Commentary
The U.S. government is issuing new warnings to business against operating supply chains that reach into Xinjiang (East Turkestan), China, where there is ongoing forced labor and genocide, as well as warnings for investors in Hong Kong, where national security laws from Beijing are criminalizing even verbal resistance to China’s growing power. The warnings should dampen undue excitement on Wall Street and Silicon Valley over ostensibly high returns to be found in China. However, given the ultimate in reprehensible crimes, that of genocide, the attempt to maintain business in China by focusing on a lesser subset of crimes, that of forced labor and lack of freedom of speech, in a geographical subset of China, Xinjiang and Hong Kong, is apparently an attempt to maintain business with a genocidal state in the rest of the territory it controls.
This is wrong. The genocide is systemic to China as it is approved from the very top: Xi Jinping’s regime in Beijing. As China is a totalitarian system in which the state has control of the entire economy, trying to separate out regular business in China from the genocide is misguided and unethical. The only respectful and fair approach for the Uyghurs, given the genocide imposed upon them, is total economic decoupling from China.
China’s atrocities against the Uyghurs are a violation of the U.N. Genocide Convention. But complicity with genocide is also a violation, and business in China during the genocide is therefore arguably a violation of international law.
According to Article III of the Convention, “The following shall be punishable … complicity in genocide.” Article III applies to “private individuals” as well as rulers and officials, according to Article IV. It is incumbent upon all contracting parties, according to Article V, which includes the U.S. government, to enact legislation to punish those persons found guilty of Article III, including those private individuals who are complicit in genocide.
International legal scholar Björn Schiffbauer of the University of Cologne writes in 2018, “it is a fundamental condition of both international law and the very existence of mankind that any preparation or any act of aiding, abetting or committing genocide must be averted as early as possible.”
The 36-page Biden administration advisory, issued on July 13, has some strong language, to be sure. “Given the severity and extent of these abuses, including widespread, state-sponsored forced labor and intrusive surveillance taking place amid ongoing genocide and crimes against humanity in Xinjiang, businesses and individuals that do not exit supply chains, ventures, and/or investments connected to Xinjiang could run a high risk of violating U.S. law,” according to the statement, which was approved by the U.S. departments of State, Treasury, Commerce, Homeland Security, Labor, and the Office of the Trade Representative.
The advisory listed a range of legal risks, including, “violation of statutes criminalizing forced labor including knowingly benefitting from participation in a venture, while knowing or in reckless disregard of the fact that the venture has engaged in forced labor; sanctions violations if dealing with designated persons; export control violations; and violation of the prohibition of importations of goods produced in whole or in part with forced labor or convict labor.”
Normal human rights due diligence, according to the statement, “presents extreme challenges” in China, due to the country’s “ongoing crimes against humanity and genocide in Xinjiang and the repressive and opaque environment,” according to the statement, which was published by the State Department.
Third-party audits are insufficient due diligence by companies, according to the warning, as auditors “have reportedly been detained, harassed, threatened, or stopped at the airport. Auditors may be required to use a government translator who conveys misinformation or does not speak in workers’ first language. Auditor interviews with workers cannot be relied upon given pervasive surveillance, the threat of detainment, and evidence of workers’ fear of sharing accurate information.”
All of these challenges to due diligence and auditing apply to the entire country of China, not just to Xinjiang. As forced Uyghur laborers (let’s call them what they are: slaves) are being transported around the country, forced labor is a China-wide problem, not just a problem in Xinjiang. What’s more, the inability of workers throughout China to vote or have any meaningful form of participation in their own governance, in the context of poverty and a highly regimented society, can be little better than slavery, if not slavery itself.
The genocide has been ongoing for over four years now. The Biden report notes that on Jan. 19, 2021, “The Secretary of State determined that since at least March 2017, the PRC is committing genocide and crimes against humanity against Uyghurs, who are predominantly Muslim, and members of other ethnic and religious minority groups in Xinjiang.”
Businesses in China who were paying attention, and operating according to ethical principles, got out of China long ago, or saw the writing on the wall and never went to China in the first place. The businesses that remain in China today, were the unethical ones to begin with. The longer and more deeply they involve themselves in China, the less ethical we know them to be.
Anders Corr has a bachelor’s/master’s in political science from Yale University (2001) and a doctorate in government from Harvard University (2008). He’s a principal at Corr Analytics Inc., publisher of the Journal of Political Risk, and has conducted extensive research in North America, Europe, and Asia. He authored “The Concentration of Power” (forthcoming in 2021) and “No Trespassing,” and edited “Great Powers, Grand Strategies.”
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