On June 24, 2021, US Customs and Border Protection (CBP) issued a Withhold Release Order (WRO) stopping imports into the US of silica-based products produced in whole or in part by the Chinese company Hoshine Silicon Industry Co., Ltd., located in the Xinjiang Uyghur Autonomous Region (XUAR). The WRO comes as a result of CBP’s findings that Hoshine uses forced labor in its silica-based product factories, building upon a wave of recent reports of human rights abuses in corporate supply chains in Xinjiang.
The WRO was issued pursuant to Section 307 of the Tariff Act of 1930, which prohibits the import of any goods made with forced or prison labor into the United States. This is the first WRO targeting silica-based products and materials, which are important components in the construction of solar panels. Some commentators have called reports of forced labor in silica-based product factories an “ugly dilemma” for the Biden Administration, which is looking to expand solar power use domestically. This WRO is a step in the right direction, a sign that the Biden administration is not willing to sacrifice human rights commitments in transitioning away from fossil fuels.
This blog post first discusses the forced labor and human rights abuses in the Xinjiang region. It then focuses on recent WROs against companies and goods coming out of the region.
Forced Labor and Human Rights Abuses in the Xinjiang Region
Despite repeated international condemnation of the human rights situation in the XUAR, including at the Group of Seven leaders summit on June 13, 2021, there are continued reports of human rights abuses, including forced labor and genocide of the Uyghur people and other Muslim and Turkic minorities in Xinjiang.
In its 2020 Human Rights Report on China, the Department of State declared that “[g]enocide and crimes against humanity occurred during the year against the predominantly Muslim Uyghurs and other ethnic and religious minority groups in Xinjiang.” Uyghur and other Muslim and Turkic minorities have been arrested for wearing cultural dress, having long beards, and praying, and have been forced into “re-education” internment and labor camps, which experts have described as efforts to eradicate the groups’ religious and cultural heritages. The Department of State also highlighted findings of coerced abortions, forced sterilization, rape, and torture.
On June 22, 2021, more than 40 countries called on China to give the UN human rights investigative team access to Xinjiang to further document conditions. The joint statement said that “[c]redible reports indicate that over a million people have been arbitrarily detained in Xinjiang and that there is widespread surveillance disproportionately targeting Uyghurs and members of other minorities and restrictions on fundamental freedoms and Uyghur culture.” CBP officials have said that given the detailed reports of forced labor in the XUAR, corporations can longer claim ignorance about forced labor in supply chains originating in the XUAR.
At the announcement of the new WRO, CBP stated that they found two of the International Labor Organizations’ indicators of forced labor in the Hoshine silica-based product factories: restriction of movement and intimidation and threats.
Recent WROs Targeting Xinjiang
Companies doing business in Xinjiang have been on notice for a year that the US government was looking at their supply chains for indicators of forced labor. On July 1, 2020, the US Department of State, joined by several other federal departments, issued the Xinjiang Supply Chain Business Advisory, detailing reports of human rights abuses in Xinjiang and pushing U.S. businesses to implement human rights due diligence policies for any supply chain exposure in Xinjiang.
In August 2020, CAL joined nine other organizations in filing a petition requesting a region-wide ban on cotton products produced with forced labor in Xinjiang. CPB issued five WROs in September 2020 on cotton, hair products, and electronics produced in Xinjiang, followed in December 2020 by another WRO banning the import of cotton-products from the Xinjiang Production and Construction Corps, a state-owned company. In January 2021, CBP issued a regional ban on all cotton and tomato products produced in Xinjiang. The WRO targeting Hoshine is therefore the third WRO that CBP has issued on products produced in Xinjiang since this fiscal year began in September 2020 and the eleventh active WRO targeting forced labor abuses in Xinjiang.
CBP officials have said that US direct imports from Hoshine have totaled $6 million over two and a half years and that downstream products have totaled approximately $150 million, but Secretary Mayorkas of the Department of Homeland Security made the following clear about the Hoshine WRO: “Of course it has economic consequences, but fundamentally and primarily it is a human rights issue.”
In addition to issuing the WRO, the Department of Commerce has added five new corporations to its Entity List: Hoshine Silicon Industry (Shanshan); Xinjiang Daqo New Energy; Xinjiang East Hope Nonferrous Metals; Xinjiang GCL New Energy Material Technology, and Xinjiang Production and Construction Corps – all for “participating in the practice of, accepting, or utilizing forced labor in Xinjiang and contributing to human rights abuses against Uyghurs and other minority groups in Xinjiang,” bringing the total Chinese companies on the Entity List to 53. Inclusion on the Entity List means that all U.S. companies are restricted from engaging in export, reexport, or in-country transfer transactions with the listed companies. The Department of Labor has also updated its “List of Goods Produced by Child Labor or Forced Labor” to include polysilicon produced with forced labor in China.
Climate Change Efforts and Human Rights Protections Must Go Hand in Hand
The Xinjiang region produces about 45% of the world’s polysilicon material, a critical component of solar panels. But this cannot be an excuse for allowing forced labor to continue in Xinjiang. Secretary Mayorkas aptly stated, “Our environmental goals are not going to be met on the backs of human beings.” It is a false choice to pit climate change efforts against international human rights commitments. We cannot achieve a just transition away from fossil fuels if renewable energy products are produced with forced labor. The U.S. government and other world leaders must support the production of solar panels and other renewable energy infrastructure under fair labor conditions and in line with racial justice and economic justice goals. As Shalanda Baker, Professor of Public Policy at Northeastern University School of Law and Deputy Director for Energy Justice in the Office of Economic Impact and Diversity at the Department of Energy, has said, “it's not inevitable that [the energy transition] will be unjust” and there is “a remarkable opportunity to really take back the energy system in service of those who've been on the bottom.”
Read more about the situation in Xinjiang and previous WROs in CAL’s blog posts here (on 5 WROs from September 2020), here (on the WRO against XPCC), and here (on the regional WRO against cotton and tomato products). You can also read the 307 petition we filed in August 2020 with nine other organizations, as well as a blog post and press release on it.
Chris Ewell is a rising 3L at Yale Law School and a current CAL legal intern.
