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United States Pressures China Over Human Rights Abuses

Published online by Cambridge University Press:  22 April 2022

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Abstract

Type
International Human Rights and Humanitarian Law
Copyright
Copyright © The Author(s), 2022. Published by Cambridge University Press for The American Society of International Law

The United States has taken legislative and executive actions to address human rights violations committed by the People's Republic of China (PRC), particularly in the Xinjiang Uygur Autonomous Region (Xinjiang). Building on Trump administration policies, the Biden administration has sanctioned Chinese officials and entities for human rights abuses and established a new sanctions regime for Chinese companies involved in the development and use of surveillance technology to aid repression. The United States has also tightened trade restrictions with the passage of the Uyghur Forced Labor Prevention Act (UFLPA), which bars Chinese goods made with forced labor from entering the United States. More symbolically, the Biden administration announced a diplomatic boycott of the 2022 Winter Olympic Games in Beijing, allowing U.S. athletes to compete but declining to send a U.S. government delegation.

The Biden administration's actions continue and expand upon efforts by the Trump administration to respond to China's human rights abuses in Xinjiang. Just before leaving office in January 2021, then-Secretary of State Mike Pompeo announced a determination that China was committing crimes against humanity and “genocide against the predominantly Muslim Uyghurs and other ethnic and religious minority groups in Xinjiang.”Footnote 1 The Biden administration has repeated these determinations, and in March 2021 imposed Global Magnitsky sanctions on Chinese officials for human rights abuses in Xinjiang.Footnote 2

In recent months, the United States has ramped up actions targeted at individuals and entities involved in human rights abuses and surveillance of the Uyghurs and other minorities. On June 3, President Biden issued Executive Order 14,032 on “Addressing the Threat from Securities Investments that Finance Certain Companies of the People's Republic of China.”Footnote 3 The directive amended a November 2020 Trump administration order that prohibited U.S. persons from investing in companies linked to China's military and expanded the investment ban to include companies involved in China's “surveillance technology sector.”Footnote 4 The White House explained that the expansion is intended to “address the threat of Chinese surveillance technology firms that contribute—both inside and outside China—to the surveillance of religious or ethnic minorities or otherwise facilitate repression and serious human rights abuses.”Footnote 5 The administration initially designated two companies for their links to the surveillance sector,Footnote 6 and subsequently added a number of others. In conjunction with the “Summit for Democracy” and International Human Rights Day on December 10, the Treasury Department added a company called SenseTime, citing its ownership of a company that “has developed facial recognition programs that can determine a target's ethnicity, with a particular focus on identifying ethnic Uyghurs.”Footnote 7 The following week, the Treasury Department added eight more Chinese companies to the investment ban list, noting that they “actively support the biometric surveillance and tracking of ethnic and religious minorities in China, particularly the predominantly Muslim Uyghur minority in Xinjiang.”Footnote 8 The administration has also imposed Global Magnitsky Act sanctions on Chinese officials, building on Trump administration sanctions on the Xinjiang Public Security Bureau and adding the former chairman and acting chairman of Xinjiang.Footnote 9

In response to the December sanctions, a Chinese foreign ministry spokesman argued that “Xinjiang-related affairs are purely China's internal affairs” and that the “so-called sanctions by the US fully expose its sinister intention of using Xinjiang to contain China.”Footnote 10 He urged the United States to reverse course, promising “strong countermeasures” if it did not.Footnote 11 Later in December, China sanctioned four members of the U.S. Commission on International Religious Freedom (USCIRF),Footnote 12 adding to sanctions it imposed on other Commission members in March 2021.Footnote 13 The USCIRF condemned China's actions,Footnote 14 as did U.S. Secretary of State Antony Blinken, who called them “yet another PRC affront against universal rights” and contended that “Beijing's continued attempts to intimidate and silence those speaking out for human rights only contribute to the growing international scrutiny of the ongoing genocide and crimes against humanity in Xinjiang.”Footnote 15

The United States has also turned to trade measures to pressure China on human rights. In January 2021, the Trump administration, citing concerns about forced labor, prohibited imports of cotton and tomatoes from Xinjiang, as well as items made from them.Footnote 16 In June 2021, the Biden administration broadened the list of goods subject to import prohibitions to include silica-based products and items derived from them that are used in solar panels and produced by certain companies allegedly employing forced labor operating in Xinjiang.Footnote 17

