International forced labor import bans: a case for wto compatibility

• Pages: 619-676
• Date: 01 July 2024
• Published date: 01 July 2024
• Author: Jennifer Hillman,Wesley Chen,Luke Rowe,Natasha H. Sarna
• Subject Matter: Derecho Internacional

INTERNATIONAL FORCED LABOR IMPORT BANS:

A CASE FOR WTO COMPATIBILITY

JENNIFER HILLMAN*, WESLEY CHEN†, LUKE ROWE‡, AND NATASHA H. SARNA§

ABSTRACT

Several countries have had long standing (but rarely used) laws on their

books authorizing bans on the import of goods made with forced labor. The com-

bination of substantial evidence of detentions of Uyghur and other ethnic

minorities in massive labor camps in China’s Xinjiang Uyghur Autonomous

Region and the work of civil society groups to document the use of forced labor

in global supply chains changed that, with countries making far greater use of

their existing laws and enacting a number of additional provisions, like the

Uyghur Forced Labor Prevention Act and the Countering America’s

Adversaries Through Sanctions Act in the United States. The increased enforce-

ment of import bans has raised questions about whether such actions are con-

sistent with prevailing international trade rules, particularly the World Trade

Organization (WTO) rules prohibiting export or import bans.

This Article analyzes the compatibility of forced labor bans with WTO obliga-

tions and outlines the available defenses justifying any measures that might be

* Jennifer Hillman is a Professor from Practice at the Georgetown University Law Center, a Co-

Director of Georgetown Law’s Center on Inclusive Trade and Development, and Senior Fellow at

the Council on Foreign Relations.

† Wesley Chen is a graduate of Georgetown University Walsh School of Foreign Service (B.S.F.

S., ‘20) and Georgetown University Law Center (J.D., ‘24). He is currently an LL.M. candidate at

Cornell Law School.

‡ Luke Rowe is a graduate of the University of New South Wales, Australia (J.D., ‘16) and

Georgetown University Law Center (LL.M., ‘23). He currently works in trade and f‌inancial

integrity research and policy.

§ Natasha H. Sarna is a graduate of Harvard College (A.B., ‘18), the University of Oxford (MSt,

‘19) and Georgetown University Law Center (J.D. ‘24). She currently works in London and would

like to acknowledge the support of her family, friends, and partner.

Together, the authors would like to acknowledge the support of TradeLab and the

Georgetown University Law Center International Economic Law Practicum, through which this

paper was developed, and especially Professors Katrinn Kuhlmann and Jennifer Hillman. They

would also like to thank Simon Lester, co-founder of China Trade Monitor and WorldTradeLaw.

net, and non-resident fellow at the Baker Institute, for his invaluable contributions on WTO law

and dispute settlement history and Brenda Smith, formerly of U.S. Customs and Border

Protection, for her insight into U.S. legal instruments and process. Finally, they would like to

acknowledge and thank the students of the Georgetown Law International Economic Law

Practicum for their invaluable review and feedback. V

C 2024, Jennifer Hillman, Wesley Chen, Luke

Rowe, and Natasha H. Sarna.

619

deemed inconsistent with WTO rules. It takes as its point of departure the

International Labour Organization’s Forced Labour Convention, 1930 (No.

29) def‌inition of forced labor: “all work or service which is extracted from any

person under threat of a penalty and for which the person has not offered him-

self or herself voluntarily.” It summarizes the actions taken in the United

States, both in response to the widespread use of forced labor in Xinjiang and

in the newly added provisions to the United States-Mexico-Canada Agreement,

along with an assessment of recent actions in the United States and the

European Union prohibiting products made with forced labor.

The Article examines the key applicable WTO disciplines: General Agreement

on Tariffs and Trade (GATT) Article XI’s prohibition on export or import

bans, GATT Articles I and III, and the Technical Barriers to Trade Agreement

non-discrimination provisions. It f‌inds that Article III provides a carve out for

import bans if there is a comparable ban on domestic goods made with forced

labor and that consumer preferences against buying products made with forced

labor may provide a basis to lawfully discriminate against forced labor-made

goods. The Article further notes that even if an import ban were found to run

afoul of the WTO rules, it can likely f‌it within the general exceptions for meas-

ures designed to protect public morals or human life if implemented fairly and

transparently.

