Business and human rights: pressure builds towards tougher stance over alleged abuses in Xinjiang

Stephen MulrenanThursday 11 February 2021

In mid-January, Dominic Raab, the UK Foreign Secretary, warned companies they could face fines if they cannot prove that their supply chains are free of forced labour. Criticising China over mounting evidence of human rights abuses towards ethnic minorities in the Xinjiang region, Raab said the measures would send a ‘clear message’ that such violations are ‘unacceptable’.

In addition to considering financial or civil penalties for non-compliance, the UK government is expected to extend the number of organisations subject to reporting obligations under the Modern Slavery Act (MSA); introduce binding rules on the content, timing and publication of modern slavery statements; and propose a single enforcement body to oversee MSA compliance.

In September last year, the UK launched a parliamentary inquiry into human rights abuses in Xinjiang, specifically the mass detention of the Uighur people. This called for written evidence including on how the UK could use organisations – such as the UN Human Rights Council – and agreements to influence China towards better human rights practices.

There’s no reason why a domestic court – and we’re talking about the higher levels of our judiciary – could not hear the evidence of a matter and decide whether the bar for genocide had been reached

Baroness Helena Kennedy QC
Director, IBA’s Human Rights Institute

Federica D’Alessandra, Immediate Past Co-Chair of the IBA Human Rights Law Committee and Executive Director of the Oxford Programme on International Peace and Security, co-authored one such evidence submission, which reviewed measures under domestic and international law available to the UK.

An inquiry is one of the least confrontational options, she says, and can be used as leverage under – and to reinforce – any of the additional tools and avenues available.

In the US, the Uyghur Forced Labor Prevention Act (the ‘Act’), currently before Congress, will require companies to prove their profits haven’t been made through forced labour by Uighur Muslims and other ethnic minorities in Xinjiang.

‘It’s an important piece of legislation that helps push the idea that China needs to open up to international human rights goals and immediately cease what is the largest arbitrary detention solely on the basis of race since the Second World War’, says Sophie Richardson, China Director at Human Rights Watch.

Baroness Helena Kennedy QC is Director of the IBA’s Human Rights Institute (IBAHRI) and heavily involved in the UK parliamentary group on such issues. ‘The more that the West and developed countries that are respectful of the rule of law take steps to ensure that they’re not going to buy products from these places, the more likely it is that we will see change taking place in China’, she says.

Various multinational corporations (MNCs) as well as business groups such as the US Chamber of Commerce argue that the proposed US Act could wreak havoc on supply chains that are deeply embedded in China. They would like to dilute some provisions, such as easing disclosure requirements and extending some deadlines for compliance.

Although it enacted the MSA in 2015, Baroness Kennedy says the UK has historically been soft on corporates. ‘We basically said, “you can self-regulate but there is a requirement to put that into your public documents”. The question is […] to what extent is that box-ticking?’

While MNCs often use third-party auditors to closely monitor suppliers, many companies argue that eliminating ties to forced labour in Xinjiang is difficult given the lack of transparency in Chinese supply chains and the limited access of auditors to the region.

Xinjiang produces huge amounts of raw materials, such as cotton and coal, and supplies workers for various apparel and footwear factories around China. In March 2020, a report by the Australian Strategic Policy Institute estimated that more than 80,000 Uighur Muslims were transferred out of Xinjiang between 2017 and 2019 under a central government policy known as Xinjiang Aid.

Although the Chinese government argues that participation in Xinjiang Aid is voluntary and has denied any commercial use of forced labour from the region, former US Secretary of State Mike Pompeo described China’s repression of Uighur Muslims as ‘genocide’.

Baroness Kennedy is supporting a House of Lords all-party amendment to the UK’s Trade Bill, which would give the High Court the right to declare if countries are committing genocide.

The thinking behind the amendment is that the UK should not be striking bilateral trade deals with countries that the Court assesses have committed or are committing genocide. However, the UK government argues that parliamentary sovereignty could be diminished by giving the Court such a role, and that any charge of genocide is a matter for international courts.

‘We know that we’re not going to be able to get a prosecution of China on genocide at the International Court of Justice (ICJ)’, says Baroness Kennedy. ‘Not under the current procedural rules of how to do that. Do you think that any of those countries that are indebted to China are going to agree to that?’

‘There’s no reason why a domestic court – and we’re talking about the higher levels of our judiciary – could not hear the evidence of a matter and decide whether the bar for genocide had been reached’, she adds.

‘It would be using something that’s always existed within our law, which is the power of a court to make a declaration. And given the high regard that the British justice system and our senior judiciary has in the world, this would undoubtedly have ramifications everywhere’, says Baroness Kennedy.

China is never likely to accept the compulsory jurisdiction of the ICJ given its historical position that human rights matters are squarely matters of internal affairs. This is why it’s so important for UK domestic courts to be empowered to make genocide determinations and give effect to UK obligations under the UN Genocide Convention, says D’Alessandra.

‘A domestic ruling that could impede the negotiation of a bilateral trade treaty with a nation that is found to have violated the Convention, at least without the consent of parliament, would open an important space domestically to buttress other international human rights remedies with much stronger avenues for accountability and action’, she says, adding that ‘these would have real bite as they would be based on economic incentives’.

The UK government says there are no immediate plans to secure a free trade deal with China. Yet trade volume between the countries hit a record $86.27bn in 2019 and increased by 2.8 per cent year-on-year in the first ten months of 2020.

‘What one would hope is that by passing this amendment it will help in the conversations that we have with China’, says Baroness Kennedy, acknowledging the importance of the trade relationship. ‘China doesn’t want to be deemed to be a genocidal nation and its people do not want to be seen by the world as such.’

Many companies are shifting their production away from China in preparation for a ‘decoupled’ global supply chain. For example, Apple announced in late January it would be escalating the scale of its production of iPhones and iPads in India and Vietnam respectively, at China’s expense.

Although China’s rising labour costs, political tensions between Washington and Beijing and the supply chain disruption caused by the pandemic have all highlighted the risks of depending heavily on one country, Baroness Kennedy believes that pressure is building for a tougher approach on human rights abuses in Xinjiang.

‘One of the reasons why this is now a hot topic is because China’s own policies have become more visible to the world’, she says. ‘We now have drones that fly above the areas where the Uighurs are being detained in camps, and they have also provided us with images of people on their knees in stations being transported to these camps.’

Header pic: Uighur women work in a cloth factory in Hotan County, Xinjiang, China, April 2019. Shutterstock.com / Azamat Imanaliev

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