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LIU Hongchun: The Path of Cooperative Protection of Legitimate Rights and Interests

of Overseas Workers from the Perspective of Global Human Rights Governance

2023-07-30 10:05·Forum on Global Human Rights Governance
by LIU Hongchun

The Path of Cooperative Protection of Legitimate Rights and Interests of Overseas Workers from the Perspective of Global Human Rights Governance

The report of the 20th National Congress of the Communist Party of China points out that China should adhere to our own path of human rights development, actively participate in global human rights governance, and promote the all-round development of human rights. As a product of economic globalization, overseas labour itself is not a commodity. They shall enjoy the corresponding human rights protection, such as the right to subsistence and personal dignity. Their personal and property safety, labour rights and interests, immigration and human rights protection have been topics of concern to the international community, and also tricky issues in global human rights governance. Since the introduction of the Belt and Road Initiative, the number of Chinese overseas workers has grown steadily, showing the multi-level, multi-country and multi-field characteristics, and protection of the legitimate rights and interests of overseas workers has become increasingly prominent. According to statistics from Ministry of Commerce of the People’s Republic of China, Chinese enterprises sent a total of 259,000 workers of various types aboard in 2022, and there were 543,000 workers of various types abroad at the end of 2022. In the first three months of 2023, China sent a total of 80,000 workers of various types aboard (25,000 under the contract projects and 55,000 under labour service cooperation), an increase of 29,000 over the same period last year. At the end of March, 2023, 547,000 Chinese workers of various types were working abroad (excluding those who held short-term business or tourist visas but did not obtain valid work visas). Chinese overseas workers are mainly distributed in Asia, Africa and Europe, and their work ranges from construction, manufacturing, catering, agriculture, fishery, health care, education and other fields. Due to social, cultural, legal, institutional and other differences, Chinese overseas workers also face a lot of risks, such as labour disputes, personal property safety, limited personal freedom, identity legitimacy, human rights risks and telecom fraud. Therefore, protection of the legitimate rights and interests of overseas workers is an urgent issue to be solved in the process of building a community with a shared future for mankind and the promoting the Belt and Road Initiative.

I. New Challenges in the Cooperative Protection of the Legitimate Rights and Interests of Overseas Workers from the Perspective of Global Human Rights Governance

In face of overseas labour disputes and human rights protection issues with a relatively large base, China has established the legal protection system and the dispute prevention mechanism for workers; and the labour management framework has basically been formed. However, handling of disputes concerning rights protection of overseas labour service mainly relies on diplomatic mediation and consular protection. However, diplomatic and consular protection are constrained by such factors as manpower, material resources and the scope of legitimate rights and interests protection, which is not a permanent solution. From the perspective of global human rights governance, we need to enhance cooperation and exchanges with international organizations and countries where we make investments, and protect rights and interests of overseas workers through cooperation.

(1) Domestic law and the enforcement effect of labour standards needs to be improved

As a founding member of International Labour Organization (ILO), China had ratified 28 international labour conventions by August 2022, including 6 core conventions, 2 governance conventions and 20 technical conventions, covering such fields as forced labour, child labour, gender discrimination, human trafficking, anti-corruption and corporate social responsibility. China had issued two laws, three administrative regulations, three rules, two judicial interpretations and 16 normative documents, including The Law of the Application of Laws for Foreign-Related Civil Relations of the People's Republic of China, Foreign Trade Law of the People's Republic of China, and Regulations on the Administration of Overseas Labour Cooperation. Legitimate rights and interests of overseas workers are protected from the aspects such as qualification for labour cooperative operation, expatriate labour service training, reserve funds and the performance bond, prevention and disposal of overseas labour service incidents. However, settling overseas labour disputes tends in effect still less than desirable, due to relatively low level of domestic legislation, relatively long promulgation time, insufficient protection of expatriate labour rights and interests, single dispute settlement mechanism, large cultural differences, insufficient enforcement of conventions, lack of information transparency, practical actions and cross-sectoral coordination.

