EU Parliamentarians must insist that the inclusion of a human rights clause is a redline when it comes to ratifying an EU-China Investment Partnership Agreement

It has been three months since the National Security Law came into force in Hong Kong. During that time, we have seen the law used as a tool by the authorities to silence dissent and strangle free expression. Leading pro-democracy activists have been arrested, local media offices have been raided by the Hong Kong Police, and pro-democracy academics and high school teachers have been fired from their teaching posts.

In July 2020, the EU joined with likeminded partners including the US, UK, Canada, Australia, New Zealand, and Japan in denouncing the National Security Law. The President of the EU Council Charles Michel described the law as “deplorable”, the President of the EU Commission Ursula von der Leyen warned that it “risks very negative consequences”, and the EU parliament passed a substantial joint-resolution advocating for co-ordinated action including the introduction of targeted Magnitsky sanctions, an international lifeboat scheme, and the reassessment of the EU’s relationship with China.

Since the end of the summer, the statements of concern and condemnation have subsided in Brussels. They have been replaced instead with a quiet and concerted effort by EU leaders to sign a comprehensive investment partnership agreement with China [https://trade.ec.europa.eu/doclib/press/index.cfm?id=2115]. The original talk of strong human rights provisions in any agreement with China have been dropped in favour of arguments about a level playing field for European and Chinese businesses.

This pivot towards a preference of investment over human rights has not come about overnight. In the original EU impact-assessment published in May 2013, the EU committed ‘to include a human rights clause in the EU-China Partnership and Cooperation Agreement, which is under negotiation, and provides the framework in which questions of respect, promotion and protection of democratic principles, human rights and fundamental freedoms and sustainable development proposed by the EU are negotiated. This is in line with the EU policy of including a human rights clause in all political framework agreements that accompany Free Trade Agreements.’[i]

Explaining the justification for the need for a human rights clause, the impact assessment stated that ‘the purpose of such a clause is twofold. First, it eliminates any doubts about whether or not both parties have the right to raise issues of human rights violations by the other party. Second, together with the suspension clause it allows either whole or partial suspension of the political framework agreement in response to grave violations of human rights. The human rights clause refers to international standards binding on the parties, including the Universal Declaration of Human Rights and UN conventions on human rights ratified by both parties.’[ii]

The impact assessment concluded that an investment agreement would have a neutral or positive impact on the human rights situation ‘since it strengthens the already existing protection of the right to property of investors and does not negatively impact any other rights of actors other than investors.’[iii]

By the time the EU Commission had published its Sustainability Impact Assessment of the impact of a likely EU-China investment partnership in May 2018, any mention of the inclusion of a human rights clause had been dropped alongside strong language on human rights.[iv] There is no mention of human rights in Hong Kong, no mention of forced labour Xinjiang and Tibet, and only one reference to human rights in Xinjiang.

Instead, the Sustainability Impact Assessment conceded that the positive impact of the EU-China investment partnership would largely depend on:

·       The existing laws and policies in the host countries to protect human rights;

·       The capacity to implement these rights;

·       The CSR and human rights policies and practices of foreign investors.[v]

The EU Commission’s conclusion that an investment agreement will be net positive for human rights without the inclusion of a human rights clause or any strong language on human rights regarding the treatment of the Uyghurs, Tibetans, or Hong Kongers, ignores the signal it will send that the EU will push for closer cooperation no matter how the Chinese Communist Party treats its people. This is particularly relevant given that the Chinese State has spent much of 2020 encroaching on Hong Kong’s autonomy with the introduction of the draconian National Security Law, continuing the practice of forced Uyghur and Tibetan labour, and is now openly threatening war with Taiwan.

When it comes to ratifying any EU-China Investment Agreement, the EU Parliament must insist that it includes a human rights clause with teeth, including:

-          Allowing EU officials access to China to investigate and report on the human rights situation.

-          Regular reporting periods to the EU Parliament, where the Commission must certify whether China has lived up to its international human rights commitments.

-          Provisions that would automatically suspend the investment agreement if the Commission certifies that China has failed to meet its international human rights commitments.

If the EU Commission or the Chinese Government is unwilling to accept the inclusion of a human rights clause within the EU-China Investment agreement, then EU parliamentarians must be ready to refuse to ratify the agreement.

This would send a clear signal that the EU will not undermine its commitment to human rights and tarnish its global reputation in the pursuit of an investment agreement with China, while forcing the  Chinese state to accept a human rights clause and improvement of its record on human rights as the price of any agreement with the EU.

Written by Sam Goodman, Hong Kong Watch’s Senior Policy Adviser

[i] https://ec.europa.eu/smart-regulation/impact/ia_carried_out/docs/ia_2013/swd_2013_0185_en.pdf

[ii] https://ec.europa.eu/smart-regulation/impact/ia_carried_out/docs/ia_2013/swd_2013_0185_en.pdf

[iii] https://ec.europa.eu/smart-regulation/impact/ia_carried_out/docs/ia_2013/swd_2013_0185_en.pdf

[iv] https://op.europa.eu/en/publication-detail/-/publication/8222a28c-5335-11e8-be1d-01aa75ed71a1/language-en/format-PDF/source-search

[v] https://op.europa.eu/en/publication-detail/-/publication/8222a28c-5335-11e8-be1d-01aa75ed71a1/language-en/format-PDF/source-search