On September 14, the European Commission (EC) submitted a proposal to combat forced labour worldwide. The executive body of the EU wants to remove all products from the European market made by people who are forced to work. This concerns both products made with forced labour by the state, as is the case with the Uyghurs in Xinjiang, for example, and products where private companies force people to work.
The EC is well aware that eliminating forced labour is urgently needed. Recent figures from the ILO show that around 28 million people worldwide are forced to work. Five years ago, this number was 25 million, so there is a worrying, increasing trend. We described the practice for the victims in our report Spinning around workers’ rights (2021): textile workers in Tamil Nadu, India, work extremely long hours without being paid enough. And the refusal of work – if workers dare to do so at all – is followed by intimidation, withholding wages, dismissal, and sometimes violence.
The submitted proposal is, therefore, a step in the right direction. The regulation provides the Member States with detailed instructions on how to implement the rules. But the regulations are unlikely to be sufficient to effectively eliminate forced labour.
For comparison, look at the United States, where rules to ban products made with forced labour have been in place for some time. The law allows for two approaches. The first is the so-called Withhold Release Order: products from companies or places that, based on available information, are assumed to be forced labour, are stopped at the border. This has a relatively low burden of proof. Customs then send the goods back or, if the situation improves, allow them when that happens.
In the second option, the sanction is more severe – products are destroyed or confiscated by the US – and a significantly higher burden of proof applies. Perhaps unsurprisingly, most cases end up with a Withhold Release Order. The regulations now proposed in Europe only give the option of a heavy sanction, for which the threshold is high. It means it will be more difficult to get goods banned in Europe for civil society and other actors who want to submit evidence.
In addition, the European regulations emphasise handing out sanctions to the perpetrators, just like those in the US. The proposal says less about what is arranged for victims of forced labour. A detailed form of Access to remedy is missing, which rightly forms an important part of the UN Guiding Principles and the OECD Guidelines for multinational companies. The EC should have given this part more importance.
The European proposal also focuses on individual economic entities such as factories, instead of the areas where factories are located. In a region like Xinjiang, this leads to problems because auditors often have little or no access to the factories. What threatens is a waterbed effect, in which production moves between factories in an area. A better option would be to ban everything from the area, instead of only products from the factories about which specific information is available.
Finally, the functioning of the regulations requires companies to provide insight into their supply chain as part of their due diligence. As long as companies do not map their chain and report it publicly, there is a great risk that forced labour will go unnoticed. Additional legislation at the national and European levels would ensure that we no longer have limited information about what goes on in supply chains.
The fact that the EC is taking steps against forced labour is positive. But it takes more for large-scale control to be effective. And the proposal shows once again that it is time for broader legislation: mandatory environmental and human rights due diligence for all companies.