The Xinjiang Uyghur Autonomous Region (XUAR) of northwest China is populated primarily by ethnic and religious minorities including Muslim Uyghurs, Kazakhs, and Kyrgyz. Sharing borders with eight other nations and rich in natural resources, the XUAR is strategically and economically significant for China as part of the country’s “Belt and Road” infrastructure initiative. Documented widespread and systematic human rights abuses committed in XUAR by the Chinese government, ostensibly to fight terrorism and extremism, from the mass detention of religious minorities held indefinitely in assimilation camps without due process to forced labor have drawn international criticism and concern. Goods manufactured in XUAR are exported internationally. Under the Uyghur Forced Labor Prevention Act of 2021 (UFLPA) goods produced in XUAR are presumed to be made with forced labor and are banned from the United States (US). After a brief overview of some salient business and human rights risks in XUAR, this contribution outlines the basic requirements of the UFLPA and assesses enforcement and compliance efforts to date. 

I. Rights Abuses and Corporate Responsibility

Risks of forced labor occurring in the clean energy transition are salient in the solar energy and electric vehicle supply chains due to suspected connections to forced labor in Xinjiang. As home to 60% of the world’s rare earth elements (REE) and responsible for refining 90% of the world’s REE, China is significant to the world’s clean energytechnology transition. China dominates the world’s production capacity of the most mass-manufactured technologies essential for the clean energy transition and is a net exporter of clean energy technology. Because most the world’s lithium-ion batteries are made in China, electric vehicle batteries currently necessarily entail Chinese involvement.

Similarly, given China’s central role in the solar industry sector, the rapid growth of energy projects increases the expected risks of forced labor in the solar energy supply chain. Efforts to ensure that production supply chains are not tainted with coerced and captive labor are complicated by China’s lack of transparency and demands that businesses comply with domestic policies that violate international standards.

II. Regulatory Requirements: A Rebuttable Presumption

Congress passed the Uyghur Forced Labor Prevention Act (UFLPA) in 2021 to “address gross violations of human rights XUAR.” Under the UFLPA, US Customs and Border Patrol must presume that goods from XUAR are made with forced labor and exclude them from the US market. The Act creates a rebuttable presumption that “goods, wares, articles, and merchandise” that are “mined, produced, or manufactured wholly or in part” from the Xinjiang region are prohibited products of forced labor under the Tariff Act of 1930. The presumption covers goods made by entities outside of XUAR and China that source materials from XUAR. 

There are two ways an importer can successfully rebut the forced labor presumption. First, an importer can show by clear and convincing evidence that “the goods and its inputs are sourced completely from outside Xinjiang and have no connection to [identified] entities” proving the goods at issue are outside the scope of the Act. Second, where goods are covered by the UFLPA the importer must show that it has conducted due diligence, that it has responded to agency inquiries, and that the goods at issue were not produced, even in part, with forced labor.

Overall, the government’s enforcement strategy counsels that to comply businesses should engage in heightened due diligence in order to identify potential supply chain exposure to companies operating in XUAR and connected to abuse of Uyghur and other Muslim minority laborers.

III. Enforcement Action and Exclusion from US market

The Forced Labor Enforcement Task Force (FLETF), responsible for creating policies to prevent the import of UFLPA covered goods, has published two strategies—one in 2022 and an update in 2023—clarifying requirements and providing guidance to importers. The UFLPA is enforced by the U.S. Customs and Border Protection (CBP). The CBP tracks and compiles data on shipments subjected to UFLPA reviews and enforcement actions. Since June of 2022, 8,142 shipments have been detained under the UFLPA with only 3,469 having been released to date. These shipments subjected to the UFLPA hold the approximate value of $3.17 billion USD. 

UFLPA enforcement through detention has reached a range of different industries, which include agriculture products, electronics, lithium-ion batteries, automobile components, and “[d]ownstream products of vinyl, copper, aluminum and steel.” FLETF has targeted four “high-priority sectors for enforcement” that include: cotton products, silica-based products, tomatoes, and apparel.

In 2024, exemplifying enforcement of the UFLPA, Volkswagen had thousands of vehicles detained by CBP for containing a Chinese subcomponent that breached UFLPA requirements. Although China has had its fair share of shipments detained under UFLPA enforcements, most shipments have come from other countries, which include Malaysia, Vietnam, and Thailand, but contain components that violate UFLPA. The US Congress recently allocated additional funding for enforcement. Increased investment in enforcement signals a strong level of bipartisan commitment on the part of the US government to restrict imports from China connected to human rights abuses. One US based law firm advising business clients on compliance has aptly characterized the current state of UFLPA enforcement as “vigorous.” Appropriately, successful UFLPA compliance substantially and practically aligns with the due diligence methods articulated in the United Nations Guiding Principles on Business and Human Rights.

            Despite relatively aggressive enforcement, barriers to fully effective enforcement of the UFLPA to stop forced labor for the Xinjiang region remain. For example, the House of Representatives Select Committee on the Chinese Communist Party in a letter to the Department of Homeland Security detailed several concerns that complicate effective enforcement. Among barriers to enforcement are companies transferring forced labor workers to other regions to avoid inspection by obscuring their ties to forced labor, and transshipment of forced labor goods through third-party countries. The barrier that has proved most problematic is a $800 de minimis provision under U.S. trade law. The de minimis provision has been used to move products in small packages. Specifically, the de minimis exception accounted for approximately 1 billion packages, of which Shein and Temu—companies accused of “selling goods with forced labor”—account for about a third. These companies and their operation under the de minimis exception provide a barrier for enforcement—one that has caught media attention due to the “likely significant violations of U.S. [forced labor] law.”

IV. Advocacy and Accountability 

Despite these enforcement challenges, the UFLPA is well positioned to incentivize the creation of more robust due diligence tools to detect human rights violations in global supply chains. The UFLPA could be developed to serve as models but unfortunately no transparency into inner workings of the XUAR region make conducting due diligence difficult. 

Nevertheless, individual states, NGOs, and business groups have stepped up to push for greater accountability. The Coalition to End Uyghur Forced Labor has gathered civil society organizations (CSOs) and trade unions to put pressure on businesses, governments, and most importantly China to end forced labor. The Coalition has a call to actionfor buyers and corporations. They say (1) buyers should assume that all products produced in the region are tainted by forced labor and (2) corporations should remove their supply chain from the region. They further provide a “company commitment” through which corporations can agree to take certain actions the coalition recommends in order to prevent corporate complicity.

The Fair Labor Association (FLA), “an international network . . . that promotes human rights at work,” provides a case in point. The multistakeholder initiative has made numerous statements regarding human rights concerns in Xinjiang from 2019 to present. In 2019, prior to enactment of the UFLPA, FLA encouraged additional due diligence measures be added related to Xinjiang. In 2020, it encouraged textile supply chains be rerouted based on the presumption that Xinjiang was using forced labor. However, by the end of 2020, FLA determined for the first time ever that it was necessary to ban sourcing (direct and indirect) from an entire region because due diligence processes were impossible and insufficient. Consistent with the Coalition’s call to action, the FLA’s policy is now that affiliates should identify potential human rights abuses in their supply chain and either “fix the problem if it can [or] change its sourcing relationships if it cannot.”

The lesson to be drawn from the US experience with UFLPA is that advocacy remains essential and moving toward mandatory due diligence is a tool in the “smart mix” of measures necessary to better align business practices and policies with respect for the human rights of everyone, everywhere as envisioned in the UNGPs and the OECD Guidelines for Multinational Corporations.