The United Nations estimates that, since 2017, China has forcibly placed an estimated 1.5 million Uyghur and Turkic Muslims in prison camps across the Xinjiang Autonomous Region. An April 2021 report co-authored by Human Rights Watch and Stanford Law School details “crimes against humanity,” including mass detention, forced labor, torture, and cultural and religious erasure. An independent expert review by the Newlines Institute for Strategy and Policy concludes that China “bears responsibility for breaches of the 1948 Genocide Convention.”
Diplomatic tensions between the U.S. and China have become increasingly fraught over the past decade due to rising economic and military competition, along with disagreements over Taiwan, trade and human rights. Over the past year, the Biden administration has placed a growing focus on what it considers serious human rights abuses, accusing Beijing of “acts of genocide” in its persecution of ethnic groups in Xinjiang. On Capitol Hill, the issue has continuously drawn bipartisan attention and scrutiny from lawmakers.
China has responded with anger. Its U.N. ambassador, Zhang Jun, accused the U.S. and other countries last year of “using human rights as a pretext for political maneuvering to provoke confrontation.” Nevertheless, China has consistently attempted to block international investigations and has threatened states that condemn its actions.
The U.S. government’s response has produced significant policy developments from both congressional and executive action in the past few months. This post reviews current issues that the U.S. has raised regarding human rights abuses in Xinjiang, provides an analysis of recent legislation from Congress in response and summarizes recent actions the Biden administration has taken to address the issue.
Forced Labor in Xinjiang and Section 307 of the Tariff Act
In condemning China for abuses in Xinjiang, the U.S. and human rights groups have asserted that, in recent years, tens of thousands of Uyghurs have been subjected to practices of forced labor. A 2019 study reached a conservative estimate that nearly 100,000 Uyghurs may be working under such conditions in Xinjiang. The Congressional-Executive Commission on China reported in 2020 that the supply chains of numerous prominent U.S. brands, including Nike, Adidas and Coca-Cola, were tied to forced labor in Xinjiang. In addition, around the same time, the Australian Strategic Policy Institute uncovered that more than 80,000 Uyghurs had been transported out of Xinjiang to work in factories outside the region and implicated 82 multinational corporations whose supply chains interacted with goods produced by these means.
The Tariff Act of 1930 outlaws the importation of goods linked to forced labor. Specifically, Section 307 states that “[a]ll goods, wares, articles, and merchandise mined, produced, or manufactured wholly or in part in any foreign country by convict labor or/and forced labor or/and indentured labor” are banned from entry into the United States.
In 2016, Congress strengthened Section 307 by voting to eliminate the “consumptive demand loophole”—an exception to Section 307 in the original language of the Tariff Act, which allowed the importation of goods despite suspicion of ties to forced labor if consumer demand could not otherwise be met domestically. The 2016 change significantly improved the effectiveness of Section 307, and U.S. Customs and Border Protection (CBP) increased its enforcement of the statute. Specifically, between February 2016 and January 2021, CBP issued 29 Withhold Release Orders—for suspicion of a connection between imported goods and forced labor—compared to 33 in the prior eight decades.
Despite improved enforcement of Section 307 after 2016, CBP still carried the onerous burden of linking goods from Xinjiang directly to forced labor. The burden was made all the more difficult by China’s extensive surveillance network and restrictions on foreign access to the region. The Chinese government has increasingly worked to make products sourced from forced labor untraceable, and even as evidence has risen supporting the claim that there is widespread forced labor in the region, U.S.-based corporations have struggled to verify the integrity of their supply chains.
The Uyghur Forced Labor Prevention Act
In late December 2021, President Biden signed the Uyghur Forced Labor Prevention Act (H.R. 6256), culminating a yearlong bipartisan legislative effort. Of note, the final version passed unanimously through both chambers before making its way to the president’s desk.
The new law seeks to strengthen the application of Section 307, ensuring that goods made from forced labor in Xinjiang are prohibited from entry into the United States. Principally, it implements a presumption that any goods originating from Xinjiang were made with forced labor unless the importer can provide clear evidence to the contrary. As a result, customs officials will be authorized to seize goods at U.S. ports of entry where it is deemed that evidence is unsatisfactory—placing the onus on corporations. In addition, H.R. 6256 directs President Biden and the White House to—within 180 days—identify and sanction foreign individuals “responsible for serious human rights abuses in connection with forced labor” in Xinjiang. The measure is similar to that outlined in the 2020 Uyghur Human Rights Policy Act (22 U.S.C. § 6901), which required the same of then-President Trump.
Over the past year, the Uyghur Forced Labor Prevention Act has undergone numerous revisions, and its final form (H.R. 6256) represents a merging of the slightly different bills that each passed the Senate and the House of Representatives, S. 65 and H.R. 1155, respectively. The final version contains seven sections, each detailed below.
