Business and Human Rights: A Study of the Interaction Between Policy Concept Shifts and Business Practices in China-China Human Rights

Business and Human Rights: A Study of the Interaction Between Policy Concept Shifts and Business Practices in China

LIANG Xiaohui*

Abstract: The international agenda on business and human rights has entered a new era when the United Nations Guiding Principles on Business and Human Rights was endorsed in 2011. Meanwhile, as China is growing to become one of the biggest economies in the world, Chinese businesses are exerting greater impacts on human rights in and outside China. The “Pillar II” policy shift of the Chinese government regarding human rights refers to the translation of human rights from norms of public law to value principles for the private sector including businesses, and such a policy shift has been both a result of Chinese businesses dealing with “imported human rights challenges” in China, and one of the reasons for Chinese businesses tackling “exported human rights challenges” in overseas investment and trade. Through a series of policy changes, the Chinese government has transformed international human rights principles and norms into a value system and code of conduct meant for Chinese businesses to respect and observe, which can greatly enhance the awareness and capacity of Chinese businesses in fulfilling the irresponsibility to respect human rights in and outside China. On the other hand, the challenges and opportunities from different dimensions are faced by the Chinese government and businesses in business and human rights. Therefore besides effectively fulfilling its duty to protect human rights, the Chinese government needs to optimize and strengthen its “Pillar II” policies, so as to push and support Chinese businesses in knowing and showing their responsibility to respect human rights at both perception and practice levels.

Keywords: business and human rights; policy shift; business practices

I. Background: The Agenda of International Business and Human Rights

One of the founding objectives of the United Nation is to ensure that human rights develop coordinately with economy and business. However, in the international political and economic context of the first 20 years after the United Nations was founded, there were rare international situations where business had connection with issues of human rights. For this reason, no attempt then was made at the level of the United Nations to systematically regulate the relation between business and human rights.¹ Until the anti-colonization movements urged the United Nations to pay attention to the impacts that business organizations from developed countries had exerted on the human rights of people of developing countries, the United Nations Commission on Transnational Corporations began to explore and draft United Nations Code of Conduct on Transnational Corporations in 1970s, which aimed to bind the business conduct of transnational corporations. The code of conduct included one simple provision that “transnational corporations should respect the human rights and fundamental freedoms in the country/countries where they operate,”²however, in a complex international political and economic context, this draft ultimately failed to be adopted due to objections from most countries.

From late 1970s to the early 1990s, the United Nations began paying close atten-tion to the expansion of transnational corporations and the relevant issues of human rights. In 1998, the Sub-Commission on the Promotion and Protection of Human Rights, created within the UN Human Rights Council, started drafting Rules on Human Rights and Transnational Corporations and Any Other Economic Units with Hu-man Rights Implications. In August, 2003, the Sub-Commission submitted the Norms of Responsibilities and Commentary of Transnational Corporations and other Business Enterprises with Regard to Human Rights (hereafter referred to as “the Norms of Responsibilities”) to the Human Rights Council for consideration.³ This motion which attempted to systematically enforce direct human rights responsibilities and obligations on business entities caused immense controversy, and did not gain general support in the Human Rights Council. With the reform of the United Nations human rights system, the duties of the Sub-Commission was terminated and the Norms of Responsibilities faded from the United Nations human rights system.⁴

In the 21st century, the deepening of economic globalization endowed the enterprise behaviors growing power to influence the rights of different groups of people through international supply chains. Thus the issue of the effects of business on human rights was once more on the agenda of the United Nations. In July, 2005, the then United Nations Secretary-General Kofi Annan and the Economic and Social Council decided⁵ to appoint John G. Ruggie, professor at Harvard University, as the Special Representative on the Issue of Business and Human Rights. After three years of research and negotiation, he officially proposed the “Protect, Respect and Remedy” Framework for Business and Human Rights⁶. In June, 2011, the Human Rights Council agreed on Business and Human Rights: the Guiding Principles on Operation of the United Nations ‘Protect, Respect and Remedy’ Framework (hereafter referred to as the Guiding Principles),⁷ which was developed from Ruggie’s report and aimed to operate the “Protect, Respect and Remedy” Framework. Both documents received approval and unanimous support from the UN Human Rights Council, and were the first set of global standards accepted by different national governments for the human rights implications of business and business accountability.

Different from the United Nations Code of Conduct on Transnational Corporations and the Norms of Responsibilities, the Guiding Principles do not attribute the negative impacts on human rights in business solely to business enterprises. Instead, it puts the issue in the relations and power between business and the other relevant parties, and points out that when the scale and power of the market are too much beyond the range within which the market can function healthily and the systematic basis of political continuity is able to operate, the market will create the greatest risk for society and business itself.⁸ Therefore, in order to remedy the deficiencies of governance systems, the Guiding Principles proposes a principle system and policy framework constituted by three mutually reinforcing pillars: States have the obligation to provide protection against human rights violations by third parties, including businesses (Pillar I); businesses have the responsibility to respect human rights (Pillar II); and more effective remedies for human rights violations must be provided (Pillar III).⁹ The Guiding Principles also noted, in particular, that it is applicable to all states and business enterprises and aimed at promoting “socially sustainable globalization” by strengthening the norms and behaviors regarding business enterprises and human rights.¹⁰

Therefore, the most important breakthrough of the Guiding Principles is that it not only proposes the national obligation to protect human rights but also urges enterprises to carry out “their responsibilities to respect human rights”, which gives a two-folded safeguard, both public and private, to prevent the negative impacts that businesses may exert on human rights, and meanwhile breaks the basic theoretical framework of the traditional international human rights law, which makes the coun-terpart of the human rights protection no longer only limited to state actors. Certainly, the Guiding Principles have clarified that no new human rights obligations are added

for states, and that it has no legally binding force on the states and no legal obligations for enterprises.¹¹ What the Guiding Principles provides is a pragmatic roadmap for the states and enterprises to fulfill their respective roles and coordinated action. And so it gains the support from and is obeyed by an increasing number of states and enterprises. Gradually, the Guiding Principles, has taken on the character of “soft law”.¹² Within the international institutional framework constituted by the sovereign states, how enterprises carry out their “responsibilities to respect human rights” largely depends on the policy orientation of each state, especially the host state. The most important policy orientation is to approve and popularize “the responsibilities for enterprises to respect human rights” within the political and legal frameworks.¹³

II. From “Respect and Protection” to “Protection and Respect”: The Shift in China’s Human Rights Policy in the Context of Business

A. The background of the human rights impacts and the policy shifts of Chinese enterprises

Over the past 40 years of reform and opening up, business enterprises have laid a rich material foundation and set economic security for the overall realization of human rights in China, and have also provided opportunities and support for the realization of the different rights of hundreds of millions of individuals. For example, the investment and technological power of enterprises has played a pivotal role in poverty reduction, China’s most significant human rights achievement, which has created “a new miracle in the development of human rights in the world”.¹⁴ At the same time, the rapid and vigorous development of enterprises has brought more increasingly complex effects on the various rights of various groups of people in China. For example, according to research by the Chinese Academy of Social Sciences, currently, labor disputes are one of the most common social conflicts.¹⁵ Moreover, the top five social issues of the greatest public concern, namely housing prices, food and drug safety, prices, unem-ployment and polarization between the rich and the poor¹⁶ are also closely linked to the impacts of enterprises on human rights. In fact, given that China has the largest population in the world, a huge economic scale and at least 21 million enterprises,¹⁷ China can be regard as one of the regions in the world where the development of busi-ness and human rights protection are most closely connected.

In addition, with the growth of overseas investment by Chinese enterprises, and especially with the implementation of the Belt and Road Initiative, the human rights impact of Chinese enterprises is no longer confined to China, but has increasingly become the focus of attention of countries around the world and the international community. According to China’s Ministry of Commerce, Chinese investors have made non-financial direct investments in 7,961 foreign companies from 164 countries and regions around the world in 2016.¹⁸And by the end of 2016, 24,000 domestic investors have set up a total of 37,000 directly invested enterprises overseas, located in 190 countries and regions around the world.¹⁹ While enterprises with Chinese investment around the world have brought economic growth, employment opportunities and tech-nology transfer to host countries, some of them may have also made a negative impact on the rights of local employees and community residents as a result of their improper business behaviors and relationships. For example, the Resource Centre for Corporate Responsibility has collated some of the allegations worldwide against overseas Chinese enterprises over the past 10 years, upon which responses from relevant enterprises were requested. Among over 100 cases, more than 90 percent of the controversies concerned the impacts of the business behaviors or their relationship of these enterprises on the rights-related issues such as labor and community relations.²⁰

Besides, compared with its huge human rights impacts, the knowledge level and management capacity of Chinese enterprises on human rights need to be improved. A study by John Ruggie in 2007 showed that, except for the right to development, Chinese enterprises in the sample were less aware of human rights and generally had a lower level of understanding than the overall level of global enterprises, and that in non-labor rights, Chinese enterprises were more likely to recognize economic and social rights.²¹In this respect, in 2017, China’s Ministry of Commerce and State-owned Assets Supervision and Administration Commission also pointed out that Chinese enterprises need to improve and utilize their capabilities to go aboard, “solve a series of serious challenges in a timely and effective manner”, which includes capturing compliance requirements in the operating environment, understanding and applying international norms, and communicating effectively with internal and external stake-holders.²²

