Loyola University Chicago School of Law, JD 2024
China has long persecuted individuals in their Xinjiang region, mostly Uyghurs and Turkic Muslims. Specifically, the Chinese government has a long history of forcing Uyghurs and Turkic Muslims to do manual labor. These human rights violations prompted President Biden to sign the Uyghur Forced Labor Prevention Act (UFLPA) into law late last year. On June 21, 2022, the UFLPA went into effect, blocking the importation of goods made from forced labor in the Xinjiang region of China. The law has four main functions. It employs both an enforcement strategy and a diplomatic strategy, it applies a presumption that all goods from the Xinjiang region are barred, and it has required sanctions. Although the United States had previously restricted imports from the Xinjiang region under the Trump administration, this is the furthest step forward the US government has taken to eliminate imports from the region all together.
The focus of the law
Robert Silvers, the chair of the U.S. Department of Homeland Securities Forced Labor Enforcement Task Force, said that “forced labor is now a top-tier compliance issue”. The UFLPA was enacted by Biden, which had overwhelming bipartisan support, with the sole purpose of stopping and hopefully preventing further forced labor. Previously, the United States had already begun to restrict its imports from the Xinjiang region with the Withhold Release Order (WRO) on cotton and tomato imports under the Trump administration, however, this law is the most progress an administration has taken to fully eliminate the forced labor imports from the region. The enforcement strategy employs the Forced Labor Enforcement Task Force to issue lists and guidance to importers facilitating due diligence, whereas the diplomatic strategy requires the Department of State to issue lists to help with due diligence efforts. The Act also forces the U.S. Customs and Border Protection (CBP) to presume that any goods produced in the region are barred from being imported. Lastly, the Act, incorporating the Uyghur Human Rights Policy Act of 2020, requires the president to sanction any foreign person involved in forced labor in Xinjiang. The president can sanction even Chinese government officials for being involved in forced labor, and the sanctions can come with criminal or civil penalties.
What has the law changed?
The UFLPA shifts the burden of preventing forced labor imports from U.S. customs officials to the companies receiving imports, who would face a heavy burden in rebutting the forced labor presumption. The companies sourcing from Xinjiang would need to provide “clear and convincing evidence” that there is no forced labor- an almost impossible threshold since Xinjiang has become rampant with government surveillance, making a lack of access to factories, and causing investigations into their forced labor to stall. The investigative burden is steering many companies away from importing any goods from the region, however, companies that regularly import cotton, tomatoes, and polysilicon from the region are being heavily impacted. Companies were unprepared for such strict regulation and will now face a challenging adjustment period where they will be forced to proceed with the burden of proving no forced labor in Xinjiang or getting supplies from other countries.
Facilitating legitimate trade is a very important thing for the world and specifically, the United States to participate in. The burden should fall onto the companies participating in such trade to prove that the goods were not a product of forced labor. Placing the burden on companies ensures that, if they want to continue importing from Xinjiang, they do so responsibly. Chairman Silvers has said that the Department of Homeland Security has allocated substantial resources to ensure the successful implementation of the Act. In the three months since it has gone into effect, the act has already targeted over 1400 cargo entries totaling 429 million dollars. The prioritization of the Act is incredibly important as it is putting on a strong front that companies will actually have to comply with the law. However, in order to ensure maximum impact, the Act could be further amended to add more consequences for companies that import products that are found to be made from forced labor including financial penalties since they are engaging in criminal conduct.