Joint Statement by FIDH and Human Rights in China on the occasion of the Interactive Dialogue with the Special Representative on the issue of business and human rights during the Human Rights Council 14th session, June 2010
FIDH and Human Rights in China take note of the progress report of the Special Representative and welcome further guidance provided towards the operationalisation of the framework.
Regarding States’ duty to protect, we welcome the observation to encourage States to require companies to report on human rights policies and impacts.1 Yet, the Special Representative’s example of China’s guidance to its State-owned enterprises raises serious concerns about legal and policy incoherence, such as the recently enacted regulations that define confidential “commercial secrets” for Chinese State-owned enterprises so broadly that it thereby effectively precludes them from reporting any meaningful information regarding ESG performance.
We therefore urge the Special Representative to insist on the need for coherence between reporting requirements and commercial laws and for harmonization of ESG disclosure requirements, which should be enshrined by law. We also encourage the Special Representative to devote further attention to the broader issue of access to information.
Above all, we encourage the SR to pursue his consultations on extraterritorial jurisdiction, in particular regarding victims’ access to justice in home States and sanctions -both civil and criminal- for companies committing abuses abroad.
In addressing dilemmas relating to the legal compliance by companies, we urge the Special Representative to provide guidance on how companies can avoid being complicit, such as with the newly chinese revised Law on Guarding State Secrets2, which, if respected, would make IT companies complicit in the violation of the rights of Internet users to freedom of expression.
We further encourage the Special Representative to clarify the relationships between due diligence and companies’ duty of care as well as ways to to incorporate due diligence into domestic legal systems.
We welcome the acknowledgement by the SR of some of the major obstacles victims face in seeking justice -in particular vulnerable groups. In addition, FIDH invites the SRSG to further consider the numerous others obstacles to justice and, in this line to undertake an analysis of the recent out-of-court agreements from the perspective of the right to reparation.
We remain highly preoccupied by the increasing criminalization worldwide of human rights defenders, unions leaders and lawyers which peacefully denounce corporate-related human rights abuses or oppose investment projects. The use of the courts as a tool for social control seriously undermines victims’ right to obtain justice in cases of abuses committed by or with the complicity of businesses.
Finally and in light of the current situation, FIDH insists on the need to set up a universal body that live up to the principles of justice and to which victims can turn where mediation fails or is inappropriate and when both home and host States cannot – or are unwilling to- provide victims with access to effective remedies.