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China and the ILO

January 20, 2001

Formalistic cooperation masks rejection of key labor rights

 

 

The reservation China entered when it ratified the International Covenant on Economic, Social and Cultural Rights (ICESCR) blocked the application of a clause of the treaty guaranteeing workers the right to form and join trade unions of their choice. This is just the latest indication of the fact that China rejects some of the agreed principles in the international labor regime established by the International Labor Organization (ILO), as this examination of China’s cooperation with the world labor body by China Labour Bulletin (CLB) shows.

 

 

 

 

 


 

 

China’s changing relationship with the International Labor Organization (ILO) and its role within it reflect the changes that have taken place in China over the last thirty years. In the early 1970s, China declared itself a “non active member.” This was perhaps unavoidable, as the country hardly possessed the tripartite structure of employers, trade unions and government on which ILO membership is based. Since then, Chinese society has changed beyond recognition and the government has gradually increased its activities at the ILO, which it now regards as an important international forum for the pursuit of national interests.

Yet the history of China’s increased presence at the ILO has been far from straightforward. As late as 1989, six years after China’s first post-1949 delegation attended the ILO’s annual conference in Geneva, Chinese official Guan Jinghe explicitly laid down the limits of China’s adherence to ILO norms and conventions. Guan announced that, “[S]ince China is a large country and only officials responsible for handling standards-related matters… grasp the significance of labor standards, it is not possible to meet with the requirement of extensive application of ILO Conventions and Recommendations.” This statement apparently meant that the Conventions would not be applied in China because knowledge of them was restricted to a small number of officials.

The 1989 Democracy Movement saw the Chinese government fulfilling Guan’s statement. Indeed, the government flouted principles central to the ILO’s existence when it cracked down on groups that sought to form independent unions. Ironically, it was the Workers’ Autonomous Federations (WAFs) which implicitly called for compliance with the standards of ILO conventions by demanding official recognition for these organizations during the 1989 Democracy Movement.

Despite the international condemnation that followed the state violence of June 1989 - including censure from the ILO itself - China continued to increase its capacity at various ILO fora. Within four years of the repression, a Chinese representative to a meeting of experts on Convention 26 (Minimum Wage-fixing Machinery) held in 1993, expressed China’s interest in ILO standards and stressed the government’s “positive attitude of cooperation.”

China has progressively extended its relationship with the ILO as its economy has increasingly integrated into the global trading system. Indeed, by June 2000, the social perspective of China’s market reforms was placed firmly within the parameters of ILO guidance and expertise. China’s labor minister, Zhang Zuoji, assured delegates to the International Labor Conference (ILC), the ILO’s annual meeting, “The Chinese government is willing to strengthen its cooperation with the ILO and all of its members, to share and use for reference their experience in improving the construction of labor markets and the establishment of social security systems, in order to jointly promote the development of world labor insurance.”

 

 

 

 

THE ILO MANDATE: THEORY VS. REALITY

 

The ILO was formed in 1919 at the height of working class militancy motivated by the horrors of the First World War and by the October Revolution in Russia. This historical context clearly resulted in the ILO’s emphasis on the protections for the working class reflected in the ILO mandate:

 

 

 

The ILO formulates international labor standards in the form of Conventions and Recommendations setting minimum standards of basic labor rights: freedom of association, the right to organize, collective bargaining, abolition of forced labor, equality of opportunity and treatment…

Although these standards remain to be universally implemented, they continue to guide all genuine trade union activity. They have also recently become the basis for the ILO Declaration on Fundamental Principles and Rights at Work which was passed after much debate at the 1998 ILC.

Despite its status as a founding member of the ILO, the China case revealed the glaring contradiction at the heart of the organization - the gap between theory and reality. The Nationalist KMT government ratified all applicable Conventions that came before it and, in 1934, was elected a member of the ILO Governing Body. However, in a cruel inversion of China’s ascendancy at the ILO, at the same time, the Chinese working class was being subjected to vicious anti-union policies domestically. It is perhaps a sign of the structural weakness of the ILO - a structure based on “dialogue and persuasion” - that the same situation exists today.

