Thursday, June 03, 2021

The US Two-Thrust Campaign Against Chinese Policy in Xinjiang: The Congressional-Executive Commission on China (CECC) Coordinates Use of Markets (NBA Endorsements) and Statutes (Uyghur Forced Labor Prevention Act)

Pix Credit: NBA Stars Urged to End China Endorsements Over Forced Labor

The Congressional-Executive Commission on China was created by the U.S. Congress in 2000 "with the legislative mandate to monitor human rights and the development of the rule of law in China, and to submit an annual report to the President and the Congress. The Commission consists of nine Senators, nine Members of the House of Representatives, and five senior Administration officials appointed by the President." (CECC About). The CECC FAQs provide useful information about the CECC. See CECC Frequently Asked Questions. They have developed positions on a number of issues.

CECC tends to serve as an excellent barometer of the thinking of political and academic elites in the United States about issues touching on China and the official American line developed in connection with those issues. As such it is an important source of information about the way official and academic sectors think about China. As one can imagine many of the positions of the CECC are critical of current Chinese policies and institutions (for some analysis see  CECC).

The situation in Xinjiang has been high on the agenda of the CECC (see CECC engagement in issues touching on Xinjiang HERE).  Its prominence has been undiminished during the course of the transition from the Trump to the Biden Administrations and the change of CECC's leadership.  Indeed, Xinjiang provides an excellent context in which dominant elements of the US core of leadership can develop a potentially discourse on rights that distinguish the US variant of the liberal democratic system, plugged into the international human rights project mostly situated within the  UN's special procedures apparatus (but distinct from it), from the Chinese Marxist Leninist variation exemplified by Chinese policy in Xinjiang. It also provides a basis for meaning making that adds a layer of judgment about the meaning of that policy and the signification of its implementation on the ground that sharpens the distinctions between liberal democratic and Marxist Leninist approaches to rights, the authority of states, and the scope political interactions with ethnic and socio-cultural communities.  

But part of the difference in approaches touches on the relationship between markets and the state apparatus. That difference can be exploited by key actors within liberal democratic orders. This is especially possible in the context of the application of global principles of human rights (as developed through the UN apparatus at least), the distinction between the governance of the societal sphere (markets based and structured through private law arrangements), and the governmental or political sphere (the sphere of governmental authority grounded in political authority and expressed through traditional law and rulemaking by elected officials, courts and the administrative apparatus of states interlinked with their regional and international apparatus). The operative structures of this interlinkage and its strategic connections were nicely developed (through underappreciated by liberal democratic actors who championed the privilege of one or the other of these two spheres) in mechanisms like the UN Guiding Principles for Business and Human Rights.  

Pix Credit: outh China Morning Post
It appears, however, that elements of the CECC have begun to understand how one might engage these dual levers to project power across borders and to strengthen (and discipline) a specific norm enhancing narrative that aligns with national policy (and presumably national political and normative values).  To that then, the leadership of the CECC has recently engaged in a two track approach to projecting power and asserting pressure against Chinese policy and policy implementation in Xinjiang.  It has done this by announcing a two thrust campaign.  The first seeks to affect the societal sphere by putting pressure on market actors to evidence fidelity to national (and perhaps international) human rights values in accordance with a specific application, in their market transactions.  In this case CECC chose a high value target-- the endorsement deals of NBA players that are deemed to enhance the ability of Chinese authorities to continue to augment their implementation of what to the US are objectionable policies in Xinjiang. The mechanics are societal.  CECC produced a "noisy" and much publicized letter to the National Basketball Association, which was then widely reported through key press organs in the United States (see, e.g., US News & World Report; New York Times; South China Morning Post; Reuters; Daily Mail; etc.).