In an effort to broaden trade restrictions, Congress passed and Biden signed the UFLPA into law in December 2021.Footnote 18 The UFLPA, which passed Congress with strong bipartisan support,Footnote 19 seeks to “strengthen the prohibition against the importation of goods made with forced labor, including by ensuring that the Government of the People's Republic of China does not undermine the effective enforcement of section 307 of the Tariff Act of 1930 . . . which prohibits the importation of all” items made with forced labor abroad.Footnote 20 The UFLPA directs the Forced Labor Enforcement Task Force, established pursuant to the United States-Mexico-Canada Agreement Implementation Act, to use a notice and comment process to develop a strategy in conjunction with the secretary of commerce and director of national intelligence to enforce the prohibition on “importation into the United States of goods mined, produced, or manufactured wholly or in part with forced labor in” China.Footnote 21 The Act also directs the commissioner of the U.S. Customs and Border Patrol to apply a rebuttable presumption that items “mined, produced, or manufactured wholly or in part” in Xinjiang are made with forced labor and thus subject to an “import prohibition.”Footnote 22 To rebut the presumption, importers must show “clear and convincing evidence” that the items were not produced with forced labor.Footnote 23 The UFLPA also requires the secretary of state to report to Congress on the U.S. diplomatic strategy to address forced labor in Xinjiang, including plans to coordinate with other governments, non-governmental organizations, and the private sector, and to include in the report lists of entities and agents of such entities that “use or benefit from forced labor in the Xinjiang Uyghur Autonomous Region.”Footnote 24 Finally, the Act requires the president to file a report with Congress within 180 days of the Act's passage identifying “each foreign person, including any official of the Government of the People's Republic of China, that the President determines is responsible for serious human rights abuses in connection with forced labor with respect to Uyghurs, Kazakhs, Kyrgyz, or members of other persecuted groups, or other persons in the Xinjiang Uyghur Autonomous Region,” and directs the president to impose sanctions on the identified individuals.Footnote 25 The Act's provisions regarding the rebuttable presumption against imports from Xinjiang, diplomatic strategy, and sanctions sunset after eight years or earlier if the president determines that “China has ended mass internment, forced labor, and any other gross violations of human rights” in Xinjiang.Footnote 26

Senator Marco Rubio (R-FL), who co-sponsored a companion bill in the Senate,Footnote 27 said the UFLPA's passage means non-compliant companies will “no longer be able to continue to make Americans—every one of us, frankly—unwitting accomplices in the atrocities, in the genocide that's being committed by the Chinese Communist Party.”Footnote 28 Senator Jeff Merkley (D-OR), another co-sponsor of the Senate bill, asserted that “[a]s the Chinese government tries to whitewash their genocide and claim a propaganda victory with the upcoming Olympics, this legislation sends a powerful, bipartisan message that the United States will not turn a blind eye.”Footnote 29 The White House pledged to “work closely with Congress to implement” the statute,Footnote 30 and Secretary of State Blinken praised the Act for offering the government “new tools” to generate accountability for “egregious” human rights abuses in Xinjiang.Footnote 31 Numerous U.S. allies, including the European Union, the United Kingdom, Canada, and Australia are also considering legislation to ban imports of products produced with forced labor, including from Xinjiang.Footnote 32

In a statement, China's Foreign Ministry said that the Act “seriously violates international law and basic norms governing international relations and grossly interferes in China's internal affairs.”Footnote 33 The statement accused the United States of “engaging in political manipulation and economic coercion” and argued that “[t]he US acts totally violate market principles and commercial ethics. Such moves will only undermine the stability of global industrial and supply chains, disrupt international trade order and hurt the US’ own interests and credibility. The rock they are lifting will end up dropping on their own feet.”Footnote 34

The United States has also taken symbolic measures to criticize China, announcing a diplomatic boycott of the Winter Olympics in Beijing. On December 6, 2021, White House Press Secretary Jen Psaki announced:

The Biden administration will not send any diplomatic or official representation to the Beijing 2022 Winter Olympics and Paralympic Games given the PRC's ongoing genocide and crimes against humanity in Xinjiang and other human rights abuses . . . . U.S. diplomatic or official representation would treat these Games as business as usual in the face of the PRC's egregious human rights abuses and atrocities in Xinjiang. And we simply can't do that.Footnote 35

When asked why the United States had instituted a diplomatic rather than a full boycott of the Games, Psaki explained that the administration did not believe “it was the right step to penalize athletes who have been training, preparing for this moment” and “felt that we could send a clear message by not sending an official U.S. delegation.”Footnote 36

Senate Foreign Relations Committee Chairman Bob Menendez (D-NJ) supported the administration's move, calling “the diplomatic boycott ‘a powerful rebuke of the Chinese Communist Party's campaign of genocide in Xinjiang’” and a “necessary step to demonstrate our unwavering commitment to human rights in the face of the Chinese government's unconscionable abuses.”Footnote 37 However, some lawmakers argued it did not go far enough, with Senator Tom Cotton (R-AR) arguing that “[t]he United States should fully boycott the genocide Games in Beijing.”Footnote 38

