Several countries have had long standing (but rarely used) laws on their books authorizing bans on the import of goods made with forced labor. The combination of substantial evidence of detentions of Uyghur and other ethnic minorities in massive labor camps in China’s Xinjiang Uyghur Autonomous Region and the work of civil society groups to document the use of forced labor in global supply chains changed that, with countries making far greater use of their existing laws and enacting a number of additional provisions, like the Uyghur Forced Labor Prevention Act and the Countering America’s Adversaries Through Sanctions Act in the United States. The increased enforcement of import bans has raised questions about whether such actions are consistent with prevailing international trade rules, particularly the World Trade Organization (WTO) rules prohibiting export or import bans.

This Article analyzes the compatibility of forced labor bans with WTO obligations and outlines the available defenses justifying any measures that might be deemed inconsistent with WTO rules. It takes as its point of departure the International Labour Organization’s Forced Labour Convention, 1930 (No. 29) definition of forced labor: “all work or service which is extracted from any person under threat of a penalty and for which the person has not offered himself or herself voluntarily.” It summarizes the actions taken in the United States, both in response to the widespread use of forced labor in Xinjiang and in the newly added provisions to the United States-Mexico-Canada Agreement, along with an assessment of recent actions in the United States and the European Union prohibiting products made with forced labor.

The Article examines the key applicable WTO disciplines: General Agreement on Tariffs and Trade (GATT) Article XI’s prohibition on export or import bans, GATT Articles I and III, and the Technical Barriers to Trade Agreement non-discrimination provisions. It finds that Article III provides a carve out for import bans if there is a comparable ban on domestic goods made with forced labor and that consumer preferences against buying products made with forced labor may provide a basis to lawfully discriminate against forced labor-made goods. The Article further notes that even if an import ban were found to run afoul of the WTO rules, it can likely fit within the general exceptions for measures designed to protect public morals or human life if implemented fairly and transparently.

The Article concludes that carefully designed forced labor import bans can be imposed consistent with, or defensible under, the WTO Agreements. It suggests that the best way to advance such import bans is to ensure that they are universally applicable, that they have analogous domestic prohibitions, and that they are procedurally consistent, transparent, and flexible.

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