Written evidence submitted by Lawyers for Uyghur Rights (FL0009)
1. Lawyers for Uyghur Rights represented two British Uyghurs Rahima Mahmut, a human rights activist and head of the World Uyghur Congress’s London Office and Enver Tohti Bughda, who is also an activist and a member of the International Advisory Committee of the International Coalition to End Transplant Abuse in China in regards to the Government’s reported decision to allow Huawei to provide infrastructure as part of the United Kingdom’s 5G network. Thankfully, the Government has reversed this reported decision and will phase out the use of Huawei within the network.
2. We believe that the work that we have done in regards to Huawei gives a good picture as to how the current legislative provisions in regards to slavery and human rights abuses within the supply chain of British companies or companies doing business in the United Kingdom are insufficient and how these companies are either negligently or intentionally acting in breach of their slavery and human rights policies and the international legal framework. This submission will suggest ways in which the law could be changed to prevent the current situation where United Kingdom consumers are involved in the purchase of goods created with the immense pain and suffering of the Uyghur and other Turkic people in China who are transported thousands of miles and forced to work in slavery.
3. We believe that the Directors of the companies named in this submission, who have refused to act in accordance with their own slavery and human rights policies, showing the toothlessness of British law on this subject, should be called before the
Commission to explain how they have responded, or failed to respond in many cases, to the evidence which we have placed before them.
4. We also believe that the European Union law which may have prevented public sector contracting with companies in breach of the slavery conventions will need to be replaced by domestic legislation following the upcoming disapplication of such law and that this must be done in a way which allows individuals and groups to be forewarned about upcoming public sector contracting so that they can raise this with the authority and which allows a simple and speedy way to challenge such decisions. We further note that such legislation in regards to private companies or public sector contracting should not only focus on the prevention of slavery within the United Kingdom’s supply chains but also on the prevention of contracting publicly or privately with companies or entities which are involved in the commission of Crimes against Humanity or Genocide.
5. This submission is made on behalf of our clients and on behalf of all Uyghur and other Turkic people who are facing systematic oppression in Xinjiang Uyghur Autonomous Region (‘XUAR’) as well as those that have an interest in what is taking place there. Although our submissions are focussed on the telecommunications industry, Lawyers for Uyghurs Rights had seen and has signed in support of a submission made in regard to the garment industry. We believe that the problems we identify in this submission are replicated across a number of different industries in the United Kingdom.
6. We make these submissions based on the Inquiry’s terms of reference:
a. The connection between the treatment of minorities in XUAR and company value chains supplying the UK apparel industry;
b. The extent to which UK value chains either in the form of public procurement and services, or the private sector, are intentionally, knowingly or negligently supporting forced labour and human rights abuses;
c. The mechanisms in place, including company audit and monitoring, to ensure goods, materials and services are not imported to the UK which are the product of forced labour;
d. The effectiveness of the audit system and its ability to identify the presence of businesses within value chains which make use of forced labour;
e. The Government's position regarding the risks of sourcing from XUAR and contracting with the companies with strong links to the region;
f. The advice provided to British businesses by Government to help assess risk, ensure compliance, and avoid engaging value chains which rely on forced labour;
g. The Government's response to evidence which suggests that businesses operating in the UK have engaged value chains which make use of forced labour in XUAR; and
h. The extent to which Chinese companies operating in the UK are engaged in XUAR and complicit in the human rights abuses within the region.
Factual Background
Slavery
7. In regards to slavery within Huawei’s supply chain the Australian Strategic Policy Institute (ASPI), an independent think tank has published a report titled ‘Uyghurs for Sale: ‘Re-education’, Forced Labour and Surveillance Beyond Xinjiang’ (Annex 1) which states that ‘The Chinese government has facilitated the mass transfer of Uyghur and other ethnic minority citizens from the far west region of Xinjiang to factories across the country…… Under conditions that strongly suggest forced labour….’ and that this forced labour includes Uyghurs working in factories which are part of Huawei’s supply chain. Conservative estimates of the number of Uyghur workers forced into servitude by the Chinese authorities are that 80,000 have been enslaved in this way; however, as the Report notes, the number is likely to be significantly higher.