China criticized the boycott. Foreign Ministry Spokesperson Zhao Lijian asserted that China would “respond with firm countermeasures” and that “[t]he US should stop politicizing sports, and stop disrupting and undermining the Beijing Winter Olympics, lest it should affect bilateral dialogue and cooperation in important areas and international and regional issues.”Footnote 39 Later, China's Foreign Ministry attempted to portray the U.S. “boycott as a ‘farce,’ saying it had received visa applications” from U.S. diplomatic “personnel for the 2022 Winter Games.”Footnote 40 A spokesman for the U.S. Embassy in Beijing clarified that these were “consular and security officers” who would “assist athletes and coaches,” noting that “[i]t is standard to have those personnel on the ground,” and that they “do not constitute official or diplomatic representation at the Games.”Footnote 41 Citing human rights concerns, numerous other countries, including Australia, Canada, Denmark, and the United Kingdom, joined the United States in instituting diplomatic boycotts.Footnote 42

To date, China appears unlikely to change its approach to Xinjiang in response to U.S. pressure. Contrary to U.S. condemnations grounded in international human rights, China has repeatedly emphasized that “Xinjiang-related issues are purely China's internal affairs,” and that it believes that “Xinjiang-related issues are not human rights issues at all, but in essence about countering violent terrorism and separatism.”Footnote 43

References

1 U.S. Dep't of State Press Release, Determination of the Secretary of State on Atrocities in Xinjiang (Jan. 19, 2021), at https://2017-2021.state.gov/determination-of-the-secretary-of-state-on-atrocities-in-xinjiang/index.html [https://perma.cc/9RBZ-KHMY].

2 Eichensehr, Kristen E., Contemporary Practice of the United States, 115 AJIL 536, 542–43 (2021)Google Scholar.

3 Exec. Order No. 14,032, 86 Fed. Reg. 30,145 (June 7, 2021) (citing the International Emergency Economic Powers Act and National Emergencies Act).

4 Id.; David E. Sanger & David McCabe, Biden Expands Trump-Era Ban on Investment in Chinese Firms Linked to Military, N.Y. Times (June 3, 2021), at https://www.nytimes.com/2021/06/03/us/politics/biden-ban-chinese-firms-trump.html; see also Exec. Order No. 13,959, 85 Fed. Reg. 73,185 (Nov. 17, 2020).

5 White House Press Release, Fact Sheet: Executive Order Addressing the Threat from Securities Investments that Finance Certain Companies of the People's Republic of China (June 3, 2021), at https://www.whitehouse.gov/briefing-room/statements-releases/2021/06/03/fact-sheet-executive-order-addressing-the-threat-from-securities-investments-that-finance-certain-companies-of-the-peoples-republic-of-china [https://perma.cc/D46K-ACL6].

6 Id.; Sanger & McCabe, supra note 4.

7 U.S. Dep't of Treasury Press Release, Treasury Sanctions Perpetrators of Serious Human Rights Abuse on International Human Rights Day (Dec. 10, 2021), at https://home.treasury.gov/news/press-releases/jy0526; Jeanne Whalen, U.S. Bans Investment in Chinese Surveillance Company SenseTime, Saying It Supports Repression of Uyghur Minority Population, Wash. Post (Dec. 10, 2021), at https://www.washingtonpost.com/technology/2021/12/10/us-investment-ban-sensetime.

8 U.S. Dep't of Treasury Press Release, Treasury Identifies Eight Chinese Tech Firms as Part of the Chinese Military-Industrial Complex (Dec. 16, 2021), at https://home.treasury.gov/news/press-releases/jy0538; Julian E. Barnes, U.S. Cracks Down on Firms Said to Aid China's Repression of Minorities, N.Y. Times (Dec. 16, 2021), at https://www.nytimes.com/2021/12/16/us/politics/us-china-biotech-muslim-minorities.html.

9 U.S. Dep't of Treasury Press Release, supra note 7.

10 Min. of For. Aff. of the People's Republic of China Press Release, Foreign Ministry Spokesperson Wang Wenbin's Regular Press Conference on December 13, 2021 (Dec. 13, 2021), at https://www.fmprc.gov.cn/mfa_eng/xwfw_665399/s2510_665401/2511_665403/202112/t20211213_10467522.html.

