Report of the Asia Pacific Dispute Resolution
Coordinating Performance in International Trade and Human Rights
Discussion of Ongoing Research Symposium
Peter A. Allard School of Law
The University of British Columbia
Vancouver, BC
October 27, 2017
The Asia Pacific Dispute Resolution (APDR) project was designed to address the challenge of coordinating local compliance with international trade and human rights standards in the Asia-Pacific region. Supported by the Social Sciences and Humanities Research Council (SSHRC) of Canada under its Major Collaborative Research Initiative (MCRI) program, the APDR project involves a collaborative network of academics and researchers from the University of British Columbia (UBC) and from partner institutions in Canada, Australia, China, India, Indonesia, Israel, and Japan. Through an interdisciplinary program of research, analysis and policy intervention, the project has contributed to conceptual understanding and policy analysis supporting coordinated compliance with international standards on trade and human rights.
The Discussion of Ongoing Research symposium involved panel discussions on future research initiatives and directions for the core theoretical and empirical findings of the APDR Research Project. Dr. Pitman Potter, APDR Principle Investigator, welcomed all the presenters and attendees to the symposium expressing his heartfelt appreciation and gratitude to all the Project Co-investigators, Collaborators, Institutional Partners Organizations, the International Advisory Board Members, Members of the Executive Committee, Peter A. Allard School of Law, the Institute of Asian Research, all the Research and Graduate Academic Assistants, all the Collaborating Organizations, Research Personnel and the Project Manager for their contribution, collaboration, dedication and hard work throughout the years that made this project such a great success. In his remarks, Dr. Potter introduced the APDR project highlighting some of the major accomplishments reached throughout the years. Some of those accomplishments have been illustrated in the form of multiple publications and policy proposals that have emerged showcasing the results of the research teams. Dr. Potter explained that this symposium aims at presenting some of the future continuing research initiatives done by graduate students and emerging scholars as they have related to the APDR project, which illustrate the future avenues of inquiry that the project has sparked.
The symposium agenda was organized into panels and a keynote presentation by Professor Nicole Barrett, Director of the International Justice and Human Rights Clinic and Executive Director of Allard Prize Initiatives at Peter A. Allard School of Law at the University of British Columbia. The panels touched upon four of the main topics in which the results of the project have been organized – namely, coordinating performance between trade policy and human rights for: a) labour relations; b) development; c) transparency and government accountability; and d) local human rights. The presentations underlined differences between the local performance of international standards on trade and human rights as well as challenges of coordinating trade policy with human rights performance on national and international levels. Presentations ranging from the clean energy transition in India to the Canada-Colombia Free Trade Agreement and human rights impact assessment, clearly have demonstrated the cross-cultural and interdisciplinary discourses that recognize varying approaches to the respective roles of governments in trade policy, while also noting the importance of economic, social and cultural rights as foundations for international human rights standards. See agenda here.
Summary of presentations:
Panel 1: Trade Policy and Local Human Rights
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Naayeli Ramirez – The lack of good faith and the limit of the law in the consultation process with the Maya in Campeche.
In 2012, the federal government issued a first permit to produce and commercialize GM Soybean in 7 states in Mexico, including the 3 states of the Yucatan Peninsula (Campeche, Quintana Roo, and Yucatán). Several Mayan communities in Campeche and Yucatán decided to go to court against this permit and in 2015 the Second Room of the Supreme Court of Justice decided the permit was wrongly issued and that the communities have the right to be consulted in this regard. The court’s decision leaves without legal effects the permit and thus, GM soybean cannot be produced and commercialized in the Yucatán Peninsula according to the law. The consultation process began in 2016 and until now there has been no significant progress. The main reason is that the federal authorities do not recognize the authority of the representatives and authorities elected and appointed by the Mayan communities. This position goes against the principle of good faith established in the law. The Mayan communities and their representatives have tried to continue the process of consultation through judicial applications, but no actions by the federal governments have been taken in this regard. Dr. Ramirez reflected on how the principle of “good faith” can be applied according to the law regarding the rights of Indigenous peoples in Mexico.
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Erika Cedillo – Understanding local contexts for the implementation of global standards
Expectations of globalization and legal convergence are in tension with the local contexts where global standards are implemented. Erika examines this tension by using the implementation in Mexico of the public policy exception from the New York Convention for the Recognition and Enforcement of Foreign Arbitral Awards. Her research evidences the impact that local conditions have in the operation of global standards. In her presentation, Erika argued that it is necessary to examine local contexts in terms that resonate with them in order to understand the local implementation of the public policy exception. Using Mexico as a case study, she suggested using four factors (language, legal tradition, legal context and legal culture) and specific local elements (legislation, scholarship, court decisions, and the perspective of local actors) to understand the local operation of the public policy exception. The examination of the Mexican context revealed, among other issues, that international trends on the interpretation of the public policy exception have not permeated to local courts and that the human rights amendment from 2011 is changing the way in which Mexican courts apply international treaties.