Facilitation of Crimes Against Humanity
8. The evidence from the ASPI Report Mapping China’s Technology Giants (Annex 2)
alleges that Huawei is ‘deeply implicated in the ongoing surveillance, repression and
persecution of Uyghurs and other Muslim ethnic minority communities in Xinjiang.’
(page 16)
9. Through their research the ASPI has ‘mapped 75 Smart City-Public Security projects, most of which involve Huawei’ and reported that these projects ‘include the provision of surveillance cameras, command and control centres, facial and licence plate recognition technologies, data labs, intelligence fusion capabilities and portable rapid deployment systems for use in emergencies.’ The Report also explains that ‘Huawei provides the Xinjiang Public Security Bureau with technical support and training….’ and that ‘the company’s work with Xinjiang’s public security apparatus also includes providing a modular data centre for the Public Security Bureau of Aksu Prefecture in Xinjiang and a public security cloud solution in Karamay. In early 2018, the company launched an ‘intelligent security’ innovation lab in collaboration with the Public Security Bureau in Urumqi’ and ‘According to reporting, Huawei is providing Xinjiang’s police with technical expertise, support and digital services to ensure ‘Xinjiang’s social stability and long-term security’.
10. The ASPI also reports that ‘Huawei’s work in Xinjiang is extensive and the company works directly with the Chinese Government’s public security bureaus, and police forces, in the region….This work is reported by China’s state media, Huawei’s corporate news and detailed by local authorities’ and that ‘ some of Huawei’s promoted ‘success cases’ are Public Security Bureau projects in Xinjiang, such as the Modular Data Center for the Public Security Bureau of Aksu Prefecture in Xinjiang. Huawei also provides police in Xinjiang with technical support to help ‘meet the digitization requirements of the public security industry’. Huawei also established an ‘intelligent security industry’ innovation lab in Urumqi,’ jointly with the Xinjiang Public Security Department at the launch of which ‘a Public Security Department official stated that that Huawei had been supplying reliable technical support for the department. In 2014, Huawei participated in an anti-terrorism, Belt and Road Initiative-themed conference in Urumqi as ‘an important participant of’ a program called ‘Safe Xinjiang’ (code for a police surveillance system). Huawei was said to have built the police surveillance
systems in Karamay, Kashgar and was praised by the head of Xinjiang provincial police
department for its contributions in “Safe Xinjiang”.
11. There is now strong evidence that the Chinese authorities are committing crimes against humanity including torture, enslavement, forcible transfer of population, imprisonment and other severe deprivation of physical liberty in violation of fundamental rules of international law, enforced marriage and pregnancy, persecution based on religion, race, and ethnicity, and the enforced disappearance of persons. The expert evidence alleges that Huawei’s role is integral to the commission of these breaches of jus cogens rules of international law.
12. The involvement of Huawei in the Xinyang Uyghur Autonomous Region security apparatus is also evidenced in the ‘ China Cables’, a set of highly classified Chinese government documents that were obtained by the International Consortium of Investigative Journalists (ICIJ).
13. In order to provide an update and further confirmation of Huawei’s direct participation and assistance in crimes against humanity for the Working Group, Dr Adrian Zenz, Senior Fellow in China Studies Victims of Communism Memorial Foundation, has put together a document, Huawei and Xinjiang – A Brief Assessment of Additional Evidence dated June 2020 27 (Annex 3) in which he states the following:
a. In January 2020, Huawei again denied allegations of human rights violations in Xinjiang, stating that "We sell technology all around the world…. We don't know how our customers choose to operate it.” Previously, in June 2019, Huawei claimed that the company does not directly do business with security services in Xinjiang. Both statements are falsehoods. The company does engage in business with the security services in Xinjiang, worked with them for years on dedicated, custom-made security solutions, and it even proudly advertises how they are being operated;
b. In 2014, Huawei received an award from Xinjiang’s Ministry of Public Security
for its role in establishing citywide surveillance systems;
c. In 2017, a government representative of Kashgar Prefecture, a Uyghur majority population region in southern Xinjiang, described the collaboration with Huawei in several areas, including public security, as “very close”;
d. A former Huawei engineer openly states in his resume that he worked for Huawei between July 2017 and September 2018 for the “Kashgar Public Security Surveillance and Video Link Network Project”. This indicates direct and intimate collaboration with the security agencies for a specific, custom- tailored public security project;
e. The deployment of Huawei’s advanced surveillance technology in Kashgar is then subjected of a detailed brochure published by Huawei to advertise its technology and services for public security agencies throughout China;
f. Further evidence of Huawei’s collaboration with Xinjiang’s security authorities, including a strategic research collaboration with the public security agencies in Urumqi have been described by others; and
g. Fan Lixin, deputy director of Xinjiang’s Ministry of Public Security, praised the collaboration with Huawei as fulfilling key goals of the region’s domestic security strategy during the 13th 5-year plan.
