ATEST Recommendations to U.S. Trade Representative on Developing a Forced Labor Trade Policy

Terry FitzPatrick

August 5, 2022
The Honorable Katherine Tai
U.S. Trade Representative
Washington, DC
Electronic Submission to Federal eRulemaking Portal: https://www.regulations.gov
Docket Number USTR–2022–0006
Re: Trade Strategy to Combat Forced Labor

Dear Ambassador Tai,

Thank you for your leadership in the battle against forced labor by announcing that your office will develop a Forced Labor Trade Strategy.

Forced labor is not only  a gross violation of human rights. It is also an unfair trade practice. Countries that fail to fully enforce their own anti-trafficking and forced labor laws — or fail to honor their obligations under United Nations anti-trafficking and forced labor treaties — are, in effect, subsidizing the export of tainted goods into the global marketplace. Forced labor overseas undercuts American businesses and workers at home by creating unfair price competition. It also undermines trade between the U.S. and countries that effectively combat forced labor.

ATEST is a U.S.-based coalition that advocates for solutions to prevent and end all forms of human trafficking and modern slavery around the world. We advocate for lasting solutions to prevent forced labor and sex trafficking, hold perpetrators accountable, ensure justice for victims and empower survivors with tools for recovery. Our collective experience implementing programs in more than 30 cities at home and 100 countries abroad provides our coalition an unparalleled breadth and depth of expertise.

ATEST member organizations include: Coalition to Abolish Slavery and Trafficking (CAST), Coalition of Immokalee Workers (CIW), Covenant House, Free the Slaves, HEAL Trafficking, Human Trafficking Institute, Humanity United Action (HUA), Human Trafficking Legal Center, McCain Institute for International Leadership, National Network for Youth (NN4Y), Polaris, Safe Horizon, Solidarity Center, T'ruah: The Rabbinic Call for Human Rights, United Way Worldwide, Verité, and Vital Voices Global Partnership.

ATEST is pleased to offer the following recommendations to USTR's key policy formulation questions: 

How can the U.S. Government bolster the forced labor components of trade agreements and trade preference programs to have greater effect?

The Trade Promotion Authority legislation was amended in 2015 to prohibit any trade deals with countries ranked as Tier 3 (T3) in the annual U.S. Department of State (DOS) Trafficking in Persons (TIP) Report from being expedited through congressional approval. The same should be extended to countries on the report's Tier 2 Watch List (T2WL) and a Forced Labor Trade Strategy should include calls for legislation to do this. The TIP Report contains detailed narratives that can be useful in determining steps a country can take to improve their efforts to prevent forced labor. The U.S. Trade Representative (USTR) should take these recommendations into account when developing provisions to combat forced labor in trade agreements. The USTR should not “fast track” trade deals with countries receiving T3 or T2WL rankings.

The U.S. Trade Representative (USTR) should establish and publish standards to combat forced labor for countries with which it engages in trade deals. The National Security Council (NSC) should convene an Interagency Policy Committee (IPC), in consultation with survivors and non-governmental leaders, to develop key metrics and processes around human trafficking and labor rights that foreign states must meet before trade deals are finalized. These metrics should be articulated with reference to recommendations from the TIP Report, as well as vulnerabilities a country may have related to the Department of Labor List of Goods Produced by Child or Forced Labor, and should include mechanisms to evaluate the potential impact of deals on sex trafficking and forced labor. The IPC should produce a detailed report with recommendations for such a process, which should navigate any interagency disagreement and confirm the criteria. Such an IPC should ensure coherence with negotiations related to labor provisions in trade deals.

USTR and DOS should actively engage with foreign governments and civil society partners, including trade unions, around these metrics as applied to the specific states where deals are being negotiated, requiring minimum standards that are locally tailored and responsive to the civil society discussions before any deal is signed. When a deal is signed, the main body of the agreement should include a mechanism to determine ongoing compliance with these standards.

