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I am posting and providing brief reflections on the essays that make up the excellent new online symposium organized by the marvelous Caroline Omari Lichuma and Lucas Roorda and appearing on the blog site of the Business and Human Rights Law Journal. Entitled Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe. The essays (and the symposium) means to expand the conversation about human rights from out of its hub in the UN apparatus in Geneva and begin exploring in more depth the sometimes extraordinary developments occurring outside the highest reaches of elite curation in the Global North.
The sixth of the essays is my own: Larry Catá Backer--"The Chinese Path for Business and Human Rights" [白 轲 "工商企业与人权的中国道路"]. For those who do not know me:
Larry Catá Backer (me) is the W. Richard and Mary Eshelman Faculty Scholar; Professor of Law and International Affairs at Pennsylvania State University, and the University Faculty Ombuds, and a member of the Coalition for Peace & Ethics. I have taight and spoken in many paces in North and South America, Europe, Asia, and Africa over the years, mostly on topics touching on business and human rights, constitutional law (especially Marxist Leninist systems), globalization, and semiotics. I have written many articles on topics in those fields. Some of my books that might be of interest: (1) The Current State and Future Trajectories of Human Rights Due Diligence Laws: New Legal Norms on Human Rights Due Diligence (Larry Catá Backer and Claire Methven O’Brien, eds.; Routledge (Taylor & Francis Group forthcoming 2024); (2) The Self-Reflexive Imaginaries of Law: Essays on Contemporary Legalization in an Age of Algorithmic Law and Platform Governance, Emancipating the Mind in the New Era: Bulletin of the Coalition for Peace & Ethics 16(1) (Summer 2021) (Larry Catá Backer and Matthew McQuilla (eds), 2022); (3) Essays on Contemporary China–Heartland, Periphery, and Silk Roads, Emancipating the Mind in the New Era: Bulletin of the Coalition for Peace & Ethics 16(1) (Summer 2021) (Larry Catá Backer and Matthew McQuilla (eds), 2022); (4) Hong Kong Between ‘One Country’ and ‘Two Systems’: Essays from the Year that Transformed the Hong Kong Special Administrative Region (June 2019 – June 2020) (Little Sir Press, 2021); (5) Cuba’s Caribbean Marxism: Essays on Ideology, Government, Society, and Economy in the Post Fidel Castro Era (Little Sir Press, 2018). I am currently on The UN Guiding Principles for Business and Human Right: A Commentary (OUP, forthcoming 2025). More about me on my website Backerinlaw.
My contribution follows below in both the original English and in a Chinese translation. The essay may be accessed as originally posted here. Self-analysis is always hard; maybe too hard. What I offer here are some reflections on the reflections in the essay:
1. One of the more interesting aspects of the consideration of Chinese approaches to human rights touches on the concept of periphery itself. The assumption generally is that one tends to view periphery from the centrality of one's own position. For liberal democratic systems, Marxist-Leninism, like theocratic regimes, by definition fall to a greater or lesser degree on the peripheries of liberal democracy as the core and center of "correct" approaches. The same applies for systems of business and human rights. Here the issue is one of finding the center around which it is possible to draw the "circumference, outer surface, line round a circular body." That core of leadership has tended to center on the apparatus of the UN in Geneva and New York with its inter linkages among elite academics, civil society and networked bureaucracies and the political leadership they guide and guardrail (the theories of which were solidified among knowledge producer collectives around the end of the 20th century). That leadership center is then guided in turn by its own core--traditionally in complex "dialogue" between European and North American variations on core concepts and objectives. Everyone and everything else is peripheral, though of intense interest tho those who do the guiding and assume the role of leadership.