14. Dr Zenz finishes by stating that ‘we must conclude that Huawei is directly implicated in Beijing police state and related human rights violations in Xinjiang, and that it has lied to the public about this fact on at least two different occasions.’
15. The human rights violations that Dr Zenz refers to are the commission of crimes against humanity including torture, enslavement, forcible transfer of population, imprisonment and other sever deprivation of physical liberty in violation of fundamental rules of international law, enforced marriage and pregnancy, persecution based on religion, race, and ethnicity, and the enforced disappearance of persons. The expert evidence submitted above alleges that Huawei’s role is integral to the commission of these breaches of jus cogens rules of international law.
UK’s Current Public Procurement Law in regard to slavery and international crimes
16. The UK public procurement legal regime derives from EU public procurement laws, in particular from the Public Contracts Directive (Directive 2014/24/EU), implemented, we say incorrectly, into English law by the Public Contracts Regulations 2015, most of the provisions of which came into force on 26 February 2015.
17. Article 18 of Directive 2014/24/EU, concerning principles of procurement, provides as follows:
“1. Contracting authorities shall treat economic operators equally and without discrimination and shall act in a transparent and proportionate manner.
The design of the procurement shall not be made with the intention of excluding it from the scope of this Directive or of artificially narrowing competition. Competition shall be considered to be artificially narrowed where the design of the procurement is made with the intention of unduly favouring or disadvantaging certain economic operators.
2. Member States shall take appropriate measures to ensure that in the performance of public contracts economic operators comply with applicable obligations in the fields of environmental, social and labour law established by Union law, national law, collective agreements or by the international environmental, social and labour law provisions listed in Annex X.” [emphasis added]
18. Annex X of Directive 2014/24/EU lists the applicable international provisions, which include the International Labour Organisation (ILO) Convention 29 on Forced Labour and the ILO Convention 105 on the Abolition of Forced Labour.
19. Regulation 56(2) of the Public Contracts Regulations 2015 which was supposed to
transpose the EU Directive into the United Kingdom’s law provides as follows:
“(2) Contracting authorities may decide not to award a contract to the tenderer submitting the most economically advantageous tender where they have established that the tender does not comply with applicable obligations in the fields of environmental, social and labour law established by EU law, national law, collective agreements or by the international environmental, social and labour law provisions listed in Annex X to the Public Contracts Directive as amended from time to time.”
20. The ILO Convention 29 on Forced Labour was ratified by the United Kingdom on 3 June 1931 and provides:
Article 1
1. Each Member of the International Labour Organisation which ratifies this Convention undertakes to suppress the use of forced or compulsory labour in all its forms within the shortest possible period.
Article 2
1. For the purposes of this Convention the term forced or compulsory labour shall mean 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.
Article 4
1. The competent authority shall not impose or permit the imposition of forced or compulsory labour for the benefit of private individuals, companies or associations.
Article 5
1. No concession granted to private individuals, companies or associations shall involve any form of forced or compulsory labour for the production or the collection of products which such private individuals, companies or associations utilise or in which they trade.
2. Where concessions exist containing provisions involving such forced or compulsory labour, such provisions shall be rescinded as soon as possible, in order to comply with Article 1 of this Convention.