Section 1 outlines broad policy objectives, outlined in the first paragraph as “to strengthen the prohibition against the importation of goods made with forced labor.” In addition, it includes the assertion that the U.S. intends to “lead the international community in ending forced labor practices” and calls for coordination with Mexico and Canada through the 2020 United States-Mexico-Canada Agreement (USMCA) in implementing the necessary policies to do so (the USMCA is the substitute for the North American Free Trade Agreement, or NAFTA, renegotiated under the Trump administration). Section 1 concludes with a broader commitment to addressing “violations of human rights in [Xinjiang]” through two primary methods:
(A) through bilateral diplomatic channels and multilateral institutions where both the United States and the People’s Republic of China are members; and
(B) using all the authorities available to the United States Government, including visa and financial sanctions, export restrictions, and import controls.
Section 2 calls for developing a comprehensive strategy to ensure that goods produced by forced labor are not being imported to the U.S. from Xinjiang. In this section, two main elements underpin this approach.
First, the Forced Labor Enforcement Task Force, established under the United States-Mexico-Canada Agreement Implementation Act, will have 30 days to publish a solicitation for public comments on strategies for how best to block the importation of goods linked to forced labor “in the People’s Republic of China, including Uyghurs, Kazakhs, Kyrgyz, Tibetans, and members of other persecuted groups[,] … especially in the Xinjiang Uyghur Autonomous Region.” The notice seeking public comments, published by the Department for Homeland Security, can be found here (open for comment until March 10, 2022).
Second, following public comments, the bill instructs the Forced Labor Enforcement Task Force to develop a strategy for applying enforcement of Section 307 to goods originating from China (not just Xinjiang), in conjunction with the secretary of commerce and the director of national intelligence. This strategy is directed to include:
- An assessment of risk associated with importing goods from China with that likelihood of those risks being tied to sources of forced labor.
- An “evaluation of ‘pairing assistance’ and ‘poverty alleviation’ or any other government labor scheme” presumably connected to forcible or coercive means of eliciting labor.
- A description of where CBP can strengthen “tools and technologies” for identifying links to forced labor, and how it will enhance its “use of legal authorities” to do the same.
- Guidance for importers on evidence that would suffice in proving that goods were not produced in Xinjiang; or, if they were, that they were not sourced “wholly or in part” with forced labor.
- A “plan to coordinate and collaborate with appropriate nongovernmental organizations and private sector entities” on the matter.
The strategy will encompass an assessment of forced labor across China, not simply within Xinjiang. Specifically, it calls for “a list of entities working with the government of the Xinjiang Uyghur Autonomous Region to recruit, transport, transfer, harbor or receive forced labor” outside of the region. As referenced earlier, the Australian Strategic Policy Institute has noted this increasing trend in recent years as Xinjiang has come under scrutiny. By broadening the geographic lens, Section 2 of the Uyghur Forced Labor Prevention Act aims to provide lawmakers with a clearer picture of forced labor practices across China.
Section 3 is perhaps the most cited section in recent news and press releases covering the bill because it introduces sweeping restrictions on imports from Xinjiang, essentially implementing a ban on all goods originating from the region unless importers can definitively prove a negative correlation to forced labor.
Specifically, the language of Section 3 calls on the commissioner of CBP to “apply a presumption” that the importation of all goods originating from the Xinjiang region “is prohibited under section 307 of the Tariff Act,” and that such goods are “not entitled to entry at any of the ports of the United States.” Again, exceptions are to be made only where the importer has the proper evidence to support its claims rebutting the presumption and has “fully complied with the guidance described.” Further, if and when CBP determines that an exemption is warranted, the commissioner must “submit to the appropriate congressional committees and make available to the public” a report detailing the evidence that supports CBP’s decision.
It’s not clear if corporations will primarily seek to challenge the presumption clause by collecting and providing evidence to CBP or whether they will simply expand efforts to reroute supply chains out of Xinjiang. If corporations have confidence in their supply chains, they may choose the former. However, the widespread extent of documented forced labor in Xinjiang means that, in the long run, the latter may be the only choice to remain in compliance with new regulations. Cathy Feingold, international director of the AFL-CIO, commented in a recent article on the bill that “[g]enuine, effective enforcement will most likely mean there will be pushback by corporations and an attempt to create loopholes, so the implementation will be key.” Nonetheless, some level of cooperation between U.S. regulators and corporations—particularly those with an expressed interest in conducting due diligence—potentially appears both necessary and helpful in successfully implementing Section 3’s objectives and avoiding broader economic jeopardies for U.S. companies.
Finally, the bill issues a date of 180 days after its enactment for the official implementation of Section 3. As such, the “presumption” clause will go into effect on June 21.