B. The “Pillar II” Shift in Human Rights Policy: from the Norms of Public Law to “Private” Value Principles

In 2004, the Amendment to the Constitution of the People’s Republic of China added a provision that “the state respects and protects human rights”, clarifying the state’s commitments to human rights. Thus “human rights” became one of the norms with the highest normative effect in the Chinese legal system, and the provision has also institutionally defined the “state” as the subject of human rights obligations. In this regard, the Chinese government also has an authoritative and clear statement in its recent position paper on human rights: “The rule of law symbolizes the progress of human civilization and guarantees the realization of human rights. We should comprehensively implement the rule of law to enhance the level of legalization of protecting human rights, and to ensure that the people enjoy greater rights and freedoms… (which) are the determination and unremitting pursuit of the Communist Party of China and the Chinese government.”²³

However, this does not mean that human rights are the only norms for relations between the state and the individual in the setting of China’s policies. In fact, with the deepening and popularization of the concept of human rights in Chinese society, especially the increasing influence of business enterprises on various types of individual rights, it should be considered that the definition of human rights in China’s policy and the practical application of it have gone beyond the field of state-to-individual relations, as well as the scope of the norms of positive law, and have developed into the value principles that govern and judge social actors, including enterprises and other subjects of private law. At the policy level in China, human rights are no longer limited to be a purely issue on public law (that is, human rights are only the state’s “obligation to protect” the rights of the individual), instead they have expanded to a matter which is the concern of the private sector. Consequently, a set of value principles of “moral responsibility” that business enterprises should respect has been created.

This policy shift is reflected in China’s acceptance of the Protect, Respect and Remedy: Framework for Business and Human Rights at the United Nations Human Rights Council in 2008.²⁴The Framework, for the first time put forward “the responsibility of business to respect human rights” outside the traditional paradigm of “The state protects human rights”, making international human rights principles and norms a “soft law” with the binding effect on business enterprises and with the support of the state. In June 2008, together with other countries at the UN Human Rights Council, China welcomed the Special Representative’s report proposing a framework based on three major principles and “recognized the need to establish this framework in order to provide more effective protection for individuals and communities”.²⁵It can be seen that China believes that, the same as the obligation of “the state protects human rights”, “the responsibility of enterprises to respect human rights” is a necessary measure to provide more effective protection for human rights.

This policy shift has been further confirmed in 2010. In September 2008, China voted in favor of the ISO 26000 Guidance on Social Responsibility, which is applicable to “all types of organizations in the private, public and non-profit sectors”. According to these standards, human rights are not only one of core themes of social responsibility of various organizations, but also one of the fundamental principles of social responsibility.²⁶ In 2015, China developed the national standards of Guidance on Social Responsibility based on the ISO 26000 standards, reaffirming the applicability and importance of human rights to guide the conduct of various organizations, including enterprises.²⁷ In fact, compared with ISO 26000 Guidance on Social Responsibility, China’s national Guidance on Social Responsibility standards have made two noteworthy adjustments in terms of “the respect for human rights”. One is that, unlike the international ISO 26000 Guidance on Social Responsibility, China’s Guidance on Social Responsibility does not apply to the public sectors such as the government, but specifically for the private sectors including enterprises; the other is that the standards make important amendments to the part of “respect for human rights” of ISO 26000 Guidance to Social Responsibility and reinterpret human rights and emphasize their “relativity”.²⁸

The endorsement of the Guiding Principles by China and other countries at the United Nations Human Rights Council has become a milestone in China’s policy shift to endorse the human rights protection responsibilities of the private sector. China had, in the Human Rights Council, expressed its appreciation for the work of the special representative and Guiding Principles, and pointed out that “the state, enterprises and the judiciary should cooperate with each other and have their own responsibilities to ensure the respect and the protection of human rights in commercial activities”.²⁹China clearly stated that the state and enterprises are of equal status and a cooperative relationship with regard respecting and protecting human rights in commercial activities, but their responsibilities are different. Since the responsibility or obligation of the state is regulated by international human rights law, the discussion of the human rights responsibilities of enterprises in this context is undoubtedly an endorsement of Pillar II of the Guiding Principles, “the responsibility of enterprises to respect human rights”. This means that China believes that the human rights responsibilities of enterprises should be defined in accordance with the Guiding Principles, especially with the Pillar

II. In this way, China’s endorsement of the Guiding Principles represents an important shift of the basic concept of human rights at the policy level in China, which can also be described as the “Pillar II Shift” of the social relations regulated by human rights norms and of subjects to which human rights principles are applicable.

C. The reasons and meaning behind “Pillar II” shift

The author thinks that the “Pillar II” shift in China results from the combination of the passive promotion of the negative impacts on human rights of business enterprises and the active policy adjustments by the government, which reflects a relationship of synchronous interaction. During the same period, overseas investments under China’s “going out” policy were continuously reaching new heights, and the Chinese government realized that it is necessary to utilize the values outside its authority to stimulate the internal driving force of enterprises to make a positive social impacts.³⁰ It should be mentioned that, it is both a process of strengthening the realistic connection between business and human rights and a process for the government to consider new policy theory for such a connection. This kind of interaction is a clear expression of the statement made by China in 2008 at the United Nations Human Rights Council, “Transnational corporations and enterprises play an important role in a globalized society. They have important impacts on social development and have certain responsibilities for the promotion and protection of human rights”.³¹

Also, the rapid development of business enterprises has also led Chinese poli-cymakers to recognize on their own initiative that for the social problems concerning business operations to be solved, the private sector should be given the necessary roles so that they can work with other parties to find solutions.³² Because such roles often require more than the due legal obligations of the enterprises and are related to the various groups of people affected by the enterprises, thus the responsibility of enterprises in accordance to the principles of respecting human rights becomes a convenient starting point and measure to define and evaluate the roles of enterprises, possessing a dual universality in terms of applicable objects and the geographical scope.

This policy shift is of great importance to both the state and the enterprises. For the state, the “Pillar II” shift can facilitate the state, should legislation not be applicable, making policy requirements of business practices based on human rights principles, and prompt enterprises to assist the state in achieving their broader social goals. For example, the state can advocate that enterprises operate responsibly within the jurisdiction of other countries. For Chinese enterprises, the “Pillar II” shift provides them with value orientation and action guidelines in understanding the concept of human rights, applying the language of human rights, carrying out human rights management, cultivating a policy basis of human rights culture, and undertaking their business operations in the absence of effective legal norms (such as when they are in the supply chain and in other countries).

D. Reinforcement of the policy shift to “Pillar II”: human rights as enterprises’ value principles

China has not yet developed any policies or action plans for the implementation of Guiding Principles, but the endorsement of it as a starting point, a series of policies and measures have been launched in recent years to advocate and promote the respect for human rights for business, so that the policy shift to Pillar II has been continuously reinforced.

1. National Human Rights Action Plan

The policy shift to “Pillar II” was first emphasized and developed in China’s national human rights action plan. In 2012, China issued a second national plan themed with human rights, the National Human Rights Action Plan of China (2012–2015) and in its “Human Rights Education” section, for the first time proposed to “encourage and promote the popularization of human rights knowledge for enterprises and institutions, and development of corporate cultures that respect and protect human rights”.³³

In 2016, China issued the National Human Rights Action Plan of China (2016-2020).³⁴ Although there is no special chapter or section on business and human rights in this Plan, it makes clear that Chinese business enterprises are required to respect human rights and expected to fulfill their responsibilities.

First, the “Human Rights Education and Research” section of National Human Rights Action Plan of China (2016-2020) proposes “to support and encourage enterprises and institutions to enhance human rights education and training, to foster human rights culture and to consider the respect and protection of human rights as an important factor in the decision-making of domestic and foreign investment”. Compared with the second National Human Rights Action Plan of China, the plan of “Awareness raising” in this Plan changed the macro results of the former “popularizing knowledge of human rights” to concrete actions of “strengthening human rights education and training”, aiming to “foster human rights culture”, which fits better the inherent nature of enterprises’ culture development than the “quick fix” expression of “forming a corporate culture that respects and protects human rights”. Besides, regarding the national action, the previous “encouraging and promoting” is changed into “supporting and encouraging”, which may indicate that the government will adopt policies or resource measures to support human rights education and training for enterprises. The most notable aspect of this provision is in the latter half of the clause, when it says: “consider the respect and protection of human rights as an important factor in decision-making of domestic and foreign investment”, in which China has, for the first time, proposed the idea of using human rights due diligence to guide investment decisions in its policy document. And the idea also presents an important aspect of the requirement in Guiding Principles to “effectively guide business enterprises to respect human rights in all their operations”.