Simultaneously CECC's leaders have introduced legislation, the Uyghur Forced Labor Prevention Act (UFLPA) HR 1155 (117th Cong. 1st Sess. 2021), which does two things.  First it serves to develop an authoritative narrative embedded in law (through the preamble and its findings).  This is a tactic that has become quite important in the way that the US legislature seeks to develop authoritative signification, that is the way that an authoritative interpretation of facts is developed by the political authorities in the United States ( UFLPA ¶ 2 (Findings). Second,  it serves to enhance a legal framework for decoupling trade that is connected to "all goods, wares, articles, and merchandise mined, produced, or manufactured wholly or in part in the Xinjiang Uyghur Autonomous Region of China, or by persons working with the Xinjiang Uyghur Autonomous Region government for purposes of the ‘‘poverty alleviation’’ program or the ‘‘pairing-assistance’’ program which subsidizes the establishment of manufacturing facilities in the Xinjiang Uyghur Autonomous Region" (UFLPA § 4(a)). This is to be undertaken in a coordinated way with the principal parters of the US (UFLAP §§3(2) (3)). This is combined with a mandate to the administrative apparatus of state to develop and report to Congress on a strategy for meeting legislative objectives (§ 5). Most interesting is § 6 of the UFLPA, which seeks to tie U.S. policy (and the principles underlying them) to the core premises of international (criminal) law. It directs the US Secretary of State to "determine if the practice of forced labor or 1other crimes against Uyghurs, Kazakhs, Kyrgyz, and members of other Muslim minority groups in 3the Xinjiang Uyghur Autonomous Region of China 4can be considered systematic and widespread and 5therefore constitutes crimes against humanity or 6constitutes genocide as defined in subsection (a) of section 1091 of title 18, United States Code" (UFLPA §6 (a)(1)), and then to reach out to international organs and allies as well as with non-governmental organizations (UFLPA § 7). And, of course, at the end of all of this is the embedding of the findings and actions within the increasingly important system of targeted sanctions overseen by the government (UFLPA § 8) as well as to enhance the markets effects of disclosure of business dealings  for the protection of investors (UFLPA § 9; these mirror disclosures already emerging in areas such as modern slavery acts in other states).

The CECC Press Release nicely summarized the Two thrust effort:

Xinjiang: Chairs Urge NBA Players to End Endorsement Deals with Chinese Forced Labor Companies

June 1, 2021

(Washington)—Senator Jeff Merkley (D-OR) and Representative James P. McGovern (D-MA), the Chair and Cochair, respectively, of the bipartisan and Congressional-Executive Commission on China released today a letter sent to National Basketball Players Association (NBPA) President Chris Paul and Executive Director Michele Roberts concerning the contracts between NBA players and Chinese sportswear companies Anta, Li-Ning, and Peak. These companies have all affirmed that they use cotton produced in the Xinjiang Uyghur Autonomous Region (XUAR) of China.

The Chairs urged the NBPA to educate their members about the use of forced labor in the making of sportswear in China and the U.S. government’s determination that genocide and crimes against humanity, including the systematic use of forced labor, are being committed by the Chinese government in the XUAR. The Chairs encouraged NBA players to end their endorsement deals with Anta, Li-Ning, and Peak if these companies continue to use Xinjiang cotton.

The Chairs are the sponsors of the Uyghur Forced Labor Prevention Act (H.R.1155 / S.65) which would prohibit import of all goods from the XUAR until there is evidence that forced labor is no longer being employed in the region.
Taken together, the two thrust approach suggests a fairly clear and elegant working of the disciplinary mechanisms of the emerging American imperial system within the sphere of its own control, as well as the way that control might be projected through its own instrumentalities (through markets and its administrative and regulatory apparatus ) against competing imperial operations, in this case that of the Chinese sphere. It represents a much more open textured approach that signals the way on which authority and control will be exercised going forward to ensure fidelity to the guiding norms and principles of the US core of leadership, and as well the way that fidelity will be naturalized  among its masses.  It does suggest as well the quite distinct approaches between the bio-politics of the American systems (grounded increasingly I suspect) within these coordinated two thrust approaches, and that of the Chinese apparatus, which is more heavily invested in a centrally managed system of data driven accountability and compliance measures tied closely to systems of rewards and punishments to align with core leadership norms, values and objectives. Between them lie the ultimate prize--the effective control of the apparatus of international public organs. That battle has just started and its conclusion has yet to be determined.  This battle over Xinjiang is perhaps a warm up to what is coming.

The full text of the letter can be found here and below. The 33 page UFLPA may be accessed HERE.



