How can forced labour import bans help workers build power?

Blog by Prof Jennifer Gordon, Fordham University School of Law, Dr Sofia Gonzalez de Aguinaga, BIICL, Research Leader at the Modern Slavery and Human Rights Policy and Evidence Centre and Dr Maayan Niezna, University of Liverpool.

On June 4th Prof Jennifer Gordon, Dr Sofia Gonzalez de Aguinaga and Dr Maayan Niezna discussed the potential of labour import bans as a tool for raising labour standards in supply chains at the Bonavero Institute of Human Rights in the University of Oxford. The event was co-organised by the Modern Slavery and Human Rights Policy and Evidence Centre (Modern Slavery PEC) and the University of Liverpool and focused on discussing Prof Jennifer Gordon’s recent research report exploring advocates’ use of section 307 of the US Tariff Act of 1930.

Dr Sofia Gonzalez de Aguinaga highlighted that this is a timely and relevant discussion, as forced labour import bans, a regulatory tool available to States to address forced labour in global supply chains, are increasingly being developed in Europe and North America. Earlier this year, the European Parliament approved a new regulation which will enable the EU to prohibit the sale, import and export of goods made using forced labour. In North America, the US Uyghur Forced Labour Prevention Act (UFPLA) was passed in 2021 to complement the already established forced labour regime in the US under section 307 of the US Tariff Act of 1930. Canada and Mexico have also introduced forced labour import ban provisions as part of the 2020 North American trade agreement.

But how effective are these bans? The Modern Slavery PEC’s brief from 2021, which is now being updated, found some evidence to suggest that import bans can lead to business changing corporate practices in the short term, but less is known on their long-term impacts. Prof Jennifer Gordon’s recent report in turn suggests that advocates may be able to use the US forced labour import ban in strategic ways as part of efforts to raise labour standards in supply chains.

Prof Gordon identified three kinds of strategic approaches that advocates might take in preparing petitions under S. 307. First, those targeting supply chains at the top, seeking to change the practices of brands or retailers in the US or other importer countries. Second, those targeting the middle of the supply chain, seeking to change the practices of major suppliers in producer countries. Third, those targeting the bottom of the supply chain, seeking to support efforts to build worker power in producer countries. This third approach is the principal focus of her paper and was the focus of the discussion during this event.

Advocates in and outside the US have already used petitions under S. 307 as part of efforts to exert pressure on brands and retailers and major suppliers at the top and middle of the supply chain to change their policies and practices. However, the use of S. 307 as a tool to build power for workers at the bottom of supply chains who are organising and to offer them leverage to demand better conditions is yet to be tested.

The report outlines an approach that trade unions and labour advocates could consider taking to this end. Where workers who face conditions of forced labour at the bottom of supply chains are organising, trade unions and their allies might prepare a petition and share it with brands and major suppliers. They would ask those firms to come to the table to agree to legally binding standards to eradicate forced labour at their suppliers and would refrain from filing while negotiations were underway. The goal of the negotiations would be a “worker driven social responsibility” accord, enforceable brand agreement, or other enforceable contract, through which the lead firms committed to support minimum standards and agreed to respect the results of collective bargaining between the workers and their employer. Importantly, Prof Gordon highlighted that advocates in the US, and the US Customs and Border Protection Agency itself, are increasingly interested in worker driven approaches to avoid or remediate forced labour.

Following Prof Gordon’s presentation, Dr Maayan Niezna led the group discussion focusing on the risks posed to workers that may arise when using this strategy. She mentioned the ongoing challenge of ensuring that measures to address forced labour in global supply chains do not end up doing more harm than good, for example resulting in unemployment rather than improved conditions, exemplified by two UK cases in Leicester’s garment sector and in the health and care sector. She thus asked what considerations can guide advocates when deciding whether to file a petition.

She also asked to what extent negotiating ‘under the shadow of the law’ may lead to the expected results, and how significant or frequent the sanctions need to be to make them effective enough to bring firms to the table. Other questions from attendees related to policy coherence with other regulatory measures such as mandatory human rights and environmental due diligence legislation.

Three key takeaways from this discussion that the Modern Slavery PEC will explore in more detail in its updated briefing on the effectiveness of forced labour import bans include:

1. The anticipatory effects of forced labour import bans. For instance, is there evidence to inform when the threat or real possibility of such sanctions being imposed may be sufficient to catalyse business action to address modern slavery?
2. The unintended consequences of forced labour import bans. For example, when would these instruments lead businesses to cut and run rather than to engage with workers and suppliers?
3. Power imbalances. How could forced labour import bans be designed to address power imbalances and put workers’ rights at the centre? (e.g., remediation, burden of proof).

The Modern Slavery PEC will publish the updated analysis in the autumn and will continue engaging in this subject with academics, practitioners and policymakers. Read the first briefing here.