Furthermore, the Chinese government has also participated in the formulation and promotion of international labour standards. The Chinese government, in cooperation with International Labour Organization has launched the “Chinese Employers’ Joint Responsibility Initiative”, which aims to protect workers’ rights and interests by promoting the integrity of business operations and the implementation of responsible management. The representative of Chinese Trade Union has been successfully elected as a titular member of Governing Body of International Labour Organization for four consecutive times. All-China Federation of Trade Unions has signed a memorandum of understanding with International Labour Organization, reported on many occasions China's implementation of the conventions, protection of workers' rights and interests by China Trade Union and Chinese government's participation in building the mechanisms, submission of the proposals, and strengthened communication and exchanges with International Labour Organization. China Enterprise Confederation co-hosted the Seminar on International Cooperation and International Labour Standards for “the Belt and Road”  with International Labour Organization, and conducted exchanges on such topics as opportunities and challenges in international cooperation, labour relations and conditions, corporate compliance, and gender equality in the workplace. All-China Federation of Trade Unions has organized the International Seminar on “Labour Standards and Trade Union Participation”, the Wokshop on “International Labour Standards and International Trade Agreements”, and the establishment of the Research Center for Think Tanks on Theories and Labour Relations, continuously promoted the participation of China Trade Union in the formulation and revision of labour standards and promoted the improvement of Chinese labour standards system.

(2) Bilateral and multilateral cooperation mechanisms for overseas workers need to be strengthened

BRICS leaders signed the BRICS Leaders Declaration at their summit in Johannesburg, South Africa in 2018, which covered such topics as “promoting equality and justice in the global labour market” and “maintaining labour rights and interests”. China has actively participated in relevant activities and programs, including 38 human rights dialogues conducted between China and the European Union. the China-ASEAN Free Trade Area and other bilateral cooperation mechanisms were established; the Memorandum of Understanding on ChinaASEAN Labour Cooperation was signed, in which, the cooperation direction and focus in the labour field of both parties were clearly stated. China-ASEAN Labour Ministers' meeting mechanism should be established to strengthen communication and cooperation between labour departments; China-ASEAN Labour Personnel Exchange Center was established, which provides information and services to the labour force; relevant labour laws, regulations and standards under the framework of free trade zones were formulated, with a view to strengthening the protection of workers' rights and interests. Moreover, vocational skills training and certification have been strengthened, which help to improve quality and competitiveness of the labour force; the labour dispute settlement mechanism has been put in place to resolve labour disputes in a timely manner. All these measures contributed to enhancing cooperation and exchanges between China and ASEAN countries on the protection of overseas workers and further improving the protection of workers' rights and interests. By 2021, China had signed with 147 countries and 32 international organizations over 200 cooperation documents on joint-building of “the Belt and Road” , which mainly focus on economic and trade cooperation, but touch little on the rights and interests of overseas workers, thus barely conducive to protecting the legitimate rights and interests of overseas workers.

Bilateral cooperation on social security is generally conducted to solve the problems of double payment, double deficiency, and overdue payment of social security benefits for overseas workers between labour importing and exporting countries. For instance, any two countries may negotiate on social security issues for overseas workers, signed bilateral agreements or established the cooperation mechanism for social security. By 2018, the Chinese government had respectively signed bilateral agreements on social security with 12 countries, including Germany, South Korea, Denmark, Finland, Canada, Switzerland, the Netherlands, France, Spain, Luxembourg, Japan and Serbia. However, there remain such problems as slow progress, limited cooperation content, unitary cooperation mode, relatively low coverage and poor implementation effect of bilateral agreements on social security. The contents of specific agreements still need to be specified.