Pix Credit: NBA Flagship store Beijing; New York Times


Chris Paul, President
Michele Roberts, Executive Director
National Basketball Players Association
1133 Avenue of the Americas
New York, NY 10036

Dear President Paul and Executive Director Roberts:

As Members of Congress, we appreciate the commitment of the leadership and the members of the National Basketball Players Association (NBPA) to the causes of equality and social justice. The NBPA has taken a public stand with other professional sports unions against new legislation in state legislatures that could make it harder for citizens to vote, and for amplifying the voices of its members to speak out for justice and police accountability during the protests in the summer of 2020 and since.

Today we write to you on another issue of fundamental human rights facing your members. On April 9, 2021, a New York Times article reported that several China-based sports brands, including Anta and Li-Ning, proclaimed their continued use of cotton harvested in the Xinjiang Uyghur Autonomous Region of the People’s Republic of China. In addition, a March 26, 2021, BBC article, as well as multiple articles in Chinese-language media, found that the China-based sports brand Peak has also affirmed its use of Xinjiang cotton. More than a dozen NBA players had endorsement deals with Anta, Li-Ning, and Peak prior to the publishing of these articles, and players have continued to sign new deals with Anta Sports.

We believe that commercial relationships with companies that source cotton in Xinjiang create reputational risks for NBA players and the NBA itself. The U.S. State Department has determined that the Chinese government is committing genocide and crimes against humanity in Xinjiang, including the mass internment of over a million primarily Muslim ethnic minorities and the systematic use of forced labor to make goods for global export. The NBA and NBA players should not even implicitly be endorsing such horrific human rights abuses.

As the Congressional-Executive Commission on China has documented, since 2018, reporting has revealed that authorities in Xinjiang have systematically forced predominantly Muslim ethnic minorities, including Uyghurs, Kazakhs, and others, to engage in forced labor throughout China. There is credible evidence that forced labor exists in Xinjiang’s cotton production. Ethnic minority workers who pick cotton in Xinjiang are subjected to close monitoring and control, and individuals have been detained for refusing to take part in such work programs.

Furthermore, it is not possible for credible labor audits to independently verify whether supply chains in Xinjiang are tainted by the products of forced labor. Labor rights organizations have warned that firms should not be conducting audits in Xinjiang as workers subjected to surveillance and the constant threat of detention cannot speak freely about their working conditions. Indeed, auditing cotton production may do more to facilitate the continued use of forced labor in production than to eliminate it.

In response to evidence of the forced labor occurring in Xinjiang, U.S. Customs and Border Protection has issued “Withhold Release Orders” preventing the import of Xinjiang-originated goods, including apparel, cotton, and cotton products, from entering the United States. Congress is currently considering the Uyghur Forced Labor Prevention Act, which would create a “rebuttable presumption” that goods sourced in Xinjiang are made with forced labor and are thus prohibited from entering the United States. A version of this bill passed the U.S. House of Representatives in 2020.

Xinjiang cotton is synonymous with the repression that takes place in Xinjiang. The Chinese government has created a system of mass surveillance and internment, restricted individuals’ ability to peacefully practice their religion, forcibly sterilized women, and separated children from their families. Forced labor plays an integral role in the crimes against humanity taking place against Uyghurs and other Muslim minorities in the region. The U.S. government has taken steps to ban the import of many goods produced in Xinjiang, including cotton, and sanctioned Chinese government officials responsible for these abuses.

Many global brands are ending the sourcing of cotton goods made in Xinjiang. By contrast, Anta, Li-Ning, and Peak have publicly embraced Xinjiang cotton, likely making them complicit in the use of forced labor.

In light of this, we urge the NBPA to work with its members to raise awareness about the ongoing genocide taking place in Xinjiang and the role of forced labor in the production of products made by brands that NBPA members have endorsed. We hope that the result of such efforts would be that the players would leverage their contracts with Anta, Li-Ning, and Peak to push these companies to end their use of Xinjiang cotton. Short of that outcome, we encourage players to end their endorsement deals with these companies.

NBA players have a track record of using their large public platform to speak out against injustice, and we hope this will include Xinjiang. Complicity in forced labor is neither consistent with American values nor with U.S. law. NBA players serve as unofficial ambassadors admired and emulated around the world, and we hope that their decisions on endorsements will reflect the NBPA’s values.

Press Contact: Scott Flipse, 202-308-6062

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