2. China would invert these once stable orientations of center and periphery. That is essentially the point of the essay. In that reorientation, China occupies the center and its political-economic model the lodestar against which international or global standards must be developed and policed. To this way of looking at the world, the European-North American conversations around human rights represents a periphery. This peripheral construction of norms and application do not align either with the aspirations, context or historical conditions of the rest of the world. China would offer an alternative, one grounded on the imperatives of Marxist Leninist theory refined substantially from its crude Soviet forms and made more flexible so easier transposition to developing and post colonial states. That, anyway, is the theory; but in some respects it parallels that of liberal democratic leadership. True as well that this proffer is strategically projected against the current core of global liberal democratic leadership--but it is offered as an alternative with aspirations of leadership in its own right. If successful, the object is to flip the current assumptions about center and periphery in business and human rights (among other policy structures). At the end of the process, however, the rest of the global community remains located along the rim of a system still connected by spokes to a central ordering hub.
3. In this context, perhaps, it is more useful to think about a contest among three contenders for the role of supreme normative hub within global political collectives. Three quite distinctive regulatory systems are evolving in contemporary space. Most of the focus is on two of them: (1) the European system which is grounded in legalization and control through a regulatory apparatus based n compliance and accountability administered by closely aligned networks of public and private techno-bureaucracies, and (2) the U.S. system which is grounded in public nudging of private markets driven behaviors and expectations, with a smaller scope of legal compliance and a reluctance to align pubic policy and economic activity as one of its principal rationales. Of the two--elites and civil society have tended to favor the European model. The tird tends to be ignored or marginalized--a Chinese Marxist Leninist regulatory system that has developed quite unique features since its liberation from Soviet Marxist Leninism after the 1980s. That ideological foundation has now been developing ist own structures and expectations for business and human rights. It is worth considering that system on its own terms.
4. Chinese human rights in the context of economic activities tends to privilege development, and collective welfare. It tends to balance the value of development to a community, ad the utility of a project as a function of public objectives against the harms that may impact individuals. I the context in which collective value is strong that balancing may tilt analysis toward compensatory remedies rater than prevention strategies.Nonetheless, in many cases the practices of Chinese and liberal democratic business and human rights tends toward the same range of results. The current objectives of Chinese Marxist Leninist business and human rights principles tends to favor legal compliance (domestic and foreign investment); to minimize risk (including human rights risks abroad); and to emphasize development and environmental concerns.