11 Id.

12 China Bars Four from U.S. Panel on Religious Freedom in Response to Sanctions, Reuters (Dec. 21, 2021), at https://www.reuters.com/world/china/china-puts-entry-ban-four-us-individuals-response-sanctions-2021-12-21; U.S. Comm'n on Int'l Religious Freedom Press Release, USCIRF Condemns the Chinese Government's Additional Sanctions on USCIRF Commissioners (Dec. 21, 2021), at https://www.uscirf.gov/news-room/releases-statements/uscirf-condemns-chinese-governments-additional-sanctions-uscirf [https://perma.cc/YV22-46SU].

13 Eichensehr, supra note 2, at 543.

14 U.S. Comm'n on Int'l Religious Freedom Press Release, supra note 12.

15 U.S. Dep't of State Press Release, PRC Sanctions on U.S. Officials (Jan. 10, 2022), at https://www.state.gov/prc-sanctions-on-u-s-officials-2 [https://perma.cc/227G-929V].

16 Eichensehr, supra note 2, at 543–44; Jeanne Whalen & Eva Dou, Trump Administration Bans Imports of Cotton and Tomatoes from China's Xinjiang Region, Citing Forced Labor, Wash. Post (Jan. 13, 2021), at https://www.washingtonpost.com/us-policy/2021/01/13/us-ban-xinjiang-cotton-tomatoes.

17 U.S. Customs & Border Prot. Press Release, The Department of Homeland Security Issues Withhold Release Order on Silica-Based Products Made by Forced Labor in Xinjiang (June 24, 2021), at https://www.cbp.gov/newsroom/national-media-release/department-homeland-security-issues-withhold-release-order-silica [https://perma.cc/E3XS-7A9V]; see also Thomas Kaplan, Chris Buckley & Brad Plumer, U.S. Bans Imports of Some Chinese Solar Materials Tied to Forced Labor, N.Y. Times (June 24, 2021), at https://www.nytimes.com/2021/06/24/business/economy/china-forced-labor-solar.html.

18 Pub. L. No. 117-78, § 1, 135 Stat. 1525 (2021); Ana Swanson, Catie Edmondson & Edward Wong, U.S. Effort to Combat Forced Labor Targets Corporate China Ties, N.Y. Times (Dec. 23, 2021), at https://www.nytimes.com/2021/12/23/us/politics/china-uyghurs-forced-labor.html; see also Catie Edmondson, Congress Passes Ban on Goods From China's Xinjiang Region Over Forced Labor Concerns, N.Y. Times (Dec. 16, 2021), at https://www.nytimes.com/2021/12/16/us/politics/congress-uyghur-forced-labor.html.

19 Swanson, Edmondson & Wong, supra note 18.

20 Pub. L. No. 117-78, § 1, 135 Stat. 1525 (2021).

21 Id. at § 2, 135 Stat. 1526–29.

22 Id. at § 3, 135 Stat. 1529.

23 Id. at § 3(b)(2), 135 Stat. 1529.

24 Id. at § 4, 135 Stat. 1530–31.

25 Id. at § 5, 135 Stat. 1531.

26 Id. at § 6,135 Stat. 1531–32.

27 Uyghur Forced Labor Prevention Act, S.65, 117th Cong. (2021), at https://www.congress.gov/bill/117th-congress/senate-bill/65/cosponsors [https://perma.cc/SQW2-7VAU].

28 Edmondson, supra note 18.

29 Id.

30 White House Press Release, Statement by Press Secretary Jen Psaki on the Uyghur Forced Labor Prevention Act (Dec. 14, 2021), at https://www.whitehouse.gov/briefing-room/statements-releases/2021/12/14/statement-by-press-secretary-jen-psaki-on-the-uyghur-forced-labor-prevention-act [https://perma.cc/2Q9H-M72Q].

31 U.S. Dep't of State Press Release, The Signing of the Uyghur Forced Labor Prevention Act (Dec. 23, 2021), at https://www.state.gov/the-signing-of-the-uyghur-forced-labor-prevention-act [https://perma.cc/7HWS-2RMZ].

