Preston Lim is an assistant professor at Charles Widger School of Law at Villanova University. Originally from Vancouver, he is called to the bar in Ontario and New York.
Canada is failing in its fight against Uyghur forced labour – and our allies have taken note.
In a recent interview with The Globe and Mail, Uzra Zeya, the United States Undersecretary of State for Civilian Security, Democracy and Human Rights, gently criticized Canada for not doing enough on the issue. And she’s right: we need to step up.
As part of its continuing assault on the Uyghurs and other Muslim Turkic minorities in China’s northwestern Xinjiang region, the Chinese government has constructed a sophisticated system of forced labour. Within Xinjiang, Beijing – in collaboration with allies such as private corporations – has forced Uyghurs to pick cotton and tomatoes, produce solar panel components, and mine lithium. Chinese firms have also dispatched Uyghurs to work at industrial sites in other parts of China.
The products of this system wind up all over the world. Canadians use these products daily. Canadian supermarkets have sold tomato-based products tainted by Uyghur forced labour. Cars from multiple global brands contain aluminum and car batteries forged in the forced-labour factories of Xinjiang.
Yet Ottawa has done little to remove Uyghur forced labour from Canadian supply chains. To date, Canada has not stopped a single shipment of goods made with Uyghur forced labour from entering the country.
The government has a moral and legal responsibility to respond to Ms. Zeya’s call to action. Failure to do so will allow the Chinese government to win its war on the Uyghurs and sap international law of its force.
How can Canada better combat Uyghur forced labour? It must embrace a dual-track strategy that combines increased pressure on China at international institutions with the deployment of two domestic legal tools in the service of international law: a Xinjiang-specific forced labour import ban, and mandatory due-diligence legislation.
First, Canada should take advantage of special procedures at the International Labour Organization (ILO) to scrutinize China’s record. In 2022, China ratified two forced labour conventions under the ILO’s jurisdiction. Canada could file a complaint under the ILO’s constitution, alleging that China has breached its obligations under either of the two conventions. In response, the organization would have the option to convene a commission of inquiry into China’s forced labour record. No international tribunal has been able to evaluate China’s forced labour record, as the country has excepted itself from dispute resolution in ratifying international human-rights treaties. Thankfully, China does not have this option with regard to ILO conventions. A finding by an ILO commission of inquiry that China has breached its obligations will carry much more weight than a similar finding by an individual country, and would also redound to the benefit of the international community.
Second, as required by the United States-Mexico-Canada Agreement (USMCA), Canada has prohibited the importation of goods produced in whole or in part with forced labour. Yet the government requires an overly high level of proof: Canadian border agents will only deny imports when they can point to legally sufficient evidence of forced labour. In contrast, the American regime presumes that all imports from Xinjiang or that have been produced by a set list of companies are tainted by forced labour, and places the burden of proof on the importer to demonstrate otherwise. The numbers speak for themselves: the United States has denied nearly 3,000 shipments likely tainted by Uyghur forced labour. Canada should enact a similar presumption that goods made in Xinjiang or by a certain list of companies involve forced labour.
Third, Parliament should enact mandatory due-diligence legislation. Last year, Canada enacted the Fighting Against Forced Labour and Child Labour in Supply Chains Act, which requires governmental and private entities to report the steps they have taken to prevent or reduce the risk of forced labour in their supply chains. But it does not impose an affirmative duty – a legal obligation on the part of these entities that requires some effort to satisfy – to ensure that their supply chains are free of forced labour. Only an affirmative duty, coupled with harsh penalties, will push entities to extricate their supply chains from Xinjiang.
In 2021, the House of Commons declared, by a margin of 266-0, that the Chinese government’s atrocities against the Uyghurs constitute a genocide. Admittedly, the adoption of a new strategy to combat Uyghur forced labour will not be easy. But given parliamentary consensus on the need for a tough China policy, the government has an opportunity to lead – rather than merely participate in – the global fight against this terrible system.