Second, in fifth section of National Human Rights Action Plan of China (2016-2020), “the Implementation of Human Rights Treaties and the International Exchange and Cooperation”, which has proposed the action plan of “Promoting Chinese overseas enterprises to observe the laws of the host country and fulfill their social responsibilities in foreign economic and trade cooperation, assistance and investment”. This is an important and tremendous development. It proposes that Chinese enterprises as the implementation vehicles for overseas aid also need to fulfill their social responsibilities in the assistance activities. At the same time, it requires enterprises to fulfill their social responsibilities and reconfirms that social responsibility encompasses human rights principles and human rights issues in China’s policy theory.

Finally, as the National Human Rights Action Plan of China (2016-2020) has realized some specific plans for human rights, it also makes a number of requirements for enterprises. For example, four of the six action plans concerning the right to work are directly related to enterprises’ responsibility, including the improvement of wage and welfare, the handling of labor and personnel disputes, the prevention and control of safe production and the prevention and cure of occupational diseases. The section on environmental rights puts forward the plan of “forming an environmental governance system co-governed by governments, enterprises and the public”. In terms of the rights of persons with disabilities, more specific requirements are made, “to promote telecommunications business operators, e-commerce enterprises etc. to provide information accessibility services for persons with disabilities”.

2. Investment policies

From the perspective of the operational requirements in business, China’s human rights policy shift to “Pillar II” is epitomized in a series of policy documents on investment at home and abroad after the year 2011. For example, in 2012, the National Development and Reform Commission issued Interim Measures for Assessing Social Stability Risks of Major Fixed Asset Investment Projects, requiring investment projects to carry out risk assessments on the basis of protecting people’s rights and interests, with aim of “preventing and settling social conflicts” so as to prevent potential risks of social stability.³⁵ The risk assessment required by Measures has already been very similar to the human rights-based due diligence measures advocated in Guiding Principles.³⁶ In terms of effectiveness, this document not only has become the basis and template for local governments and other ministries such as the Ministry of Water Resources, to develop similar normative documents,³⁷ but also the Report of Assessing Social Stability Risks required by it has become a necessity for the approval of major fixed asset investment projects.³⁸ In practice, however, the implementation of the Measures seem not to have prevented the negative impacts and disputes arising from projects like the Gulf of Heshanlong Nuclear Fuel Project, the Kunming PX Project and the Yuhang Garbage Incineration Plant, which have much to do with superficial or inadequate impact assessments and the failure to solicit public opinions. In particular, few of these projects carried out any online surveys of public sentiment, which led to the failure to accurately predicting the public mood.³⁹ Certainly, cases like these highlight the importance of the shift to “Pillar II.”

In terms of overseas investments, since 2011, the focus of the regulations and guidance for China’s overseas investments has shifted from protecting the Chinese investments and personnel safety to obtaining and maintaining social permission based on rights due diligence and localization. The 12th Five-Year Plan for National Economic and Social Development, published in 2011, formally proposed for the first time that “enterprises and overseas cooperation projects ‘going out’ should fulfill their social responsibilities for the benefit of the local people.”⁴⁰ In 2013, China’s Ministry of Commerce and the Ministry of Environment developed Guidelines on Environmental Protection for Foreign Investment Cooperation, which is China’s first guidance document on foreign investment enterprises, requiring them “to actively fulfill their social responsibilities and respect the religious beliefs, cultural traditions and national customs of the communities residents of the host countries, to protect the legitimate rights and interests of workers, and to cooperate on a mutually beneficial basis”.⁴¹ In 2014, the Measures for Overseas Investment Management amended by the Ministry of Commerce of China, specifically added a clause that “enterprises shall require their foreign investors comply with the laws and regulations of their investment destinations… fulfill their social responsibilities, ensure environmental and labor protection… and promote their integration with the local communities”.⁴² In 2017, the National Development and Reform Commission, the Ministry of Commerce and the Ministry of Foreign Affairs and other five ministries formulated the Code of Conduct for Overseas Investment by Private Enterprises. In the section on “Effectively Fulfilling Social Responsibility”, it makes specific requirements for enhancing the localization management, respecting cultural traditions, strengthening social communication and improving information disclosure, etc.⁴³Measures of Overseas Enterprises for Investment Management, which have been in effect since March 1, 2018, also explicitly advocate that “the investment subject… should protect the legitimate rights and interests of employees, respect local public morality and customs, fulfill the necessary social responsibilities, attach importance to ecological and environmental protection, and establish a good image of Chinese investors.”⁴⁴

The author thinks, although the concept of “human rights” is not explicitly mentioned in the policies governing overseas investment, the definition of “social responsibility” in Chinese National Standards includes human rights principles and themes, and the above-mentioned policy documents also lay special emphasis on labor rights and the social and cultural rights of communities residents of host countries more than “social responsibility”. For this reason, it is believed that these documents Chinese enterprises are expected to fulfill their human rights responsibilities overseas. Indeed, in the investment host countries, in addition to local law, international human rights principles and norms may be another set of value principles and codes of conduct applied to guide enterprises’ practices concerning the social responsibilities for the local employees and residents.

3. Trade policies

China had long been against the ideas of linking trade to issues like human rights, labor and environmental protection, regarding it as a new form of protectionism.⁴⁵ This notion became less absolute upon the signing of the subsidiary documents of the Free Trade Agreements between the Governments of the People’s Republic of China and the Government of New Zealand, Agreement on Environmental Cooperation and Memorandum of Understanding for Labor Cooperation in 2008.⁴⁶ At the end of 2011, China pointed out for the first time in the White Paper on China’s Foreign Trade the importance for import and export enterprises to fulfill their social responsibilities, declared that Chinese governments at all levels were “promoting enterprises to raise awareness of social responsibilities, to respect labor rights and interests, to safeguard consumer rights and to protect the ecological environment”, and at the same time claimed that “enterprises are encouraged to accept relevant standards for social responsibilities in the import and export trades in an effort to gain the necessary social accountability accreditation”.⁴⁷

In 2013, China and the Swiss Confederation signed the China-Switzerland Free trade Agreement, which marked a milestone on the road to the policy shift to “Pil-lar II” in the field of trade. The agreement not only includes a special agreement to strengthen cooperation between the two sides in the areas of labor and employment, but also recognizes in its preamble “that good governance and social responsibility for enterprises are important for sustainable development, and that both parties are committed to encourage enterprises to comply with internationally recognized norms and principles in this regard”.⁴⁸ Thus enterprises’ social responsibilities are formally established in the bilateral free trade agreement, and the relevant “internationally recognized norms and principles” undoubtedly includes the international norms for human rights and labor. Moreover, “the environmental issues” are set as a separate chapter for the first time, and both parties agree that “it is inappropriate in practice to encourage trade and investment by weakening and lowering the environmental standards that have been established in national environmental laws, regulations and policies”.

Hence, “both contracting parties will encourage enterprises to carry out cooperation on environmentally-friendly goods, services and technologies”.⁴⁹ In its interpretation of the agreement, the Ministry of Commerce of China made it clear that “the Agreement concerns a lot of new rules. China-Switzerland have agreed on the Agreement concerning government procurement, environment, labor and employment cooperation, intellectual property rights, and competition, which had rarely shown up in the previous free trade negotiations of China ... this reflects the stance China has taken to deal with environmental and trade-related issues in a up-to-date manner.”⁵⁰ Similarly, the China-Iceland Free Trade Agreement, which took effect on July 1, 2014, also includes specific provisions on “labor and environmental protection”.⁵¹

Lastly, the White Paper of China and the World Trade Organization, released in June 2018, stated that in order to promote opening up and practicing free trade, the Chinese government “actively guides enterprises to operate lawfully and fulfill their corporate social responsibility in foreign countries, and supports enterprises to carry out foreign investment cooperation in accordance with commercial principles and international practices.”⁵²This sufficiently indicates China’s standpoint that enterprises should fulfill the social and human rights responsibilities of “Pillar II” and carry out foreign investment in accordance with relevant international practices, which is a vital policy choice to promote the opening up and advance free trade to a higher level.

4. China’s position on the treaties

In June, 2014, the United Nations Human Rights Council adopted a resolution, on the proposal of Ecuador, Venezuela and Peru and so on, and established an inter-governmental working group to elaborate a legally binding international instrument on the relationship between transnational corporations and other business enterprises and human rights, “aiming to regulate the activities of transnational corporations and other business enterprises in international human rights law”.⁵³ China is one of the countries that supported the resolution. This position indicates that China not only believes that business enterprises should share human rights responsibilities with the state, but also agrees that the international community should establish norms of international law for enterprises’ human rights responsibilities.

