One Step Closer to Stopping the Import of Goods made with Forced Labour
By David Abramowitz, Humanity United
Published on February 28, 2016 in the Thomson Reuters Foundation News Blog
The International Labor Organization estimates that nearly 21 million people around the world are subject to forced labour. That astounding number begs the question: Who is buying the tainted fruits of that inhumane labour?
It should come as no surprise that many of the goods made with modern slavery end up being used and consumed here in the United States. Whether it is shrimp from Thailand, shirts made with cotton from Uzbekistan, or electronic devices made from coltan ore mined in the Congo, most of us wear, eat, tweet from, or even drive products touched by modern slavery.
It should never have been this way. In 1930, Congress passed the Smoot-Hawley Tariff Act, which included a provision barring the importation of goods made with forced or prison labour (later expanded to forced child labour as well). While this provision was primarily sought to prevent unfair competition in U.S. markets, it potentially had an important human rights component as well.
Unfortunately, the law included an exception, which swallowed the rule: if there were a “consumptive demand” for the good, then it could be imported even if it was made with slave labour. For example, there is a high demand for cocoa for use in chocolate, and the exception has allowed its import regardless of how the cocoa was produced because we cannot grow cocoa beans in the United States. Today, our appetite for foreign-made goods is so ubiquitous that the consumptive demand exception has become an insurmountable obstacle to enforcing this important prohibition.
Many years of advocacy recently paid off, however, when President Obama signed the Trade Facilitation and Enforcement Act, eliminating the odious exception. This is inspiring news for all who believe U.S. markets should not be open to goods made with modern slavery, and for those who want to press governments and companies to do more to end forced labour abroad. Finally, after 85 years of ineffectual enforcement, the U.S. Government has the leverage to implement this law in a way that will actually foster real change.
This is only the beginning of a long road, however, because decades of inaction on this provision have resulted in an atrophied and virtually useless system of enforcement. For example, Customs and Border Protection (CBP) within the Department of Homeland Security (DHS) is charged with seizing goods made with forced labour, but they have no capacity to investigate and document whether that is the case. CBP has to rely on public petitions or a different part of DHS, Immigration and Customs Enforcement (or ICE), to conduct investigations through their agents abroad. Unfortunately, this type of law enforcement coordination is notoriously tricky.
Moreover, CBP has both a trade facilitation function and a trade enforcement function. With a mission to both bring in goods and to keep them out, it is no wonder that existing investigations get bogged down. In addition, the current way the provision is enforced requires that a particular pallet of goods be identified as being produced in a particular factory where forced labour was used. While logical, it is also limiting. We need to look at parallel enforcement actions and determine whether, for example, there can be an effective presumption against importation of certain categories of goods we know are produced with forced labour.
The Administration will also need to develop a strategy for targeting goods, countries and companies using the limited investigative capacity available. ICE and CBP could focus on products from countries where it is known that forced labour is prevalent, and on products from companies that have done little or nothing to prevent forced labour in their supply chains. Information already available from the California Supply Chains Transparency Act and the Department of labour’s List of Goods made with Forced and Child labour can be used to tailor U.S. efforts. On a positive note, the recently-passed bill has a requirement that the United States Government report on its investigations under this provision, giving us insight into how it is being implemented.
And, of course, this will all require additional resources to ensure that these efforts are successful.
The repeal of the consumptive demand loophole was an important first step, and we should recognize it as the major achievement that it is. Now, we must redouble our efforts to ensure that the promise of this newly-strengthened law is fulfilled, and that imported goods we use in our everyday lives are free from modern slavery.
David Abramowitz is vice president for policy and government relations at Humanity United.