Nury Turkel had a renewed sense of urgency as he walked into the Senate offices on a cloudy October day. With his thick, combed back hair, he looked every bit the corporate lawyer he had been for more than a dozen years in Washington, D.C. But recently, he had turned his attention back to a deeply personal cause: advocating for the 11 million Uyghurs living in Xinjiang without basic rights, including his own mother. It was 2019, and Turkel sensed a unique political window opening in Washington.

Turkel was at the Congressional Executive Commission on China (CECC) hearing to discuss forced labor and mass internment in Xinjiang. To the assembled group of senators and congresspeople, he spoke matter of factly about the long history of human rights abuses in the Xinjiang region, which would later be characterized by the State Department as a genocide against Uyghur people. Turkel himself had been born in a re-education camp in Xinjiang’s Kashgar, and he testified about his then 68-year-old mother in Xinjiang, who he hadn’t seen since 2004. He said he was doubtful he, or his three children, would ever see her again. 

But Turkel wasn’t there to simply raise awareness about what was happening in Xinjiang. The hearing kept circling back to a fundamental problem: How could the U.S. compel Beijing to change its policies there?

At one point, Representative James McGovern (D-MA), who was then chair of CECC, posed a seemingly off-the-cuff question: “Do you believe that the U.S. should ban all imports from Xinjiang?” 

Some of the other expert witnesses waffled. Enforcing such a ban, after all, would be nearly impossible: Despite its relatively small size, Xinjiang is home to 20 percent of the global cotton supply and is key to goods like solar panels, electronics and tomatoes. Supply chains are often many layers deep, noted Amy Lehr, who was then the director of the human rights initiative at the Center for Strategic and International Studies in Washington, and “companies may incidentally and unknowingly still source” from Xinjiang.

But Turkel answered McGovern’s question unequivocally and without a moment’s pause. “In one word, yes,” he said. “That is necessary.”

McGovern seemed to agree — indeed, this issue had been front of mind for commission staff in the months leading up to the hearing, following discussions with concerned U.S. officials and troubling news reports about U.S. firms using Uyghur forced labor. American companies, McGovern said, “can check a box, but I don’t really feel they are trying hard enough to determine whether or not forced labor is part of what they are producing.” 

The hearing moved on, but the simple exchange set off a chain of events that would eventually result in the Uyghur Forced Labor Prevention Act (UFLPA), one of the most ambitious pieces of human rights legislation ever passed in the United States. Signed two years ago by President Joe Biden with overwhelming bipartisan support, the UFLPA bans the import of goods made in Xinjiang and, critically, puts the onus on companies to dig deep into the minutiae of their supply chains to understand how they may intersect with Uyghur forced labor.

“The Uyghur Forced Labor Prevention Act is an extraordinary tool,” says Thea Lee, the Labor Department’s deputy undersecretary for international affairs who serves on an interagency task force for UFLPA. “It’s very powerful, and it is unprecedented.”

Yet, while the UFLPA was celebrated as a coup for human rights advocates, implementing and enforcing such an ambitious and innovative law has been a slapdash effort. An odd assortment of Washington bureaucrats, forced labor experts, port officials and corporate supply chain consultants all insist they are making it work, albeit chaotically. 

“There is a learning curve for all sides, including us,” says Robert Silvers, the top official in charge of UFLPA enforcement and the under secretary for policy at Department of Homeland Security. “This is new, and this is hard. But we are on it.”

Indeed, this is new. The Department of Homeland Security (DHS) is primarily domestically focused and known for its work on immigration and disaster relief, not global supply chains. But the department oversees U.S. Customs and Border Protection (CBP), which is in charge of monitoring U.S. imports. As a result, DHS and Silvers, a former cyber policy official, have found themselves at the center of an effort that is transforming trade between the world’s two largest economies.

In the two years since the law was passed, CBP has detained over 6,300 shipments worth more than $2.2 billion of goods suspected to be made, in whole or in part, by Uyghur forced labor. That sum still pales in comparison to the total volume of goods the U.S. imports from China, which exceeded $530 billion in value in 2022, but many of those involved in UFLPA say they are just getting started. 