5. Assuming some merit to this structuring, the traditional peripheries outside of the guiding metropolitan centers may have a choice among leadership and guidance regimes. What is emerging from the essays, however, is that the periphery tends to seek to blend choice to suit their needs. That blending can occur at the central level (mandatory versus guidance measures) or it can be distributed along functionally differentiated economic sectors (eg, modern slavery). It can now occur at the conceptual level as awell (defining the meaning and application of global human rights guardrails). China offers that opportunity in unavoidable ways. The only real question is whether or to what it extent it may be successful in achieving its ambitions in the medium and long term.
我正在发表并简要回顾由出色的 Caroline Omari Lichuma 和 Lucas Roorda 组织并发表在《商业与人权法杂志》博客网站上的精彩新在线研讨会的论文。该研讨会题为“欧洲以外的商业与人权 (BHR) 监管举措研讨会”。这些论文（和研讨会）旨在将人权对话从日内瓦联合国机构的中心扩展到更深层次，并开始更深入地探讨全球北方精英策展最高层之外有时发生的非凡发展。 * * *
我的贡献如下，包括英文原文和中文翻译版。本文可以在此处按原样访问。自我分析总是很难；也许太难了。我在这里提供一些关于本文反思的反思：
1. 考虑中国人权方法的一个更有趣的方面涉及边缘本身的概念。一般认为，人们倾向于从自己立场的中心性来看待边缘。对于自由民主制度，马克思列宁主义与神权政体一样，从定义上讲，或多或少地处于自由民主的边缘，而自由民主是“正确”方法的核心和中心。商业和人权制度也是如此。这里的问题在于找到一个中心，围绕这个中心可以画出“圆形物体的圆周、外表面、线”。领导核心往往集中在日内瓦和纽约的联合国机构上，该机构与精英学者、民间社会和网络官僚机构以及他们指导和保护的政治领导层之间有着相互联系（这些理论在 20 世纪末左右在知识生产集体中得到巩固）。然后，领导中心又由其自己的核心引导——传统上是欧洲和北美在核心概念和目标方面的变化之间的复杂“对话”。其他人和事都是边缘的，但那些指导和承担领导角色的人却对此非常感兴趣。
2. 中国将颠覆这些曾经稳定的中心和边缘取向。这本质上是本文的重点。在这种重新定位中，中国占据了中心，其政治经济模式是制定和监督国际或全球标准的指南针。对于这种看待世界的方式，欧洲和北美围绕人权的对话代表了一种边缘。这种边缘规范的构建和应用与世界其他国家的愿望、背景或历史条件都不一致。中国将提供一种替代方案，一种以马克思列宁主义理论的要求为基础的替代方案，这种理论从粗糙的苏联形式中得到了实质性的改进，变得更加灵活，因此更容易移植到发展中国家和后殖民国家。无论如何，这就是理论；但在某些方面，它与自由民主领导的理论相似。诚然，这一提议是针对当前全球自由民主领导核心的战略性投射——但它本身也是一种具有领导抱负的替代方案。如果成功，其目标是颠覆当前关于商业和人权（以及其他政策结构）的中心和边缘的假设。然而，在这个过程结束时，全球社会的其余部分仍然位于系统的边缘，仍然通过辐条与中央秩序中心相连。
3. 在这种背景下，也许更有用的是思考三个竞争者在全球政治集体中争夺最高规范中心角色的竞争。当代空间中正在发展三种截然不同的监管体系。大部分焦点集中在其中两个方面：（1）欧洲体系，其基础是合法化和控制，通过基于合规和问责的监管机构进行管理，由紧密结合的公共和私人技术官僚机构网络管理；（2）美国体系，其基础是公众推动私人市场驱动的行为和期望，其法律合规范围较小，不愿将公共政策和经济活动结合起来是其主要理由之一。在这两个体系中，精英和民间社会倾向于支持欧洲模式。第三个体系往往被忽视或边缘化——中国马克思列宁主义监管体系，自 1980 年代后从苏联马克思列宁主义中解放出来以来，已经形成了相当独特的特点。这一意识形态基础现在已经发展出自己的商业和人权结构和期望。值得从自身的角度来考虑这个体系。
4. 中国在经济活动背景下的人权倾向优先考虑集体利益的发展，从而为个人带来相应的利益。它倾向于平衡发展对社区的价值，以及项目作为公共目标的函数的效用，与可能影响个人的危害。在集体价值观强大的背景下，这种平衡可能会使分析倾向于补偿性补救措施而不是预防性战略。尽管如此，在许多情况下，中国和自由民主的商业和人权实践倾向于相同的结果。中国马克思列宁主义商业和人权原则的当前目标倾向于遵守法律（针对国内和外国投资）；尽量减少风险（包括国外的人权风险）；并强调发展和环境问题。
5. 假设这种结构有一定优点，指导性大都市中心以外的传统边缘地区可能会在领导和指导制度之间做出选择。然而，从这些文章中可以看出，边缘地区倾向于寻求混合选择以满足他们的需求。这种混合可以发生在中央层面（强制性措施与指导性措施），也可以分布在功能差异化的经济部门（例如现代奴隶制）。现在，这种现象也可以在概念层面上出现（定义全球人权护栏的含义和应用）。中国以不可避免的方式提供了这种机会。唯一真正的问题是，它能否或在多大程度上成功实现中长期的雄心壮志。
The essay and its crude Chinese translation follows.
