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: Law at the End of the Day

Business and Human Rights Part XXIII--On the Compatibility of Chinese Constitutional and Party Values (Harmonious Society (????) and Corporate Human Rights

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This Blog Essay site devotes every February to a series of integrated but short essays on a single theme. The Ruminations Series in 2009 produced a month long series of aphoristic (?????????) essays, meant to provoke thought rather than explain it. The hope was that, built up on each other, the series would provide a matrix of thoughts that together might lead the reader in new directions.

For 2010, this site introduces a new series--Business and Human Rights. The series takes as its starting point the issues and questions raised by John Ruggie, the United Nations Special Representative of the Secretary-General (SRSG) on business and human rights, in a global online forum
The U.N. "Protect, Respect, Remedy" framework is made up of three pillars: the State duty to protect against human rights abuses by third parties, including business; the corporate responsibility to respect human rights, which means to avoid infringing on the rights of others; and greater access by victims to effective remedy, judicial and non-judicial. The forum is currently focused on the corporate responsibility to respect human rights, the second pillar of the framework. The forum is divided into sections, each of which contains multiple topics with space for discussion and comment.
New Online Forum for U.N. Business and Human Rights Mandate, United Nations Press Release, New York and Geneva, Dec. 1, 2009. Each of the Essays will consider one of the topics raised in the online consultation. My hope is to help generate discussion and to encourage further discussion of the issues within the framework fo the consultation framework.

Part XXII: Human Rights Due Diligence--On the Compatibility of Chinese Constitutional and Party Values (Harmonious Society (????)) and Corporate Human Rights.

One area of the business and human rights project of the SRSG that deserves more attention, is the issue of the possible harmonization of the Protect/Respect/Remedy project with core Chinese constitutional values. It is not uncommon to suggest that either a human rights framework is alien to Chinese political and economioc organization, or that it requires a substantial modification because of the role fo the Communist Party and State control over the economic sectror. It is also suggested that huamn rights is a sensitive issue in China and is more likely understood as a means of foreign interference in internal Chinese affairs than in an invitation to join a global collaborative enterprise. It is true enough that the Chinese Communist Party has taken a substantial leadership role in both the political abd economic sphere. See Larry Catá Backer,The Chinese Communist Party and the Governance Structures of SWFs and SOEs: ?Unswervingly Upholding the Party's Core Political Status in SOEs", Law at the End of the Day, Sept. 1, 2009. But that role begs the question of the compatibility of human rights within the structure of Chinese political and constitutional organization.

I will suggest here the business and human rights framework being developed by the SRSG is entirely compatible with core Chinese Constitutional values, understood in its ideological constitutional form as under the guidance of Marxism-Leninism, Mao Zedong Thought, Deng Xiaoping Theory and the important thought of 'Three Represents,' On Chinese constitutional/Party principles, see, Larry Catá Backer, The Rule of Law, The Chinese Communist Party, and Ideological Campaigns: Sange Daibiao (the ?Three Represents?), Socialist Rule of Law, and Modern Chinese Constitutionalism, 16(1) TRANSNATIONAL LAW & CONTEMPORARY PROBLEMS 29 (2006). In particular, I will suggest that the constitutional/Party principle of harmonious society (????) suggests principles that are understood as human rights in business in the West.

In an earlier dialogue I suggested:

The resolution on Harmonious Society, ?Resolution on Major Issues Regarding the Building of a Harmonious Socialist Society, . . . .was adopted at the conclusion of the Sixth Plenary Session of the 16th Central Committee of the Communist Party of China (CPC) on October 11.? China Publishes ?Harmonious Society? Resolution, Xinhua News Agency October 19, 2006
?The resolution highlights the importance, guidelines, goals and principles of building a socialist harmonious society; coordinated development; social equity and justice; cultural harmony and the ideological and ethical foundations of social harmony; and the need to improve public administration to build a vigorous and orderly society. It says social harmony is the intrinsic element of socialism with Chinese characteristics and an important guarantee of the country's prosperity, the nation's rejuvenation and the people's happiness. The resolution stresses the harmonious socialist society is to be built and shared by all Chinese along the road of socialism with Chinese characteristics and under the leadership of the CPC.? The resolution highlights the importance, guidelines, goals and principles of building a socialist harmonious society; coordinated development; social equity and justice; cultural harmony and the ideological and ethical foundations of social harmony; and the need to improve public administration to build a vigorous and orderly society.? Id.

It builds on Three Represents, especially in its inclusive elements: ?The resolution stresses the harmonious socialist society is to be built and shared by all Chinese along the road of socialism with Chinese characteristics and under the leadership of the CPC.?

Larry Catá Backer, A Conversation About Three Represents (????), Harmonious Society (????), Scientific Development (?????) in Chinese Constitutional Development, Law at the End of the Day, Aug. 11, 2009. Harmonious society principles ought to be understood in the context of important substantive values developments that have occurred since the 1990s, among the most important of which are the principles of "Three Represents" and "scientific development."