“Our implementation has been strong,” notes Silvers. “And it’s going to only grow stronger.”

“We’re not at scale yet,” agrees Lee. “I don’t think we can say with any certainty that we’ve stopped every shipment from Xinjiang — we know that isn’t the case.” 

China is responding to this effort with increasing aggression. On Tuesday, it announced sanctions on two U.S.-based researchers and an American company, Kharon, that identifies sanctions and compliance risks for companies and CBP, citing its role in providing “so-called evidence for America’s illegal sanctions related to Xinjiang.”

As the UFLPA turns two years old, The Wire China interviewed more than two dozen people, including top officials in the U.S. government, prominent forced labor researchers and Congressional staff to understand both the magnitude of the challenge that the UFLPA is hoping to address, as well as the wide range of criticism against it. Overall, what emerges is yet another example of the U.S. government scrambling to transform itself to the policy challenge posed by China. Just as the Commerce Department is now tasked with using sanctions and export controls to manage the U.S.-China technology competition, DHS and its agency partners are saddled with transforming the way companies think about their supply chains. 

Turkel, for his part, is now working full-time on policy advocacy around Uyghur human rights — he is a commissioner and former chair of the U.S. Commission on International Religious Freedom. He has his qualms with how UFLPA has turned out so far, but he’s still steadfast in his belief that the messy bureaucratic effort he helped concoct four years ago is worth trying. “Forced labor is a cancer on our values,” he told The Wire. “I am one of those people who genuinely believe that American people are capable of walking and chewing gum at the same time.”

NOT YOUR TYPICAL TRADE LAW

Following Turkel’s testimony in 2019, the CECC decided to do something it rarely does: write legislation. A small, relatively niche commission, the CECC was established in 2000 with the narrow mandate to monitor and report on human rights and the rule of law in China. The House’s Ways and Means Committee and the Senate’s Finance Committee, by contrast, are the two powerful bodies at the heart of Washington dealmaking which typically write international trade law. 

But the CECC, “was well in the lead on this issue,” says Peter Mattis, who was the commission’s staff director at the time and is now the president of the Jamestown Foundation, a Washington, D.C. think tank. “We, as a staff, spent our days dealing with China’s human rights issues and the impact of China’s power around the world. We were the ones who identified the problem when it wasn’t in the minds of the staff at Ways and Means and Senate Finance.”

First, the committee compiled an exhaustive report about global supply chains’ intersection with Uyghur forced labor. The report identified seven industries and 20 companies suspected of using Uyghur forced labor and urged the administration to consider a blanket ban on Xinjiang goods. Then, CECC staff put together legislation — including provisions to not only block goods from Xinjiang itself but also goods made by Uyghur forced labor in other areas of China through so-called ‘labor transfers.’ 

Technically, importing any goods made with forced labor has been illegal in the U.S. since 1930. But due to a loophole — called the ‘consumptive demand clause’ — importers could still bring in goods made with forced labor if domestic production did not meet demand, rendering the ban essentially toothless. In 2016, Congress closed that loophole. 

The UFLPA, however, takes things one step further because it assumes that all goods made in Xinjiang are made with forced labor. That assumption, which is called the “rebuttable presumption,” is the centerpiece of the legislation, and it puts the onus on U.S. importers to prove that any goods they import from Xinjiang are made without the forced labor of Xinjiang’s ethnic minorities — which is essentially impossible given the lack of auditing in Xinjiang. Only five exemption requests have ever been submitted, according to CBP, and none of them have been successful.

Multinational companies, unsurprisingly, were not thrilled about the bill’s requirements. Xinjiang’s cotton, for example, can go through several different companies and suppliers before it ends up in clothing, making tracing the supply chain time-consuming and expensive. The U.S. Chamber of Commerce published a letter in September, 2020 arguing that the UFLPA “would prove ineffective and may hinder efforts to prevent human rights abuses.” 

Many multinationals, meanwhile, argued that the legislation’s enforcement timeline was too rushed and that the bill would add to Covid-related supply chain disruptions. Another particular source of concern was a provision that would require public companies to disclose certain activities in Xinjiang in Securities and Exchange Commission (SEC) filings.