Links to all BHR Journal Symposium essay:s
Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe: Part 6: Larry Catá Backer--"The Chinese Path for Business and Human Rights"[白 轲 "工商企业与人权的中国道路"]
Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe: Part 10: Lisa J, Laplante, "The United States 2024 National Action Plan on Responsible Business Conduct"Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe: Part 11: Erika George and Enrique Samuel Martinez, "The Uyghur Forced Labor Prevention Act: An Assessment Of Enforcement Efforts"
The Chinese Path for Business and Human Rights
Setting the Stage: Universal Values With National and Ideological Characteristics
For a long time some in the international human rights community appeared to share two core assumptions about the human rights project generally, and more specifically to its application in the context of human rights abuses in economic activity. The first was that human rights were capable of being understood in a single correct and true way, from the most general expression of its principles to its application in the most granular setting. As the Australian Human Rights Commission explained: “They are based on principles of dignity, equality and mutual respect, which are shared across cultures, religions and philosophies.” The second was that the trajectories of global development would inevitably converge, or must be made to do so, under the leadership of a guiding elite situated (physically and certainly by training and cultural-ideological affiliation) to OECD states, the liberal democratic imaginaries from which their project was given form and legitimacy. Leading human rights organs, including the UN Human Rights Council, could be viewed as operationalizing that principle. The European Union’s “Brussels Effect” might be understood as striving toward roughy similar objectives.
Those two assumptions might be said to continue to describe the dominant path for the business and human rights project as well: and it remains a powerful and valuable one. While it may still be argued that human rights remains an apex set of organizing and operational premises around which social relations may be structured, the notion of convergence appears to have frayed. Nonetheless the orthodoxy of a converging singular interpretive universality is now more forcefully challenged; with China a critical challenger. This short contribution offers a glimpse at China’s quite distinctive Marxist-Leninist “Socialist Path” towards an ultimately Communist goal. The realization of human rights in business functions along the Socialist Path is sensitive to context (historical, stage of social and economic development, and stage of political development) to be developed and applied under the leadership of the Communist Party at the center of a Socialist whole process people’s democracy. It is a path that is distinct from either that emerging within the U.S. or the much more energetic European regulatory compliance-frameworks, and from other Marxist-Leninist approaches (on the old Soviet European verson here). It bears recalling that while one speaks here of diverging paths, they all tend to be pointed in the same destination—the realization and fulfillment of human rights in economic activity as part of a larger human rights framework that is contextually meaningful. The diverging pathways, however, have produced a sometimes sharp response from traditional actors, Human Rights Watch, for example.
From Socialist Internationalism to Socialist Human Rights
The Chinese Communist Party Central Committee bimonthly Journal Quishi nicely essentialized the Chinese approach to human rights in 2022: “China’s people-centered human rights philosophy adheres to the central tenets of Marxist historical materialism and builds on Marxist theories on human rights.” This approach has three princal elements:
“First, we ensure that the people run the country and promote the development of whole-process people’s democracy. . . Second, we put the people and human life above all else, ensure the fundamental interests of the broadest majority of people are safeguarded. . . Third, we regard the right to lead a happy life as the ultimate human right. With the people’s aspirations for a better life as our goal, we view the rights to subsistence and development as the primary basic human rights.”
The principals that make up this socialist path for business and human rights were comprehensively usefully identified in the 2019 South-South Human Rights Forum, organized by the Chinese State Council Information Office and the Ministry of Foreign Affairs. The principles are both well-known and clearly identified (here, and here). They include the following concept principles: (1) “Building a Community with a Shared Future for Mankind and Global Human Rights Governance,” (2) “The Right to Development: The Belt and Road Initiative Promotes the Realization of the 2030 Agenda for Sustainable Development,” and (3) Development. These principles interlink three fundamental concepts—globalism, sustainable development, and human rights.
China takes the welfare of the social collective as their starting point, organized as a pyramidal system of mass organs all connected by: individuals have expectations; collective authority has rights, duties, and responsibilities. The betterment of the welfare of the individual collectively is the primary duty of the state. And thus the core human rights framework as elaborated are through the principle that the state’s primary duty is to ensure the prosperity and stability of the collective. Civil and political rights are understood as necessarily constrained by and proceeding from the overall imperative to ensure prosperity and stability. This has produced some dissonance with current international expectations, which China has contested.