1. Three represents--defining the position of the party and the social, economic and political order. Institutionalizing and bureaucratizing effect is key to the concept. Three Represents is an organizer of political space within the Party apparatus, rather than in an individual or in the apparatus of state government (for example through the National People?s Congress system). . . .
2. Harmonious society--defining the key elements of the obligations of state and party to society. If Three Represents established the framework, then harmonious society established the context of the obligations of the Party and state apparatus to the people and the general framework of the social order. Indeed, in the explanation of the Resolution on Harmonious Society, the Party ?stresses that the CPC's role as the core leadership is critical for building a harmonious socialist society. The principle that the Party is organized for the people and exercises power on behalf of the people must be adhered to.? China Publishes ?Harmonious Society? Resolution, Xinhua News Agency October 19, 2006. Thus, it is clear that Harmonious Society was meant to sit atop Three Represents, at least as a matter of theory. The Party represents the social body of the State and its people, Harmonious Society is the broad statement of the obligations of leadership of that Party. . . .
3. Scientific development--the institutionalization of a certain flexibility. Scientific Development might be understood as effectively providing a legitimate basis for organic growth of Chinese political theory, and its institutionalization, from Mao to Hu through Deng Xiao Ping and Jiang. It is also the basis on which the mechanics of institutionalization of the structure of political organization (three represents) and social objectives (harmonious society) may be elaborated--with enough cushion to permit mistakes, and backtracking, without appearing to effect the legitimacy of the regime itself. This is a ?breathing space? doctrine?it eliminates the direct connection between specific policies and actions of the Party or the state apparatus, and the legitimacy of either. Policy can go wrong, or be discarded when no longer effective, and these changes no longer go to the legitimacy of the regime. This separation of policy (action) from institutional legitimacy is critical for the survival of the organization of the Chinese political system. . . .

Id. The connection between corporate social responsibility and Chinese political theory has not been ignored. A 2005 conference hweld in Nanchang China in October 2005 on corporate social responsibility in China suggested the core compatibility of corporate social responsibility within the framework of Harmonious Society. See High fly the banner of Constructing Harmonious Society ??Declaration of 2005 GoTone-Nanchang International Forum of Constructing Harmonious Society and Corporate Social Responsibility (Nanchang China Pct. 15, 2005).

All participants of 2005 GoTone-Nanchang International Forum of Constructing Harmonious Society and Corporate Social Responsibility consider that enterprises are powerful social organization, should take more responsibility and play more important roles. Constructing harmonious society must establish innovative relationships between enterprises and society, promote CSR sense and gradually, found an interactive new model between enterprise and society.

   Harmonious society is undoubtedly a responsible society and a sustainable healthy society. Enterprises are vital components of the society, cells of national economy, major parts of market economy, creators of social wealth, and propellents of social progress, and they play crucial roles to social and economic development. Enterprises feature indispensable functions in the constructing of harmonious society.

   Within the era of globalization, competition in terms of technology, price, quality is just one aspect, what?s behind is the competition of social responsibility sense. CSR is an important part of the value and culture of enterprises. Besides pursuing economic welfares, assuming responsibilities and accountabilities to the society and public facilitates the establishment of advantages in fields of image, trademark, technology and credit, as well as the formation of a society highlighting democracy, nomocracy, honesty, fraternity, stability and the peaceful coexistence of people and nature. Only enterprises credited by the whole society could be favored by the market, could be more competitive, and stay forever in the market. The ultimate goal of CSR construction is to found a balanced harmonious society and switch the price competition to a strategic competition compassing environment protection, customer, service, brand and CSR, thereby advancing overall progress of our society and enhancing enterprises competitiveness.

Id. The participants declared

2005 GoTone-Nanchang International Forum of Constructing Harmonious Society and Corporate Social Responsibility declares that those basic conceptions in terms of human right, employee, environment, anti-corruption, etc in Global Compact sponsored by UN Secretary General Kofi Annan are basically the same with the Human-entered strategies of Chinese government, and that we support enterprises to join Global Compact.
We should uphold socialism system, safeguard fairness and equity of society, especially the rights of minority groups, and fight for the balance of equity and effectiveness. CSR must be incorporated into labor law system, respect and protect all human rights, abolish child labor, eliminate employee discrimination, support precautionary measures to challenges put up by the environment, assume more responsibility for environment, encourage the development and popularization of environment-friendly technologies, ameliorating working environment and become enterprises responsible for the society.

Id. The framing assumptions of the declaration correctly suggests the connection between Harmonious Society notions and corporate social responsibilities within the larger context of Marxism Leninism, Mao Zedong Thought, Deng Xiaoping Theory and the important thought of the Three Represents. That connection requires greater study and wider dissemination in China, as well as abroad. But its contours are clear enough. In a state whose foundational structure is centered on proletariat revolution a worker and stakeholder centered approach to corporate operations leads to approaches to governance that are similar to those which are the object of the Protect/Respect/ Remedy Framework. While the conceptual basis may have substantial characteristics, the objectives should run in the same direction.

This idea has been picked up by important civil society actors in Europe. See, The Danish Institute for Human Rights, The Human Rights and Business Project, Towards Global Citizenship--A Handbook for Chinese Companies Promoting Global Standards and Rights (August 2009)

From the founding of The People?s Republic of China, the concept of Serve the People has not only become the common belief of all citizens, it has also been the unwavering precept of enterprises. Currently, the norms of CSR find expression in the concept of Harmonious Society (????). To realize a harmonious society, President Hu Jintao has stressed that it is crucial to ensure equality for all in terms of personal rights. According to him, justice, the rule of law, equity and professional ethics constitute the foundation of the Harmonious Society promoting sustainable, rapid and coordinated economic growth and common prosperity for the whole people.

Id., at 5 (?????? - ????????????????). One can hope that the SRSG is able to organize consultations in China grounded in elaborating this connection and compatibility between the "human rights" elements of harmonious society and the Protect/Respect/Remedy framework. Transposing the elements of the framework within Chinese political theory might go a long way toward a useful dialogue. t might also provide a template for transposition within other cultural-political systems.

Full post as published by Law at the End of the Day on February 24, 2010 (boomark / email).