“Human rights are not a privilege conferred by government. They are every human being’s entitlement by virtue of his humanity.” —Mother Teresa
On July 13, 2021, the U.S. Departments of: State; Treasury; Commerce; Homeland Security; and Labor, together with the Office of the U.S. Trade Representative, issued a Supply Chain Business Advisory for products originating in the Xinjiang Uyghur Autonomous region, China.
The business advisory, "Risks and Considerations for Businesses and Individuals with Exposure to Entities Engaged in Forced Labor and other Human Rights Abuses linked to Xinjiang, China”, specifically indicates that forced labor has been, and continues to be, used in the Xinjiang silicon and polysilicon supply chain.
This blog looks at, “What is forced labour?”, and, “What is the world community doing about it?”.
What is Forced Labour?
The International Labour Organization (ILO) was formed under the League of Nations in 1919. It is the first and the oldest specialised agency of the United Nations. It was established to set international labour standards, and thus to advance social and economic justice. There are 187 member states in the ILO.
The ILO Forced Labour Convention, 1930 (No. 29), defines forced or compulsory labour as:
"all work or service which is exacted from any person under the threat of a penalty and for which the person has not offered himself or herself voluntarily."
This Convention was ratified by 179 members, and was not ratified by 8, notably including China and the United States of America.
In 1957, the ILO adopted the Abolition of Forced Labour Convention No. 105. This Convention addressed the use of forced labour imposed by state authorities. It specifically prohibits the use of forced labour:
- as punishment for the expression of political views.
- for the purposes of economic development.
- as a means of labour discipline.
- as a punishment for participation in strikes.
- as a means of racial, religious or other discrimination.
This convention was ratified by 176 members (two of which, Malaysia and Singapore, subsequently denounced it) and it was not ratified by 11 members, including China, Japan, Laos, and Myanmar.
The ILO Protocol of 2014 to the Forced Labour Convention, 1930 reaffirms this definition, and adds obligations:
“to suppress forced or compulsory labour, each Member shall take effective measures to prevent and eliminate its use, to provide to victims protection and access to appropriate and effective remedies, such as compensation, and to sanction the perpetrators of forced or compulsory labour”
This Convention was ratified by 56 members and not ratified by 131, again including China and the United States of America.
The ILO Protocol indicates that forced labour consists of three elements:
- Work or service - all types of work occurring in any activity, industry or sector including in the informal economy.
- Menace or threat of a penalty - refers to a wide range of penalties used to compel someone to work.
- Involuntariness – the lack of the free and informed consent of a worker to take a job and his or her freedom to leave at any time.
In essence, persons are in a forced labor situation if they enter work or service against their free choice, and cannot leave it without penalty or the threat of penalty. Involuntariness does not have to result from physical punishment or constraint. Involuntariness can take the form of retaliation, such as the loss of rights or privileges or non-payment of wages owed. A worker can be considered to be in forced labor if their consent was obtained through the use of force, abduction, fraud, deception, or the abuse of power or a position of vulnerability.
The ILO Convention also describes five situations, which are considered exceptions to the “forced labour” definition under certain conditions.
- Compulsory military service.
- Normal civic obligations.
- Prison labour (under certain conditions).
- Work in emergency situations (such as war, calamity or threatened calamity e.g. fire, flood, famine, earthquake).
- Minor communal services (within the community).
Why is forced labour still so prevalent?
So if there has been international consensus that forced labour is unacceptable, why then are forced labour, trafficking in persons, and other forms of ‘modern-day slavery’ still wide spread?
The answer is multifold.
- Forced labour is profitable. There are State authorities, private enterprises and individuals who do not feel ethically, socially, or morally bound to respect the dignity of individual human life.
- Forced labour is frequently hidden from obvious view. Victims are unable to escape, or risk personal or family repercussions should they speak out.
- Forced labour is ubiquitous. It can be found in all types of economic activity, from construction, agriculture, and manufacturing, to domestic work, sexual exploitation, or forced begging. It is present in every country.
- The labour performed under force is frequently the least desirable, most arduous, repetitive manual labour. Picking cotton, mining cobalt, sorting mica, or splitting silicon, are just a few examples. The goods produced through forced labor are frequently the raw materials or sub-components of the early stages of a supply chain. Even our food can be planted, grown and harvested by forced labour. Pity the individuals forcibly trafficked to fishing boats, left unpaid, forced to work long hours, and unable to escape the high seas for months at a time.
- Forced labour can be one method to ‘control’ minority groups. (More about this in the next blog).