The first meeting of the Intergovernmental Working Group on the Treaties was held in July 2015. At the meeting, the Chinese government representatives pointed out that transnational enterprises “had brought a series of problems in the fields such as environment and natural resources, labor and human rights protection, fair trade and compliance operations”, and therefore, “in this context, China will support the international community to promote the business enterprises, especially the transnational corporations to better respect and protect human rights”.⁵⁴ Although China, along with South Africa, Cuba and other countries, was strongly against the EU proposal to extend the functions of the Working Group to cover all business enterprises, it clearly agrees that the universality and interrelatedness of human rights should be insisted in dealing with issues of the human rights legal responsibility in business. China also “agrees and hopes that the instruments being developed should cover all rights, including the right to development”. China believes that while the human rights responsibilities of transnational corporations and other business enterprises are regulated in the form of the international laws, the Intergovernmental Working Group should follow a basic principle of emphasizing “the regulatory responsibility of governments and im-plement the principal responsibility of enterprises” when drafting legal instruments.⁵⁵ Although the Chinese government has not yet made a special position statement on the legal definition of these two responsibilities, it has unequivocally established a “dualist” position on the state’s human rights responsibility and enterprises’ human rights responsibility.

Ultimately, the most significant reinforcement of the Chinese Government’s policy shift to “Pillar II” is reflected in the open, clear and consistent support of the Guiding Principles. For example, since 2013, at different meetings of the United Nations Human Rights Council, Chinese government representatives have expressed their support and concern for the Guiding Principles and China’s practice of promoting enterprises’ social responsibility and respect for human rights in accordance with the spirit of the Guiding Principles.⁵⁶ Moreover, China has listed the attendance in the United Nations Forum on Business and Human Rights as one of its initiatives “to engage fully in global human rights governance”.⁵⁷

III. The Interaction Between the Practice of Human Rights Respon-sibility in Business and Policy Shift in China

As mentioned above, the impact of Chinese businesses on human rights and their practice of fulfilling human rights responsibilities have made a fundamental contribution to the promotion of China’s “Pillar II” policy shift regarding human rights. Furthermore, near 30 years practice of human rights responsibility in Chinese business has actually been in constant interaction with the changes of relevant Chinese policies, making business practices and national policy develop in depth at the same time.

A. Chinese businesses dealing with “imported human rights challenges”

Since the early 1990s, Small and medium-sized enterprises by the southeast coast of China dealing with textiles and apparel, shoes, hats and toys, etc. began to take and tackle “the inspection of human rights”, an anecdotal term of the mandatory inspection of protecting the suppliers’ labor conditions and the workers’ rights, conducted by the enterprises in those fields on the brands and buyers in the downstream of the supply chain. Chinese manufacturing enterprises then came to know and show their own “human rights responsibility”. Based on labor rights, this kind of supervision and inspection, conducted by the international brands and purchasers on their Chinese suppliers takes their own “Supplier Codes of Conduct” as the normative basis and mechanism. And these kind “Supplier Codes of Conduct” are originated from the relevant conventions of International Labor Organization and the UN Human Rights Conventions. Therefore, by means of the supply-demand relationship within the international supply chain, the international human rights values and norms are “privatized” to a power structure between two equal transaction parties, which is “vertical” and “non-transactional without compliance”. To certain extent, the international brands and purchasers are given the “police powers” to monitor suppliers’ performance on labor and human rights.⁵⁸ In this sense, Chinese enterprises, especially export manufacturing enterprises, at this stage are mostly facing and dealing with “imported” human rights challenges which entered China through the international supply chain.

Such “imported” human rights challenges cost the Chinese export manufacturing enterprises greatly and bring them enormous managing pressure. The increase of such pressure then led the relevant organizations to pay attention to the issues concerning business and human rights and with measures such as developing and implementing guidelines and standards to promote and help enterprises learn these issues and put them into practice. For example, the China National Textile and Apparel Council pointed in the foreword of CSC9000T Social Responsibility Management System of China Textile and Apparel Industry, which was formulated and developed in 2005, that it aims to “effectively protect human rights and the legitimate interests of employees and other stakeholders” and that it has referred to the major international human rights and labor conventions.⁵⁹ For the first time at China’s industrial guiding norms level, the operating behavior of business enterprises is connected to human rights. According to the China National Textile and Apparel Council, what CSC9000T advocates is to respond to the proposals of hundreds of Chinese textile enterprises in the process of “China’s Textile and Apparel Industry are gradually blending into the international industrial chain and sourcing supply chain”. In this way, it means to “adapt to the actual demand of international retailers and brands, resolve the problems of untraceable channeling, repeated certification, high cost and managing difficulties and so on that have existed in auditing or authenticating the suppliers and manufacturing enterprises.⁶⁰ In the same way, the China Federation of Industrial Economics proposes the “respect for human rights” as a general requirement of enterprises responsibility in Guidelines on Social Responsibility for Chinese Industrial Enterprises and Industry Associations, which was formulated in 2008 and revised in 2009. The Guidelines state that from the global view, “the systemic standards of developed countries and developing countries are not the same”, and for this reason, “we strive to produce these guidelines on social responsibility of enterprises and industries that is in line with international standards, and fits China’s present situation and has Chinese characteristics.”⁶¹Thus it can be seen that one of the purposes of the Guidelines is also to respond to the responsibility requirements on labor and human rights transmitted for the international.

The above mentioned are the first two guidelines on industrial social responsibility embodying the concept of human rights, which were developed and issued by industrial organizations. Form this respect, we can see that the “imported human rights challenges” initially originated from enterprises’ demand then triggered the collective action of industries, and finally influenced the reform route of China’s policy shifts. The industrial guidelines of social responsibility are not the only factor that promotes the “Pillar II” policy shift, but it doubtlessly demonstrates the practicing strategies and the possible positive results for such a policy choice. In this sense, the industrial proposals of social responsibility are the platforms for the “Pillar II” policy shifts to exert and express itself. For example, back in year 2006, the Chinese Government launched fiscal policies to “support the construction of social responsibility management system for enterprises, develop and improve the standards for enterprises’ social responsibility, and popularize and implement them at home and abroad in the industry of textiles.”⁶² In 2009, Li Yizhong, the then Minister of the Ministry of Industry and Information Technology, at the launch conference of the CSR report on China’s industrial economy, hosted by the China Federation of Industrial Economics, affirmed their initiatives of social responsibility, and declared that “the Ministry of Industry and Information Technology bears significant responsibilities in promoting the construction of enterprises’ social responsibility, it will strengthen communication and cooperation with relevant parties, take effective measures to intensify work and make steady progress.”⁶³

The interaction between the industrial organizations’ initiatives of social responsibility and human rights and China’s policy shifts produce one result that the government sectors in turn keep “encouraging and supporting the industrial associations to play their roles and actively exploring and establishing suitable standards of social responsibility in line with industrial practices and China’s national conditions so as to guide and promote the self-regulation of industries.”⁶⁴ Especially after the year of 2011, in many occasions at home and abroad, China has advocated the human rights responsibility of “Pillar II” enterprises. For this reason, the later launched industrial initiatives and norms of social responsibility are bolder to include the responsibility of enterprises’ fulfillment and respect for human rights as one of the main principles.

In 2013, Chinese Electronics Standardization Technology Association, which was also under the guidance of the Ministry of Industry and Information Technology, developed the Guidelines on Social Responsibility of Chinese Electronic Information Industry and stated that the Guidelines aimed at “promoting enterprises and the relevant organizations to pay close attention to the interests and expectations of stake-holders and respect human rights during their the strategies, systems and operations”. And the Guiding Principles was included in the references for the first time.⁶⁵ In 2016, the Industry Standard SJ /T16000 derived from the Guidelines regards the respect for human rights as one of the basic principles, requiring all organizations and institutions to whom the norms are applicable should “respect human rights and recognize its importance and universality.”⁶⁶In 2013, the National Council of Small and Medium-sized Enterprises formulated the Guidelines on Social Responsibility for Chinese Small and Medium-sized Enterprises with the support of the Ministry of Industry and Information Technology, with the purpose of “hoping that by continuously improving the management of social responsibility, the small and medium-sized enterprises will effectively enhance their performances such as in the aspects of respecting human rights and caring for employees…”⁶⁷ In 2016, China Association of Communication Enterprises formulated the Corporate Social Responsibility Management System for Information and Communication Industry in China (2016) which cited reference from the Guiding Principles and in its “Key Issues of Social Responsibility” included an independent section of “human rights”, requiring enterprises “to prevent their activities from exerting or aggravating negative impacts on the human rights of individuals or groups such as the employees, consumers and the community residents and to eliminate the negative impacts that have already been made by fulfilling the due management responsibility.”⁶⁸

There is no deny that in all those industrial initiatives and guiding documents on social responsibility, human rights is just a principle norm or one of issues with less weight. In addition, no specialized studies or related industry reports have been made on how much impacts these industrial social responsibility initiatives and guiding documents have on Chinese enterprises’ awareness and capacity of human rights. In the author’s view, the current situation has its roots in the lack of effective tracking mechanisms and information transparency in practicing those industrial initiatives and guiding documents on social responsibility, but also reflects the difficulty of Chinese enterprises face in effectively carrying out their human rights responsibilities.⁶⁹Nevertheless, the above mentioned industry organizations have strongly propelled the government to recognize and pay close attention to enterprises’ human rights responsibilities while dealing with “imported human rights challenges”, and have made human rights a basic principle and core issue in “the enterprises’ social responsibility” of different industries. Thus the human rights responsibilities have not only systematically entered the vision of Chinese domestic enterprises, but also to some extent, legitimately supported the overseas implementation of human rights responsibility of “going out” Chinese enterprises with domestic practice.