The SEC disclosure provision was eliminated from the final bill, but the rebuttable presumption element held, in part because it was seen as necessary given the lack of access to Xinjiang and the impossibility of conducting audits there. Without it, says Lee, the U.S. government would never be able to prove that forced labor was happening in the first place. 

“If you cannot get access to the workplace and to the workers in an unannounced way, without surveillance, without somebody looking over your shoulder, then it is very challenging to do this job,” she says. “So the rebuttable presumption is crucial.” 

While both political parties were eager to stand up to corporate pushback, there was some concern, especially in Democratic circles, that taking a stand on Uyghur forced labor would hinder America’s climate goals.

Nearly half of worldwide production of polysilicon — which is used to create the thin cells in solar panels — occurs in Xinjiang. In 2021, before the UFLPA was passed, the U.S. government started blocking select solar material imports from Xinjiang, but some worried that suddenly cutting off all imports of polysilicon from Xinjiang would slow the U.S.’s energy transition.

The UFLPA is the most trade impacting law that was not actually crafted as trade legislation. It was adopted, ultimately, as a piece of human rights legislation.

John Foote, an international trade lawyer at Kelley Drye and Warren, a Washington, D.C.-based law firm

Senator Jeff Merkley (D-Ore), who became chair of CECC in 2021 and ended up co-sponsoring the UFLPA, says he didn’t buy these arguments, which would have diluted the UFLPA’s moral underpinning. 

“We are not going to pit these two [goals] against each other,” he told The Wire. “My argument was that the concerns over disrupting the supply chain were overblown. And even if they were real, it did not make it acceptable to bring slave labor panels into the United States of America.” 

In the end, Merkley’s reasoning won out, and the legislation even designated polysilicon as one of three high priority enforcement sectors, along with cotton and tomatoes. The message, many say, was clear: the UFLPA is not your typical trade law.

“The UFLPA is the most trade impacting law that was not actually crafted as trade legislation,” says John Foote, an international trade lawyer at Kelley Drye and Warren, a Washington, D.C.-based law firm, who has extensively tracked the legislation’s enforcement. “It was adopted, ultimately, as a piece of human rights legislation.” 

Indeed, after the bill passed both the House and Senate with near unanimity and was signed by President Biden on December 23, 2021, its supporters underscored the clear moral stance that the U.S. was taking. 

“If America does not speak out for human rights in China because of commercial interests, we lose all moral authority to speak out for human rights any place in the world,” said Nancy Pelosi, who was then the Speaker of the House. 

But the UFLPA does more than speak out — it tasked DHS with acting, and it only gave the department 180 days to figure out how to do so. 

BUILDING THE FORCE

The global center of research on Uyghur forced labor sits in an industrial city in England’s north. Sheffield Hallam, a public research university, is hardly an academic powerhouse. With 37,000 students, it is one England’s largest universities and prides itself on its job placement success within the UK. 

But in the past three years, a small research lab housed within the university’s Helena Kennedy Centre for International Justice has made a big impact, producing groundbreaking reports that detail how global supply chains interact with Xinjiang. Under the leadership of Laura Murphy, an American expert on modern slavery who lived in Xinjiang in the early 2000s, the Forced Labour Lab at Sheffield Hallam has repeatedly identified new industries, including the automotive sector and vinyl flooring, as well as companies complicit in Uyghur forced labor — becoming an invaluable resource for companies and U.S. officials in the process. 

As DHS set about figuring out how it would implement UFLPA, its limited expertise in Chinese research and language became apparent. Moreover, the law itself was broadly written and didn’t provide any specific guidance about how officials should determine if goods originate in Xinjiang. According to Lee, at the Labor Department, “a big chunk of time in the beginning had to be in agreeing with each other across the interagency on what were the guidelines? How are we going to go about this?” 

Murphy’s team, meanwhile, had already honed a methodology that scours publicly available trade data, documents and press releases from Chinese companies and authorities — and they were pumping out report after report detailing who, exactly, the U.S. government should be going after.

