Goods made by forced labour in China, and a potential ban on their import to the EU, have long been on the EP agenda. Members have addressed numerous questions on the subject to the Commission and Council. Yet, so far EP calls for action have not led to tangible measures.
The Chinese labour camp system
Modelled on the Soviet Union’s gulag system, Chinese labour camps were set up by Mao Zedong in the 1950s to “reform” people through forced labour and political indoctrination. Despite a number of changes, the system continues to exist, with inmates serving either criminal or administrative detention:
Lao(dong) gai(zao) or ‘reform through labour’, i.e. criminal detention based on a prison sentence under the Chinese criminal code. Due to international criticism, in 1994 the term laogai was changed into jianyu (prison), but not the function and nature of the punishment. A sprawling and financially lucrative ‘prison economy’ has evolved, with millions of inmates working under appalling conditions. Prisons also operate as economic entities under different commercial names, which mask the true origin of prison-made goods in China and abroad.
Lao(dong) jiao(yang) or ‘re-education through labour‘. This is a form of police-imposed administrative detention of one to three (maximum four) years without formal charges or a trial. It denies those detained basic procedural rights, such as the right to a hearing, legal counsel or judicial review, in violation of key international human rights instruments, such as the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR), which China signed in 1998 but has not ratified. Laojiao has been widely used as a tool of political control over regime opponents. It has mainly targeted political dissidents, Falun Gong practitioners, but also petty criminals and drug addicts.
According to data China provided to the UN Human Rights Council, there were 320 laojiao centres with 190 000 inmates in 2009. Estimates of the number of laogai camps/inmates are much higher. China keeps related statistics secret, but the US-based Laogai Research Foundation (LRF) has regularly published lists of prisons, including the estimated number of inmates, since 1992. In its 2008 handbook, it noted 1 422 camps, including 669 prisons and 319 laojiao centres, with the latter’s inmates ranging between 500 000 and 2 million.
The abolition of the laojiao system
The abolition or reform of the laojiao system has been repeatedly announced in the past. Several recent high-profile cases have sparked a renewed debate on the controversial laojiao system within China, with the Chinese press openly recognising its misuse. Recent press releases suggest that the November 2013 decision of the Communist Party of China (CPC), confirmed by the National People’s Congress in December 2013, to abolish the laojiao system is already being implemented, with some camps being transformed into rehabilitation centres for drug addicts. Human rights activists fear that the abolition may only be a “cosmetic rebranding“, with the old system continuing under a different label.
China’s view on forced/prison labour
China is not a party to the International Labour Organisation (ILO) conventions 29 and 105 on forced or compulsory labour. China asserts that its legislation recognises the principle of the elimination of all forms of forced and compulsory labour. A 1999 report by the International Confederation of Free Trade Unions (ICFTU) reveals, however, that China’s legislation falls well short of ILO standards and that, moreover, both laogai and laojiao are excepted from these legal provisions. From a Chinese point of view, goods produced by laojiao inmates do not constitute prison labour goods for the purpose of bilateral agreements with China, because according to Chinese law they are not criminals. The 2005 Chinese customs regulations prohibit the export of prison labour-made goods.
Resolutions of national parliaments
In 2005, the US Congress condemned the laogai system. In 2007, the German Parliament adopted a similar resolution calling on the Federal Government to ask the Chinese authorities to make public the overall number of laogai inmates, the products they manufacture and the export destinations of these products. The Italian Parliament endorsed resolutions 173, 174, and 238 to similar effect, also in 2007.
National import bans and their impact
Section 1307 of the US Tariff Act of 1930 bans prison-made goods. The US has also agreed a 1992 memorandum of understanding (MoU) on prison labour and a 1994 statement of cooperation (SoC) on procedures allowing the US to investigate allegations of imports of Chinese forced labour-made goods. These arrangements have, however, largely failed to curb the inflow of such goods into the US. Commentators such as Jeffrey Fiedler, currently a member of the US-China Economic and Security Review Commission, have strongly suggested enacting a series of new legal instruments to discourage China from circumventing US legislation. US industry representatives such as Gary Marck have called for US enforcement measures to address the unfair and unlawful competitive edge of Chinese forced labour-made goods on the US market. In Canada a similar legal ban is in place under customs tariff item No 9897.00.00. Nonetheless, in 2011, the LRF, which compiles lists of Chinese companies associated with labour camps and the export of their goods, documented imports of Chinese prison-made goods by the Canadian construction company Inland Screw Piling. New Zealand‘s Customs and Excise Act of 1996 contains an import ban of prison labour. In Australia an import ban was in place until it was repealed in 1986. In 1996, Australia opted against the re-introduction of a ban arguing that it would be ineffective, and only a symbolic gesture. Proponents of a ban contend that recent developments such as China’s WTO accession and the signing of an Australian-Chinese Strategic Partnership agreement have created a better starting point to take up the matter with China. Australian media revealed in June 2013 that disposable headphones for Qantas, British Airways and Emirates, as well as parts for electrical appliances for Electrolux and Emerson, were produced by Chinese prison labour.
WTO law and EU action so far
An EU ban on imports from China, a WTO member, would be contrary to the 1994 General Agreement on Tariffs and Trade (GATT). But a ban on goods from forced labour could fall under the scope of the general exceptions of Article XX, notably its paragraph e on “prison labour”. However, Article XX(e) has never been tested as a justification for import bans/restrictions either with respect to prison labour or – through an evolutionary approach to the interpretation of the legal basis – regarding forced labour. A European Commission inter-service group on forced labour has been exploring the feasibility and effectiveness of such an EU import ban for several years. Since products made by forced labour are difficult to trace and to distinguish from other forms of compulsory prison labour which are allowed, no legislative proposal has been submitted. To date, diplomatic channels have been privileged for the voicing of the EU’s human rights concerns.
In its resolution on the EU-China negotiations for a bilateral investment agreement of 9 October 2013, the EP stressed that “goods for export to the EU which are produced in forced labour camps, such as under the Re-education through Labour (RTL) system, (…) should not benefit from investments made under this bilateral investment agreement”. A motion for a resolution on EU imports of Chinese forced labour-made goods drafted by rapporteur Vital Moreira (S&D, Portugal) was unanimously adopted by the International Trade Committee (INTA) on 14 October 2013. It calls on the Commission to submit a legislative proposal on an effective traceability mechanism for forced labour-made goods and a proposal for a regulation banning EU imports of such goods.