The chief negotiator of the European Union’s new investment deal with China has defended the forced-labour provisions, saying that Beijing’s obligations to ratify key international standards “can be measured over time”.
Speaking at a webinar on Wednesday, Maria Martin-Prat said Brussels would continue to push “autonomous measures on forced labour”, implying that it would be unreasonable to expect an investment treaty to be a silver bullet for such social issues.
“Even though we think it’s very important to engage, for instance, in the ratification of the ILO (International Labour Organization) conventions, and to work with other countries to make sure that practices such as forced labour are eradicated, we don’t believe the EU can achieve that goal on that basis only … what partners may be willing to commit themselves to do under a treaty. And we are looking into, as well, autonomous measures to fight against forced labour,” she said.
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As part of the EU-China Comprehensive Agreement on Investment (CAI), signed on December 30, China agreed to make “continued and sustained efforts on its own initiative to pursue ratification of the fundamental ILO Conventions No 29 and 105, if it has not yet ratified them”.
The named conventions are related to forced labour and were among the final chapters of the deal to be agreed, according to an early draft of the text seen by the South China Morning Post.
Part of the text was unveiled this week, as China continues to face intense scrutiny for the alleged use of Uygurs and other ethnic minority groups in forced-labour camps, mainly in the Western region of Xinjiang. China has denied the charges.
A European Commission representative on the webinar, who asked not to be named, said that “China must take steps, and it will be increasingly difficult as time passes to justify that you’re working towards a ratification process”, should Beijing not be moving in the right direction.
They pointed to a ruling this week on the EU-South Korea free-trade agreement which found that Seoul had not made sufficient efforts towards ratifying core principals of the ILO as part a free-trade agreement with the EU reached in 2009. Despite this, the panel found that Korea had not “breached” the terms of the deal.
“I think you can, for instance, see that the commitments are practically identical to those that were taken by Korea in its free-trade agreement,” the representative said.
But critics have said that this could be indicative of how such provisions might work under the CAI.
“The language in the CAI is even weaker; I don’t see how the EU can aggressively enforce this,” said Henry Gao, a professor of trade law at Singapore Management University.
More analysts have suggested that the Korean case shows how difficult China’s labour commitments will be to enforce, since they are not applicable to the state-to-state dispute-settlement cause of the CAI.
Steven Peers, a professor specialising in EU and trade law at the University of Essex, said the Korean ruling “sends a converse message to non-EU countries: that a delay of nearly a decade in ratifying such conventions, including extra tardiness in ratifying one important convention, is acceptable”.
“In particular, we now know that this is the message that the EU would be sending to China via the EU-China investment treaty as regards China ratifying ILO forced-labour conventions. Whether this is sufficient will likely be subject to much debate in the near future,” Peers said in a blog post.
The European official denied a rumour circulated by a prominent European parliamentarian claiming that, after the deal was signed, China tried to add a clause that would punish EU states for banning Huawei from their 5G networks.
“I hear that in the so-called ‘legal scrubbing’ phase of work on CAI the Chinese side is trying to reintroduce their request that member states which limit Huawei access to 5G networks should not benefit from market opening in China,” tweeted Reinhard Butikofer, chair of the European Parliament Delegation for Relations with China.
#CAI ALERT: I can't prove this, but I hear that in the so-called "legal scrubbing" phase of work on CAI the Chinese side is trying to re-introduce their request that member states which limit Huawei access to 5G networks should not benefit from market opening in China.
— Reinhard Bütikofer (@bueti) January 25, 2021
The unnamed official said that such claims “really don’t respond to reality”.
“Legal scrubbing is legal scrubbing, the negotiations are closed. They were closed in principal at the end of the year. I don’t see how and why people argue that there will be reopening to include anything related to telecommunications or related to Huawei.”
The early draft of the agreement seen by the Post suggested that China had pushed to include such a clause, which would have removed CAI benefits for EU states that banned Huawei.
At the webinar, hosted by the Institute for International Trade at the University of Adelaide in Australia, Bryan Mercurio, a trade law professor at Chinese University of Hong Kong, said the EU should avoid overselling what it perceives to be the deal’s human rights chops.
“This is a services-and-investment agreement,” Mercurio said. “We cannot expect it to be a comprehensive labour or environment agreement. If that’s what we wanted, negotiate a labour or environment agreement. Don’t expect trade and investment to solve every problem in the world.”
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