Chinese standards and International Labour Organization standards on forced labour
Implications of EU and US regulations prohibiting forced labour on Chinese enterprises

An increasing number of Chinese enterprises are required by Western countries to refrain from using forced labour in the manufacturing or processing of their products. As a result, provisions prohibiting forced labour have emerged in contracts between manufacturers and suppliers in China. What are the standards for determining forced labour in China?

Chinese standards and International Labour Organization standards on forced labour

Chinese standards
The existing legislation prohibiting forced labour in China can be found in:

  • the Labour Law;
  • the Labour Contract Law;
  • the Criminal Law; and
  • the Law on Administrative Penalties for Public Security.

Among them, the Labour Law and the Labour Contract Law stipulate the civil and administrative liability of "an employer which forces the worker to work through violence, threat or illegal restriction of personal freedom". The Criminal Law criminalises forced labour and imposes penalties for "forcing any person to work by violence, threat or restriction of personal freedom", while the Law on Administrative Penalties for Public Security provides for administrative liabilities including administrative detention and fines for "forcing any person to work through violence or threat or other means".

International Labour Organization standards
The fundamental conventions of the International Labour Organization, No. 29 Forced Labour Convention and No. 105 Abolition of Forced Labour Convention, set the standards for forced labour. However, China has not yet ratified these two conventions.

In 2020, China committed, in the negotiations with the European Union on the European Union-China Comprehensive Agreement on Investment (CAI), and in the final text of the agreement:

  • in the areas of labour and environment, not to lower the standards of protection in order to attract investment; and
  • to take specific commitments in relation to the two fundamental International Labour Organization conventions on forced labour that it has not ratified yet.

The CAI is currently pending consideration by the respective legislatures of China and the European Union and if it is approved, it is expected that the standards on forced labour contained in the two ILO conventions mentioned above will also be recognised in China.

Implications of EU and US regulations prohibiting forced labour on Chinese enterprises

The current standards on forced labour in Western countries are stricter and more systematic than those in China. The influence of Western countries comes mainly from the European Union and the United States.

EU standards
It appears that the European Union follows the International Labour Organization standards under the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union. However, the European Union has very cumbersome and complicated rules in terms of proof, including negative enumeration and affirmative enumeration. This undoubtedly increases the burden of proof and legal costs for Chinese enterprises.

US standards
In practice, US Customs and Border Protection (CBP) generally draws on the International Labour Organization standards for determining forced labour, including the ILO Indicators of Forced Labour. The CBP has huge discretion in determining whether forced labour exists in a particular enterprise or product or a particular region. As long as the CBP has access to reasonable but inconclusive information indicating that the goods are made by forced labour, the goods are at risk of an import ban. Therefore, Chinese enterprises are often confused about how much discretion US officials have.

The US Congress recently passed the Uyghur Forced Labor Prevention Act. The Act is based on the rebuttable presumption that all products made in Xinjiang Uyghur Autonomous Region are produced by using forced labour and are therefore prohibited. It has been argued by Chinese companies that the bill is based on political conflict and ideological controversy and, therefore, it is difficult to judge it by the logic of business.

For further information on this topic please contact Jianjun Ma or Jing He at JunHe by email ([email protected] or [email protected]). The JunHe website can be accessed at