Latin America demands respect for rights, but will China listen?

by Fermin Koop and Robert Soutar

Nations desperate to do business with China often face an awkward dilemma. At the risk of jeopardising billions of dollars in investment and offending Beijing, they tend to ignore China’s human rights abuses. Countries even ingratiate themselves with Chinese institutions and earn praise for their “pragmatism” for sidestepping the issue.

One place where China’s human rights record is up for discussion is the UN’s Universal Periodic Review (UPR) in Geneva, Switzerland, on November 6. The UPR is a peer review mechanism whereby each UN member state has its human rights practices examined every five years. Next month China faces its third review, this time with a special focus on its responsibilities overseas.

“The reviews were originally intended to assess the fulfilment of a set of human rights instruments at a domestic level,” said Paulina Garzón, head of the China-Latin America Sustainable Investments Initiative. Garzón has worked with Latin American civil society organizations on a report questioning human rights violations by Chinese companies in the region.

“But now there’s a growing set of theories that claim countries also have a responsibility to implement those instruments where its companies work in the rest of the world. We’ll see that assessment this year,” she added.

The review considers three official documents: a national report submitted by China, a compilation of UN information prepared by the Office of the High Commissioner for Human Rights (OHCHR), and a summary of reports submitted by NGOs.

Latin America reports

Latin American civil society organizations filed three reports to be taken into consideration at China’s review. All claim a wide range of human rights violations linked to specific projects, mostly in the infrastructure and extractive sectors.

One group of 21 NGOs from Argentina, Brazil, Ecuador, Bolivia and Peru, reviewed 18 projects managed by 15 Chinese business consortia, linked to mining, oil and hydropower. These were located in indigenous reserves or nominally protected areas. The NGOs found that all projects violated human rights.

“There’s a systematic violation of the rights to prior consultation and participation, alongside forced evictions, destruction of places of cultural and natural importance and [the] criminalisation of community leaders,” said Sofía Jarrin, environment and indigenous peoples coordinator at Ecuador’s Centre for Economic and Social Rights (CDES).

Almost two-thirds of the projects reviewed are in Ecuador. The report warned of a pattern of violations in all projects, including failing to adopt measures meeting China’s “extraterritorial obligations” to protect rights in host countries, according to their national laws. These are outlined in the International Covenant on Social, Cultural and Economic Rights. China signed the covenant in 1998 but has not ratified it, meaning it hasn’t translated into Chinese law. 

Graphic: CICDHA

One project referenced in the report is the El Mirador copper mine in the Morona-Santiago province of southeastern Ecuador. The project has been the site of violent conflict between Chinese mining company Ecuacorriente S.A. (EXSA), owned by Chinese consortium CRCC-Tongguan, and the local indigenous Shuar community.

Members of the community were forcibly displaced by the creation of the mine and, as the dispute raged, indigenous leader Jose Isidro Tendetza Antun was murdered. His body showed signs of torture.

The community claims its right to be consulted on development projects slated for ancestral territory – as enshrined in Ecuadorean law – was violated by the US$1.4 billion mine.

The report also questioned the growing reliance of Latin American countries on Chinese finance, which they say weakens their governments’ resolve to uphold laws when investments contravene them.

Petitioned by EXSA, the Ecuadorean government ordered the shuttering of NGO Acción Ecológica, which defended the Shuar community in the El Mirador conflict. The move was met with widespread international condemnation.

Another key report was filed by the Coordinator of Indigenous Organizations of the Amazon Basin (COICA). COICA reviewed the El Mirador mine in Ecuador and four other projects executed by Chinese firms – the Arco Minero mining project in Venezuela, the El Nogal oil block in Colombia, Lote 58 oil project in Peru and the Teles Pires dams in Brazil.

The report concluded that, cumulatively, these projects violated the rights of 455 indigenous groups in the Amazon basin since they were carried out without their prior consent. COICA also claimed that these projects threatened the right to life and to a healthy and balanced environment.

The UPR looks at China’s rights impacts elsewhere in the world, but the NGO International Service for Human Rights (ISHR) presented a report, jointly with the Mekong Legal Network (MLN), which also referenced Latin America. This report found a violation at the Las Bambas copper mine in Peru, where communities were not consulted on changes to the original project.