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Maia Berangere Parizeau – Dragon Tears
Maia’s presentation based on her thesis from her Master of Arts in Asia Pacific Policy Studies Program entitled “Dragon Tears: A Critical Analysis on the Political Ecology of Planetary Survival” examined China’s environmental collapse, human rights and health crisis, China’s policy environment and environmental legal doctrine in the context of neoliberalism, global disparity, transnational pollution, climate change, and the survival of the human specie. It included three case studies carefully chosen to synthesize the complexity of China’s environmental collapse, policy environment, and enforcement capacity. This research has been effectuated as the core research for “Dragon Tears,” a feature documentary film currently in production on the topic of China’s environmental collapse and health crisis in the context of climate change and the possibility of human extinction. “Dragon Tears” examines the context of contemporary global capitalism that has led to extreme inequality, ecological destruction, and the violent normalization of localized morbidity in China. This film demonstrates that both China’s and global ecological resilience capacities are decreasing rapidly, and establishes ecological principles for a paradigm shift.
Panel 2: Trade Policy and Labour
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Adam T. Kingsmith – The Green Leap Forward? Precarious Labour in a Greening China
Building upon research from the forthcoming book The China Pivot, (Drache, Kingsmith, Qi) Adam’s presentation examined the tensions between China’s increasingly comprehensive environmental provisions and its labour policies in the context of China’s shifting expenditures from production to services. In accordance with its commitments to Paris Climate Accord, China’s trade agreements and policy initiatives under the framework of the One Belt, One Road (OBOR) Initiative have taken a more flexible approach and showed greater willingness to prioritize substantive environmental provisions. However, recent attempts by China to bring its heavy industries in line with these new environmental regulations and to initiate a sustained effort to move towards a greener economy has resulted in the laying off of thousands of heavy industry workers, (Guo, 2017). In an attempt to address this problem China has initiated a transition towards an economy with a larger service industry, which the government claims, will “help facilitate a joint strategy of stringent pollution control combined with job growth,” (PRC, 2017). Adam discussed President Xi’s vision of “the ecological civilization” in relation to benchmark environment and labour provisions to highlight the ways China maintains an inflexible position on labour rights, while also positioning itself as a leader against environmental degradation. It concluded with the increasing strain between precarious work and a “greening China” by surveying how current labour policies are plagued by a series of problems that will negatively affect China’s greener ambitions lest in considering new models of “employment configuration,” (Swider, 2015).
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Juan Li – Legal Culture of Construction Migrant Workers in China
In the past more than three decades, migrant workers have become an increasingly significant force in promoting social and legal changes in China. As such, their legal culture is worthy of studying for many reasons. This presentation focused on Dr. Li’s study on the migrant construction workers’ values, ideas, opinions, and attitudes with regard to the general legal system and legal reform in China, especially with respect to the three important aspects of employment relations, including labour contracts, labour dispute resolution, and trade unions, in the context of market economic reform in China and globalization. Based on an analysis of primary data collected from fieldwork undertaken in Hubei Province, a less developed province in central China, this presentation explored that imported Western legal norms, such as rule of law, rights, contract, litigation, trade unions, etc., so far, have limited influence on the popular legal culture of Chinese migrant workers, at least in the construction industry; while the Chinese traditional values, such as family ethic, morality, and harmony, still play a dominant role in their daily lives.
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Bethany Hastie – Development or Dependence? A Critique of the Triple Win Promise for Low-Wage Labour Migration
International labour migration is predicted on a “triple win promise”: that host (receiving) states will benefit from just-in-time labour needed to meet domestic economic demands in the labour market; that sending states will benefit from increased remittances and worker income which will contribute to local economic development; and, that individual workers will benefit from increased employment opportunities and individual income/economic growth. Contrary to this “triple win promise”, in this presentation Dr. Hastie presented low-wage labour migration in a critical light, arguing that it may, in fact, contribute to entrenched inequality between nation-states and for individual workers, and facilitate long-term dependence, rather than development, in the globalized marketplace. This presentation illustrated the enduring tensions identified through the APDR project between the local and the global, and between economic development (in a narrow conceptualization) and human rights. Focusing particularly on Canada’s Temporary Foreign Worker Program (Low-Wage Stream) and Seasonal Agricultural Workers Program, this presentation explored how the legal regulations governing these programs prevent meaningful opportunities for individual workers to achieve both economic and social mobility, and thus constrain the ability to realize the “triple win promise” for both workings and sending states. Specifically, this presentation drew attention to three key aspects of low-wage labour migration governance that operate to entrench inequality and dependence for workers: the designation of the work permit; (in)eligibility for permanent immigration; and, both formal and practical exclusion from domestic workplace rights. Dr. Hastie concluded by demonstrating the links between the consequences of these mechanisms for individual workers, and their broader impact on development in sending states.