21. The ILO Convention 105 on the Abolition of Forced Labour was ratified by the United Kingdom on 30 December 1957 and provides:
Article 1
1. Each Member of the International Labour Organisation which ratifies this Convention undertakes to suppress and not to make use of any form of forced or compulsory labour—
a. As a means of political coercion or education or as a punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system;
b. as a method of mobilising and using labour for purposes of economic development;
c. as a means of labour discipline;
d. as a punishment for having participated in strikes;
e. as a means of racial, social, national or religious discrimination.
Article 2
1. Each Member of the International Labour Organisation which ratifies this Convention undertakes to take effective measures to secure the immediate and complete abolition of forced or compulsory labour as specified in Article 1 of this Convention.
UK’s Current Private Requirement in regard to slavery and international crimes
23. The United Kingdom’s law on companies and private individuals’ responsibilities contracting with companies or groups who have been using slave labour within their supply chain and who are participating in international crimes is weak and ineffective.
24. Section 54 of the Modern Slavery Act 2015 (‘Transparency in supply chains etc’) establishes a duty on commercial organisations doing business in the UK, whose total turnover is above a £36 million, to prepare an annual slavery and human trafficking statement.
25. There are no specific consequences or sanctions if commercial organisations do not comply with this duty -or comply with the letter but not the spirit and aim of the provision in the sense that they release “window dressing” statements which do not represent or reflect any meaningful monitoring action on behalf of the commercial organisation.
Our Experience with the UK Telecommunications Companies Showing the Need for Change in United Kingdom’s Laws
26. Following the Government’s reversal of the reported decision to allow Huawei to provide the 5G infrastructure in the United Kingdom our team wrote to the United Kingdom’s telecommunications providers to put them on notice of the cogent evidence of slavery within Huawei’s supply chain and Huawei’s participation in international crimes in the Xinjiang Autonomous Uyghur Area which amounted to crimes against humanity and possibly genocide.
27. Our position was that if these companies followed their promising slavery and human rights policies then they would be unable to continue to sell Huawei handsets in the United Kingdom.
28. We wrote to BT (Communications Annex 4), EE (Annex 5), O2 (Annex 6), Three (Annex 7), Virgin (Annex 8), Vodafone (Annex 9).
29. Within the letters sent on 7 July 2020 we highlighted the evidence above about the evidence of slavery within the supply chain of Huawei, the evidence that ‘Huawei is directly implicated in Beijing police state and related human rights violations in Xinjiang, and that it has lied to the public about this fact on at least two different occasions’ and that that repression of Uyghur and other Turkic people in XUAR, and their forced transportation thousands of miles away from their homes to work in electronics factories, amounts to crimes against humanity which are in direct breach of the Universal Declaration on Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic and Social Rights.
30. The letters also set out that that the companies’ modern slavery policies and human rights policies provide such things as that they:
a. ‘are committed to being a responsible business and to respecting human rights;
b. monitor the performance of our suppliers’ actions by using qualitative and quantitative indicators to check they’re being effective;
c. require all direct suppliers to cascade [worker rights] down their own supply chain. On-site assessments help [them] understand how well the supplier has implemented the standards and what the impact has been on their workers;
d. No form of modern slavery is acceptable in our operations, or in those of companies who work with us or on our behalf… We only want to work with people who choose to work freely, with rights to equal opportunity, freedom of association and collective bargaining;
e. respect the International Bill of Human Rights when we do business;
f. are implementing the United Nations Guiding Principles on Business and Human Rights. They say that companies must avoid infringing people’s rights and address negative impacts which they could be linked to through their business relationships; and they
g. expect our people and business partners to treat people fairly, respecting the rights and dignity of everyone they deal with or who may be affected when they do business.
