The latest U.S. State Department report on human trafficking was notable for its harsh assessment of China’s performance and the country’s downgrade to the world’s lowest tier of ranking. This change in tone regarding human rights in China by President Donald J. Trump’s administration could complicate relations, says Margaret K. Lewis, professor of law at Seton Hall University, in a written interview. Lewis says human trafficking and forced labor are likely to remain significant problems in a society where overall human rights are under steady assault by the Chinese government. China’s leadership, she says, has chosen to decisively silence voices who advocate for the protection of human rights, which are perceived as threats to the ruling communist party.
What is the state of human trafficking, including forced labor, in China?
Deeply troubling. China remains both a country of origin and destination for cross-border human trafficking. Credible reports paint an alarming picture including forced labor, particularly among drug addicts and ethnic minorities, and repatriation of North Koreans to grim fates. There are also concerns regarding the seriousness with which the government is investigating and prosecuting sex and labor traffickers. China needs to revise its domestic laws to bring them in line with international standards and then implement those laws robustly so that they are not mere paper tigers.
The opacity of China’s criminal-justice system and government makes it difficult to define precisely the scope of the problem. Among the recommendations in the State Department’s 2017 Trafficking in Persons (TIP) Report are a call for greater transparency of Chinese government efforts to combat trafficking and better data sharing. Reports that some officials facilitate or are even complicit in trafficking heighten concerns.
How does China respond to such naming-and-shaming reports?
The current Chinese leadership has vigorously refuted all international criticism of its human rights record. The Chinese Foreign Ministry spokesperson responded to the 2017 TIP Report by stating that China is “firmly opposed to the irresponsible remarks made by the United States based on its domestic law about others’ efforts against human trafficking.”
The U.S. Trafficking Victims Protection Act (TVPA), which Congress first passed into law in 2000, mandates the tiered classifications and is a domestic law. But the fundamental standards by which China is being judged are those of international law to which China, as a sovereign state, has largely voluntarily committed itself.
China is a party to critical international agreements concerning human trafficking. The United States is not asking China to adopt its domestic laws. It is calling on China to live up to international standards.
Why does trafficking persist in China?
Combating human trafficking is extremely challenging. Even countries that are resolute in the fight against trafficking encounter daunting obstacles. The types of work that victims do are often legal (e.g., agricultural and janitorial), so the illicit nature is not readily apparent. Victims often experience threats to themselves and/or family members, leading them to remain silent and not reach out for help. For cross-border trafficking, the need for transnational cooperation, including evidence sharing across different legal systems, impedes legal enforcement. The innovative nature of the complex criminal enterprises that conduct human trafficking also creates a cat-and-mouse game in which government authorities need to be equally innovative in their investigative techniques.
But the 2017 TIP report’s criticism of China is not that the government is making its best effort possible and yet trafficking persists. Rather, the report forcefully states that China does not meet the minimum standards for eliminating trafficking and “is not making significant efforts [PDF] to do so.” This phrasing is important to highlight the lack of political will to take trafficking, and human rights more broadly, seriously. We can expect a significant level of trafficking to persist as long as the Chinese government fails to make a concerted effort to address the roots of the problem.
China convicted fewer sex and labor traffickers in 2016 compared to the previous year [1,756 convicted traffickers compared to 2,076]. This is troubling. For criminal law to be a credible deterrent, potential wrongdoers need to see both that there is a high likelihood of conviction and that they will face serious penalties if convicted. Available statistics indicate that China needs to devote greater resources to investigating and prosecuting trafficking cases. President Xi Jinping’s sustained anti-corruption campaign demonstrates that when the leadership makes an issue a priority, it can make headway. This same type of resolve should be directed toward trafficking.
With respect to purely domestic trafficking, revisions to the hukou (household registration) would be a concrete step in reducing the vulnerability of Chinese citizens who are working illegally outside of their registered address. People working in the shadow of the law are less likely to seek help when subject to coercive labor practices.
Allowing a greater role for civil society would be another welcome step to countering trafficking, but this is unlikely given the current climate that is highly suspicious of civil society.
With respect to state-sponsored forced labor, the government should allow independent observers access to drug rehabilitation facilities and administrative detention centers so that they can verify whether, as reports indicate, forced labor is occurring. For so-called “administrative” facilities that are in reality criminal in nature, people sent to such facilities should be granted protections that meet international standards for the rights of the accused.
In theory, China’s downgrade to the Tier 3 ranking would mean that the country will be subject to new sanctions and restrictions. What kinds of penalties might Beijing face?
