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OPINION: Underused and overlooked, trade remedies may stop forced labour

by Martina Vandenberg & Anasuya Syam | The Human Trafficking Legal Center
Friday, 19 June 2020 14:23 GMT

A worker unloads a delivery from Indonesia at CNC Cabinetry in South Plainfield, New Jersey, U.S., June 16, 2020. REUTERS/Andrew Kelly

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* Any views expressed in this opinion piece are those of the author and not of Thomson Reuters Foundation.

Trade remedies may be more effective at preventing forced labour than criminal justice systems, but are frequently overlooked

Martina E. Vandenberg is the founder and president of The Human Trafficking Legal Center

Anasuya Syam serves as the Human Rights and Trade Policy Advisor at the Human Trafficking Legal Center

Rubber gloves. Binder clips. Tobacco. Gold. Diamonds. Tuna. Toys. These are just some of the goods blocked from entering the United States by an obscure law that bans products made with forced or prison labor from entering U.S. markets. This week marks the 90th anniversary of that law, the Smoot-Hawley Tariff Act, also known as the U.S. Tariff Act of 1930. Almost a century later, the law remains one of the most underused – but most promising – tools to combat forced labor in supply chains.

How underused? Just last year, Thomson Reuters Foundation reported that the Tariff Act import ban had netted just a tiny fraction of the $400 billion in goods tainted by forced labor entering the U.S. market. In all, between 2016 and 2019, the U.S. Government suspended just $6.3 million worth of goods, ranging from artificial sweetener to garlic. Eric Gottwald, deputy director of the International Labor Rights Forum, called the $6.3 million “a drop in the bucket.”

In nine decades, the forced labor provision of the Tariff Act, Section 307, has given rise to just 49 orders to bar entry of goods into the U.S., approximately one every two years.

There are signs of change. Trade remedies, recently dusted off, are holding importers accountable. U.S. Customs and Border Protection (CBP) has already issued three orders, known as Withhold Release Orders or WROs, this year. That brings the total to 16 since 2016. The Tariff Act prohibition on forced labor has tremendous potential as a tool to eradicate forced labor in supply chains.

That potential rests in the hands of advocates and workers worldwide. Anyone can file a petition to block goods from entry. It is enough for U.S. Customs and Border Protection, the agency that administers the law, to find reasonable proof of forced labor in the overseas production of the goods. A new guide, Importing Freedom: Using the U.S. Tariff Act to Combat Forced Labor in Global Supply Chains, explains the nuts and bolts of petitioning the U.S. Government. It is easy. And, more than ever before, it can be successful.

A recent surge in the number of Withhold Release Orders issued by Customs and Border Protection illustrates the Tariff Act’s renewed significance. On May 1, 2020, the U.S. Government issued an order detaining hair products from a manufacturer in Xinjiang, China. On May 14, 2020, the U.S. Government blocked entry of fish caught by a Taiwanese shipping vessel over allegations of forced labor. And on June 17, 2020, CBP issued a second order detaining additional hair products from Xinjiang, China.

Historically, more than 70 percent of the Withhold Release Orders issued by CBP have targeted goods produced in China. But even that pattern is beginning to change. More recent orders have blocked goods produced with forced labor in Malaysia, Brazil, Malawi, Democratic Republic of Congo, and Zimbabwe. Worker rights and human rights advocates, such as the Corporate Accountability Lab, have filed petitions advocating for action under the Tariff Act to block imports of chocolate harvested with forced child labor in Côte D’Ivoire. Additional petitions are in the pipeline. And CBP has undertaken investigations to identify goods violating the prohibition on forced labor.

As we mark the 20th anniversary of the Trafficking Victims Protection Act and the U.N. Trafficking Protocol, it is time to take stock and explore new, creative remedies. It is time to acknowledge that the criminal justice system has failed. The International Labor Organization estimates that nearly 25 million men, women, and children are held in all forms of forced labor around the globe. But in 2018, the U.S. State Department reports that there were just 457 forced labor prosecutions in the entire world. That is one prosecution for every 43,982 people the ILO estimates are held in forced labor.

That, too, is a drop in the ocean.

Forced labor remains a feature, not a bug, in international supply chains. Year after year, states have demonstrated that they do not have the political will to criminally prosecute forced labor. Year after year, corporations have demonstrated that their commitment to ending these abuses is rhetorical, at best. It is time to demand accountability for forced labor.