32 See Coalition to End Forced Labour in the Uyghur Region, Coalition Statement on European Commission's Proposed Ban on Products Made with Forced Labour (Sept. 21, 2021), at https://enduyghurforcedlabour.org/news/coalition-statement-on-european-commissions-proposed-ban-on-products-made-with-forced-labour [https://perma.cc/KW44-CJH3]; European Commission Speech, 2021 State of the Union Address by President von der Leyen (Sept. 15, 2021), at https://ec.europa.eu/commission/presscorner/detail/en/SPEECH_21_4701 [https://perma.cc/MKT7-S7HH]; Foreign Affairs Committee; Never Again: The UK's Responsibility to Act on Atrocities in Xinjiang and Beyond: Government Response to the Committee's Second Report, 2021-2, HC 198 (UK) (July 8, 2021), at https://publications.parliament.uk/pa/cm5802/cmselect/cmfaff/840/84002.htm; An Act To Amend the Customs Tariff (Goods from Xinjiang), S-204 (Nov. 22, 2021), at https://www.parl.ca/legisinfo/en/bill/44-1/s-204 [https://perma.cc/8UJL-LHXW]; Senate of Canada, Bill S-204, 44th Parl., 1st Sess. (Nov. 24, 2021); Daniel Hurst, Australian Senate Passes Bill Banning Imports Made Using Forced Labour, Guardian (Aug. 22, 2021), at https://www.theguardian.com/australia-news/2021/aug/23/australian-senate-poised-to-pass-bill-banning-imports-made-using-forced-labour; Customs Amendment (Banning Goods Produced By Forced Labour) Bill 2021, Parliament of Austl., at https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=s1307 [https://perma.cc/V6MT-5EZY].

33 Min. of For. Aff. of the People's Republic of China Press Release, Foreign Ministry Spokesperson's Statement on US’ Signing of the So-Called Uyghur Forced Labor Prevention Act (Dec. 24, 2021), at https://www.fmprc.gov.cn/mfa_eng/xwfw_665399/s2510_665401/2535_665405/202112/t20211224_10475191.html [https://perma.cc/55TH-LZ6S].

34 Id.

35 White House Press Release, Press Briefing by Press Secretary Jen Psaki, December 6, 2021 (Dec. 6, 2021), at https://www.whitehouse.gov/briefing-room/press-briefings/2021/12/06/press-briefing-by-press-secretary-jen-psaki-december-6-2021 [https://perma.cc/G4T6-NT6T].

36 Id.

37 Zolan Kanno-Youngs, U.S. Will Not Send Government Officials to Beijing Olympics, N.Y. Times (Dec. 6, 2021), at https://www.nytimes.com/2021/12/06/us/politics/olympics-boycott-us.html.

38 Id.; Victor Mather, The Diplomatic Boycott of the Beijing Winter Olympics, Explained, N.Y. Times (Feb. 6, 2022), at https://www.nytimes.com/article/diplomatic-boycott-olympics.html.

39 Min. of For. Aff. of the People's Republic of China Press Release, Foreign Ministry Spokesperson Zhao Lijian's Regular Press Conference on December 7, 2021 (Dec. 7, 2021), at https://www.fmprc.gov.cn/mfa_eng/xwfw_665399/s2510_665401/2511_665403/202112/t20211207_10463627.html[https://perma.cc/2V52-J8YH].

40 Eva Dou, U.S., China Squabble Over Whether Lower-Level Officials Attending Olympics Constitutes “Diplomatic Boycott, Wash. Post (Dec. 28, 2021), at https://www.washingtonpost.com/world/2021/12/28/china-winter-olympics-2022-diplomatic-boycott; Min. of For. Aff. of the People's Republic of China Press Release, Foreign Ministry Spokesperson Zhao Lijian's Regular Press Conference on December 27, 2021 (Dec. 27, 2021), at https://www.fmprc.gov.cn/mfa_eng/xwfw_665399/s2510_665401/2511_665403/202112/t20211227_10476037.html[https://perma.cc/8S6Q-JMYF].

41 Dou, supra note 40.

42 Reuters, Australia Joins Diplomatic Boycott of Beijing Winter Olympics, CNBC (Dec. 7, 2021), at https://www.cnbc.com/2021/12/08/australia-joins-diplomatic-boycott-of-beijing-winter-olympics.html; Lisa Kim, Denmark Latest Country to Join U.S.-Led Diplomatic Boycott of Beijing Olympics, Forbes (Jan. 14, 2022), at https://www.forbes.com/sites/lisakim/2022/01/14/denmark-latest-country-to-join-us-led-diplomatic-boycott-of-beijing-olympics; Megan Specia, U.K. Won't Send Top Officials to Beijing Winter Olympics, N.Y. Times (Dec. 8, 2021), at https://www.nytimes.com/2021/12/08/world/europe/uk-china-olympics-diplomatic-boycott.html; see also John Feng, Which Countries Are Boycotting China's Winter Olympics? Full List, Newsweek (Dec. 8, 2021), at https://www.newsweek.com/every-country-staging-diplomatic-boycott-chinas-winter-olympics-1657177.

43 Min. of For. Aff. of the People's Republic of China Press Release, supra note 33.

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