In the United States, August is the time of year when professors and students scramble to get their affairs in order before the academic term. I should be doing those things. Instead (I’m not procrastinating, you’re procrastinating), I’ve decided to share my thoughts on the recent forced labor initiatives in international economic law. I do so not (just) to procrastinate but to draw attention to misconceptions about forced labor and how those misconceptions risk further silencing exploited workers.
First of all, why has forced labor become such a buzz term in trade? Trade agreements in the United States and Europe require trade partners to agree to four fundamental labor rights, one of which is forced labor. The other three are: freedom of association and collective bargaining, child labor, and non-discrimination in employment (the International Labor Organization (ILO) recently added a fifth, occupational safety and health, but that’s a different story). Why silo those rights by adopting initiatives that target only forced labor?
The answer is straightforward. Some of those rights, including freedom of association and collective bargaining, are politically fraught and difficult to achieve. Rights associated with trade union activities implicate concerns about political opposition and, in some countries, trigger suspicions of color revolutions. The right concerning non-discrimination in employment is also cumbersome. Many countries remain unwilling or unable to require parity in the treatment of women and men’s labor. If governments and trade negotiators prioritize these rights, they risk undermining their broader economic goals and trade negotiations.
Contrary to those problematic and politically-charged rights, who’s going to protest protecting innocent children or eradicating the vestiges of slavery, even if it means curtailing liberalized trade and regulatory space?
Not the United States. Recent events demonstrate the burgeoning popularity of efforts in trade to eradicate forced labor, particularly in global supply chains. A New York Times article exposed the brutal conditions in Xinjiang detention camps, resulting in global calls to protect vulnerable ethnic and religious minorities and the recent passage of the Uyghur Forced Labor Prevention Act. A 2016 revision to the Customs and Border Protection (CBP) mandate expanded its regulatory reach to prohibit goods made in whole or in part by forced labor. Negotiated text in the U.S.-Mexico-Canada trade agreement identifies forced labor, specifically, as a cooperative and regulatory priority. As Steve’s great post the other day reminds us, the Office of the US Trade Representative (USTR) recently requested public input into its forced labor strategy (while remaining silent on the other fundamental labor rights).
We can probably all agree that prohibiting forced labor has become en vogue.
So, what’s the problem with that? While forced labor prohibitions have become a recent political mantra, the ILO and the United Nations (UN) have always devoted resources and priorities to this right, given the nexus between forced labor, slavery, and post-colonial labor exploitation. The longstanding cultural, religious, and political ideologies embedded in labor exploitation warrant a special place in the trade agenda, and USTR’s concentrated efforts should be applauded.
The problem, however, is that while we now acknowledge the importance of prohibiting forced labor, we ignore the ILO’s longstanding lessons on how to do so. Of course, the ILO’s governance system suffers from its own drawbacks. It nevertheless offers over a century of experience, including voluminous documents on forced labor and governments’ reactions to the same types of reputational and financial threats that are now subject to international economic law’s experimentation. Through trial and error, the ILO has already made the mistakes we are currently making. It has learned how to improve its approach, and we should take notice.
I’ll give you an example. As mentioned, current efforts, particularly in the global supply chain discourse, prioritize forced labor over the others, including workers’ associational rights. Conversations among policymakers and corporations center on how progress has stalled because we lack data. If only we had data, they complain, due diligence programs would better identify and redress exploitative labor practices. Proposed solutions inevitably shift to DNA sprays, auditing programs, and blockchain programs to better identify labor practices throughout the chain of production. We have reduced forced labor to a question of technology. We have forgotten the human faces behind the forced labor phenomenon.
The ILO’s lessons strongly suggest that those policies will continue to be ineffective. It takes a holistic approach to fundamental labor rights, foregrounding the rights concerning freedom of association and collective bargaining. If workers have no way to organize and countervail the conditions placed on them by employers and enabled by governments, the ILO has discovered, their exploitation is bound to continue. Under this approach, workers are the data. Rather than identifying obstacles to accessing technology, international economic law must identify obstacles to accessing the workers.
That approach bodes ominously for current initiatives in China, where independent and grassroots trade unions are non-existent. Historically, when it came to committing to fundamental labor rights in its trade instruments, China bucked the trend. However, its days of doing so may be numbered. Its neighbors increasingly commit to the ILO’s labor rights in their trade instruments. China’s trade partners have begun to require it to commit to those rights, including eradicating forced labor.
This past Friday (Aug. 12, 2022), China ratified the ILO’s two forced labor conventions. Many will assume that China did so purely for the optics. Having witnessed nearly a decade of governments’ stark inability to implement their ratified conventions at the ILO, I, too, am deeply skeptical. Nevertheless, by deciding to participate in the ILO’s forced labor system, even if just to check the box in its trade negotiations, the Chinese government may now be vulnerable to repercussions.
In exactly one year, the ILO’s supervisory bodies will review China’s forced labor practices under those newly ratified conventions. Given the Chinese government’s severe restrictions on independent trade unions and its use of detention camps in Xinjiang, the supervisory bodies are poised to rebuke the government for failing to implement the conventions effectively. Those conventions prohibit governments from imposing prison labor “as a means of labor discipline,” such as engaging in strike activities, especially to criticize governmental economic or social policies. They also prohibit governments from imposing prison labor or “as a means of racial, social, national or religious discrimination.” History suggests that the Chinese government will not take these public admonishments lightly. Irrespective of the Chinese government’s reactions, those public comments will further arm its trade counterparts with objective information on how China implements fundamental rights commitments on the ground.
In the meantime, we, as policymakers, advocates, and researchers, play a role in global efforts to eradicate the vestiges of slavery and exploitation of workers in our markets. Whether we hope to bolster CBP’s investigations, U.S. trade agreements, or Xinjiang cotton bans, our efforts will only be successful if we shift our mindset. The problem is not solely about forced labor, and it is certainly not about technology. It is that vulnerable workers and children face harrowing conditions while making and producing our goods. A forced labor strategy must center on strengthening the collective voices of the vulnerable rather than accepting their silence.