B. The actions of Chinese businesses dealing with “exported human rights challenges”

Compared with the domestic situation, the human rights challenges that the “going out” Chinese enterprises have encountered in overseas investment are more apparent and regular. Moreover, the issues concerning human rights impact of Chinese-invested enterprises outside Chins are more complex and often politicized. Such “exported human rights challenges” emerged with the accompaniment of Chinese investment and put pressure on Chinese enterprises and governments. That is one reason for China declaring its “Pillar II” policy shift within the United Nations System. And the industry organizations are propelled to shift in accordance with the policies, thus putting forward bold and practical industrial plans to help overseas Chinese-invested enterprises overcome the “exported human rights challenges”.

In 2012, under the guidelines of the Ministry of Commerce, China International Contractors Association formulated Guidelines on Social Responsibility for Chinese International Contractors Industry, which “is applicable to the activities relating to the overseas contracted projects conducted by Chinese enterprises and supports the relevant domestic activities for supporting the overseas contracted projects”,⁷⁰with the purpose of “further regulating the overseas operating behavior of projects contracting enterprises”, and responding to “the internal requirement to enhance the ‘soft powers’ like social responsibility.”⁷¹ The Guidelines is the first industrial guiding document that is concerned with the overseas human rights impacts of Chinese-invested enterprises. It proposes in the section on “Employees’ Rights and Career Development” and Community Participation and Development” the responsibility of enterprises to “respect human rights”, and includes its reference documents from Universal Declaration of Human Rights and a few core human rights conventions. From all these, it can be concluded that the Guidelines has explained the connotation of the enterprises’ responsibility to respect human rights but lacked the operating guidelines to fulfill it.

After the Belt and Road Initiative was put forward, all the industrial guiding documents concerning Chinese enterprises’ social responsibility issues on the overseas investment and supply chains focusing on mining, forestry, not only cite and refer to Guiding Principles but also based on it to propose systematic managing approaches for practicing enterprises’ responsibility to respect human rights. For example, under the guidelines of the Ministry of Commerce, the China Chamber of Commerce for Metals, Mineral and Chemicals Importers and Exporters released the Guidelines on Social Responsibility for Chinese Outbound Mining Investments in 2014, which includes an independent provision on human rights, requiring enterprises to formulate human rights policies, carry out the management of human rights due diligence and provide remedial measures in accordance with Guiding Principles in the course of mining, operating and producing.⁷²This is the first industrial guidelines in China that propose a management system of human rights for enterprises in full accordance with Guiding Principles. In 2015, China Chamber of Commerce for Metals, Mineral and Chemicals Importers and Exporters further developed and issued Guidelines on Chinese Due Diligence for Chinese Responsibility of Mineral Supply Chains, and in its “Background and Challenges” section which pointed out that “the adoption of Guiding Principles by the United Nations is one of the measures the international community takes to break the linkage between business and human rights violation”. The Guidelines, based on the human rights due diligence approaches set out in Guiding Principles, designed a due diligence guidance system for supply chains and aimed to “guide the enterprises that exploit and utilize mineral resources and other relevant productions, and that participated in the supply chain of mineral resources to identify, prevent and minimize the risk of increasing conflicts, serious human rights violation and serious loss, and to follow the United Nations Guiding Principles throughout the entire supply chain of mineral resources and the whole project life circle”.⁷³ In 2017, under the guidelines of Ministry of Commerce and Forestry Bureau, China Chamber of Commerce for Metals, Mineral and Chemicals Importers and Exporters formulated the Guidance for Sustainable Natural Rubber, and in its foreword it clarified that it has cited and referred to the Guiding Principles. Meanwhile, “respect human rights and protect interests” was included as the document’s guiding principles, and the full due diligence management system derived from Guiding Principles was formed as a separate chapter with the purpose of guiding the due diligence management of human rights issues that may arise in the processes of investing and operating.⁷⁴ Therefore, in the context of overseas investment, “human rights” is no longer an initiative at the level of principle or an issue with little weight as it is in the above mentioned industrial guiding documents. Instead, it is the core challenge and fundamental issue of a systemic solution and political wisdom that require an effective balance of multiple interest demands. Accordingly, Chinese industry organizations, in the aspect of constructing systematic solution plans like this, have shown the execution capacity that is increasingly mature and the “soft power” that is gradually catching China’s overseas investment capacity — although there are still no studies or reliable information on the effectiveness of implementing the above mentioned guiding documents.⁷⁵

This maturing executive capacity and “soft power” are also reflected in the efforts of the enterprises to deal with overseas human rights responsibility. First, Chinese-invested enterprises acknowledge the human rights challenges were existed in overseas investment and operation, and highlighted the importance of human rights responsibilities for their overseas operation. Second, some of the enterprises, in the aspect of fulfilling overseas responsibility to respect human rights, have actively taken measures that are in line with human rights principles and international norms. For example, after acquiring the full ownership of Century Mine in Australia, China Minmetals Corporation signed a tripartite agreement with the local government and four aboriginal communities, the Gulf Community Agreement; and set up a liaison advisory committee consisting of the representatives from the three parties to supervise the implementation of the Agreement, ensuring the participation of the locals in the operation of the mining area, so that the land, cultural, and economic rights are effectively protected and the normal operation of enterprises in the areas are guaranteed.⁷⁶ Last, the Chinese- invested enterprises have increasing courage to actively communicate and disclose information regarding human rights issues in their overseas operations. The social responsibility reports or sustainability reports of export-oriented enterprises have more frequently included more detailed content concerning human rights. For example, from 2006, China Ocean Shipping (Group) Company included an independent chapter of “hum an rights” in its Sustainability Report.⁷⁷ In 2017, at the “UN Business and Human Rights Forum”, Chinese industry organizations and enterprises investing overseas held a special session on “Responsible investment and sustainable supply chain: due diligence practice for human rights in China’s business”.⁷⁸

The above mentioned practices of industries and enterprises also pose two important problems. First, the relevant industrial guidelines are applicable to and better practiced by large-scale enterprises, most of which are state-owned enterprises. Yet small and medium-sized private enterprises are China’s main overseas investors, whose number is huge and impacts broad, still lack regulation and guidelines.⁷⁹ Second, the openness and effective practices of Chinese-invested enterprises when they deal with the overseas human rights responsibility reflect the problem of how the useful tries of Chinese enterprises overseas to fulfill the responsibility to respect human rights can feed back to their headquarters and be used to improve the strategies and other similar practices in China.⁸⁰ Undoubtedly, the solutions of these two problems need to be driven by Chinese policies. It is safe to say that the relevant rules concerning overseas investment policies, which is published by sectors like China’s Ministry of Commerce and the National Development and Reform Commission since 2014, are partially responding to these problems,⁸¹ but obviously are insufficient to solve these two grand problems.

IV. China’s Challenges and Opportunities in the Field of Business and Human Rights

The practice of human rights responsibility of Chinese businesses over the past nearly 30 years have propelled the shift and improvement of China’s human rights policies. Moreover, the interaction between businesses and the government has contributed to solving the development challenges and achieving the development goals in reality. For these reasons, such practices are strongly recognized and promoted as valuable experience.⁸² In this thesis, the dimensions of the three pillars of “protection, respect and remedy” will be cited from Guiding Principles to illustrate the challenges and opportunities that China will encounter in the field of business and human rights, aiming to offer an analytical framework for Chinese business and government to carry out more constructive interactions.

A. Pillar I: national obligation to protect human rights

First, on one hand, individuals have required a higher standard and more strict supervision of national obligations to protect human rights, which are both a challenge and an opportunity for China to fulfill its obligations of protecting human rights. On the other hand, the Chinese Government has adopted policies and measures to ensure enterprises’ protection of human rights, which will be pushed and supported by a wider range of public opinions. In any way, the result is definite: The Chinese Government has to attach importance to the human rights impact of enterprises, and put forward and carry out policies that fit the human rights impacts of Chinese businesses, and better suit popular expectations and ensure “human rights are not violated by the third parties, including business enterprises”. And “via effective policies, laws, regulations and rulings to prevent, investigate, punish and remedy such violations.”⁸³

Second, in recent years, the Chinese Government has published a series of policy documents encouraging and requiring enterprises to work hard for sustainable development and at the same time revised and introduced a series of laws and regulations,⁸⁴ which have created a healthy legal environment and opportunities for enterprises to operate responsibly. Beside, even though China has endorsed the Guiding Principles, no national specialized policy was made for implementing and promoting it, nor did the governmental sectors apply it in other policies to guide the enterprises practice. This is one of the main reasons why the Guiding Principles and its relevant approaches and instruments are less familiar with Chinese enterprises. Due to this, it is advisable for China to formulate Action Plan on Business and Human Rights so as to raise expectations on all China’s “business enterprises within its territory and/or jurisdiction” to “respect human rights in all their operations”.⁸⁵

Lastly, with the implantation of “the Belt and Road Initiative” and the “Building a community with a shared future for human beings”, an increasing number of countries view the economic development of China and Chinese enterprises’ overseas expansion as important opportunities for their development. Meantime, whether Chinese enterprises are able to operate responsibly in accordance to the principles of respecting human rights becomes one of the challenges for the Belt and Road Initiative and Building a community with a shared future for human beings.⁸⁶ Therefore, the clear requirement of respecting human rights and policy orientation, made by the Chinese Government in norms and policy documents concerning overseas investment, will truly help China amount the “international moral high ground”.⁸⁷ In addition, the useful human rights practices of some of the Chinese enterprises, especially the state-own ones, are easier to be updated into policies, and be transferred and promoted at home and abroad. What is more, China should actively participate in the agenda concerning businesses and human rights with the United Nation and other international organizations, and also highlight and increase the issues on human rights in multilateral and bilateral cooperation and dialogue mechanisms, especially strengthen and increase the issue of business and human rights in the dialogues of human rights, and extensively exchange experience with others while sharing China’s practices.