This new language of human rights requires, in turn, a new vocabulary that shifts the emphasis of discourse (and thus the way that terms are understood and applied as policy and rules and norms) from the language and vocabularies of human rights (of the individual) to that of development (of social institutions serving humans). Development is then subsumed within principles of Socialist sustainability, which is understood as a function of Socialist Values, the principles of ecological civilization, and the leadership of the Communist Party. Nonetheless it is undertaken in an environment in which the national interest, codified in China’s anti-espionage, state secrets, and data domestication laws, for example, produce a regulatory firewall meant to avoid foreign penetration without consent.
From Socialist Human Rights Theory to Practice
The similarities and differences among the US, Europe, and China, then, can be understood as a function of focus, and an implementation structure better aligned to the Chinese Marxist-Leninist political model. For example, the Chinese Companies Law Art.5 provides that companies bear social responsibilities. Much of the differences in approach lie at the margins. This has been especially apparent in the way in which Chinese State Owned Enterprises operate outside of China. They align their operations to the guidance and policy priorities of the State, but at the same time adhere to a principle of strict compliance with local law, and risk avoidance, including human rights risk. Yet to that end, Chinese SOEs will prioritize development and majority interests, and in balancing human rights interests will tend to adjust that balancing between prevention, mitigation, and remedy in context. (Discussion and examples in my essay “Chinese State-Owned Companies and Investment in Latin America and Europe” (2024 forthcoming) Draft verson here).
More recently Environmental, Social and Governance (ESG) and ESG reporting standards have provided a vehicle for operationalization of those responsibilities. Much of this has been undertaken through China Securities Regulatory Commission (CSRC) and the stock exchanges. In 2018 CSRC added ESG to its Corporate Governance Guideline (encouraging listed entities to comply with ESG requirements; ¶ 86 “While maintaining the listed company’s development and maximizing the benefits of shareholders, the company shall be concerned with the welfare, environmental protection and public interests of the community in which it resides, and shall pay attention to the company’s social responsibilities.”). In 2021 CSRC adopted rules on ESG reporting in the annual report of listed companies, and reformed the scope of disclosure to include environmental emissions, administrative penalties for breach of environmental regulations, measures for reducing carbon emissions, and donations or other actions that reduce poverty, and so on. In February 2024, the Shanghai, Shenzhen, and Beijing Stock Exchanges announced mandatory sustainability reporting requirements. As reported in ESG Today, “reporting requirements for companies will encompass four “core content” topics, including governance, strategy, impact, risk and opportunity management, and indicators and goals. . . adopting a “double materiality” approach to sustainability reporting, . . the risks and impact of sustainability issues on an enterprise, as well as on the enterprises’ impacts on environment and society.”
Informal standards with substantial influence are also being developed along the same lines. For example, CERDS (China Enterprise Reform and Development Society) developed ESG disclosure standards: the “Guidance for Enterprise ESG Disclosure” (“企业 ESG 披露指南”, the “ESG Disclosure Standards (compare EU standards here). What remains central to the practice of human rights is the hierarchical nature of rights and the importance of the local context in which it is to be applied. Development stands at the core of Socialist Path human Rights. Collective benefit follows. Compliance with local law is essential, but often read as far as possible to advance the core driving elements of rights. In many respects Socialist and liberal democratic solutions will be similar. But the pathways to a convergence of result belie the sometimes quite different routes taken to that point.
Parting Thoughts
Though one might be tepted to argue that it was never never entirely eradicated, human rights with ideological characteristics and national effects have returned as a more formal propsition. This return reflects three emerging and quite distinct approaches to human rights governance between the US, China, and Europe. The divergences will affect everything from the use and forms of human rights due diligence, to the balancing of human rights and sustainability values, to the risk assessment around principles of preventing, mitigating, and remedying adverse human rights impacts. China provides a quite useful and important example of these developments.
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