Dean’s welcome and Keynote speaker
Dr. Catherine Dauvergne, Dean and Professor of the Peter A. Allard School of Law, offered a heartfelt welcome to all the attendees of the Discussion of Ongoing Research symposium. In her remarks, Dean Dauvergne expressed her gratitude to Dr. Potter for developing this research project at Allard School of Law. She recognized the important contributions that the APDR project has done not only with the results of the project but also with its multi-disciplinary and transnational approach. Additionally, Dean Dauvergne recognized that this project opened opportunities for collaboration between faculty members across campus and included graduate students from multiple disciplines, which expanded the positive effects of this project.
Dean Dauvergne also introduced the keynote speaker for the Discussion of Ongoing Research symposium, Professor Nicole Barrett, Director of the International Justice and Human Rights Clinic and Executive Director of Allard Prize Initiatives at Peter A. Allard School of Law at the University of British Columbia.
In her speech, Professor Barrett examined how to realize and protect universal human rights in the era of globalized corporations and production. Referring to global data about poverty, people working in forms of modern slavery and child laborers in hazardous forms of work, she suggested that while globalization may be working tremendously well for some, in particular the rich and powerful, it is not working for all. Giving this sobering reality, she suggested we must work vigilantly to address these inequities and attempt to provide basic dignity and human rights to more of the world’s people.
Professor Barrett addressed recent efforts by states to regulate their companies’ overseas activities. Currently, around forty states have or are developing national action plans for the Guiding Principles on Business and Human Rights and several states have begun to implement its central elements by strengthening human rights due diligence and reporting by companies. While some businesses and governments claim that these due diligence and transparency requirements are objectionable forms of extraterritorial jurisdictions, many human rights advocates say the requirements do not go far enough.
Following, Professor Barrett dedicated time to talk about two projects of the International Justice and Human Rights (IJHR) Clinic that touch upon issues of global trade. The first one touches upon trade and human rights in light of corporate globalization and focuses on Global Supply Chains. After an arduous research journey, the team at the IJHR Clinic created a list of recommended elements to build an effective transparency supply regime in Canada that includes a combination of reporting, auditing, monitoring, oversight, and compliance mechanisms. After releasing their report last June, this year they are translating their research and recommendations into draft legislation for Canada.
The second project of the IJHR Clinic seeks criminal accountability for grave violations of human rights resulting from large-scale land grabs for natural resource exploitation by national and transnational corporate actors, governments, and financial investors. Driven by novel policy direction from the International Criminal Court (ICC) Prosecutor’s office, the IJHR Clinic team drafted a manual that aims to assist international investigative bodies, prosecutors, and judges in evaluating the international law prohibiting serious land grabs as crimes against humanity. The manual provides a factual overview of the scope of the problem and its impacts and examines land grabs in Papua New Guinea, Brazil, Myanmar, and Cambodia. It then lays out the steps to prosecuting land grabbing as a crime against humanity under the Rome Statute.
Professor Barrett concluded her speech explaining that these projects demonstrate how research can matter in a very direct way if researchers explore opportunities outside of academia. The APDR Project led by Dr. Pitman Potter is an inspiration to search for those opportunities. She urged researchers to think creatively about what to do with their research for it to realize its full potential and to make the world a better place in the process. Read the full speech here.
