The Treaty Project May Not Exceed its Mandate, Must be Consensus Based, and Take into Account the Right to Development and the Protection of a Stable Business Environment: Statement of the Chinese Government Made at the 8th Meeting of the Intergovernmental Working Group on Business and Human Rights Treaty

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中方认为，法律文书谈判应该坚持公平原则，统筹兼顾发展权和其他人权，在切实保障人权、充分保护和救济受害者的同时，也要充分尊重各国司法主权，符合国际公认的法律原则，为跨国企业提供稳定可预期的营商环境。
在法律文书适用范围等核心问题上，各方应严格遵循人权理事会第26/9 号决议的授权，不宜超越授权范围。此外，为确保法律文书得到广泛支持和普遍遵守，法律文书谈判应坚持协商一致，充分尊重各国关切，最大程度凝聚共识。

[ The Chinese side believes that the negotiation of legal instruments should adhere to the principle of fairness, take into account the right to development and other human rights in a comprehensive manner, and fully respect the judicial sovereignty of various countries while effectively safeguarding human rights and adequately protecting and providing relief to victims. Enterprises provide a stable and predictable business environment.
On core issues such as the scope of application of legal instruments, all parties should strictly abide by the mandate of Human Rights Council Resolution 26/9, and should not go beyond the mandate. In addition, in order to ensure that legal instruments are widely supported and generally observed, the negotiation of legal instruments should adhere to consensus, fully respect the concerns of all countries, and build consensus to the greatest extent possible.] (Statement of the Chinese Government Made at the 8th Meeting of the OEIGWG)

Day 1 of the   Open-Ended Intergovernmental Working Group's (OEIGWG) 8th session was reserved for the formalities of opening and statements by participating states and permitted others. As reported by the  High Commissioner for Human Rights Resource Centre (Day 1: Monday 24 October 2022), "Volker Türk, of the importance of a binding treaty at this time. The morning session comprised of statements by member states. In the afternoon, civil society organisations (CSOs), NHRIs, and business and employers' organizations made statements. There was also a panel discussion on the binding treaty and the road ahead."

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This a Treaty process that for reasons of ego, and perhaps of calculation, has served as an example how how badly wrong a process of international agreement  can go when it is effectively captured by a small but powerful group of actors who are intent on producing revolution on the sly, who seek to run over the hard won space for sovereign expression of states long denied that authority, and which effectively obliterated any discussion or opposing points of view in a mad rush to put together what has become an unworkable monument the the  failures of transposing the brightest high ideals into a practical document that is meant to provide guidance to states, and the most humble of global rights holders (e.g., here). There is no shame in this.  But there ought to be transparency.  And there are consequences: in this case the preservation of factional purity thinly veiled by the appearance of robust consultation has preserved the purity of the vision which is embedded in the essentially unreadable text of what passes for an international instrument. In the process they give the impression that the draft of the legally binding instrument they concocted can obliterate traditional notions of sovereignty (especially as exercised by states still wrestling with the legacies of sovereignty disabling colonialism), that they can compost core principles of corporate governance and the ordering of legal personality for non state human collectives like spoiled food, and that they can treat the judicial mechanisms of states as a fungible consumable in the service of whatever it is they mean to do. (e.g., here). 

In the process, and as has become a very bad habit among the nomenklatira that insinuates itself into the working life of the UN's operations in Geneva, it has always been fashionable to condescending ignore the Chinese.  For many their system is opaque, their ideology unmanageable (by them), and in any case, China, for most of the traditional establish is a state in need of socialization into the ways and mores of the international community and its presumptions that have grown comfortable in and around the complex of buildings that present the physical manifestation of its points of view in Geneva. If the United States is the clueless patron, the China is the wild child in need of education, but one that can be ignored in the relentless march to develop a world in which (they believe) both the Americans and the Chinese will bend the knee.  

But China does not share these views (it is not clear at the moment what is oozing out of Washington)  and China is increasingly willing, if in the most polite way, to disabuse those who hold to presumptions and condescension of this sort. The Chinese have made clear that they have developed an internationalism that is not dependent on the approval of outsider, that they have now elaborated a more comprehensive conceptualization of socialist human rights (see here), and that they hold the values of sovereign rights and development at the center of the human rights and sustainability project.

The Opening Statement of the Chinese Mission at the beginning of the 8th OEIGWG Session brings these points home. But they do more than that.

The Chinese opening statement, as politely as possible, appears to make clear that in its current form, the Treaty Project is now dead.  It killed itself (but then martyrdom can be an important element in the human rights long game). Even if the Treaty project lurches forward, it will not find a warm welcome in China or likely in many of its Belt & Road Initiative partners.,  The Treaty fails to engage with the strongly held view that development (whether or not informed by sustainability principles) is a central element of any human rights projection into the management of economic behaviors.  And the Treaty is disrespectful of the sovereign dignity of nationally contextualized judicial systems.   The Treaty fails to aim for "adequate" protection and relief for individuals whose rights have been breached.  More importantly the Treaty fails to address at all a key component of development based human rights--the human right to a stable and predictable business environment.  None of these are or have been addressed.  And the result is a one sided effort that unbalanced will fall.  The coup de grace, though, is potent--as drafted the text of the 3rd draft appears to exceed the mandate under which it was to be developed--and the process  continues to avoid any connection with consensus building efforts.

