New Trade Legislation Includes Provisions to Combat Human Trafficking and Forced Labor

King & Spalding

[author: Elizabeth Owerbach]

The June passage of Trade Promotion Authority (TPA) legislation included a provision designed to prevent the United States from making trade deals with governments who fail to do their part in combatting global human trafficking. The legislation stipulates that no trade agreements the United States makes with countries designated as Tier 3 on the State Department's Annual Trafficking in Persons Report (TIP Report) will benefit from "fast-track" congressional consideration under TPA.

The United States defines human trafficking to include "all of the criminal conduct involved in forced labor and sex trafficking, essentially the conduct involved in reducing or holding someone in compelled service." To combat global trafficking, the United States has developed Minimum Standards for the Elimination of Trafficking in Persons and each year releases a TIP Report categorizing countries based on their governments' efforts to comply with the minimum standards. Tier 1 countries "fully comply" with minimum standards, Tier 2 countries are making "significant efforts" to comply, Tier 2 Watch List countries are making significant efforts but have a particularly significant trafficking problem or warrant precaution for other reasons, and Tier 3 countries are not making significant efforts to comply with the minimum standards.

In late July, the State Department released its 2015 TIP Report. Significantly, the report upgrades both Malaysia and Cuba from "Tier 3" to the "Tier 2 Watch List." This move has drawn criticism from Senator Menendez and other supporters of TPA's trafficking-related restriction. Malaysia is one of the countries involved in negotiations for a Trans Pacific Partnership (TPP) Agreement with the United States and ten other countries. Completion of the TPP Agreement may soon be possible with the passage of TPA. Meanwhile, improving relations with Cuba has been a priority for the Obama Administration, who recently reestablished diplomatic ties with the country.

Senator Menendez has accused the Administration of "elevat[ing] politics over the most basic principles of human rights." He is joined by other Congressional leaders and human rights groups who claim the Malaysia and Cuba upgrades were not warranted by the governments' efforts to combat trafficking. The State Department has insisted that its upgrades are based on an assessment of the compliance criteria and were not motivated by political concerns.

In addition to the trafficking provisions of TPA, a human rights provision is also included in the pending Trade Facilitation and Trade Enforcement Act of 2015, which has been approved by the House of Representatives and the Senate but is awaiting reconciliation between the two versions. Language in this bill would eliminate the "consumptive demand" exception that currently exists to the U.S. prohibition on importing merchandise made by convict, forced, or indentured labor. This would eliminate the requirement that products may only be blocked from importation in cases where the United States produces a sufficient quantity on its own, potentially increasing the effectiveness of the prohibition.

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