Forced Labour Import Bans: What Does the Evidence Tell Us?
On 15 September this year, Ursula von der Leyen, the European Commission President, announced that the Commission would be proposing an EU law prohibiting the import of any goods made using forced labour. This is just one of the latest developments in the fast-changing debate on forced labour import bans.
Import bans have recently been in the news as U.S. Customs and Border Protection (CBP) has stepped up its introduction and enforcement of Withhold Release Orders (WROs) — orders under the Trade Facilitation and Trade Enforcement Act 2015 seizing shipments of imported goods that are suspected to have been produced using forced labour. Similar legislation was introduced in Canada in 2020, a private Senator’s Bill on the topic recently received support in the Australian Parliament and there is increasing discussion of import bans by NGOs and Parliamentarians in the UK and the EU.
Yet there is rarely much reference to evidence in this debate. How much do we know about whether import bans work? What does it mean for them to be effective? Can they really reduce or prevent forced labour in supply chains? The Modern Slavery and Human Rights Policy and Evidence Centre (Modern Slavery PEC) published a Policy Brief in July this year exploring these questions, based on a review of the existing evidence. The Modern Slavery PEC has now updated that Policy Brief to take account of new developments.
Reviewing the evidence
To produce this Policy Brief, the Modern Slavery PEC reviewed relevant academic literature as well as public reports and rated the quality of the evidence available using a traffic light system. The aim of the Policy Brief is to give decision-makers a concise, accessible overview of the latest evidence alongside an indication of the strength of the evidence base against relevant questions.
The overall picture is quite complex. Forced labour import bans are not new, but they were not used much until quite recently, so we do not have much data to draw on, and there is little research that examines their effectiveness directly. There may be some lessons we can learn from similar instruments, such as global economic sanctions regimes, but more work is needed to provide policymakers with the necessary evidence on how well import bans work and how best to design them.
What should import bans look like?
Based on the evidence we do have, it is clear that import bans are complex tools that can be implemented in a number of different ways. Legislation that provides the framework for import bans can be designed with a broader or narrower scope and more or less flexibility. For example, legislation could provide for a ban on the import of goods from a particular region or sector where forced labour is known to be endemic. Alternatively, legislation can delegate the decision on the scope of individual bans to an implementing agency, as is the case in the U.S., allowing bans to be introduced on a case-by-case basis.
Legislation in this area needs to make several things clear. There should be an established threshold for the evidence required to seize a particular consignment of imported goods; businesses affected by a ban need to know how they can comply with it and, if necessary, challenge the seizure of goods; and there should be clarity on who will monitor and enforce bans.
Depending on the shape of the legislation, the monitoring and enforcement of import bans can be challenging. The NGO Worker Rights Consortium estimated that just one WRO introduced by CBP could potentially affect up to USD 20 billion of apparel sales per year in the US, which would imply a very high number of potential shipments and companies to monitor or investigate.
How effective are import bans at tackling forced labour in supply chains?
So far, we have limited evidence on the effectiveness of import bans at reducing forced labour in supply chains as there has only been limited research on the topic, but there are examples of at least some short-term impacts. For example, in July 2020, CBP issued a WRO against a Malaysian glove manufacturer, Top Glove, which was alleged to have used forced labour. The company agreed to improve workers’ accommodation and to refund foreign workers who had paid fees in order to obtain their jobs. In March 2021, however, CBP issued a “formal finding” — which is a conclusive determination that merchandise is produced by forced labour following the issue of WRO, which itself is based only on “reasonable” information — that there was evidence of forced labour use in the production of disposable gloves by Top Glove. This suggests that the issues initially identified had not been fully remedied. Eventually, in September 2021, CBP allowed imports of the company’s products to resume. But there has also been extensive media coverage, NGO advocacy and government interest in the situation, so unpicking the influence of the WRO itself is challenging.
The long-term and unintended impacts of import bans are even harder to understand with the evidence that we have. Recent research funded by the Modern Slavery PEC confirmed that the exploitation of migrant workers is widespread across the glove manufacturing sector in Malaysia, and in some respects even increased during the COVID-19 pandemic. Yet in 2020 and 2021 multiple companies in the sector announced and began work on programmes to repay the recruitment fees paid by migrant workers, which may be linked to the threat of further WROs being introduced. In fact, CBP introduced two further WROs aimed at Malaysian glove manufacturers in October and November 2021.
It is also important to remember that import bans are trade instruments, and as such they exist in a complex geopolitical context. Of the 15 WROs issued by CBP in 2020, nine were linked to rights violations against the Uyghur population in China. In 2021 to date, of seven WROs introduced, two are linked to Uyghur rights violations. The Chinese government has imposed a wide range of sanctions on foreign individuals and entities that are explicitly in response to sanctions imposed on China in relation to those violations.
The political context is one factor that means that bans may have unintended and difficult to predict consequences. These could be positive (if countries or sectors step up their labour standards to avoid the threat of a ban), or negative (if an import ban hurts a sector, reducing job opportunities and potentially increasing the vulnerability of those whose livelihoods are affected).
What’s clear is that the drivers of forced labour in supply chains are complex and no single action, such as an import ban, can be effective on its own. Import bans have their place in the toolbox, but they are just one tool among many and should be carefully considered alongside other levers when tackling modern slavery in supply chains.
Debate on the introduction and implementation of import bans continues in several countries. It will be particularly interesting to follow the progress of the upcoming European Commission proposal. The Modern Slavery PEC will continue to update our Policy Brief to reflect future developments, while publishing further Policy Briefs on other regulatory and non-regulatory tools that aim to tackle modern slavery in supply chains.
This article has been prepared by Owain Johnstone as a contributor to Delta 8.7. As provided for in the Terms and Conditions of Use of Delta 8.7, the opinions expressed in this article are those of the author and do not necessarily reflect those of UNU or its partners.