A. Pillar II: the responsibility of enterprises to respect human rights

With regard to the responsibility to respect human rights, the biggest challenge facing Chinese enterprises is that they have relatively lesser awareness of the responsibility to respect human rights. In particular, most of them do not realize that China’s “Pillar II” policy shift have made clear requirements for enterprises to fulfill their responsibility to respect human rights and many enterprises know little about the Guiding Principles and seldom apply it to their management. As “the Belt and Road Initiative” was implemented and more Chinese enterprises “going out” to invest overseas, the enterprises must study and learn in depth how to deal with the human rights impacts embedded in their products, services and business relations, and integrate the knowledge into their policies and management. Otherwise, they will have to face unpredictable economic and reputation risks and the issues concerning human rights responsibility of enterprises will escalate into international affairs.

Nevertheless, there are valuable opportunities waiting in the aspect of fulfilling Chinese enterprises’ responsibility to respect human rights. First, China’s “Pillar II” policy shift also offers a policy opportunity for enterprises to convert their traditional perception of “human rights” and commit to human rights responsibility. Furthermore, the industry organizations in China also take this timely chance to seek solutions for the enterprises. Second, the Guiding Principles have been endorsed for more than seven years. Many utilizable instruments were made for guiding the enterprises to respect human rights and many pioneering enterprises at home and abroad have already accumulated rich experience, all of which are strong support for Chinese enterprises to fulfill their responsibility of respecting human rights in accordance with the Guiding Principles. At the same time, it means that Chinese enterprises should openly and courageously exchange practices in the field of business and human rights with relevant parties of the international communities, such as international organizations, non-governmental organizations, upstream and downstream enterprises in the supply chain. Finally, China’s economic growth, in particular the continued advancement of “the Belt and Road Initiative” and its integration with the broader international agenda, such as the United Nations sustainable development goals, will provide Chinese enterprises that are responsible for and respecting human rights with great business opportunities and the possibility of contributing to social development.⁸⁸

B. Pillar III: remedying human rights violations

To any enterprises, remedying violations of human rights is a challenge in itself, because it means they have defaulted in the field of human rights. However, generally, remedying human rights violations also offers the chance for enterprises to improve and perfect their management mechanisms especially their complaints systems,⁸⁹ which is helpful in preventing and reducing the risks of human rights. In addition, since the efforts to remedy often bring broader and deeper cooperation with stakeholders, the enterprises should not only improve the management mechanisms for remedying human rights violations but also adopt coordinative actions with other parties in the supply chain or the business ecosystem, and dedicate to remedy the structural problems of human rights violations.

V. Conclusion

Confucius said: “Being Rich and honorable are what men desire. If they cannot be obtained in a proper way, they should not be held.” And he also said, “Being Rich and honorable by unrighteousness, are as a floating cloud for me.”⁹⁰ In Chinese culture and tradition, the idea of “benevolence is riches” has a long history, which has formed the value foundation for the Chinese government and Chinese businesses to deal with the social impacts of enterprises. At the same time, with the appropriate values, the government and enterprises still need a system with the broadest consensus base for value judgments and a code of conduct to discuss and deal with the social impacts of enterprises. As Wang Wenxian, a businessman in the Ming Dynasty (1368-1644), said, “Businessmen and officials are in different professions but with similar minds. Good businessmen cultivate virtues in buying and selling so they profit without immorality. Good officials avoid pecuniary benefits when practicing good governance so they will rise to fame with success.”⁹¹The Government and enterprises need such “similar minds” in values. Both the “cultivation” of good businessmen and the “practice” of good officials actually point to a system of value judgments and behavioral norms for the “similar minds”.

Chinese business enterprises have spread all over the world, and the core and basic system of value judgments and code of conduct, which can be universally recognized by Governments, people and other stakeholders of China and of other countries around the world, should be the international principles and standards of human rights, “which, at a minimum, can be referred to as the International Bill of Human Rights and the rights explained by the principles of fundamental rights enshrined in the Declaration on Fundamental Principles and Rights at Work by the International Labor Organization.”⁹²— These rights are also the most important fields in which Chinese enterprises exert impacts at home and abroad.

Currently, China has, being pragmatic and forward-looking, shifted the interna-tional human rights principles and norms into value principles, business ethics and codes of conduct that should be respected and observed by the subjects of private law, including business enterprises through a series of policy shifts. Such shifts will contribute to strengthening the recognition of global values and trends such as human rights and sustainable development by enterprises at home and abroad, including the growing transnational enterprises. Based on international human rights principles and international human rights norms, China’s industry organizations are also developing instruments and seeking solutions for Chinese enterprises to fulfill their responsibility to respect human rights at home and abroad. These changes, especially the continued interaction between policy shifts and business practices, are positive and promising progresses demonstrating the commitment of the Government and enterprises to the continuous improvements concerning human rights at both public and private levels.

At the same time, the Chinese Government and enterprises must also realize that the “Pillar II” policy shift will not automatically achieve the effectiveness of enterprises’ respect for human rights and cannot be deemed as the transfer of the State’s obligation of protecting human rights to the enterprises. While constantly optimizing and strengthening the “Pillar II” policy shift, China also needs to effectively implement its obligation of protecting human rights and work with enterprises and other stakeholders to promote and help enterprises to take full advantage of opportunities, to actively deal with challenges, and to continuously promote the understanding and presentation of human rights issues in reality, for the purpose that Chinese enterprises will keep making constructive contributions to achieving China’s own developmental goals and building a community with a shared future for human beings.

(Translated by LI Man)

* LIANG Xiaohui ( 梁晓辉 ), Deputy Chief Economist of China Textile Information Center; principal Researcher of the Office of Social Responsibility of China Textile Industry Association; Doctor of Judicial Science and Associate Researcher. The Chinese version of this article was published in Chinese Review of International Law 6 (2018): 3-20.

1. The most notable effort in this aspect is that, in March, 1948, 53 countries (including China) signed the latest draft of the Charter for the International Trade Organization, i.e. the Havana Charter. Its second chapter “Em-ployment and Economic Activity”, which can be regarded as the general principle, includes a provision on “Fair Labor Standards.” For the full text of the Charter, see the United Nations document E/Conf. 2/78., or the world Trade Organization website.

2. For the text of the draft of the United Nations Code of Conduct on Transnational Corporations, see the United Nations document E/1988/39/Add. 1, February 1, 1988; or UNCTAD, Transnational Corporations, Services and the Uruguay Round, Annex IV, ST/CTC/103, Sales No. E. 90. II. A. 11, 1990, 231-243.

3. E/CN. 4 /Sub. 2/2003/12/Rev. 2, August 26, 2003.

4. General Assembly 60th in its resolution No. 251, March 15, 2006.

5. ECOSOC Decision 2005/273, July 25, 2005.

6. United Nations document A/HRC/8/5, April 7, 2008

7. United Nations document A/HRC/17/31, March 21, 2011

8. United Nations document A/HRC/17/31, March 21, 2011, para. 3.

9. United Nations document A/HRC/17/31, March 21, 2011, para. 6.

10. United Nations document A/HRC/17/31, March 21, 2011, general principles.

11. United Nations document A/HRC/17/31, March 21, 2011, para. 14.

12. For actions on the implementation of the Guiding principles by countries and major enterprises around the world, see Liang Xiaohui, “The United Nations Guiding principles on Business and human Rights and the privatization of international human rights law”, the Chinese Yearbook of International Law (2013) (Beijing: Law press, 2014), 270-271.

13. In this regard, the approach currently widely adopted by countries and championed by the United Nations is to issue national action plans on business and human rights. On June 22, Luxembourg issued “A national Action plan to Implement the Guiding principles 2018-2019”. Till then, at least 44 countries have published or stated that they are in the process of developing relevant national action plans.

14. According to the white paper on China’s progress in poverty Reduction and Human Rights, released by Information Office of the State Council of the people’s Republic of China in October 2016, during the “Twelve Five-Year” period, “the eastern provinces and cities provided financial assistance funds of 5.69 billion dollars to poor areas in the west… guiding the enterprises to made actual investments of 1.2 trillion yuan, starting the “the 10,000 Enterprises Assisting 10,000 Villages” Campaign for Targeted poverty Alleviation by private enterprises. wanda Group, Evergrande Group and other private enterprises took the lead in the anti-poverty action of Baoxian County, and Suning, Jingdong and other enterprises actively participated in the e-commerce anti-poverty activities”.