In this respect the Chinese statement is worth careful consideration.  And it serves as a reminder that failures to develop consensus based broad and inclusive consultation--with a willingness to listen as well as to hear, can doom a project.  The Chair Rapporteur, Emilio Izquierdo (Ecuador) attempted gently to confront the issues and offer a pathway to consensus--but one that led from the present form of the document to something more like a framework arrangement (eg. here).  This was rejected by the alliance of CSOs strongly, and that strong rejection appears to have frightened the functionaries, most of them European, long used to basking in the stroking of these organizations and fearful of causing a (domestically potent) scene. 

The full statement, in the original Chinese and in a crude English translation follow. The lesson is apparent in any language.Statements by other states and additional resources may be accessed here.

Intergovernmental Working Group on Legal Instruments on Transnational Corporations and Human Rights
General Statements at the Eighth Meeting

 
Mr.president:
First of all, on behalf of the Chinese delegation, please allow me to congratulate you on your election as the chairman of the meeting. I believe that under your strong leadership, this meeting will achieve positive progress.
The Chinese government attaches great importance to the negotiation of legal instruments, appreciates the hard work made by Mr. Chairman and the Secretariat to advance the negotiations, welcomes the Chairman's suggestions on the text of the important clauses, and looks forward to a candid exchange of views with all parties to steadily advance the text negotiations.
Mr. Chairman, the Chinese government attaches great importance to the protection of human rights in transnational business activities, and has taken effective measures to prevent transnational enterprises from violating human rights in their business activities. In September last year, China issued the National Human Rights Action Plan (2021-2025), which clearly stated that it would promote responsible business practices in the global supply chain and promote foreign economic and trade cooperation and investment to follow the United Nations Guiding Principles on Business and Human Rights, requiring
Overseas Chinese enterprises fulfill their social responsibilities to respect and promote human rights. Under the support and guidance of the Chinese government, large-scale industries such as textiles and garments and mining have formulated industry guidelines for responsible overseas investment. As of October 2022, more than 580 Chinese companies have joined the United Nations Global Compact on Responsible Business Activities, committing to respect and safeguard all internationally recognized human rights, not to engage in any act of disregarding and trampling on human rights, and to earnestly and effectively conduct business operations Protect labor rights and the environment.
Mr.president,
As a developing country, China has always maintained that the rights to subsistence and development are the primary basic human rights, and the people's happy life is the greatest human right. We welcome the active role of multinational corporations in promoting economic development and improving people's livelihood. We also take note of the negative impacts of some transnational business activities on human rights and the environment. We support the negotiation and formulation of legal instruments on the UN platform to supervise the activities of multinational corporations.
The Chinese side believes that the negotiation of legal instruments should adhere to the principle of fairness, take into account the right to development and other human rights in a comprehensive manner, and fully respect the judicial sovereignty of various countries while effectively safeguarding human rights and adequately protecting and providing relief to victims. Enterprises provide a stable and predictable business environment.
On core issues such as the scope of application of legal instruments, all parties should strictly abide by the mandate of Human Rights Council Resolution 26/9, and should not go beyond the mandate. In addition, in order to ensure that legal instruments are widely supported and generally observed, the negotiation of legal instruments should adhere to consensus, fully respect the concerns of all countries, and build consensus to the greatest extent possible.
Thank you sir.


跨国公司与人权问题法律文书政府间工作组
第八次会议一般性发言
主席先生：
首先，请允许我代表中国代表团祝贺您当选会议主席，相信在您的有力领导下，本次会议将取得积极进展。
中国政府高度重视法律文书谈判，赞赏主席先生和秘书处为推进谈判所付出的艰苦努力，欢迎主席对有关重要条款提出的案文建议，期待同各方坦诚交换意见，稳妥推进案文谈判。
主席先生，中国政府高度重视跨国商业活动中的人权保障，采取有力措施预防跨国企业在经营活动中侵犯人权的行为。去年 9月，中国发布《国家人权行动计划（2021—2025 年）》，明确提出要促进全球供应链中的负责任商业行为，促进对外经贸合作投资遵循《联合国工商业与人权指导原则》，要求
海外中国企业履行尊重和促进人权的社会责任。在中国政府支持引导下，纺织服装、矿业等大型产业均已制定负责任海外投资的行业指南。截至 2022 年 10 月，已有超过 580 家中国企业加入关于负责任商业活动的联合国全球契约，承诺尊重和维护国际公认的各项人权，不参与任何漠视与践踏人权的行为，在经营活动中切实保护劳工权益和环境。
主席先生，
作为发展中国家，中方一直主张生存权、发展权是首要的基本人权，人民幸福生活是最大的人权。我们欢迎跨国企业在促进经济发展、改善民生方面发挥积极作用，也注意到一些跨国商业活动对人权和环境的负面影响，支持在联合国平台谈判制定法律文书，对跨国企业活动进行监管。
中方认为，法律文书谈判应该坚持公平原则，统筹兼顾发展权和其他人权，在切实保障人权、充分保护和救济受害者的同时，也要充分尊重各国司法主权，符合国际公认的法律原则，为跨国企业提供稳定可预期的营商环境。
在法律文
书适用范围等核心问题上，各方应严格遵循人权理事会第26/9 号决议的授权，不宜超越授权范围。此外，为确保法律文书得到广泛支持和普遍遵守，法律文书谈判应坚持协商一致，充分尊重各国关切，最大程度凝聚共识。
谢谢主席先生。