Comparing the Forced Labor Provisions in the New U.S. Trade Deals
Continuing my multi-part blog post series on comparing provisions in the Trump administration's trade agreements (we are now up to eight of these with the full text released), let's look at the provisions that try to induce U.S. trading partners to take action against imports made with forced labor:
Article 2.9: Labor
1. Malaysia shall adopt and implement a prohibition on the importation of goods mined, produced, or manufactured wholly or in part by forced or compulsory labor. Malaysia may acknowledge U.S. government determinations on entities under Section 307 of the Tariff Act of 1930 and shall take appropriate action to prohibit importation of goods from those companies. The Parties shall cooperate by sharing best practices on the development and enforcement of forced labor import prohibitions, as appropriate. Malaysia shall implement the obligations in this paragraph within two years of the date of entry into force of this Agreement.
(underlining in original)
Article 2.8: Labor
1. Cambodia shall adopt and effectively implement a prohibition on the importation of goods mined, produced, or manufactured wholly or in part by forced or compulsory labor, as defined by the relevant International Labor Organization (ILO) instruments to which Cambodia is a party. Cambodia may acknowledge U.S. government determinations on entities under Section 307 of the Tariff Act of 1930 and shall take appropriate action to prohibit importation of goods from those entities.
Article 2.7: Labor
1. El Salvador shall prohibit the importation of goods mined, produced, or manufactured wholly or in part by forced or compulsory labor.
Article 2.7: Labor
1. Guatemala shall adopt and effectively implement a prohibition on the importation of goods mined, produced, or manufactured wholly or in part by forced or compulsory labor. Guatemala shall recognize U.S. government determinations on entities under Section 307 of the Tariff Act of 1930 and shall presumptively prohibit importation of goods from those entities.
Article 2.9: Labor
1. Argentina shall adopt and effectively implement a prohibition on the importation of goods mined, produced, or manufactured wholly or in part by forced or compulsory labor as defined by the relevant International Labor Organization (ILO) instruments to which it is a party. Argentina shall consider U.S. government determinations on entities under Section 307 of the Tariff Act of 1930 and the prohibition of importation of goods from those companies.
Article 2.9: Labor
1. Bangladesh shall adopt and implement a prohibition on the importation of goods mined, produced, or manufactured wholly or in part by convict labor or forced or compulsory labor, including indentured labor and indentured child labor. FN.4
FN.4 In this regard, Bangladesh may recognize U.S. government determinations on entities under Section 307 of the Tariff Act.
Article 3.9: Labor
1. TECRO, through its Designated Representative shall adopt and effectively implement a prohibition on importation of goods mined, produced, or manufactured wholly or in part by forced or compulsory labor. TECRO, through its Designated Representative, shall recognize determinations of the authorities of the territory represented by AIT on entities under 19 U.S.C. § 1307 through its domestic procedures and shall presumptively prohibit importation of goods from those enterprises.
Article 2.9: Labor
1. Indonesia shall adopt and implement a prohibition on the importation of goods mined, produced, or manufactured wholly or in part by forced or compulsory labor. Indonesia may recognize U.S. government determinations on entities under Section 307 of the Tariff Act and, in the event that Indonesia recognizes such determinations, shall take actions appropriate to prohibit importation of goods from those entities into Indonesian territory. Indonesia shall implement the obligations in this paragraph within two years of the date of entry into force of this Agreement.
A few things stand out in these provisions.
Starting with the references to Section 307 of the Tariff Act (codified at 19 U.S.C. § 1307 – see this CRS report for more details on this law):
- The El Salvador agreement is the only one that doesn't mention Section 307. In terms of the role of Section 307 where it is included in an agreement, the obligation on trading partners to take into account Section 307 determinations varies from "shall recognize" to "shall consider" to "may recognize" to "may acknowledge." These variations clearly seem to establish different degrees of discretion for the implementing government.
- Guatemala and Taiwan are the only ones that have the additional burden of "shall presumptively prohibit importation of goods from those [entities]/[enterprises]" for which Section 307/19 U.S.C. § 1307 determinations have been made. For Malaysia, Cambodia, and Indonesia, there is something that looks slightly less burdensome, as it says "shall take appropriate action to prohibit importation of goods from those [companies/entities]." Argentina "shall consider ... the prohibition of importation of goods from those companies."
- I don't think there is any interpretive importance here, but I am curious how the Bangladesh Section 307 reference ended up in a footnote.
Turning to other differences in the provisions:
- Malaysia and Indonesia get two years to implement, whereas the others do not.
- The Argentina and Cambodia agreements define forced or compulsory labor by reference to the ILO, whereas the others do not.
- The Bangladesh agreement is the only one to mention "convict" and "indentured" labor.
- And then getting really nit-picky in terms of wording differences, the El Salvador agreement just says "El Salvador shall prohibit," as opposed to the other agreements that say "shall adopt and effectively implement a prohibition" (two agreements do not have "effectively" in there).
I have some questions about all this.
First, how hard will the Trump administration press on enforcement of these obligations? Will this be a priority for them? What form would this pressure take?
Second, how will the other governments react to any U.S. pressure? Will U.S. pressure be enough to induce the governments to try to implement?
Finally, and related to the previous question, if the other governments decide they want to try to implement, will they have the resources to do so?