(3) Participants in foreign exchanges need to be expanded

Chinese trade unions had established friendly relations with more than 400 labour union organizations in more than 150 countries by 2021, conducted seminars and cadre training with ASEAN Council of Trade Unions, Council of Unions of South Africa, International Confederation of Arab Trade Unions and trade union organizations in Laos, Vietnam, Sudan and other countries successively, and gave lectures on special topics to publicize the opportunities and prospects of employments, skills upgrading and life quality improvement for workers in various countries along “the Belt and Road”. Chinese trade unions have also launched the “Belt and Road” people-to-people exchange program, hosted the SCO National Workers' Skills Competition, the International Seminar on Employees' Exchanges for “the Maritime Silk Road”, the Expert Seminar on Aviation Industry Safety Supervision and Management of CICA Countries, the China-Kazakhstan Expert Exchange Group, the China-Pakistan Youth Seminar Camp on “Mutual Learning and Mutual Sharing”, the China-Myanmar Industrial Workers' Technical Exchange Camp, the China-Cambodia Workers' Exchange Camp, “The Beauty of Labour” Friendly Exchange Camp for Team Leaders of China-Zambia Economic and Trade Cooperation Zone, and Seminar on Labour Relations and the Role of Trade Unions in China-Africa Trade Union Transnational Enterprises in Multinational Enterprises and other activities, so as to publicize the macro concepts concretely, in detail and vividly. Local trade unions at all levels carried out activities based on their own advantages. For instance, the Seminar on International Cooperation and the International Labour Standards for “the Belt and Road”, organized by Sichuan Enterprise Confederation/Sichuan Enterprise Directors Association, discussed core labour standards, working conditions, building of harmonious labour relations and other issues, and encouraged and supported enterprises to actively participate in the building of the “Belt and Road”.

II. The Optimized Path for the Cooperative Protection of the Legitimate Rights and Interests of Overseas Workers from the Perspective of Global Human Rights Governance

Cooperative protection is mainly based on the dominant position of the government. In other words, in order to effectively safeguard the social security rights and interests of overseas workers, it is between countries and international organizations as well as among countries that communications, exchanges and negotiations on the protection of the rights and interests of overseas workers are conducted, bilateral and multilateral agreements on the basis of equality and mutual benefits are signed, and the cooperation mechanism of labour rights and interests protection system is established.

(1) To give the leading role of the government to full play

The key to solve the issues concerning the protection of the rights and interests of overseas workers is bilateral or multilateral cooperation among countries, in which the Government shall play the leading role. Firstly, understanding of the Government on the protection of the social security rights and interests of overseas workers shall be deepened; and labour service export shall be regarded as a special economic and trade activity. The Government should not only pay attention to the economic benefits created by labour service export, but also should attach importance to the employments of workers and the protection of their social security rights and interests. Secondly, the strategic status of bilateral cooperation in social security should be enhanced, and bilateral cooperation for the protection of rights and interests of overseas workers may be considered as an important supporting measure of the “going out” strategy and the Belt and Road Initiative. Thirdly, competent authorities for overseas labour service cooperation shall be appropriately appointed. Since the personal and human rights nature of workers is involved in labour service export, it should be administered by Ministry of Human Resources and Social Security, which is good at handling social security disputes and safeguarding workers' rights and interests, and shall be held responsible for the supervision and administration of foreign labour cooperation. Ministry of Foreign Affairs, Ministry of Public Security, Ministry of Commerce, Ministry of Transport, Ministry of Housing and Urban-Rural Development, Ministry of Agriculture, Animal Husbandry and Fisheries, and industry and commerce departments shall be the assistant administrative departments, assisting Ministry of Commerce and Ministry of Human Resources and Social Security in the management of foreign labour cooperation. Finally, assistance and donations should be provided. Developing countries may be supported in the form of assistance and donations, such as emergency aid, medical services, education and training, so as to support the developing countries to enhance the working environment, improve the treatment and protection of overseas workers, and protect the legitimate rights and interests of overseas workers. 