The US Department of Labor - Bureau of International Labor Affairs (ILAB) maintains a list of goods and their source countries that it has reason to believe are produced by child labor or forced or trafficked labor in violation of international standards. As of June 23, 2021,
- 64 goods ranging from ‘artificial flowers’ to ‘wheat’, coming from 41 countries, are being produced by forced labour.
- 145 products ranging from ‘alcoholic beverages’ to ‘zinc’, coming from 75 countries, are being produced by child labour.
Numbers can sometimes be numbing. It is estimated that there are 30-40 million adults in forced labour. 30-40 million adults is roughly the entire population of a country, like Malaysia; or a region, like Scandinavia; or a State, like Texas.
30-40 million adults are thrust, trafficked or trapped in forced labour.
What is the world community doing to stop forced labour?
There has been considerable political activity in the past year addressing the problem of forced labour.
- At the G7 meeting of June 2021, the member countries ‘agreed to a set of concrete actions around key priorities responding to forced labor in global supply chains, the ransomware threat, and fighting corruption.'
- In June 2021, the US Customs and Border Patrol (CBP) announced the application of a Withhold Release Order (WRO) for “silica-based products made by Hoshine and its subsidiaries as well as to materials and final goods derived from or produced using those silica-based products, regardless of where the materials and final goods are produced.” The U.S. Department of Homeland Security maintains an explicit statutory prohibition on the importation of goods produced using forced labor, and maintains an active list of products that are currently subject to WROs.
- In July 2021, the US Senate passed a Bill (Uyghur Forced Labor Prevention Act) that, if passed by the House, would ban all goods from or made in China’s Xinjiang region unless importers can prove they were not made with forced labor.
- In July 2021, the European Commission and the European External Action Service issued guidance on due diligence for European Union businesses that addresses the risk of forced labor in their operations and supply chains. This Guidance is instructive in nature and outlines policy and process suggestions that businesses can adopt to assure the responsibility of their supply chains. This Guidance is soon anticipated to be supplemented by a Directive.
- In September 2021, the UK Independent Anti-Slavery Commissioner published “The role of the financial sector in eradicating modern slavery: CEOs respond to the Independent Anti-Slavery Commissioner”
- On 15 September, EU Commission President Ursula von der Leyen announced the European Commission’s intention to introduce a ban on the import of products made with forced labour into the EU market. She noted that “doing business around the world… can never be done at the expense of people’s dignity and freedom”.
- On 22 October, the G7 Trade Ministers refocused their concern with forced labour, specifying “state-sponsored forced labour of vulnerable groups and minorities, including in the agricultural, solar and garment sectors”. This was a direct reference to concerns with China’s internment and force to labour its Muslim Uyghur minority in the western region of Xinjiang.
This recent political activity is beginning to address forced labour through the application of trade laws and import bans. It will take more.
Transparency is the Key to Bringing Secrecy to Light
Forced labour is often hidden from immediate view. This is where companies and individuals can help the trapped. The tool is transparency.
“There is not a crime, there is not a dodge, there is not a trick, there is not a swindle, there is not a vice which does not live by secrecy.” ― Joseph Pulitzer
Transparency through Satellite Tracking:
One example of innovative transparency comes from the Environmental Market Solutions Lab (emLab) at University of California, Santa Barbara (UCSB) . They recently published the preliminary results of a project aimed at identifying fishing vessels that are highly likely to be engaging in forced labor. Vessels fishing illegally often ‘spoof’ (misrepresent) their GPS location or Vessel Monitoring Systems (VMS), thus making tracking more difficult.
The project used satellite tracking data to follow vessels known to have previously used forced labour. They monitored a list of indicators of vessel behaviors, such as spending more time on the high seas, traveling farther from ports than other vessels, and fishing more hours per day than other boats. They then used machine learning techniques to analyze the data and create a data model that could be used to identify other vessels exhibiting similar behaviours. The UCSB team is now working with Global Fishing Watch and providing data to governments, enforcement agencies and labor groups. These groups can use the results to more effectively target vessel inspections.
Transparency through Blockchain Provenance:
A second innovative tool is the use of blockchain technology to create an immutable record of material shipments as they pass hands along the length of a supply chain. These records, or ‘Product Passports’ contain the provenance data essential to downstream customers needing to perform due diligence. As data is added by each participant along the supply chain, downstream customers become aware of potential supplier issues along the chain and can act to correct them. This provenance is especially valuable to all parties involved in the supply of material that may have originated in or passed through countries where forced labour is known to occur.
The next blog will look more specifically at the situation in the Xinjiang Uyghur Autonomous Region, China. What makes this region of special concern, and how does that affect global supply chains?