Declaring itself in need of “time to increase its understanding of the ILO and become familiar with it,” the post-1949 government of China did not show any real interest in the ILO until 1971. In the early years of the People’s Republic, China assumed that its relationship with the ILO was based on the concepts of “specific exemption” and “specific entitlement.” The government did not regard itself as bound by Conventions it had not ratified and certainly did not refer to the ILO in formulating its domestic labor and social laws, most of which dated from a flurry of post-liberation legal activity in the early 1950s. As such, China’s participation in the ILO remained passive and limited to receiving fairly small-scale technical assistance. The Chinese government began to be an active member of the body after it sent its first post-1949 delegation to the ILC in 1983. Most ILC participants to the 1983 meeting welcomed the attendance of the Chinese delegation.

Full participation in the ILO in no way indicated that China was prepared to accept the core principles of freedom of association and collective bargaining. The two laws most closely pertaining to the ILO Mandate passed by the Chinese government since 1983, the Trade Union Law (1992) and the Labor Law (1995), have certainly been influenced by the ILO’s technical assistance programs. However, both violate core ILO principles.
The Trade Union Law denies workers the right to join a union of “their own choosing and without previous authorization.” The Labor Law does not grant workers the right to strike. While the right to strike is not specifically mentioned in Conventions 87 (Freedom of Association) and 98 (Right to Organize and Collective Bargaining), neither of which have been signed by China, the deletion of the right to strike from the revised 1982 Chinese Constitution has been criticized in successive trade union complaints to the ILO against the Chinese government.

The Chinese government’s denial of the right to strike appears to be increasingly entrenched, despite the fact that strikes are increasingly common in China. Although the National People’s Congress ratified the ICESCR in February 2001, it also entered a reservation on Article 8, Clause 1.A which guarantees workers the right to form and join trade unions of their choice. This means that the All-China Federation of Trade Unions (ACFTU) remains the only legal trade union in China. The ACFTU has repeatedly said that it will not lead strikes while the right to strike remains in legal limbo. Thus, workers who do conduct strike actions place themselves in great danger, and strike leaders are frequently sacked, arrested, imprisoned and/or sentenced to Reeducation Through Labor.

The watershed event in China’s relationship with the ILO was undoubtedly the government’s violent reaction to the appearance of independent workers’ federations in Chinese cities in 1989. Although these organizations were often small, community-based rather than workplace-based, and not formally opposed to the rule of the CCP, the Chinese government viewed them as a profound threat. Perhaps the example of Solidarity’s successes in Poland - and the support the trade union received from the ILO - had genuinely frightened the Chinese ruling class. Whatever the reasons, the State responded with troops and live ammunition. For many trade unionists, the emergence of independent workers organizations in 1989 was proof of what many on the ILO’s Governing Body Committee on Freedom of Association (CFA) had been arguing since its inception in 1951: the ACFTU was not a trade union and, as such, China was not honoring membership commitments.

 

CHINA’S RESPONSE TO COMPLAINTS
 

Formal complaints from the International Confederation of Free Trade Unions (ICFTU) to the ILO Governing Body CFA followed hot on the heels of the ILO’s suspension of all new technical assistance to China in the wake of 1989. China’s response to the complaints can be broadly divided into three stages.

China’s initial reaction was marked by claims that the ILO had no right to interfere in China’s internal affairs. This position was undoubtedly fueled by the fury over the ACFTU’s ouster from a workers’ seat on the Governing Body. During this period, the government continued to denounce the WAFs as criminal organizations and argued that freedom of association was no more than a means “to improve working conditions and promote peace.”

The second stage of China’s response, which lasted up until March 1992, was characterized by continued protestation that complaints constituted interference in its domestic affairs. During this period, however, China also began to supply some of the information requested by the Governing Body CFA. During stage three, China demonstrated a willingness to report and it also quietly dropped its claims about criticism being a form of interference.

The shift in China’s responses appears to indicate that the Chinese government realized it had more to gain from cooperation with ILO procedures than from making angry claims that the ILO had no right to “interfere.” The Chinese government quickly learnt how to limit damage to its reputation while continuing involvement in ILO activities such as regional seminars, technical programs and conferences. China realized that although it was, and is, in permanent violation of the ILO’s Constitution and Mandate, it can still take advantage of the structural compromise inherent in the organization.