The Article concludes that carefully designed forced labor import bans can be

imposed consistent with, or defensible under, the WTO Agreements. It suggests

that the best way to advance such import bans is to ensure that they are univer-

sally applicable, that they have analogous domestic prohibitions, and that they

are procedurally consistent, transparent, and f‌lexible.

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 621

II. EFFORTS TO COMBAT CIRCULATION OF PRODUCTS MADE WITH

FORCED LABOR THROUGH REMEDIES IN TRADE . . . . . . . . . . . . . . 625

A. U.S. Legislation and Trade Remedies for Forced Labor . . . . . 625

B. The USMCA as an Example of a Regional Trade Agreement

Combating Forced Labor. . . . . . . . . . . . . . . . . . . . . . . . . . 629

C. EU Trade Remedy to Combat Forced Labor . . . . . . . . . . . . . 633

III. COMPATIBILITY OF FORCED LABOR BANS WITH WTO LAW . . . . . . 634

A. Non-discrimination and Quantitative Restrictions . . . . . . . 636

B. Non-Discrimination Against Like Products. . . . . . . . . . . . . 640

1. Properties, Nature, and Quality . . . . . . . . . . . . . . 642

2. End Uses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 642

3. Consumer Tastes and Habits. . . . . . . . . . . . . . . . . 642

4. The Tariff Classif‌ication of the Products. . . . . . . . 644

C. Non-Discrimination Between Like Products of Different

Foreign Origin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 646

GEORGETOWN JOURNAL OF INTERNATIONAL LAW

620 [Vol. 55

D. Non-Discrimination Between Like Foreign and Domestic

Products. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 649

E. Non-Discrimination on the Basis of Procedure. . . . . . . . . . . 650

F. Non-Discrimination in the TBT Agreement. . . . . . . . . . . . . 654

IV. DEFENSES IF, AND TO THE EXTENT THAT, FORCED LABOR BANS

ARE INCOMPATIBLE WITH WTO LAW . . . . . . . . . . . . . . . . . . . . . 656

A. The List of Exceptions Available Under Article XX. . . . . . . . 657

1. Does an Import Ban on Products Made with

Forced Labor Fall Within Article XX(a)? . . . . . . . 657

2. Does an Import Ban on Products Made with

Forced Labor Fall Within Article XX(b)? . . . . . . . 662

3. Does an Import Ban on Products Made with

Forced Labor Fall Within Article XX(e)? . . . . . . . 664

B. Article XX Chapeau . . . . . . . . . . . . . . . . . . . . . . . . . . . . 665

1. Whether the Measure Constitutes a Means of

Arbitrary or Unjustif‌iable Discrimination Where

the Same Conditions Prevail . . . . . . . . . . . . . . . . . 666

2. Whether the Measure is a Disguised Restriction on

International Trade. . . . . . . . . . . . . . . . . . . . . . . . 668

C. Defenses to Allegations of Breach of the TBT Agreement . . . . 669

1. Trade Restrictiveness and Legitimate Objectives . . . 669

2. The Safe-Harbor Provision . . . . . . . . . . . . . . . . . . 670

V. OBSERVATIONS ON COMPATIBILITY AND CHARACTERISTICS OF A

COMPATIBLE AND DEFENSIBLE MEASURE . . . . . . . . . . . . . . . . . . . 672

VI. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 674

I. INTRODUCTION

Eliminating forced labor is as urgent an issue as it is complex. At ev-

ery stage of production in the global value chain, vulnerable workers

are subject to conditions that violate international standards and basic

human rights.

1

See generally Forced Labor in Global Supply Chains, EUR. CENTER FOR CONST. & HUM. RTS.

[ECCHR], https://www.ecchr.eu/en/case/forced-labor-in-global-supply-chains/(last visited May

1, 2023); Genevieve LeBaron, The Role of Supply Chains in the Global Business of Forced Labor, 57 J.

SUPPLY CHAIN MGMT. 29 (2021); Policy as a One-Legged Stool: U.S. Actions Against Supply Chain Forced

Labor Abuses, 136 HARV. L. REV. 1700 (2023).

In addition to representing a severe injustice to the

workers themselves, forced labor violations are also an economic harm.

Suppliers and multinational corporations (MNCs) who engage in or

ignore forced labor do so in part to capitalize on the marginal benef‌it

of eliminating fair labor costs; by some estimates, the private economy

1.

FORCED LABOR IMPORT BANS & WTO COMPATIBILITY

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