By following a set of minimum TIP standards to engage in a trade deal with a country, USTR can set a global standard for combating forced labor effectively through strategic trade negotiations. The United States cannot continue to claim to be a leader in the counter trafficking-in-persons movement while allowing goods produced with forced labor at any point in the supply chain into our country. Before engaging in any trade deals with other countries, the USTR should ensure the country is following a strict set of minimum TIP standards, including:

• Compliance standards based only on concrete actions taken by a country
• Standards for minimum compliance set by the Frederick Douglass Trafficking Victims Prevention and Protection Reauthorization Act of 2018 (P.L. 115-425)
• Any promotion of or participation in forced labor or human trafficking by a country as a violation of minimum standards of compliance

The USTR should ensure that all future trade deals provide an accessible mechanism for workers, worker organizations, and civil society organizations to file and adjudicate complaints about forced labor in all countries where that labor was rendered, and ensure that the complainants have full access to that country's legal system for such complaints, including portable justice mechanisms for migrant workers who may have returned to their origin countries or a third country.

U.S. trade agreements should recognize the particular vulnerability of migrant workers to labor rights abuses, including forced labor.  Article 23.8 of the United States-Mexico-Canada Agreement (USMCA) requires all parties to ensure that migrant workers are protected under their labor laws. Future trade deals should strengthen this commitment by requiring all parties to ensure that migrant workers, regardless of immigration status and regardless of sector, are not only covered by labor laws, but afforded the same protections as nationals. This includes ensuring that migrant workers have access to justice for workplace violations such as wage theft, workers compensation, etc., including “portable justice” meaning that they can access grievance mechanisms, administrative, and judicial proceedings even if they are returned to their origin country or a third country.

U.S. trade agreements should require parties to follow the International Labor Organization (ILO) Principles and Operational Guidelines on Fair Recruitment to effectively regulate recruitment agencies/labor contractors to end practices such as the retention of migrant workers' identity documents and the charging of recruitment fees. In addition, all parties should be required to adopt and implement an “employer pays principle” so that employers pay any fees charged by the contractor/recruiter and any visa or travel costs associated with relocating to work. As in other supply chain models, employers should be held accountable for any fraudulent recruitment practices or other violations committed by their recruiters, labor contractors, or other third party employers, regardless of the location in which such abuses occurred.

We urge the USTR to promote the critical role that respect for workers' fundamental rights to freedom of association, organizing and collective bargaining play in preventing extreme forms of labor exploitation. Simply put, promoting respect for these enabling rights is one of the best ways to address potential indicators of forced labor in global supply chains.

What new and innovative trade tools can the U.S. Government develop and utilize to advance efforts to combat forced labor in traded goods and services?

The Uyghur Forced Labor Prevention Act (UFLPA) (Pub. L. 117-78) provides an innovative approach to restricting imports from an area with a high prevalence of forced labor. The presumption that goods from such an area are tainted unless proven otherwise, and therefore banned from import into the U.S., is an approach that should be considered by the USTR for trade involving other regions or economic sectors. The incidence of Withhold Release Orders by U.S. Customs and Border Protection for a particular country or region, and the inclusion of goods on the U.S. Labor Department's List of Goods Produced by Child or Forced Labor, together with country-specific information in the TIP Report, should be factors utilized by the USTR in developing provisions to combat forced labor in trade agreements.

How can the U.S. Government make the development of trade policy on forced labor a more inclusive process?

Worker organizations, civil society organizations, and those with lived experience of forced labor in foreign countries should be consulted in the development of U.S. trade policy on forced labor – and on any future trade deals. They are on the front lines and have first-hand expertise.

Do you have additional recommendations for monitoring, tracing, or eliminating forced labor in traded goods and services in supply chains?

One factor that the USTR should take into account in considering trade relations with a country or region is the extent to which they have enacted laws or regulations to create corporate accountability or liability and mandatory human rights due diligence requirements regarding forced labor in product supply chains.

Thank you for the opportunity to offer these recommendations. ATEST member organizations stand ready to assist at any time with any questions you might have as your policy development work continues. Please contact ATEST Director Terry FitzPatrick: [email protected] | 571-282-9913.