Since the Modern Slavery Act (2015), we have understood more about forced labour in Xinjiang and the approach to how China’s Intelligence Service (‘ChiS’) infiltrates policy-making. Their ruthlessness and culpability demand further action. It would be politically responsible to bring legislation that suits the dynamic world by scrutinising all our multilateral deals proactively and constantly.
Should the UK be making trade deals that ignore human rights?
A bill to revisit the 2015 Modern Slavery Act can complement resilient trade networks. Firstly, to ask the secretary of state to develop a comprehensive UK strategy for ‘challenging regimes’ which will set criteria for scrutiny and compel the secretary of state to make regular reports like the six-monthly reports on Hong Kong.
Secondly, review our trade preferential access agreements with a view to renegotiate to include human rights and anti-modern slavery clauses. The first will allow parliament and the public to scrutinise a report prepared by the civil service. Legislators can precisely target loopholes in their legislative agenda. In extreme cases, these regular reports will provide the legal basis to implement sanctions through secondary legislation.
On trade preferential access agreements we must take the view that any preferential trade agreements should contain anti-modern slavery clauses. These measures actively halt victimisation in the first place. This is essential when considering trade negotiations, whether they are comprehensive trade deals or facilitation of trade, with challenging regimes. Access agreements with challenging regimes like China should include human rights and anti-modern slavery clauses.
Currently, the UK does not have a direct trade preferential deal with China. However, such a trade deal had always been on the cards as the ideal expansion of post-Brexit trade. The concept of inserting these special clauses is not solely directed at trade with China. We must maintain these clauses across all trade agreements in order to achieve resilience. Much of our anti-modern slavery legislation focused on punishing the perpetrator. Yet, with any criminality, while there is justice, there may be no proper victim compensation.
Tribunals at the ICC
These regular reports also facilitate research from academic institutes, and tribunals set up under the auspices of the International Criminal Court (ICC). For example, the Yale CELI List of companies leaving and staying in Russia ranks international corporations in the extent of their business engagement within Russia after Russia invaded Ukraine. A ranking system clearly defines direct or indirect funding of Russia’s war machine.
Too often, anti-modern slavery legislation which parliament enacts will be a spectrum. The weaker end of the spectrum involves advisory regulations as being ‘corporate ethics’ or so vague they have no prospect of prosecution. Therefore, the reports and resulting academic scrutiny can fill in the weaknesses in the legislation.
I would also suggest setting up tribunals under the remit of the ICC. We often forget that the ICC was set up as an impartial institution to end impunity. However, the current structure of the court means it is restricted to selecting only the cruellest crimes against humanity. Modern slavery may sound less culpable than genocide. But in the presence of a state or states that turn a blind eye to modern slavery, individual officials from authoritarian states colluding in modern slavery slowly degrade the legitimacy of any international human rights legal system.
Use of sanctions
We do have sanction regimes but non-UN sanctions are implemented differently across nations. For example, the Hong Kong Autonomy Act and Executive Order 13936 (of the USA) sanctioned several officials involved in undermining Hong Kong’s ‘One Country Two System’ and the crackdown on pro-democracy protesters in 2019. This executive order is actionable only in the United States and such sanctions are limited to financial restrictions without ending impunity.
It is a mirage of human rights law-making. It seems plausible as a presidential and legislative public act subjected to a political will to pacify opinion polls. But there has been a lack of adjudications and nobody or nation has been brought to court or held in contempt of court rulings on this matter. As a result, over time, political will in other countries decreased and therefore these sanctions have very limited consequences.
A tribunal set up under the ICC could allow cases to be brought forward if an individual is sanctioned in one country. They would face preliminary hearings by the court and be assessed on the prospect of a case. The ICC would then decide whether that individual should stand trial or compel signatory nations to enact similar sanctions. The evidence at the preliminary hearing would have included sources where academic scrutiny reports can act as testimony. Reports similar to the Yale List. The need for impartiality for adjudication is a reason why academic scrutiny is a preferable choice over campaign-led organisations.
Of course, campaign-led organisations including NGOs, think tanks and investigative journalism do have an important role as they provide documentation. Under current practices, these organisations engage lawyers to present a case against the state or to try to gather complainants to launch class-action suits under the US judiciary system. The first approach, of engaging lawyers, usually merely shows up the pitfalls in legislation. The second approach of class-action suits in the US is costly. The ICC concept is an attempt to project a civil litigation approach, without the restriction of extra-territorial jurisdiction restrictions, backed by an institution set up by sovereign states and allows punitive actions to be undertaken by states.
Working together
None of these methods will end impunity overnight. The strategy is to embark on a pathway. As mentioned, nations have a lack of strategy and campaigners are forced into a vicious cycle of activism. Forming a single nation-led network would not be sufficiently resilient in today’s multilateral world. There is the well-oiled Atlantic Charter to provide a security umbrella.
The key is pushing forward with multiple resilient networks to strengthen nations as well as prevent nations from falling further into autocracy. China’s foreign policy will always appreciate more like-minded autocratic states. We must therefore build new trade networks to strengthen ourselves and enable our new partners to develop networks for us. Working alongside should be a new legal framework with a focus on adjudication to provide hope for justice. This chain becomes groups of resilient networks giving fair hope to citizens and exiles who wish to push their campaigns for change and justice.
