In China, there are reasons to be pessimistic about the environment for business and human rights: factories continue to find inventive ways to cheat labour inspectors and auditors; an estimated 25 million migrant workers have lost their jobs; and while the Labour Contract Law, the Law on Mediation and Arbitration of Labor Disputes, and the Employment Promotion Law, all enacted in 2008, started to improve conditions for workers like never before, but as the financial crisis worsened, many local governments started to give a wink and a nod to companies, hinting that these laws and existing minimum wages laws would not be enforced.
And yet, there is also room for optimism: an unprecedented number of Chinese workers are taking their labour disputes to arbitration and to court, with labour dispute cases in the first quarter of 2009 rising 59 percent year on year; there are signs that the Chinese economy might bounce back in late 2009; the Internet, despite governmental censorship, has expanded the scope of public debate to well over 300 million people and counting; the Chinese government took part in the United Nations Human Rights Council’s Universal Periodic Review in February; and the government has come out with a Human Rights Action Plan - for the first time setting out proactive goals and specific targets, rather than typical defensive rebuttals and offensive accusations. In fact, one of the drafters of the Action Plan has stated the human rights is no longer a sensitive term. Importantly, the Human Rights Action Plan also gives domestic actors a Chinese-based platform from which they can carry out their activities. For example, the influential Southern Weekend (南方周某) has lauded the Action Plan’s call to give media groups “the right to criticize” (评论权).
In sum, a space has opened up for citizens, corporations, and civil society organizations, and the media to constructively work to help the state fulfill its duty to protect, make corporations respect human rights, and help give people access to remedies. The biggest danger is, however, that this opportunity might be lost because people fail to seize the opportunities that exist and expand upon the opportunities that only exist in part.
With that in mind, it should be recognized that civil society groups have a large role to play in ensuring that the state fulfills its duty to protect, that corporations respect human rights, so that “governance gaps” can be narrowed. This process can be completed in a myriad of ways:
-Helping victims of corporate negligence get justice through existing judicial mechanisms, and thereby setting more pro-worker precedents and norms. For example, CLB, through the Labour Rights Litigation Project, took on more than 600 labour cases in 2008 involving over 1,000 people in such areas as wages in arrears, economic compensation, discrimination, industrial accidents, and illegal dismissals.
-Constructively pointing out loopholes and deficiencies in current legislation that make it difficult for victims to obtain justice. To this end, CLB has put out a series of research reports, many based on CLB’s own case-handling experience, that highlight areas in which worker’s human rights are infringed upon, but also provide recommendations for solving these problems.
-Engaging with existing governmental legal channels (such as the National People’s Congress and government websites…etc) as well as UN Treaty Bodies (as John Ruggie suggested in Point #1 of his response to the civil society response). More closely engaging with UN Treaty Bodies and other mechanisms in terms of business and human rights might make government and corporate leaders understand the connection between suppression of civil society groups and the subsequent permissive environment that allows human rights violations by corporations to occur without resistance.
Besides these main areas, lots of other steps need to be taken. The fact that the Human Rights Action Plan doesn’t seem to mention civil society or the public’s role in implementing human rights is clearly a problem. Similarly, it also doesn’t mention the role of corporations should play in respecting human rights. Certainly, domestic civil society groups and the international community will need to figure out how to get more Chinese enterprises, especially large and powerful State Owned Enterprises, to become champions of human rights.
Nonetheless, the framework outlined in Special Representative John Ruggie’s report makes sense in the Chinese context. Now it’s time to work hard to push for the best results.