31. The letter also requested that the companies confirm a number of matters by 20 July 2020 including whether:
a. Huawei had confirmed that it was implementing the company’s ethics code;
b. Huawei has disclosed its work with public authorities in the XUAR and the use of their technologies in that region which has raised questions as to its use for the commission of international crimes;
c. Huawei has confirmed that suppliers of components are involved in the use of forced or involuntary labour;
d. They had carried out any audit, due diligence, or site visits in regard to information provided to it by Huawei;
e. Huawei has provided the company with reasonable access to all relevant information and premises for the purposes of assessing performance against the policies referred to above, and has used reasonable endeavours to ensure that their suppliers do the same;
f. The evidence referred to above would result in a breach of the policies referred to above if the company were to contract with Huawei for the provision of 5G infrastructure or to continue to contract with Huawei for the provision of handsets;
g. evidence that there is forced labour within Huawei’s supply chain would prevent the company from contracting with Huawei in the provision of 5G infrastructure or to continue to contract with Huawei for the provision of handsets;
h. the company will commit to reviewing the evidence provided in the reports referred to in this letter and if so, the timeframe in which it commits to undertaking such a review, who will conduct the review and how evidence can be submitted for consideration by the review; and
i. if the above review indicates that Huawei is implicated in the “ongoing surveillance, repression and persecution of Uyghurs” and other Turkic people
or has the use of slavery or forced labour in its supply chains, the company will commit to ending all business relationships with Huawei.
32. We received a range of responses to these letters summarised as follows:
a. BT: ‘every direct supplier to BT is contracted to comply with our Sourcing with Human Dignity standard, which establishes our expectations that working conditions in our supply chain should meet international labour standards. I passed your letter on to our legal and human rights teams, who updated me with the following: Further to the publication of the Australian Strategic Policy Institute report, we contacted all our direct suppliers named in the report (including Huawei) and asked for their response. We have also been in contact with the Responsible Business Alliance (RBA), of which we and many of our suppliers, are a member. The RBA’s broader investigation into the forced labour allegations, which affect many brands, not just Huawei, is ongoing. Huawei have told us that their own investigations did not support the allegations. I would like to emphasise that we engage with direct suppliers who face significant allegations of human rights abuses, even when those allegations are not connected with the services they supply to us. We ask them to investigate and report to us their response to the allegations. We encourage them to consider international standards which expect companies to assess how their products and services might be used by others to affect human rights…..We will continue to engage with our direct suppliers and the RBA on this issue and await the outcome of their investigations’;
b. EE: No response;
c. TelefonicaUK/O2: ‘We are investigating the points raised in your clients’ letter which we take very seriously. We are not currently able to comment on the timescales by which the investigation will be completed. Therefore, we will not be able to respond to the points you have raised within the timeframes you have requested’;
d. Three: ‘Since receiving your letter, Government guidance on the use of Huawei in the UK’s 5G infrastructure has changed and in accordance with the law, Three will no longer be using Huawei’s technology past 2027.
As you have noted in your letter, Three is fully committed to preventing slavery and human trafficking both within Three’s business and supply chain. Three monitors and works to reduce any risks identified or alleged in this area. Three is reviewing the allegations and materials you reference in your letter and will take any appropriate action required’;
e. Virgin: ‘We are currently considering the contents of that letter, and will respond with Virgin Media’s position in due course’;
f. Vodafone: ‘Vodafone Group will be responding to your questions…. I have started to collect the materials and information which will enable me to respond’.
Submissions
33. Based on the evidence above and our review of the United Kingdom’s current law on public procurement and private contracting as well as our experience trying to use that law to prevent a company which is deeply involved in the international crimes which are being carried out against the Uyghur and other Turkic people in the Uyghur Region we make the following submissions to the Inquiry.
34. In regards to public procurement, as can be seen when we set out the current, pre- disapplication of EU law public procurement rules above, although Directive 2014/24/EU (Article 18 (2)) requires EU member states to ‘…take appropriate measures to ensure that in the performance of public contracts economic operators comply with applicable obligations’ established by national and international law, including the Anti-Slavery Conventions, the UK transposition of the Directive does not seem to meet this standard. More precisely there is no equivalent of Article 18 (2) of Directive 2014/24/EU in the UK transposition of this instrument. Instead Regulation 56(2) of the Public Contracts Regulations 2015 provides that ‘(2) Contracting authorities may decide not to award a contract’ to companies in breach of anti-slavery provisions’ but does not require the Government or other public contractors to do so.
