Clued-in | New Section 301 tariffs pass off US standards as international rules
By Wang Xigen, Peng Yixuan
People's Daily Online
1785829195000

The United States has imposed additional tariffs on 60 economies, including China, in the name of combating so-called "forced labor."

Yet the tariff measures are not based on any proof that these economies have violated specific international treaty obligations, nor on any independent finding of such violations by an international body.

Instead, Washington has imposed trade penalties based solely on unilateral determinations by U.S. administrative authorities that certain practices are "unreasonable and burden or restrict U.S. commerce."

The purpose is not to uphold international rules. Rather, the U.S. is using its market power and the threat of tariffs as leverage to package domestic political preferences as international obligations that other countries must accept.

Opposition to forced labor is a shared position of the international community. But international law provides clear and rigorous standards for determining what constitutes forced labor.

Under the International Labour Organization's Forced Labour Convention, forced or compulsory labor refers to "all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily."

Whether a particular situation constitutes forced labor must therefore be assessed in the context of specific labor relations, with the existence of a threat of penalty and the worker's genuine consent serving as key criteria.

How individual countries fulfill their relevant obligations, meanwhile, should be determined independently in accordance with their own legal systems and in full respect of national sovereignty.

Washington, however, has invoked Section 301 of the Trade Act of 1974 to force international labor issues into the framework of U.S. domestic trade law.

Rather than examining specific labor practices, the latest Section 301 investigations focused on whether the economies concerned had imposed and effectively enforced a ban on imports of goods produced with forced labor, in line with standards unilaterally defined by Washington.

Even if a country has comprehensively prohibited forced labor through legislation, law enforcement and administrative oversight, it may still be labeled "unreasonable" and subjected to tariffs if its institutional arrangements do not conform to standards set by Washington.

In this way, the question of whether a country has fulfilled its international obligations is replaced with the question of whether it complies with U.S. standards. International labor issues are thus turned into trade tools for advancing U.S. commercial interests.

From launching investigations and setting standards to selecting evidence, making determinations and imposing penalties, the entire process has been controlled by U.S. administrative authorities. Washington wrote the rules, interpreted the facts, reached the conclusions and imposed the tariffs, while other countries could do little more than defend themselves within procedures designed by the U.S.

The so-called investigations have effectively become an administrative tribunal in which the U.S. sets its own standards, conducts its own proceedings and imposes its own penalties.

By presenting domestic law as international rules, replacing independent review with administrative discretion and using unilateral sanctions to override consultations among equals, Washington is merely dressing power politics in legal language.

Such practices seriously undermine the multilateral trading system centered on the World Trade Organization (WTO).

The General Agreement on Tariffs and Trade stipulates that even when members invoke general exceptions such as the protection of public morals to justify trade measures, those measures must not result in arbitrary or unjustifiable discrimination between countries where the same conditions prevail, nor constitute disguised restrictions on international trade.

Article 23 of the Understanding on Rules and Procedures Governing the Settlement of Disputes further provides that when WTO members seek redress for violations of WTO obligations, or for the nullification or impairment of benefits under covered agreements, they must resort to the multilateral dispute-settlement system. They may not make their own determination of a violation or impose retaliatory measures unilaterally.

The U.S., however, has replaced multilateral review with determinations made by its own administrative authorities. It first declares another country's system "noncompliant" and then directly imposes tariffs, turning disputes governed by shared rules into unilateral actions dictated by Washington.

The U.S. approach lacks any basis in international law and runs counter to the broad consensus of the international community.

Even U.S. allies have voiced opposition.

Australia said the higher tariffs are "completely unjustified." New Zealand noted that the U.S. had failed to "provide meaningful evidence to support claims in relation to forced labour." Brazil criticized the measures as "arbitrary and unjustified" and said it was prepared to bring the matter to the WTO. The European Union stressed that the tariffs are "unjustified."

Japan said its industry and trade are "in line with international rules," adding that it is regrettable that "the measure imposes tariffs on the grounds of nonexistence of measures banning imports of goods made by forced labor."

South Korea, meanwhile, said the U.S. trade investigation's conclusion that Seoul imports goods linked to forced labor and burdens U.S. commerce lacks both a "factual basis" and "sufficient analysis" of the country's own circumstances.

These responses show that Washington's so-called "rules" were neither formulated through consultations among equals nor broadly recognized by its trading partners.

Genuine international law is founded on the sovereign equality of states, mutual consent and multilateral procedures. No country's domestic law can automatically acquire the force of international law binding on other countries simply because it possesses a large market.

When Washington seeks moral legitimacy, it invokes international labor standards. When it wants to impose punitive measures, it bypasses the International Labour Organization. It demands that others comply with multilateral rules while itself refusing to accept the constraints of WTO procedures.

The U.S. action taken in the name of combating "forced labor" is, in essence, an attempt to use domestic law to override international law, to hollow out multilateral rules through unilateral sanctions and to establish a hegemonic order in which Washington sets the standards, renders the judgments and imposes the penalties, leaving other countries with no choice but to comply.

The international community should see such practices for what they are, strengthen global governance and work together to safeguard an international order based on the rule of law.

Wang Xigen is head of the Institute for Human Rights Law of Huazhong University of Science and Technology, dean of the university's Law School and a Changjiang Scholar Distinguished Professor. Peng Yixuan is a specially appointed associate professor at the School of Law, Humanities and Sociology, Wuhan University of Technology.