(2) Strengthening the practical results of international cooperation

Firstly, we should actively participate in international exchanges and cooperation, so as to increase the number of multilateral and bilateral agreements formulated and signed, expand the coverage of population, strengthen the implementation of industry-oriented and style-based bilateral agreements, and protect social security and medical insurance and other rights and interests of overseas workers. Further explorations should be made for more in-depth cooperation in the fields such as laws on labour, vocational skills training, employment opportunities and social security, and jointly promote the protection and promotion of rights and interests of overseas workers. As for the social security rights and interests of overseas workers, the philosophy of comprehensive protection should be applied; contents of protection items should be increased; the forms of bilateral cooperation on social security should be extended; and the coverage of the population should be expanded. The provision of social security should be changed from mutual exemption of insurance premiums to connection of treatment; and the social security barriers in cross-border mobility should be removed. Secondly, we should take active part in the formulation of international standards. The All-China Federation of Trade Unions, on behalf of Chinese trade unions, should continue to strengthen exchanges and communication with the International Labour Organization, cooperatively tackle the problems emerged in the implementation process, and reduce the barriers confronted by China in its international trade and investment. We should take active part in the cooperation and dialogue on Labour standard provisions, participate in consultations on trade-related Labour issues through the public participation process, understand the formulation, adoption and application of relevant measures, and provide comments and suggestions on related issues. We should strengthen communication and exchanges with foreign trade union organizations, conduct sincere discussions and communications on China's implementation of international labour conventions, especially core labour standards, take the opinions of foreign trade unions in a discriminating and trade-off manner, and enhance China's voice and influence in the process of settling disputes under international trade and investment agreements. We should actively carry out investigations, analyze and discern the risks of labour disputes, and insist on submitting the opinions of Chinese trade unions on the implementation of the ratified international labour conventions. Thirdly, we should participate in international seminars and forums. We should take active part in the conferences, seminars, training and projects of International Labour Organization and other organizations to keep abreast of the latest labour standards and practices and exchange and cooperate with other Member States.

(3) To improve intergovernmental coordination and cooperation mechanisms.

First, a safe, inclusive and open employment environment should be created. Where circumstances permit, an open and inclusive legal labour absorption mechanism should be established; and relatively relaxed labour access and labour licensing for foreign workers should be implemented; Efforts should be made to facilitate and liberalize cross-border labour migration within the limits of national security. Secondly, cross-border labour service cooperation should be carried out. We should incorporate cross-border labour service cooperation into the framework of regional bilateral cooperation, actively join hands with neighboring countries to carry out cross-border labour service cooperation, jointly formulate overseas labour service cooperation agreements and institutional rules for border migrant labour access, and strengthen international rules on labour governance and international and regional input in public goods, technical equipment and funds. We should establish a cross-border industrial chain division and cooperation system involving overseas workers, establish a benefit sharing and coordination mechanism between labour exporting and importing countries, and promote the transformation and upgrading of social governance of overseas workers from “safe” to “economic” governance. Thirdly, we should strengthen information communication and transparency in information disclosure. We should timely understand the problems and needs concerning the protection of the rights and interests of overseas workers, ensure that overseas workers have the right to obtain relevant information, and supervise and restrict the information disclosure of enterprises. We should strengthen exchanges and cooperation on labour laws, regulations and supervision, establish a supervision mechanism to supervise the operation of enterprises in labour-importing countries, ensure that they comply with local labour laws and international labour standards, and protect the rights and interests of overseas workers. Fourthly, the special fund and insurance system should be established. A special fund and a social insurance system for overseas workers shall be promoted to be established to provide overseas workers with necessary support for living and protection, relieve their living difficulties, and solve the problem of social insurance benefits. Fifthly, the social responsibility management of transnational enterprises should be strengthened. Enterprises should be supervised and urged to operate in compliance with regulations; and the legitimate rights and benefits of overseas workers should be protected. The implementation of corporate social responsibility should be supervised through the formulation of stricter corporate social responsibility standards, and corporate social responsibility awareness should be improved through training and other means.

(The author is associate professor at Law School of Yunnan University)