Section 4 seeks to develop a diplomatic strategy—beyond the objectives already discussed—to “enhance international awareness of and to address forced labor in the Xinjiang.” It calls on the secretary of state to produce a report to Congress and the public, notably including a blueprint for multilateral cooperation in efforts to end practices of forced labor in Xinjiang, and an approach to “public diplomacy and counter-messaging … to promote awareness of the human rights situations” in Xinjiang. The strategy should also include an outline for possible avenues to providing humanitarian assistance to affected groups of the described human rights abuses, and a plan—to the extent possible—for ways to work with corporations “seeking to conduct supply chain due diligence” in efforts to prevent the importation of goods tied to forced labor.
In addition, Section 4 asks the secretary of state in consultation with the secretaries of commerce, homeland security and the Treasury to produce a “plan of actions” for addressing forced labor in Xinjiang under existing authorities, including the Trafficking Victims Protection Act (2000), the Elie Wiesel Genocide and Atrocities Prevention Act (2018) and the Global Magnitsky Human Rights Accountability Act (2012). This clause raises the prospect of an additional avenue for further congressional or executive action on this issue in the future—through sanctions or otherwise—on the basis of violations of any one of these laws.
Section 5 addresses the imposition of sanctions in response to forced labor practices and broader human rights abuses in Xinjiang and calls for executive action on the matter. Specifically, it amends the Uyghur Human Rights Policy Act of 2020, adding: “serious human rights abuses in connection with forced labor” under Section 6(a)(1). For context, Section 6(a)(1) of the aforementioned act required the president to present to several congressional committees—including the Senate Committee on Foreign Relations and the House Committee on Foreign Affairs—a report within 180 days containing the names of any “foreign person, including any official of the Government of the People’s Republic of China” linked to human rights abuses against minority groups in Xinjiang. The 2020 act identified abuses such as torture, inhuman treatment, detention without trial, abduction, and “other flagrant denial of the right to life, liberty, or the security of persons.” Section 5 of the Uyghur Forced Labor Prevention Act adds forced labor to the list of abuses and requires the White House to draft and submit to Congress a new report within 180 days that includes a list of foreign persons or officials linked to abuses under such criteria. Furthermore, Section 5 instructs the President to “impose sanctions … with respect to each foreign person identified in the report required.”
The first four sections of the Uyghur Forced Labor Prevention Act develop a strategy to better enforce Section 307 of the Tariff Act and develop mechanisms for fighting the proliferation of goods linked to forced labor from seeping into domestic markets. However, Section 5 changes direction, targeting the source of the abuses by identifying and sanctioning individuals and Chinese government officials that the U.S. deems responsible.
The final two sections of H.R. 6256 pertain to sunset clauses and definitions of terms used in the bill. Most notably, Section 6 states that Sections 3, 4 and 5 will terminate in effect after a period of eight years, or once the president submits a statement to Congress determining that China has “ended mass internment, forced labor, and any other gross violations of human rights” against ethnic groups in Xinjiang.
Biden Administration Builds Executive Pressure on China
Over the past year and in recent months, the Biden administration has taken action at the executive level to address human rights abuses in Xinjiang. In early December 2021, the White House announced a diplomatic boycott of the 2022 Beijing Winter Olympic Games, shortly followed by similar announcements on behalf of governments from the United Kingdom, Canada and Australia. During a press conference, White House Press Secretary Jen Psaki stated that the administration would not send representation “given the PRC’s ongoing genocide and crimes against humanity in Xinjiang and other human rights abuses.”
Just weeks after the boycott announcement, the Biden administration imposed sanctions on several Chinese technology and surveillance companies for material support of human rights abuses in Xinjiang. The Treasury Department restricted U.S. persons from trading securities linked to eight entities that it said “support the biometric surveillance and tracking of ethnic and religious minorities in China.” Under Secretary for Terrorism and Financial Intelligence Brian E. Nelson commented in a press release, “Today’s action highlights how private firms in China’s defense and surveillance technology sectors are actively cooperating with the government’s efforts to repress members of ethnic and religious minority groups.” The same day, the Commerce Department sanctioned 12 Chinese research institutes and 22 Chinese tech firms, restricting each from exporting or transferring U.S. technology.
It is too early to say whether—or to what extent—Section 5 of the Uyghur Forced Labor Prevention Act will lead to the sanctions of individuals for their role in enabling forced labor in Xinjiang. However, past moves demonstrate that the Biden administration is certainly willing to do so. In March 2021, a coalition of the U.S., the U.K., Canada and the European Union froze assets and restricted travel of multiple Chinese government officials it claimed were involved in the imprisonment of Uyghurs. At the time, Secretary of State Antony Blinken said, “A united transatlantic response sends a strong signal to those who violate or abuse international human rights.”
Ultimately, the Biden administration’s actions combined with Congress’s comprehensive legislation demonstrate the strong concern that U.S. officials have over China’s treatment of ethnic groups in Xinjiang and a commitment to maintaining pressure on Beijing, and corporations, over the issue. Going forward, the application and effectiveness of the Uyghur Forced Labor Prevention Act, the impact of the administration’s executive action, in conjunction with responses from Beijing and the international community, will be crucial indications for policymakers evaluating potential next steps in U.S. action on the issue