35. It is submitted that the above provision should be replaced with a clear and easy to understand obligation for public contractors not to enter into contracts with companies or other bodies who have slavery within their supply chain or are involved in the commission of international crimes such as crimes against humanity and genocide and requiring the termination of contracts and return of any consideration paid for such contracts if a company or group is found to be engaging in such acts or to have slavery within their supply chain. This requirement must be accompanied by a public contractor due diligence requirement to prevent public bodies from being wilfully blind to slavery and participation in international crimes.
36. We applaud Sir Iain Duncan Smith MP’s proposed amendment to the trade bill to prevent the United Kingdom from concluding trade deals with states committing Genocide but observe that such requirement should also be extended to crimes against humanity so as not to let foreign states escape simply because the difficult to prove special intent required for genocide is not present. There is no reason why such a rule to be applied in relation to trade deals between the United Kingdom and other states should not be replicated in regards to contracting between United Kingdom public bodies and foreign companies or bodies preventing contracting if there is slavery within the supply chain or participation in crimes against humanity and/or genocide.
37. In regards to private contracting our experience has shown that the Modern Slavery provisions are not effective in stopping the sale of slavery made goods within the United Kingdom. These provisions also have no provisions to prevent companies from doing business with overseas companies who are involved in the commission of international crimes. Although the companies listed above have commendable anti- slavery and human rights policies this did not prevent them from doing business with a company which the evidence shows was directly involved in the commission of international crimes and had slavery within its supply chain.
38. We submit that the Modern Slavery Act 2015 is toothless and ineffective. We make this submission given that there are no specific consequences or sanctions if commercial organisations do not comply with this duty or comply with the letter but not the spirit and aim of the provision in the sense that they release “window dressing” statements which do not represent or reflect any meaningful monitoring action on behalf of the commercial organisation. Further, it is submitted that the lack of a clear due diligence duty supported by consequences for non-compliance deprives the existing provisions from any substantial impact towards sustaining higher human rights standards in the supply chains and renders the latter an ornamental feature of the legal framework. Our experience in our communications with the telecommunication companies as set out above in the context of the creation of the 5G network and their continuing stocking of Huawei items consolidates this impression.
39. It is no over simplification to state that the current UK legislative arena provides no legal consequences for a company which does no due diligence or investigation but lists themselves as slavery free in their annual statement, for a company which states that there is evidence of slavery or gross human rights abuses within their overseas supply chain but does nothing to change their business practices and sub-contractors, or a company which knows of such problems in their supply chain but chooses not to disclose them in their statement.
40. There is a growing realisation that human rights standards in global supply chains require the establishment of due diligence obligations for corporate actors and public buyers (public procurement): For example the so called “Due Diligence Law” in France which introduces a clear due diligence obligation not only for the parent company but also for its subsidiaries and contractors. Moreover, this Law establishes a criminal liability nexus for the parent company, its subsidiaries and subcontractors in the event of human rights (or environmental) violations in their supply chain.
41. Other countries and organisations are following in this direction. The European Union is planning to introduce legislation in 2021 that establishes clear due diligence
obligations -supported by a system of sanctions- for companies (and public buyers) which carry out economic activities in the EU. Keeping abreast with such developments would be important for the UK not only in order to ensure that the latter abide by the highest standards of human rights protection in the global supply chains but also for UK based companies which want to have access to the EU single market or be part of the supply chain of companies which carry out business activities in the EU.
42. We respectfully submit that a clear and unambiguous duty for companies doing business in the United Kingdom requiring that they must not do business with companies or groups with slavery within their supply chain or which are involved in the commission of international crimes. Such legal provision should include due diligence obligations and criminal liability for the parent company, its subsidiaries, and subcontractors in the event of human rights violations in their supply chain.
23 October 2020
Michael Polak Barrister,
Director, Lawyers for Uyghur Rights LawyersforUyghurRights.com
Dr Aris Georgopoulos
Asst. Professor in European and Public Law – Advocate,
Co-Lead of Research Unit on Public Procurement, Human Rights and Social Sustainability, PPRG, School of Law, University of Nottingham
October 2020
