2. EO mechanisms

2021). Whether to issue a WRO and its scope remains solely at the discretion of the CBP. The CBP also decides when to require companies to remediate working conditions, and what efforts constitute adequate remediation in order to lift a WRO. Also, there is a lack of clear evidentiary standards required in petitions and transparency by CBP on explanations of enforcement actions. The issuance of WROs might not be sufficiently evidence-based, consistent and independent (Vanpeperstraete, 2021). The definition of sufficient remedial steps remains discretionary, with limited space for input from rights holders or civil society. The investigation remains largely non-public (Bell, 2016; Kuplewatzky, 2016). The initiative of the U.S. Congress for an annual report by the Commissioner of the CBP is a critical first step toward greater transparency and accountability (GoodWeave, 2017).

Fifth, there are still a relatively small number of actions. Although the CBP has increased its enforcement actions, only twelve WROs have been issued in 2020. In order to make a real impact on corporate behaviour, a higher and more regular number of WROs would need to be issued (Vanpeperstraete, 2021). One of the reasons for the small number of actions may be the customary practice of targeting individual producers and the difficulty of tracing products back to the factory or farm using forced labour, given complex global supply chains. Enhancing Section 307 enforcement would likely hinge on greater resources. CBP has cited staff shortages as causing the agency to drop investigations and limiting its ability to monitor existing cases (CRS, 2021a).

Finally, there may be unintended consequences for business. Industry groups caution that broader WROs may disrupt supply chains, deter legitimate business with other suppliers, and worsen the economic security of vulnerable workers. There may also be financial repercussions. In March 2021, it was reported that Nike and H&M are facing backlash in China over Xinjiang statements condemning forced labour – with Chinese social media criticising the statements by the companies and Chinese celebrities cancelling contracts with them (Standaert, 2021).

2. EO mechanisms

U.S. Executive Order 13126 of 1999 Executive Order (EO) 13126 of 1999 Prohibition of Acquisition of Products Produced by Forced or Indentured Child Labor” seeks to ensure that U.S. federal agencies do not procure goods made by forced or indentured child labour notably through the following means:

1. Policy (Section 1). Executive agencies “take appropriate actions to enforce the laws prohibiting the manufacture or importation of goods, wares, articles, and merchandise mined, produced, or manufactured wholly or in part by forced or indentured child labor” (Executive Order No. 13126, 1999).

2. Publication of List (Section 2). The Department of Labor (DOL) publishes a list called

“Prohibition of Acquisition of Products Produced by Forced or Indentured Labor” – a list of products, identified by their country of origin, that has “a reasonable basis to believe might have been mined, produced, or manufactured by forced or indentured child labor” (Executive Order No. 13126, 1999).

3. Procurement (Section 3). Each solicitation of offers for a contract for the procurement of a product included on the list published by the DOL should include i) a provision that requires the contractor to certify that it “has made a good faith effort to determine whether forced or indentured child labor was used to mine, produce, or manufacture any product furnished under the contract and that, on the basis of those efforts, the contractor is unaware of any such use of child labor” and (2) a provision that obligates the contractor to cooperate fully in providing reasonable access to its records, documents, persons, or premises for the purpose of determining whether forced or indentured child labor was used to mine, produce, or manufacture any product furnished under the contract” (Executive Order No. 13126, 1999).

Termination of the contract, suspension of the contractor; or debarment of the contractor for a period not to exceed three years are the remedies available for violations (48 CFR §22.1504(b).). Since the EO’s issuing, USDOL accepts for review allegations of forced child labour in the production of goods. The minimum standard of evidence involves recent, credible, and appropriately corroborated information (Bayer, 2016).

U.S. Global Magnitsky Human Rights Accountability Act and U.S. Executive Order 13818 of 2017 In 2012, the United States adopted the Magnitsky Act which provided for governmental sanctions on foreign individuals associated with human rights violations and corruption (Russia and Moldova Jackson-Vanik Repeal and Sergei Magnitsky Rule of Law Accountability Act, 2012). Intended to punish Russian officials responsible for the death of Russian tax lawyer Sergei Magnitsky in a Moscow prison in 2009, the Act froze any U.S. assets they held and banned them from entering the United States.

Building on the original Russia-focused Magnitsky law, in 2016 U.S. Congress enacted the Global Magnitsky Human Rights Accountability Act – abbreviated GloMag – which allows the executive branch to impose visa bans and targeted sanctions on individuals anywhere in the world responsible for committing human rights violations or acts of significant corruption. GloMag authorises the president to block or revoke the visas of certain “foreign persons” (both individuals and entities) or to impose property sanctions on them. People can be sanctioned (a) if they are responsible for or acted as an agent for someone responsible for “extrajudicial killings, torture, or other gross violations of internationally recognized human rights,” or (b) if they are government officials or senior associates of government officials complicit in “acts of significant corruption” (Global Magnitsky Human Rights Accountability Act, 2016). Sanctions deny individuals entry into the U.S., allow the seizure of any of their property held in the country, and effectively prevent them from entering into transactions with large numbers of banks and companies. Both American companies and multinational companies with American subsidiaries run the risk of violating U.S. sanctions if they do business with sanctioned people (Human Rights Watch, 2017b).

Building upon GloMag, Executive Order (EO) No. 13818 (2017) “Blocking the Property of Persons Involved in Serious Human Rights Abuse or Corruption” was signed in 2017, finding