15. “The mass incidents of workers caused by labor disputes has also increased considerably, with the focus mainly on wages (claiming back salaries), corporate layoffs and financial compensation, taxi operation disputes, employee insurance and welfare disputes etc. It is particularly notable that the mass labor disputes incidents of more than 1000 people occur frequently. According to the National Federation of Trade Unions, in the first three quarters, 52 large-scale mass incidents of labor disputes occurred”, see Li peilin, Chen Guang-jin and Zhang Yi, Social Blue Book: 2015 China Social Situation Analysis and Prediction (Beijing: Social Science Literature press, 2014), 12-13.

16. Li peilin, Chen Guangjin and Zhang Yi, Social Blue Book: 2015 China Social Situation Analysis and Predic-

tion, (Beijing: Social Science Literature press, 2014), 133

17. For statistics on the number of enterprises, see the “Twelve-Five” National Enterprise Development Report, State Administration of Industry and Commerce, March 2016.

18. Ministry of Commerce, 2016 Concise Statistics of China’s Foreign Non-Financial Direct Investment.

19. Ministry of Commerce, 2017 China Foreign Investment Cooperation Development Report, 13.

20. Business and Human Rights Resource Centre, Company Response Rates.

21. John Ruggie, Human Rights policies of Chinese Companies: Results from a Survey, 2007.

22. Ministry of Commerce, SASAC and United Nations Development program, 2017 China Enterprise Overseas Sustainable Development Report, 32-33.

23. Information Office of the State Council of the people’s Republic of China, New progress in the Legal protection of Human Rights in China, December 2017.

24. United Nations document A/HRC/8/5, April 7, 2008.

25. Collated from United Nations video materials.

26. Chinese Translation of the ISO 26000 Guide to Social Responsibility (Beijing: China Standards press, 2010), VI-VII.

27. Introduction of the National standards of the people’s Republic of China of Social Responsibility Guide GB/ T36000-2015 (Beijing: China Standards press, 2015), Foreword, V-VII.

28. Hao Qin, Interpretation of the National Standards of Social Responsibility (Beijing: China Economic press,2015), 203-207; Compared with the ISO 26000 Guide to Social responsibility, the “respect for human rights” stipulated in China’s national standards refers to “the respect for human rights as stipulated in domes-tic laws and regulations and international human rights documents recognized by China” and must “respect the principle of universality of human rights and adhere to the basic national conditions and new realities...”, 207; see also the foreword of Guide to Social Responsibility GB/T36000-2015, III-IV.

29. Collated from United Nations video materials.

30. For example, in 2008, wen Jiabao, then China’s premier, stressed for several times, “Entrepreneurs should be ethical. Every entrepreneur should have a morality in their blood, and every enterprise should fulfill their social responsibility.” See Xinhua News Agency, premier wen Jiabao at the Annual Meeting of the Summer Davos Forum, September 28, 2008.

31. Collated from united Nations video materials.

32. For example, when it comes to the Foxconn Incident, the Shenzhen Municipal government pointed out that this “is a special problem in the period of rapid industrialization, urbanization and modernization”. “From the individual point of view, these young employees have immature ideas, fragile mentalities and insufficient pressure adjustment capacity; from the point of view of enterprises, Foxconn Group’s enterprise insufficient management and cultural construction tended to exacerbate the problematic emotions; from the social point of view, social services, care, support, assistance are insufficient”. Based on this review, the Shenzhen government coordinated with the other parties and took a multi-pronged and multi-policy strategy”, see the website “Shenzhen government held a press conference to review the Foxconn Incident”, May 27, 2010.

33. Information Office of the State Council of the people’s Republic of China, National Human Rights Action plan for years 2012–2015, June 2012.

34. Information Office of the State Council of the people’s Republic of China, National Human Rights Action plan for years 2016–2020, September 9, 2016.

35. National Development and Reform commission of the people’s Republic of China, Interim Measures for Assessing Social Stability Risks of Major Fixed Asset Investment projects, August 16, 2012.

36. when organizing the preliminary work of a major project, the project working unit “shall conduct a survey and analysis of the risks of social stability, seek the opinions of the relevant masses, find and list the risking spots, the probability of risk and the degree of impact, propose measures to prevent and avoid the risks, and release supposition on the risk level of social stability after taking relevant measures”. Interim Measures for Assessing Social Stability Risks of Major Fixed Asset Investment projects, Article 3.

37. For example, see Ministry of water Resources, Interim Measures for Assessing Social Stability Risks of Major water Conservancy projects, November 6, 2012.

38. NDRC, Guidelines for the Approval of Fixed Asset Investment projects.

39. Xiao Qunying, Zhu Zhongwei and Liu Huijun, “Research on Non-Intervention Online Evaluation Model of Social Stability Risk of Major Engineering projects”, Public Administration Review, no. 1( 2016): 86-109.

40. The State Council of the people’s Republic of China, Outline of the Twelfth Five-Year plan for the National Economic and Social Development, March 16, 2011, Chapter 52.

41. Ministry of commerce and Ministry of Environment, Guidelines on Environmental protection for Outbound Investment Enterprises, February 18, 2013, Article 3.

42. Ministry of commerce, Measures for the Administration of Overseas Investment, September 6, 2014, Article 20.

43. NDRC, Code of Conduct for Overseas Investment by private Enterprises, December 6, 2017.

44. NDRC, Measures for the Administration of Overseas Investment, December 26, 2017, Article 41.

45. For example, see “wen Jiabao: opposing the linkage between economy, trade and human rights”, September 12, 2006.

46. Article 177th of the FTA, “Cooperation in Labor and the Environment”, provides that “the two parties shall, through the Memorandum of understanding on Labor Cooperation and the Agreement on Environmental Cooperation, strengthen exchanges and cooperation between the two sides on labor and environmental issues”. See also wang pei, She Yunxia, “Review the International Trade and International labor Standards from the Memorandum of understanding on Labor Cooperation of China and New Zealand”, Journal of China Institute of Labor Relations 23, no. 1 (2009): 76-80.

47. Information Office of the State Council of the people’s Republic of China, the white paper of China’s Foreign Trade. December 7, 2011.

48. Free Trade Agreement between the government of the people’s Republic of China and the Swiss Federal government.

49. Free Trade Agreement between the government of the people’s Republic of China and the Swiss Federal government, Chapter 12.

50. Ministry of commerce, Interpretation of the China-Switzerland Free trade Agreement by the Head of the Department of International Economic and Trade Relations of the Ministry of commerce.

51. Free Trade Agreement between the government of the people’s Republic of China and the government of Iceland, Article 96.

52. Information Office of the State Council of the people’s Republic of China, white paper on China and the world Trade organization, June 28, 2018.

53. United Nations document A/HRC/26/L. 22.

54. Collated from the United Nations video materials.

55. Collated from the United Nations video materials.

56. For example, “support for dialogue and cooperation between the international community on the continued development, refinement and implementation of the Guiding principles, considering the situation of States and their business and industry, to help enterprises improve their capacity to guarantee human rights.” Chinese enterprises have attach importance to the complete integration of social responsibility into their business activities, established a Chinese network of Global compacts mandated by the united Nations Global compact, been committed to promoting the implementation of basic principles in the aspects of human rights, labor standards, environment and anti-corruption, and actively participated in relevant international exchanges and cooperation”, see Statement by the Chinese Delegation at the General Debate on Item 5 of the 23rd Meeting of the Human Rights Council, June 6, 2013,; Secondly, “The Guiding principles on Business and Human Rights, adopted by the Human Rights Council in 2011, are of great importance in regulating the productive and oper-ational activities of enterprises in different countries and in preventing their negative effects on human rights. Stakeholders should work together to develop and improve these principles”, see Statement by the Chinese Delegation at the 26th Meeting of the Human Rights Council in the Dialogue with the Special Rapporteur on the Right to Health and the working Group on Business and Human Rights, June 11, 2014, accessed October 10, 2018, “China has actively participated in the relevant discussions with the Human Rights Council on business and Human rights, and sup-ports dialogue and cooperation among the international community on the development, improvement and implementation of the Guiding principles, fully considering its national circumstances and ensuring practical results”. See Statement by the Chinese Delegation at the General Debate on Item 5 of the 26th Meeting of the Human Rights Council, June 23, 2014; Fourthly, “China attaches great importance to corporate social responsibility, actively promotes the construction of corporate social responsibility system, and effectively upholds the rights of workers.” Decision of the CpC Central committee on Several Major Issues Concerning comprehensively Deepening Reform, adopted by the CpC Central committee at the third plenary sessions of the 18th central committee, puts forward the “undertaking social responsibility” as one of the focuses to further the reform of the State. In the Decision of the CpC Central committee on a Number of Major Issues Concerning the Overall Advancement of the Rule of Law, adopted by the fourth plenary sessions of the 18th central committee, it also refers to “Strengthening corporate social responsibility legislation”, and further raises the issue of corporate social responsibility to the level of national rule of law construction...The report of the working Group on Business and human rights makes a number of recommendations for the improvement and implementation of the Guiding principles on Business and Human Rights, which deserve careful study”, and refers to the statement by the Chinese Delegation at the 29th Meeting of the United Nations Human Rights Council with the working Group on Business and Human Rights and the Special Rapporteur on Trafficking, June 16, 2015; Fifthly, “China has actively participated in the relevant discussions with the Human Rights Council on business and human Rights, and supported the development, improvement and implementation of the Guiding principles by the international community, fully considering each country’s national circumstance... we look forward to the continued dialogue and cooperation among the working Group in promoting the popularization, exchange and training on the human rights responsibilities and obligations of business and industry and in enhancing awareness of the protection of human rights in business”. See Statement by the Chinese Delegation in the General Debate On Topic 5 of the 29th Meeting of The Human Rights Council, June 27, 2015,; Sixthly, “China welcomes the reports of the forums on business and human rights submitted by the working Group on Business and human Rights, noting that the reports of the working Group make a number of recommendations for the improvement and implementation of the Guiding principles on Business and Human Rights. China actively participates in the relevant discussions of the Human Rights Council on business and human rights...”, see the Statement by the Chinese Delegation in the General Debate on Topic 5 of the 38th Meeting of the Human Rights Council.