At the mine, located in Peru’s southern Apurimac region, new owner China MMG failed to consult the local community on revised proposals to transport materials off site using local roads, rather than a pipeline. Opting to use trucks generated noise and dust pollution and sparked an angry backlash, paralysing the project. Such conflicts have strained relations between Peru and China.

“The violations communities are facing due to Chinese operations and investment are too political to be raised at the national level,” said Sarah Brooks, programme manager at ISHR, referring to the refusal of the Chinese government to engage in meaningful discussions on human rights.

“The Chinese government is aware of these violations. They can’t pretend that their companies are representing them abroad. But they don’t know what to do about this. They aren’t willing to be open and consultative and they don’t work with civil society in host countries. Their means to resolve the problem are limited,” she added.

Political sensitivity

As Brooks points out, the UPR is a politically sensitive process. Well-known Chinese rights activist Cao Shunli was arrested on attempting to travel to Geneva for the last round of China’s UPR in 2013. Months later she died in jail.

If discussions about human rights are routinely shut down in this way, what other tactics can communities employ to get China to listen to their concerns?

“The Chinese government and some companies have begun to recognise that enhancing responsible business makes financial sense,” said Lowell Chow, senior researcher and representative for East Asia at the Business & Human Rights Resource Centre. He added: “Disputes with workers and communities can delay operations and cost money.”

Disruption at the Las Bambas mine cost an estimated US$6 million, according to Industry association the Peruvian National Society of Mining, Oil and Energy (SNMPE).

The Chinese government and industry associations have developed guidelines on responsible overseas investment. However, these are voluntary and there are scant repercussions for non-compliance.

Chow said the guidelines are a good first step but that there is much work to do in terms of implementation: “Chinese companies can grasp the opportunity to lead by example on responsible business through proactively engaging with host communities as early as possible.”

Wawa Wang, public finance policy officer at CEE Bank Watch, agrees that implementation of the guidelines is key. But she suggests this is only possible if companies and investors are more transparent.

“One concrete step forward is to begin disclosing project-related social and environmental information as required by the guidelines,” Wang said. So far, Chinese investors’ reporting of the impacts of projects on biodiversity, climate change, and the displacement of communities, has been “eerily absent”.

Chinese banks have begun to partner with regional development banks to co-finance projects in Latin America. In theory, this enables banks such as the Inter-American Development Bank to share their local knowledge and experience with Chinese banks and offer technical assistance that could help prevent conflicts.

“The goal is to develop safeguards palatable to the Chinese that address practices of transparency, accountability and environmental and social due diligence,” said Wang.

China may have industry guidelines to protect human rights in its operations overseas but it does not have the legal jurisdiction to punish offences.

“The scope of the Chinese law [is] limited to domestic jurisdiction and could not be used to regulate Chinese companies’ operations beyond China’s borders,” material submitted to the High Commissioner by MLN and ISHR noted.

However, China should begin to integrate international human rights standards into laws governing outbound investment, MLN recommended.

Expectations

At its first UPR in 2009, China received more than 100 recommendations, of which it accepted 42 and rejected 50. Five years later, it received a further 252 recommendations, of which it accepted 204 and rejected 48. Of those accepted, China said 31 had already been implemented and eight were currently being implemented.

China presented a report on its actions on human rights in response to the last UPR. The government pointed out that by April this year it had enacted 28 new laws related to human rights and had issued and implemented the country’s third Human Rights Action plan in 2016.

However, China also acknowledged that it “still faces many difficulties and challenges in promoting and protecting human rights,” as it vowed to increase protections.

According to Brooks, this time China will also accept a large number of the recommendations from the upcoming UPR. “They will be largely in areas that China feels they are already doing good work or that they have a commitment on an international level,” she said.

For Garzón, China’s legitimacy as an actor at the UN is at stake because of the new review: “The government has to prove that it has the capacity and willingness to act on human rights. This time, China doesn’t have the possibility of not accepting its role.”

Meanwhile, Jarrin said NGOs want to have a conversation with China and establish clear rules for their projects in Latin America. Upholding rights in the region and better enforcing regulations in the region would send clear signals to Chinese companies and investors:

“The main weakness lies on our states in Latin American but we know the influence and weight of an actor like China.”

Source: Diálogo Chino

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