By Sharon Foster
Law Student Editor
The United States Government and others have documented China’s continuous human rights abuses against Turkic Uyghurs, Kazakhs, Kyrgyz, and members of other Muslim minority groups since at least 2017. China created internment camps, which it calls “re-education” camps, in response to an alleged rise in violent Islamic extremism in the Xinjiang Uyghur Autonomous Region (XUAR). China is accused of forcing Uyghurs and other ethnic minorities to labor in its factories in violation of its obligations under the International Covenant on Economic, Social, and Cultural Rights. In response, the Biden Administration signed the Uyghur Forced Labor Prevention Act (UFPLA) on December 23, 2021. The act enters into force on June 21, 2022.
Before enacting the UFLPA, the U.S. State Department issued the Xinjiang Supply Chain Business Advisory report in July 2021. This report advised businesses of risks and considerations relating to supply chains in the XUAR and set the stage for the UFLPA. For example, the policy informed businesses that U.S. Customs & Border Protection (CBP) would issue Withhold Release Orders (WROs) on imports from the region under 19 U.S. Code § 1307. These WROs required CPB to detain any imports from specified companies and industry sectors in the XUAR. The policy also put businesses (especially technology and construction industries) on notice that 15 C.F.R. § 30.16 prohibits exports to certain XUAR entities under the Export Administration Regulations (EAR).
The UFLPA expands these policies by permitting CPB to presume XUAR imports throughout any supply chain are made with forced labor. The law prohibits imports of “all goods, wares, articles, and merchandise mined, produced, or manufactured wholly or in part” in the XUAR, or “for purposes of the ‘poverty alleviation’ program or the ‘pairing-assistance’ program.” However, CBP will allow businesses to rebut the UFLPA’s presumption that the imports were made in part with forced labor. Imports are not prohibited if CBP “determines, by clear and convincing evidence” that they “were not produced wholly or in part by convict labor, forced labor, or indentured labor under penal sanctions.” CBP is soliciting public comment in drafting rules to implement its mandate under the UFLPA. While the law directly bans imports into the United States from the XUAR, it also aims to prohibit such imports throughout North America. For example, it establishes the Forced Labor Enforcement Task Force through the United States-Mexico-Canada Agreement (USMCA) to create an effective enforcement strategy to ban imports throughout North America. Finally, the bill also requires the President to identify foreign persons who knowingly contribute to or assist the XUAR. The assets of such persons may be blocked, or other sanctions may apply to them.
Although the extent of the economic impact of the import prohibition on the United States is speculative, the ban will certainly have financial repercussions for both the United States and China. The State Department has already identified several industries that rely heavily on imports from the XUAR. These include agricultural, textile, solar, and other technological sectors. The Xinjiang region produces one-fifth of the global cotton supply and seventy percent of worldwide solar-grade polysilicon. The Australian Strategic Policy Institute identified at least twenty-seven factories using forced Uyghur labor linked to at least eighty-two global brands. Many of these identified brands are household names in the United States. While the Act certainly affects important policy and humanitarian goals, it could compound current inflationary and supply chain issues.