“The combination of their expertise and methods is why they are so highly regarded by government agencies,” says Darren Byler, assistant professor of International Studies at Canada’s Simon Fraser University, whose research focuses on Uyghur issues. “They are simply the best equipped to do the work of examining the exposure of U.S.-based producers and consumers.”

Last month, DHS even hired Murphy to help advise on the UFLPA’s enforcement. A previously outspoken voice in the UFLPA world, Murphy declined to comment on her new role, but many observers believe she will be helping turbocharge the UFLPA Entity List, a collection of companies whose goods are presumed to be made with forced labor and automatically flagged for detention by CBP. Of the 30 companies currently on the list, about half were carryovers from other U.S. sanctions lists while almost all of the rest were exposed in Sheffield Hallam reports.

“No entity — academic institution, government body — has done anything remotely close to this institution led by Laura Murphy,” says Turkel. “Without their research, we wouldn’t be where we are today.”

A 2022 report, for instance, singled out Sichuan Jingweida Technology Group, a manufacturer of automotive components in China’s southwest, for allegedly accepting transferred Uyghur laborers beginning in 2018. Its customers include SAIC, the Chinese state-owned automaker, as well as EVTech, a supplier of automotive components to companies including NIO, Renault and Volkswagen. Earlier this month, DHS named Jingweida on its entity list.

Yalkun Uluyol, a Uyghur doctoral student and co-author of the report, says even he didn’t realize the full scope of China’s state-imposed labor transfer program until he began working at Sheffield Hallam. Uluyol was motivated to join the lab in 2022, in part after several of his relatives, including his father, were imprisoned in Xinjiang on undisclosed charges. He discovered that Chinese companies often publicly disclose their participation in labor transfer programs in annual reports and press releases. Local newspapers in Xinjiang, he says, also publish reports about workers being transferred to production facilities after being released from detention camps — albeit discreetly, between the lines of propaganda. 

“They praise how their workers are so dedicated to the country that they didn’t even go to the hospital when they needed surgery,” he says. “Or how a worker missed his son’s wedding because he needed to fulfill his duty at a plant.”

Silvers, at DHS, describes the government’s use of research from outside groups like Sheffield Hallam as “a feature not a bug” of the UFLPA and says it works as a “force multiplier.” Research from the Center for Advanced Defense Studies (C4ADS), a Washington, D.C.-based think tank, has also helped populate the entity list, while media reports have helped identify new sectors that deserve attention, such as China’s fishing industry.

Yet, even with this help, the UFLPA is far from operating at full force. Two years in, only 30 companies are on the entity list, and many say the government needs to pick up the pace.

In April, the four lead sponsors of the UFLPA submitted a letter urging the Forced Labor Enforcement Task Force (FLETF), which is run by Silvers and includes officials from the departments of Labor, State and Commerce, to list more companies. “For us, the volume and scope of entity listing is an important measure of the FLETF’s commitment to implementing UFLPA,” they wrote. “Therefore, we request that the FLETF accelerate its efforts to expand the Entity List as soon as possible.” 

DHS is beginning to use more technology, such as AI-powered supply chain mapping software and lab testing, to identify problematic companies and supply chains. And Silvers told The Wire that continuing to expand the entity list is “my highest priority.”

“There’s more coming,” he says. “There is a pipeline of companies under investigation by the Force Labor Enforcement Task Force, and we’re going to continue to populate that entity list.”

With UFLPA enforcement scaling up, however, some predict that issues inherent in the law itself may become even more apparent. It’s difficult to construct a trade enforcement apparatus from scratch, after all, if its statutory foundation is shaky. 

GROWING PAINS

In June, the U.S. government listed a Chinese manufacturer of laser printers on the UFLPA entity list for its alleged involvement in forced labor transfers. Two months later, the company, called Ninestar Corporation, sued the U.S. government, claiming to be “unaware of any facts” relating to the charge and describing the government’s case in recent legal filings as “a mélange of dubious inferences drawn from outdated public records, including media reports, Chinese government documents, and Ninestar company disclosures.”

Ninestar told The Wire that it “[does] not tolerate forced labor and remain[s] committed to correcting the record regarding the accusations against us and achieving our removal from the UFLPA Entity List.”

