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24 Oct 2016

Xiaohui Liang, Chief Researcher, Office for Social Responsibility, China National Textile and Apparel Council & Adjunct Professor, Peking University Law School

Does China Now Have Its National Action Plan on Business and Human Rights?

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[English translation provided by Business & Human Rights Resource Centre]

On the eve of the 2016 National Day, Chinese people received a piece of good news: The Information Office of the State Council published the National Human Rights Action Plan of China (2016-2020).  This is the third of its kind released by the Chinese government, defining the Chinese government’s objectives and commitments in promoting human rights in the coming five years.

In the past decade, I have focused on research, teaching and practices in the field of business and human rights (corporate social responsibility). In my view, given that China is becoming the largest economy in the world and its biggest population, it has become one of the regions facing the most serious risk of conflict between business and human rights. Therefore, I am particularly interested in the plans and committments related to business and human rights outlined in the Action Plan.

In 2012, the Chinese government issued the second National Human Rights Action Plan (2012-2015). In the section of “Human Rights Education”, the plan, for the first time, stated China will “encourage and promote the publicity of human rights knowledge in enterprises and public institutions, and establish corporate cultures that respect and protect human rights.” If I were to review the implementation of this simple “awareness raising” plan in the past four years, I would conclude that enterprises and the society are more aware of CSR, but most enterprises and public institutions have little knowledge of human rights and their responsibilities in respecting them, and some of them even see human rights as “flood and beasts”.

In 2011, before the launch of the second national action plan on human rights, the United Nations Human Rights Council adopted “the Guiding Principles on Business and Human Rights”, which was unanimously endorsed by all member states including China. The Guiding Principles rest on three pillars: the State duty to protect human rights; the corporate responsibility to respect human rights; and access to remedy. Under the first pillar, “States should set out clearly the expectation that all business enterprises domiciled in their territory and/or jurisdiction respect human rights throughout their operations”, which represents the source of international norms requiring States to develop their business and human rights action plans. Since then the UN has, in a variety of ways, encouraged States to develop and enact a national action plan on human rights in line with the Guiding Principles. In September 2013, the UK government launched the world’s first national action plan on business and human rights: “Good Business: Implementing the UN Guiding Principles on Business and Human Rights”. To date at least 29 countries have formulated or have been in process of drafting their national action plans.

China has set no precedent of promulgating national action plans on specific human rights issues; therefore, no document exclusively on business and human rights has been released. However, the national human rights action plan makes clear the government’s commitment to important issues in this area, which leads to a practical question: does the third action plan set out the government’s political commitment and plans in the field of business and human rights?

Firstly, the third action plan does not include a section exclusively on business and human rights. Therefore, literally it does not contain a relatively independent national action plan on business and human rights.

Secondly, if one reads the plan thoroughly, there are two places in the document setting out the requirements of respecting human rights, indicating the government’s expectations on businesses. In the section of “Human Rights Education and Research”, it states that the enhancement of human rights education and training in enterprises and public institutions shall be supported and encouraged, so as to cultivate a human rights culture, and respecting and guaranteeing human rights shall be taken as an important factor in decisions concerning both domestic and foreign investment.” Compared with the second action plan, awareness-raising efforts have become more concrete with the aim of cultivating a human rights culture, changing from “publicizing human rights knowledge” to specific actions of strengthening human rights education and training. Since the objective to “establish corporate cultures that respect and protect human rights” in the second action plan is unlikely to be completed in a short time, this evolution is more in conformity with the inherent nature of corporate cultures. Moreover, the second and third action plans use different verbs to describe the actions to be taken. Compared to “encourage and promote” in the previous document, “support and encourage” used by the third one signals that the government may take measures or provide resources to support human rights education and training in enterprises. Of course, the most important message in this clause is “respecting and guaranteeing human rights shall be taken as an important factor in decisions concerning both domestic and foreign investment.”, the first time for the Chinese government to use human rights due diligence to guide the investment-related decision making in its policy document. It is one of the important state policy functions set out by the UN Guiding Principles that “States should provide effective guidance to business enterprises on how to respect human rights throughout their operations.”

Thirdly, in the fifth section “Implementation of Human Rights Conventions and International Exchanges and Cooperation”, it is proposed that China is to “urge overseas enterprises to abide by the laws of the host countries and fulfill their social responsibilities in the process of conducting foreign economic and trade cooperation, providing assistance and making investment.” This is a significant progress, reemphasizing social responsibilities of overseas investment enterprises as set out in regulations such as the Measures for Overseas Investment Management. On the other hand, this is the first time that fulfilling social responsibilities is required for enterprises engaging in foreign aid. Meanwhile, urging enterprises to fulfill their social responsibilities in the human rights national action plan reaffirms that human rights principles and/or issues are included in social responsibilities in the policy theory of the Chinese government concerning CSR.

Last but not the least, the third action plan lists various requirements to be met by enterprises in the action plans concerning specific human rights. For example, four out of the six actions for the right to work are directly related to corporate responsibilities: improving wage and benefits system, enhancing labour dispute settlement mechanism, strengthening safety in production and the prevention and treatment of occupational diseases. In the part on “Environmental Rights”, the plan is to “form an environmental-governance system involving the government, enterprises and the general public”. In “Rights of the Disabled”, a more detailed plan is laid out to “urge telecommunication service operators and e-commerce enterprises to provide barrier-free information service to the disabled.”

Based the above analysis, it can be said that the third national action plan failed to map out a systematic and holistic plan in the field of business and human rights. The document set no plans on important aspects such as the human rights impacts of the ties between the government and the enterprises, the consistency of policies related to business and human rights respectively, and the overall requirement of implementing human rights due diligence. However, compared with the previous one, the new action plan has achieved some breakthroughs in the field of business and human rights, such as the pragmatic human rights education plan and the guidance in implementing human rights due diligence in investment and foreign aid. Admittedly, a plan embodies designs for future actions; its achievability lies not only on resolve and action, but also on the wisdom of meeting the challenges posed by ever-evolving changes.