57. Information Office of the State Council of the people’s Republic of China, white paper on progress in Chi-na’s Human Rights in 2014, June 8, 2015, part 9.

58. Liang Xiaohui, “An Analysis of the Characteristics of Code of Conduct for Suppliers and Its Legal Significance to the protection of Rights and Interests”, Tsinghua China Law Review 2, no. 1 (Beijing: Tsinghua university press, 2007), 55-66.

59. China National Textile and Apparel Council, CSC9000T Responsibility Management System of China Textile and Apparel Industry, see the promotion committee website of China National Textile and Apparel Council.

60. China National Textile and Apparel Council, Hundreds of Textile Enterprises’ proposal to Strengthen the Construction of Corporate social Responsibility, March 22, 2005.

61. China Federation of Industrial Economics, Guide on Social Responsibility for Chinese Industrial Enterprises and Industry Associations (First Edition).

62. Ministry of Finance, National development and Reform commission and Ministry of commerce, Circular on policies to promote China’s Textile Industry to Change the Developmental Mode of Foreign Trade and Support Textile Enterprises “Going out”, July 26, 2006.

63. Speech by Minister of Li Yizhong, Ministry of Industry and Industry, at the launch of CSR report for China’s industrial economy in 2009, May 26, 2009.

64. Speech by Minister of Li Yizhong, Ministry of Industry and Industry, at the launch of CSR report on China’s industrial economy in 2009, May 26, 2009.

65. China Electronic Industry Standardization Technology Association, Guidance on Social Responsibility of Information and communication Technology Industry.

66. Communication Technology Industry Standards of A Guide to Social Responsibility for the communication Technology Industry (SJ /T-16000-2016), compiled by China Institute of Electronic Technology Standard-ization, Issued by the Ministry of Industry and Information Technology of China, first edition in December, 2016, 3.

67. National Council for Small and Medium Enterprises, the foreword of Guidelines on Social Responsibility for Chinese Small and Medium Enterprises.

68. China Association of communication Enterprises, Corporate Social Responsibility Management System of China’s communication Industry (2016 edition).

69. For example, by September 30, 2018, less than 270 Chinese enterprises had joined the united Nations “Global compact” and been committed to following the 10 principles, including respect for human rights, accessed October 10, 2018; It is worth mentioning that in 2008, on the occasion of the 60 anniversary of the adoption of the Universal Declaration of Human Rights, COSCO Group and Sinostell Corporation, the two Chinese SOEs signed the Declaration, see the “Cosco History” section of the website of China Groups, and “2008 China Sinostell Corporation Sustainability Report”,4.

70. China International Contractors Association, the Guide on Social Responsibility for Chinese International Contractors.

71. Chinese Government website, the Release of the Guide on Social Responsibility for Chinese International Contractors.

72. China Chamber of commerce for Metals, Mineral and Chemicals Importers and Exporters, the Guidelines for Social Responsibility in Outbound Mining Investments.

73. China Chamber of commerce for Metals, Mineral and Chemicals Importers and Exporters, Chinese Due Diligence Guidelines for Responsible Mineral Supply Chains.

74. China Chamber of commerce for Metals, Mineral and Chemicals Importers and Exporters, the Guidance for Sustainable Natural Rubber. The Guidance provides instructive advice on a number of complex human rights issues, including the freedom of the affected communities and indigenous people, the right of prior and in-formed consent, the right to food security and adequate food, the right to freedoms of association, expression and assembly, and the compensation for involuntary resettlement, etc.

75. Karin Buhmann, “Chinese Human Rights Guidance on Minerals Sourcing: Building Soft power”, (2017) 46(2) Journal of Current Chinese Affairs 135, 135-154.

76. Enterprises’ responsibility to Respect Human Rights in China and Around the world: Case Study for Leaders of Chinese China State-owned Enterprises and Multinational Enterprises, 31.

77. COSCO Group Sustainability Report for the Year 2005-2014.

78. For the Special Session, see united Nations documents A/HRC/38/49, Report of the working Group on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises on the Sixth Session of the Forum on Business and Human Rights, 2018 April 23, para. 67-68.

79. For example, according to the 2016 China’s non-financial foreign investment flows, the domestic investors of non-public economy holdings account about 68% of the total foreign investment, “non-public economy has become the main body of China’s non-financial foreign investment”, and by the end of 2016, of China’s non-financial OFDI stock, non-state-owned enterprises accounted for basically the same proportion with the foreign investment of state-owned enterprises”, see Ministry of commerce, 2017 China Foreign Investment Cooperation Development Report ,17.

80. On this issue, see the discussion report at a seminar organized by peking university Institute of International Law, Global Business Initiative (GBI), etc. “The China Responsible Business Forum: Corporate Responsibility in the Era of the UN Guiding principles”, 10.

81. See the discussion on 2.4 “Investment policies”.

82. For example, China’s National plan on Implementation of the 2030 Agenda for Sustainable Development, in referring to China’s experience of the successful implementation of the Millennium Development Goals, noted in particular that one of the experiences is “to make sure the market mechanism exert itself well and the relationship between government and market functions well.” The socialist market economic system will promote vitality in the fields of labor, knowledge, technology, management, capital etc., keep China’s economy growing in a rapid and healthy speed, and thus guarantee the success of the Millennium Development Goals”, see Chinese government website: China’s National plan on Implementation of the 2030 Agenda for Sustainable Development, 5.

83. Guiding principles on Business and Human Rights: Implementing the United Nations ‘protect, Respect and Remedy’ Framework, principle 1

84. For example, the Measures on public participation in Environmental Impact Assessment issued in July 16, 2018 by Ministry of Ecological Environment is one recent case policy document that makes strict requirements on enterprises and emphasized people’s right to know, participate, and express. The Measures requires that “construction units shall, in accordance with the law, receive opinions from the citizens, legal persons and other organizations concerning the environmental impact assessment”. For another example, just from the beginning of 2018, the in-effect newly revised or formulated basic laws concerning enterprises’ behaviors at least include: the Anti-Unfair Competition Law of the people’s Republic of China, Environmental protection Tax Law of the people’s Republic of China, and the new and revised water pollution prevention and Control Law of the people’s Republic of China.

85. Guiding principles on Business and Human Rights: Implementing the United Nations ‘protect, Respect and Remedy’ Framework, principle 2.

86. Therefore, president Xi has pointed out, in the symposium to promote the 5th anniversary of the construction of the “Belt and Road”, that in the “Belt and Road” construction, “enterprises should be standardized in their investment and operation, confined to legitimate business operations, concerned about environmental protection and social responsibility,” See Chinese Government website, “Xi Jinping Attended the Symposium to promote the 5th Anniversary of the Construction of the ‘Belt and Road’ and Delivered an Important Speech”, August 27, 2018.

87. See Chinese Government website, “Xi Jinping Attended the Symposium to promote the 5th Anniversary of the Construction of the ‘Belt and Road’ and Delivered an Important Speech”, August 27, 2018.

88. 2017 China Enterprise Overseas Sustainability Report, part II.

89. Business and Human Rights: Guiding principles for the Implementation of the United Nations “protect, Respect And Remedy” Framework, principle 28-31.

90. Analects of Confucius: LiRen Pian and Analects of Confucius: Shuer.

91. Kong Xiangyi, “Business Ethics of Jin Merchants”, Journal of Shanxi Socialist College 4 (2006): 41.

92. Business and Human Rights: Guiding principles for the Implementation of the United Nations “protect, Respect and Remedy” Framework, principle 12.

Business and Human Rights: A Study of the Interaction Between Policy Concept Shifts and Business Practices in China

Links