Since it was added to the entity list, Ninestar’s stock has fallen more than 30 percent, and the company says in legal filings that it has lost orders in the U.S., Europe and even China as a direct result of the listing. 

The case is ongoing, but the lawsuit has forced the government to hand over its evidence to Ninestar’s lawyers. A public copy of the record is heavily redacted, but it’s clear that DHS was tipped off about Ninestar from a confidential informant. 

Labor Department and DHS officials were hesitant to provide specific details to The Wire about how they make entity list determinations. Protecting anonymous sources is a concern, they say, including U.S. companies that come to the government with information about their competitors’ supply chains. There is also fear that Chinese companies and government bodies may stop making certain information public.

But lawyers say that this lack of transparency around how information is gathered and then enforced is a flaw in the law. While the UFLPA spells out that all goods produced in Xinjiang, or by a company on the UFLPA entity list, are presumed to be made with forced labor and banned from the U.S., it does not provide any guidance on how to determine whether a good was produced in Xinjiang or by a company on the entity list. This makes it very difficult for companies, like Ninestar, to understand and appeal those decisions. 

“The entire enforcement apparatus is happening according to the very best decisions that Customs is capable of making at any given time on any given instance, rather than written rules” Foote says. “And that is just deeply out of step with essentially everything else that happens in the world of global trade.” 

Eric Choy, executive director at CBP’s trade remedy law enforcement directorate, however, says such complaints from the private sector are disingenuous. 

“I think what companies really want to ask is: Where did you set up the speed traps, so I know where not to speed,” he says. “That’s really the veiled line of questioning here.”

Some, however, say that the location of the speed traps is less problematic than how they’re enforced, particularly at America’s 326 ports of entry where CBP detains shipments suspected of violating the UFLPA. 

CBP officers at the ports, who are tasked with looking closely at bills of lading and shipping records, initially prioritized enforcement on the three high-risk products singled out in the UFLPA: polysilicon, cotton and tomatoes. But when it comes to how the detained goods should be handled by the government, “there is very little guidance in the statutory text of the UFLPA,” says Angela Santos, customs practice leader at ArentFox Schiff. “That has led to inconsistency in the way the law has been enforced by different agents and different ports.”

If you’re stopping a shipment because it’s from a high-risk entity, shouldn’t you tell the importer so that they can stop procuring from them?

Cindy Deleon, managing director of DeLeon Trade, a trade consultancy, and a former CBP customs auditor

Each port has its own quirks and reputation, according to trade lawyers. In some cases, shipments from the same supplier have been admitted by some ports and denied by others. Further complicating matters, most of the goods stopped under the UFLPA are not even shipped from China: 54 percent of the stopped goods come from Malaysia, according to CBP data, and 26 percent come from Vietnam.

Some authorities are more transparent about the specifics behind a detainment — including whether and for how long a shipment is detained — while others are less forthcoming. And importers of complex products, such as solar panels and cars, aren’t always told which component in their product is regarded by CBP as a forced labor risk. 

“If you’re stopping a shipment because it’s from a high-risk entity, shouldn’t you tell the importer so that they can stop procuring from them? If a company is left in the dark, how does that help the cause?” asks Cindy Deleon, managing director of DeLeon Trade, a trade consultancy, and a former CBP customs auditor.

Trade lawyers say that CBP has pledged to address the enforcement inconsistencies at the ports, and DHS’s Silvers notes that the government is committed to listening to the private sector’s concerns. “We take that input [about transparency] on board, we take it really seriously,” he says. The UFLPA “impacts trade flows, it impacts bottom lines, it impacts human rights and it impacts foreign relations, among other things. But what our approach has been is to be transparent and to tell the community what it is we’re doing. But then to put our heads down and do the right thing.”

THE NEXT STEP

In a spare conference room at the Hudson Institute in downtown Washington, D.C., Nury Turkel opens up a massive binder and thumbs through pages filled with UFLPA facts and figures, press clippings, and his own testimonies on the law. He is now a senior fellow at the think tank and is sitting, he points out, in the very same room where former Vice President Mike Pence prepared for his speech on China in 2018, which was one of the first times a major U.S. official publicly called out China’s human rights abuses in Xinjiang. 