Panel 3: Trade Policy and Development
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Poushali Maji – Clean energy transition in urban India
Clean cooking fuels provide multiple benefits in terms of development and well-being, air quality improvement and greenhouse gas mitigation. Urban India has seen a faster transition from solid fuels to cleaner fuels like gas, than rural India. However, this transition has been slow in low income groups, largely due to the relatively high costs of clean cooking fuel. This presentation provided evidence of the inequity in clean energy access in urban India and discussed policies promoting clean energy access as a developmental goal. The data from the National Sample Survey in India showed that: high and middle-income households in urban India have transitioned to ‘modern’ fuels like liquefied petroleum gas (LPG); low income households largely depend on solid fuels like fuelwood for cooking; and transition to an ‘intermediary’ clean fuel like kerosene was discouraged by government policy. Poushali referred to national policies in India that have universal energy access as a goal such as: Integrated Energy Policy (2006); Planning Commission (2014) with emphasis on ‘inclusive development’ and access to clean cooking fuel like natural gas or LPG for all households; and National Energy Policy (draft, 2017) in which access to clean cooking fuel at affordable prices is a key component of poverty alleviation. Additionally, some recent government ‘schemes’ included the ‘Give it Up’ campaign in 2015 to voluntary surrender LPG subsidy; the PMUY scheme in 2016 for subsidized LPG connections to below poverty line (BPL) households, and the recent announcement of removal of LPG subsidy by March 2018. Even though solid fuel use is a major cause for concern in multiple dimensions, equity in energy access has been slow to come by despite policy exhortations/attempts, thus, switching to LPG will require concerted efforts.
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Alison Yule – The Canada-Colombia Free Trade Agreement and Human Rights Impact Assessments: Coordinating Compliance between International Trade and Human Rights Regimes with Domestic Governance and Labour Rights in Colombia
The Free Trade Agreement between Canada and Colombia (CCOFTA) entered into force on August 15, 2011 including two side agreements, Labour Cooperation Agreement and Agreement Concerning Annual Reports on Human Rights and Free Trade. Trade relations between Canada and Colombia had been growing in the past decade, in particular in the extractive industries and agricultural production. However, Colombia’s history of violence against trade unions and unionist and other violations of human rights made Human Rights Impact Assessments (HRIA) an important element in CCOFTA negotiations. In her presentation Alison discussed the key findings of the HRIA Reports from 2016 and identified six pitfalls of HRIAs: political challenge, weak methodology, their voluntary nature, weak labour rights enforcement mechanisms, over-reliance of the establishment of a “direct causal link” between free trade and human rights violations, and over-emphasis that human rights violations predate the entry into force of the CCOFTA. In order to draw the causal link between trade and human rights violations, Alison presented two case studies from Colombia related to the trade sector: violence against trade unionists and the continued impunity to prosecute them. Finally, she brought attention to recommendations from scholars and NGOs, as well as to significant improvements that have been noticed with the Canadian Liberal Government since 2016 to conclude that more action is needed by establishing more concrete enforcement mechanisms to strengthen labour and human rights in Colombia.
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Bingyu (Gloria) Liu – Addressing the China Problem in Southeast Asian Countries’ Environmental and Social Governance — An Analysis of the Role of Financial Institutions to Regulate Chinese Overseas Infrastructure Companies’ Performance
In the context of the “One Belt, One Road” (OBOR) Initiative, while Chinese companies have brought many benefits to southeast Asian countries, its overseas investment projects have also sparked controversy around its environment and community impacts. Among different stakeholders involved in Chinese overseas investment projects, financial institutions play an important role in guiding capital towards sustainable investments overseas. In her research, Gloria examines how Chinese financial institutions perform to integrate environmental and social considerations into their lending policies, and what Chinese financial institutions should do to promote Chinese sustainable investment overseas. In order to address these topics, Gloria analyzed the financial institutions involved in OBOR investment projects; the development overtime of China’s policy support to promote green finance; and the environmental and social framework of China-led financial institutions. By comparing with environmental and social safeguard frameworks of international, regional and national policy and commercial banks, her research proposes that an increasing awareness of green finance and a more transparent information disclosure system can further promote Chinese financial institutions to address environmental and social risks brought by Chinese infrastructure companies operating overseas.
Panel 4: Trade Policy and Government Accountability
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Yue Liu – Constructing Autonomy and Accountability: Challenges to Chinese Judges in Contemporary Judicial Reform
When achieving the goal of coordinating international trade policy and human rights standards, the differences of local political economy and cultural values often tend to be the inherent obstacles to the linkage between these two international legal regimes. The effort to integrate and strengthen human rights by trade policy performance is more difficult in some economies, such as China. Thus, a focus on the local context and circumstance, and a local perspective on the policy-making process and institutional building of a government branch might provide insights to the understanding of policy transformation and institutional capacity of a government regarding its performance of international obligations. This presentation offered a local perspective and a case study and it was grounded on Dr. Liu’s research on judicial reform in China from the 1980s to 2015. Focusing on the autonomy and accountability of judges in the judicial decision making process in Chinese courts, her research addressed the following questions: how do the Chinese Communist Party (CCP), the public, and the internal administrative power—three factors essential to Chinese judges’ judicial decision making process—influence the adjudication of individual cases in various periods of judicial reform?; how do the increasingly professionalized judges respond to these institutionalized challenges?; moreover, how do the dynamics generated from the interactions among courts, the CCP, and the public shape the norms and institutional building of judges and courts, and affect judicial reform policies in China?
