By Wayne Jordash KC
In March 2024, the European Parliament and the Council of the European Union agreed to a new Regulation prohibiting products made with forced labour: “the EU Forced Labour Regulation” (EUFLR).
The EU Forced Labour Regulation (EUFLR) has the potential to play an unprecedented role in combating, if not eliminating, forced labour products entering or exiting European markets. However, its effectiveness will hinge on how it is operationalised.
That is the message behind a recent open letter that my organisation, Global Rights Compliance, sent to the European Commission, calling for robust and detailed guidance on evidentiary standards, thresholds, and procedures under the EUFLR. Drawing on decades of experience in international criminal and human rights law and forced labour investigations, the submission urges the Commission to avoid a familiar and costly mistake: leaving too much to discretion.
As a self-contained and, to a large extent, sui generis, adjudicative system, the EUFLR’s framework involves multiple evidentiary stages, burdens of proof, and procedural decisions — all without sufficiently detailed definitions or safeguards in the text itself. In the absence of clear guidance, even the most diligent and competent authorities are left navigating uncertainty, raising serious risks for due process and consistency of application across the Union.
These deficits, alongside a multiplicity of victim-centred, trauma-informed, participation issues essential to due process writ large, will need to be resolved at some time if the object and purpose of the Regulation is to be realised.
International criminal law (ICL) has shown that early reliance on case-by-case development of evidentiary and procedural standards led to fragmentation, delays, and uneven outcomes. While the EUFLR should not import the high evidentiary thresholds of criminal law, there is still much to learn from due process safeguards and precedents from international criminal law and international human rights law: the areas of public international law that have most grappled with how to investigate and adjudicate forced labour allegations fairly and robustly.
Given that the violations assessed under the EUFLR are similar to those addressed by international criminal and human rights law, failing to consider the legal disciplines that have codified how to achieve due process for those accused and relevant stakeholders, and how to do no harm, would be a wasted opportunity. There is no need for the EUFLR to reinvent the wheel – and doing so would be unnecessary and potentially perilous.
Due process as developed in international criminal law offers a wealth of procedural and substantive precedent that can help address key gaps in the EUFLR’s framework. It also provides a coherent way to approach one of the regulation’s most contested issues of whether, and to what extent, the EUFLR operates on the basis of a rebuttable presumption.
Our letter to the European Commission highlights several areas where greater procedural clarity is needed and points to relevant lessons from ICL and international human rights law (IHRL) as constructive starting points for shaping the EUFLR’s evidentiary regime. These areas include: the codification of meaningful definitions and thresholds underlying the investigations, relevant safeguards to protect and support victims and witnesses to ensure their evidence is available and obtained without harm to them, the rigorous assessment of circumstantial evidence, and the applicability of a rebuttable presumption under the non-cooperation clause.
Without a rebuttable presumption, especially when companies or authorities refuse to cooperate, it will be difficult to both treat companies fairly and to uncover forced labour in secretive, high-risk supply chains. For example, under the U.S. Uyghur Forced Labour Prevention Act, all goods from Xinjiang are presumed to be made with forced labor. Companies can still import them, but only if they can provide evidence that forced labour was not involved. In this context, a rebuttable presumption does not presume automatic guilt, it is a procedural tool that encourages cooperation and disclosure, protects due process, and helps regulators make determinations in high-risk but opaque contexts.
The EUFLR can and should play an important role in countering the unacceptable harms caused by forced labor – and ensuring that European consumers and businesses do nothing to subsidise and sustain them. Failing to codify granular rules that address foreseeable procedural and substantive challenges will not avoid the challenges. The Commission can confront foreseeable procedural challenges now, through detailed and principled guidance, or leave authorities to muddle through it later, inviting years of disappointing decision-making and unnecessary fragmentation.
Fairness to victims, affected communities, and economic operators alike demands the former.
Wayne Jordash KC is the President of Global Rights Compliance and Deputy Lead of the Atrocity Crimes Advisory Group (ACA). Wayne has two decades of experience advising governments (UK, The Netherlands, Ukrainian, Bangladeshi, Libyan, Serbian and Vietnamese governments); multi-lateral organisations such as the UN, EU, Council of Europe, and pursuing justice through international law.