Reflecting on the current state of UFLPA enforcement, he gives credit to Silvers and the other government officials working hard to develop a strategy from square one. But he is adamant that sharper penalties are necessary to truly stem the flow of Xinjiang-made goods into U.S. stores.

Before he turned to advocacy full time, Turkel was an expert in the Foreign Corrupt Practices Act (FCPA), the U.S. law that makes it illegal for U.S. businesses to bribe foreign officials to benefit their business interests. His dream for the next stage of UFLPA is to implement legislation modeled off the FCPA: a law that would criminalize profiting off Uyghur forced labor, rather than just stopping their goods at the border. 

“One thing that really freaks out business leaders is the FCPA. Do you know how many lawyers in multinational corporations do nothing but FCPA work?” asks Turkel. “Bribery is bad. If you bribe a foreign government official, it’s a very unethical, under-the-table business dealing. But it does not kill somebody. It does not break somebody’s family.”

He’s not wrong, of course, but Turkel also recognizes that there is other, lower hanging fruit. One fix he points to is closing the loophole on so-called ‘de minimis’ imports. Low value packages, which are worth less than $800, are currently allowed into the U.S. duty-free and with little customs scrutiny, exempting them from the full UFLPA enforcement apparatus. According to CBP data and research from the House Select Committee on the Chinese Communist Party, almost 60 percent of de minimis packages coming into the U.S. are from China — and half of those packages come from the e-commerce platforms Shein and Temu.

Though removing the de minimis exemption altogether would be extremely burdensome for CBP, other recently proposed legislation would eliminate the loophole just for Chinese companies or force de minimis packages to disclose more information.

For many proponents of the UFLPA, however, the most urgent goal is to get other countries to pass similar legislation. While countries like Canada are slowly putting in place anti-forced labor legislation, they are not close to as comprehensive as the UFLPA, and the EU doesn’t have anything in its books to stop imports made with forced labor. This has sparked concerns that European countries could become a ‘dumping ground’ for Xinjiang-made goods turned away from the United States. Indeed, two years after the passage of the UFLPA, Xinjiang trade is booming: in the first 11 months of 2023, exports from Xinjiang soared almost 50 percent to more than $45 billion, according to Urumqi customs data. 

Turkel says that U.S. officials must engage in “very aggressive public diplomacy” in order to make this happen. Taking out his phone, he pulls up pictures of himself at embassies across Central Asia and Europe, smiling with various dignitaries. He says he tries to unofficially take up the mantle in the absence of other leadership: “This is why I carry my binder to show [other governments], look, you can do this.” 

Again, a CECC chairman agrees with him. When asked about efforts to get other countries on board, Senator Merkley told The Wire that he was just telling his staff to set up meetings with EU and Canadian diplomats to make his case for action. “I think our allies might have had the same doubts that many people in the U.S. had as to whether you could actually make this program work,” he adds. “But now we’ve demonstrated it, we’ve road tested it. And so we have a case to make with our allies.”

Depending on how you define the ultimate goal of the UFLPA, however, the case for the legislation is mixed. 

By and large, the UFLPA is succeeding in compelling U.S.-based companies to change the way they think about their supply chains: The private sector is now laser-focused on issues that were once an afterthought. 

“What we have seen over the past two years is that compliance teams that were once one or two people are ballooning to one or two dozen,” says Dave Lynch, head of global analytical solutions at Sayari, a U.S-based company that provides global supply chain and risk intelligence.

But if the aim of the UFLPA was to compel a change in Beijing’s Xinjiang policies, there is no evidence the conditions on the ground have meaningfully improved. 

Turkel acknowledges that this crushing reality makes him feel impatient and anxious, especially when he thinks about his mother. “I only have one mom,” he says. “I can replace a lot of stuff. I can’t replace my mom, and she can’t replace me.” 

Still, if the UFLPA was the first step, Turkel insists it’s worth taking the next one. 

“This problem [in Xinjiang] was in the making for 30 years,” he says. “It will take even double the effort to roll it back.”

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