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70 Critics Outline EU Forced-Labor Fixes

More than 70 human-rights organizations, civil society groups and trade unions, including Anti-Slavery International, the Clean Clothes Campaign, Human Rights Watch and the World Uyghur Congress, have signed a letter Thursday urging the European Commission to beef up proposed legislation to ban goods made with forced labor.

The draft law, an “essential step toward building a smart mix of tools to help eliminate forced labor across the world, as per European Union commitments,” is good in theory, they said, lauding the fact that it covers products from all regions and all company sizes. Its problem, however, is that it falls “significantly short” of its potential by failing to put the 17.3 million people in forced labor in the private sector and the 3.9 million people in state-imposed forced labor “at its heart.”

Of “greatest concern,” the letter said, is that the proposal doesn’t take into account the “fate” of workers forced into exploitation, whether in or outside the 27-member bloc. It is therefore “essential” that the draft legislation is amended to ensure that the views and interests of both affected and potentially affected workers are given their due at all stages of the investigation and decision processes.

Another missing focus? Remediation. Without redress, including from buyers, victims cannot “rebuild their lives and dignity.”

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Competent authorities should also take advantage of the investigation process to engage with workers and their representatives, allowing them to use a potential ban as “leverage” to improve conditions, enable remediation and access to justice, and identify and mitigate any unintended consequences that a successful ban might cause.

“It is fundamental that the appropriate remediation and preventative measures are discussed and decided upon with relevant stakeholders, communities, workers and their representatives, including trade unions, to ensure they respond to the actual needs of affected workers and are credible, appropriate and crucially include reform of purchasing practices,” the letter said. “Such measures should also be tied to the lifting of any product ban.”

Due diligence by companies is essential, the organizations added, but it should not be used as a shield to discourage investigations. Companies should also be required to map and publicly disclose suppliers, sub-suppliers and business partners across their entire value chains. Otherwise, both competent authorities and petitioners will face “significant obstacles” when they try to track down entities linked with forced labor.

“Making this essential information public, as well as the decisions on offenders, would also assist companies (and small and medium-sized enterprises in particular) to assess the risk of forced labor in their value chains and to undertake effective due diligence measures,” the letter said. “It would also help the general public, concerned groups, organizations, communities and workers themselves to monitor the situation and submit better information on alleged violations to the competent authorities.”

Still, the signatories said that it is “regrettable” that the proposal in its present form foresees only one “ultimate” sanction: a prohibition on placing offending products on the market, along with an obligation to dispose of existing products. Such a decision, they said, relies on a very high evidentiary standard with the “burden of proof being placed entirely on the member state competent authority,” rather than the companies involved. (This stands in contrast with the “rebuttable presumption” that the Uyghur Forced Labor Prevention Act in the United States employs.) Furthermore, pending the outcome of an investigation, products can remain “freely available” on the market, during which time they might be rerouted to other markets, thereby “depriving the regulation of its effectiveness and essence.”

The proposal also fails to “explicitly” include the scope for bans on entire product groups from a region, such as cotton from Turkmenistan and China’s Xinjiang Uyghur Autonomous Region, the letter said. This poses “severe limitations” in grappling with the pervasiveness of systemic state-imposed forced labor in European supply chains and compelling companies to take action, it added.

This ties in with the draft law’s focus on the product-line level, which “disregards the fact that forced labor is often a systemic pattern across an entire producer, manufacturer or importer—regardless of the product.” While identifying problematic goods is important as a starting point, the organizations said, forced labor should not be “addressed in silos.” The problem tends to be the facility, not the product itself.

Indeed, absent from the proposal is a pathway that addresses the root causes of forced labor, the letter said. It recommended creating a set of accompanying measures that could include capacity strengthening and funding to support communities and workers to tackle abuses such as discrimination, power imbalances, unfair purchasing practices, a lack of livelihood opportunities, the absence of a living wage and land rights.

Equally important to include, according to the signatories, are mechanisms that protect all affected stakeholders, including but not limited to the petitioners themselves, from retaliation for engaging with companies and enforcement authorities either during the investigation or while discussing remediation measures. Confidentiality should be “automatic,” unless the petitioner decides otherwise. A worker’s status as a potential victim of forced labor should also be given “full” precedence over any potential immigration enforcement action whether or not the investigation concludes that forced labor has taken place.

“These measures would empower affected workers and stakeholders to better understand and claim their rights and restore their own agency,” the letter said.