Tier 3 status can subject countries to restrictions on assistance, such as curtailing non-humanitarian, non-trade-related foreign assistance, as well as withholding funding for educational and cultural exchange programs. These consequences, however, are not mandatory. Nor is the prospect of losing these discrete funds particularly concerning to China.
What is important is the broader message that the Trump administration sends with this report. The administration had until now been relatively quiet with respect to criticizing China’s human rights record by, for instance, breaking from past practice and removing a dedicated human rights dialogue from the announced list of U.S.-China bilateral dialogues. The 2017 TIP Report is a shift in tone from the relatively chummy rhetoric following Xi’s April visit to [Trump’s estate at] Mar-a-Lago that basically relegated human rights to the sidelines.
A tenser atmosphere is expected as criticism of China’s anti-trafficking efforts combines with other recent irritants to the bilateral relationship. The U.S. government imposed sanctions on a Chinese bank because of alleged money laundering for North Korea, approved an arms sale to Taiwan that includes advanced missiles and torpedoes, and continues to carry out freedom of navigation operations in disputed waters in the South China Sea. These moves will escalate friction with Beijing.
What other human rights challenges do individuals face in China?
It is a dismal time for human rights in China. The Chinese leadership has pursued a strategy of silencing any voices that even vaguely threaten the Chinese Communist Party’s (CCP) lock on power. Under Xi’s leadership, we’ve seen increasing intolerance of independent voices that do not have clear political agendas, including the detention of women’s rights activists who seek to draw attention to sexual harassment and of labor activists who seek to protect workers’ rights. This intolerance toward freedoms of expression and assembly, and other fundamental human rights, is likely to intensify in the run up to the crucial Nineteenth Party Congress this fall, which will mark the beginning of Xi’s second five-year term as CCP general secretary. There is no indication that the current repressive climate is a mere short-term strategy that Xi will abandon when he begins his next term. Tough times lie ahead.
What are the legal means available to protect human rights?
The Universal Declaration of Human Rights provides that everyone has the right to an effective remedy by competent national tribunals for acts violating their fundamental rights. Although the Chinese government has in recent years increasingly demonstrated that a right without a remedy is no right at all. There are numerous laws on the books that protect human rights, but Chinese citizens encounter an array of challenges when attempting to uphold their rights.
The Chinese constitution itself does not provide actionable rights: a person cannot walk into court and invoke the constitution as a basis for legal relief. People who try to defend rights specified in laws that can be invoked in court face formidable hurdles. For instance, China is a party to the UN Convention Against Torture and has criminalized torture in domestic laws. Yet the UN Committee Against Torture has noted numerous examples of torture and a lack of protection by Chinese courts, in part because the courts are relatively weak actors vis-à-vis the police.
Sustained attacks on lawyers and other human rights activists have further hampered efforts to protect human rights. In the nearly two years since the infamous “709 Crackdown”—named for the July 9, 2015, nationwide roundup of hundreds of activist lawyers—the Chinese government has intimidated, physically mistreated, disbarred, and criminally sanctioned a string of lawyers. Not only have these lawyers themselves had their human rights violated, they are also no longer able to assist other citizens who seek to vindicate their own rights.
Where do human rights fit into U.S.-China relations?
The Trump administration has largely taken a subdued posture when it comes to human rights in China. There has been quiet diplomacy with respect to human rights, such as facilitating the return of U.S. citizen Sandy Phan-Gillis after her prolonged arbitrary detention by the Chinese government over charges of spying. In large part, however, the Trump administration has opted to emphasize security, trade, and other aspects of the bilateral relationship.
That said, it will be interesting to watch how the United States’ response to news of Nobel laureate Liu Xiaobo’s terminal cancer unfolds. As Liu’s condition worsens, Washington must decide how firmly it will stand behind core human rights principles by continuing to publicly and unequivocally call for his release.
An important step for the executive branch to take—and this would be true under any president—is to not just state that human rights matter, as is often done, but also to articulate an integrated, executive branch-wide plan [PDF] for how human rights will be raised. The U.S. government should work to identify issues with embedded human rights concerns for which the Chinese government has strong incentives to engage with the United States, such as bilateral law enforcement. At the same time, Washington should continue to speak out when there are egregious human rights abuses. First, because it is the right thing to do. Second, taking a principled stance signals to the world that the United States is indeed standing behind core human rights values. This has reputational value. Third, public statements by the United States can have a direct, meaningful impact on individuals who have suffered human rights violations at the hands of the Chinese government.
This interview has been edited and condensed.