RESOLUTION ON THE EXTRATERRITORIAL OBLIGATIONS OF THE PEOPLE’S REPUBLIC OF CHINA ON HUMAN RIGHTS IN PERU.
Whereas the Committee on Economic, Social and Cultural Rights (CESCR) in its General Comment No. 241, as well as the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights2, maintains that the People’s Republic of China being a State party to the International Covenant on Economic, Social and Cultural Rights (ICESCR), is required to protect, respect and fulfil human rights, which includes ‘refraining from interfering with or restricting the enjoyment of human rights ‘; ‘protecting individuals and groups from rights abuses’; and ‘taking positive steps to facilitate the enjoyment of basic human rights’.
Acknowledging that, according to General Comment No. 24 of the CESCR, the obligation to protect means that States parties must effectively prevent violations of economic, social and cultural rights in the conduct of business3; and that, in addition, States must ‘require commercial entities to exercise human rights due diligence to identify, prevent and mitigate risks of violations of Covenant rights, prevent abuse of those rights and account for negative impacts caused or contributed through their decisions and operations and those of the entities they control over the enjoyment of rights;4
Bearing in mind also that the CESCR has confirmed in several General Comments5 and in particular in No. 24, that the obligations of States apply ‘outside the national territory in situations over which States Parties exercise control’6 and that States must take ‘necessary measures to prevent violations of human rights abroad by corporations domiciled in their territory and/or jurisdiction (if they were incorporated under their laws, or had their registered office, central administration or principal place of business in the national territory’.7
Whereas, according to the Maastricht Principles, ‘States must adopt and enforce measures to protect economic, social and cultural rights through legal and other means, including diplomatic means, (...) as regards business enterprises, where the corporation, or its parent or controlling company, has its centre of activity, is registered or domiciled, or has its main place of business or substantial business activities, in the State concerned’.8
And whereas last year, the People’s Republic of China adopted 284 of the 346 recommendations suggested to it by dozens of countries as part of its third Universal Periodic Review (UPR), held on 15 March 2018 in Geneva before the United Nations Human Rights Council (UNHRC).
Acknowledging, in this context, that The People’s Republic of China specifically accepted, inter alia, two recommendations from the diplomatic missions of Ecuador and Peru in Geneva, which requested the Chinese State, respectively:
• ‘Promote measures to ensure that development and infrastructure projects within and outside their territory are fully compatible with human rights and respectful of the environment and the sustainability of natural resources, in accordance with applicable national and international law and with the commitments of Agenda 2030 for Sustainable Development; and
• ‘Consider establishing a legal framework to ensure that the activities of industries under its jurisdiction do not undermine human rights abroad’.
Bearing in mind that the Governments of Peru and the People’s Republic of China signed last year, during the APEC Ministerial Meeting held in the city of Puerto Moresby, Papua New Guinea, a memorandum agreeing to the start of negotiations for the optimization of the Free Trade Agreement (FTA) that links trade between Peru and China since 2010, and that such optimization process is currently being negotiated.
Noting that, as part of the above-mentioned process, both parties will have agreed to include new chapters in the agreement and to update existing chapters.
The International Federation for Human Rights, meeting for its 40th Congress, urges both the governments the People’s Republic of China and Peru to:
• Put into practice the recommendations made by Peru and accepted by ‘the People’s Republic of China at the end of last year, integrating into the new version of the trade agreement between the parties, measures to ensure that development and infrastructure projects within and outside Peru are fully compatible with human rights and respectful of the environment and the sustainability of natural resources, in accordance with applicable national and international law and with the commitments of Agenda 2030 for Sustainable Development.
• To this end, consider including in the treaty a legal framework to ensure that the activities carried out by industries subject to the jurisdiction of the People’s Republic of China do not undermine human rights in Peru, in particular, by integrating into the agreement a Chapter on Trade and Sustainable Development by which both parties formally commit themselves.
- With the promotion and effective application in their laws and practices throughout their territory of internationally recognized core labour standards, as contained in the fundamental conventions of the International Labour Organization (ILO);
- Not to encourage trade or investment by reducing the levels of protection contemplated in their environmental and labour legislation;
- Not to waive or otherwise render ineffective its environmental and labour laws in a manner that reduces the protection afforded in those laws to encourage trade or investment; and
- Not to relinquish from effectively enforcing its environmental and labour laws through a sustained or recurring course of action or inaction in a manner that affects trade or investment between the Parties.
• They adopt this measure in accordance not only with international human rights law which imposes on States the duty to adopt measures to ensure that their policies and practices, including those carried out in the context of international trade, comply with human rights and do not harm them, but also with their positive duty to cooperate with each other to create the international framework conditions necessary for human rights to flourish.
• In so doing, they demonstrate their commitment to the international obligations into which they have voluntarily entered in this area.