Cockayne  7:40  

Would it be fair then adopting a devil's advocate position to say that this tool works more to cut the link between these goods and US consumers than it does to actually prevent the use of forced labour in the first place? Or is that too simplistic an analysis of what's going on here?

Anasuya Syam  8:01  

What we are seeing in the first instance is that companies are trying to proactively remedy the situation once they've been targeted, as opposed to simply cutting and running or leading to massive closures of their operations. So we are optimistic that it's more likely that the companies want access to US markets. And as more countries are thinking about import bans and as more borders close, that they will have no choice but to remedy the situation or just risk the financial, reputational and legal consequences. 

James Cockayne  8:38  

So as those risks of losing access to the US and potentially other markets are increasing the costs they incur from the changes in business practice to remove forced labour from their supply chain start to become a more worthwhile proposition. Is that, is that the conclusion?

Anasuya Syam  8:56  

It is because right now, what import bans are doing is bringing risk into the equation in a way that many other measures to date have not. And it has become a serious compliance issue for companies and it's taken four/five years of import ban enforcement for it to rise to this level. I mean, the enforcement doesn't just stop at a showing a Withhold Resource Order. That's just the first step, real enforcement is when goods are stopped at the border. And when CBP engages the companies to remedy forced labour. Now, we've seen companies really want to get the ban revoked or modified and for that, they really have to provide proof that forced labour no longer exists in their supply chain.

James Cockayne  9:47  

Have we seen any cases where that's led