To clarify the interaction of CCP, the public and the courts, Dr. Liu used the Political Legal Committee, the media and administrative structure of the court as three dimensions to pinpoint the dynamics between CCP, the public, and the courts. Her research found that;
- Direct influence of the CCP and the public to the judicial behaviors of individual judges is less evident than indirect influence through the administrative oversight in courts’ internal bureaucracy.
- The relationships between courts, the CCP, and the public are more dynamic in fragmented China. The norms of Chinese judges’ autonomy and accountability and the intuitional capacity of courts are constantly shaped by the expectations and power bargains of the CCP, the public, and courts.
- Building independent and accountable judges in dependent courts without insulation from the external influences is not achievable by the current Chinese judicial reform agenda.
This Chinese-judiciary focused research emphasizes the local context and the individual institutional actors, either the local courts or ordinary judges, to illuminate the complex political structure and dynamics in an increasingly fragmented and decentralized China. Even with the absolute leadership of the CCP, policy-making and institutional building in China are processes influenced by multiple factors, such as the public expectation and fragmented bureaucratic interests, which tend to create policy space for the adaptation and integration of international human right standards. Dr. Liu’s research also demonstrates how the local authority strategically responds to national policy and implements and transforms the national policy in a flexible and innovative way. This local experiment and bottom-up approach to shape policy making also exhibits a promising approach to enhance the government accountability in China.
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Chao Wang – Government Procurement and Its Implications on Government Accountability and Human Rights
In his presentation, Dr. Wang addressed the implications of international and domestic government procurement rules on government accountability, transparency, and human rights. China’s situation on this matter include: an authoritarian state dominated by the Communist Party; issues of transparency and accountability; lack of judicial independence and check and balance of power; and human rights issues. Dr. Wang suggested that better procurement rules and practices can improve the transparency of government decision making, efficient use of funding, and human rights performance in labour, healthcare, among others. Liberal democracy and membership of the Agreement on Government Procurement (GPA) are not feasible and sufficient solutions for China’s public procurement reform. China’s public contract system can be partially improved without fundamental reform through the following proposed solutions:
- The creation of a unified independent review body with members selected internationally and endorsed by the central government.
- Inclusion of state owned enterprises (SOEs) in public procurement.
- Unification of Government Procurement Law (GPL) and Tendering and Bidding Law (TBL) to solve the conflicts between these laws concerning the procuring entities and supervisory authorities.
- Unification of public purchasing and selling. If the GPL and TBL are unified, a unified independent review body can be the supervisory authority for both.
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Godwin Dzah – Environmental Rights and State Accountability in Africa
Using the case of Ghana, in this presentation, Godwin examined the role of the state in the observance of environmental rights, how to get states to move from ratification of treaties to actual domestic implementation, and the use judicial activism and greater citizen participation to impel state accountability. This presentation contrasted views of state accountability between Western-centric explanation based on individualistic values and Asian and African cultural explanations of accountability based on collective fault. Godwin suggested that the modern State is publicly accountable for the exercise of the powers conferred on it, including the power to enter into treaties and implement them domestically. He brought attention to the significance of the African Charter on Human and People’s Rights as a binding document between state parties that introduces new perspectives into international law regarding peoples’ rights, citizen duties, and duties of states. Ghana ratified the African Charter and was required to implement it, including the right to the environment. However, Ghana has not given effect to this treaty obligation in its domestic law. There is uncertainty in Ghana over whether the African Charter can in fact be relied upon in court if it is unincorporated. He concluded his presentation explaining that: judicial reform complements broader citizen (social) action; the doctrines of virtual incorporation, trans judicial communication and legitimate expectation can expand the human rights framework for environmental protection; judicial activism would impel both Executive and Legislature in Ghana to take their treaty incorporation seriously; and citizens would be able to invoke the rights guaranteed under human rights treaties.
Speakers in the panels analyzed the respective roles of local, national and international regulatory bodies, highlighting lessons learned and possible approaches to strengthen economic globalization while mainstreaming human rights. In the context of diverse social, political and economic environments and a wide range of complex issues such as: green energy, environmental protection, indigenous peoples rights, international labour migration, and transparency and government accountability, it has become increasingly relevant that coordination of international trade standards while ensuring the protection of human rights is a continuous conceptual and organizational challenge, and there is a growing need for governance structures that can handle this complexity.
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