China adopted a two-pronged strategy of limited compliance with ILO procedures and attempts to adopt the mantle of leadership for developing countries. China has, indeed, vocally called upon the ILO to concentrate on the level of global social and economic development of most ILO members when formulating standards. For instance, at the 1997 ILC, labor minister Li Boyong argued, “For developing countries which constitute the overwhelming majority in the membership, the existing labor standards, taken as a whole, do have the defect of being excessive in number and in criteria… At present, many countries, particularly developing countries, have yet to ratify more standards, this is not because of the lack of political will, but rather as a result of their limited capabilities.”

This position has been interpreted by trade unionists as a call to water down standards. The irony of a representative of a “workers’ state” arguing for weaker labor standards was apparently lost on Li Boyong. However, the larger lesson is clearly that China has discovered how to use the ILO adeptly.

 

COMPLAINTS AGAINST CHINA

 

Despite the government’s tactics, China must still face formal complaints against it. While these complaints have not changed China’s position on basic principles such as the freedom of association, they have had a genuine influence. They have also provided much needed solidarity for the China Labour Bulletin and other independent labor activists in China. Furthermore, they have consistently put the harsh reality of organizing in China into the global spotlight.

Since 1989 four complaints regarding China’s labor practices have been submitted to the Governing Body CFA. The first, CFA Case 1500, was submitted by the ICFTU in response to the 1989 repression of WAFs. The complaint included detailed information on the events of June 4, 1989, and condemned the government’s violent response to association of workers and students in the streets of Beijing and other Chinese cities. This complaint clearly helped highlight the fate of many workers, while much international attention was focused solely on the student protesters.

China attempted to place the WAFs outside the parameters of the CFA, which only deals with complaints pertaining to peaceful organizations, by claiming they were violent. To its credit, the CFA reminded China of the ILO’s Constitution and the Declaration of Philadelphia. It also pointed out the disparity between the ICFTU and the government version of the June Fourth events. Crucially, the CFA also accorded credibility to the WAFs themselves by asserting that they conformed to the ILO’s understanding of a worker organization. Finally, the CFA asked China to reexamine existing labor legislation and provide more details about the whereabouts of WAF leaders, as well as on those who had died.

A second ICFTU complaint, Case 1652, was lodged in June 1992. It addressed both the denial of freedom of association in the then-recently promulgated Trade Union Law, as well as China’s repression of the underground trade union organization, the Free Labor Union of China (FLUC). The FLUC was led by Liu Jingsheng, who later received a 20-year jail sentence. The complaint also brought attention to the lack of the right to strike and demanded that Beijing WAF leader Han Dongfang be allowed back into China to take up his trade union activities. (Although he is a Chinese citizen, Han had been expelled from China in 1993 when he returned home after receiving medical treatment in the United States.)

With support from the ICFTU, the International Transport Federation (ITF) brought the third complaint - Case 1819 - in January 1995. The complaint was based on the case of the Arcadia, a Greek-owned ship that subjected Chinese crewmen to beatings and withheld wages. While the Arcadia was docked in the Italian port of Ravenna, a number of crewmen approached a seaman’s union office in the port for help and advice. Upon their return to China, all 11 seamen were detained. Three of them subsequently spent more than a year in custody and were eventually charged with revealing “state secrets.” Although there is no reliable information on the legal resolution of the case, the seamen were ultimately released. Their release was probably a result of pressure from the ILO’s CFA, which upheld the complaint.

Nevertheless, the Chinese government has still not responded to the CFA’s call for compensation to the three seamen (see box). Also of interest is the more or less standardized Letter of Agreement for the Overseas Posting of Seafarers that the China Mariners’ Overseas Technical Services Company now issues to seafarers. Clause Three, quoted in full below, is in clear violation of the ILO Constitution and the Declaration of Philadelphia:

 

 

 

[3] In accordance with state security laws and regulations, Party A [crew member] shall not have contact with the ITF and other reactionary organizations; in accordance with the regulations of the China Mariners’ Overseas Technical Services Company, Party A may not engage jointly with other seafarers to make demands (etc.) to the ship-owner that are damaging to the image of Chinese sailors, or damaging to relations between Party B [the labor export agency] and the ship-owner. In case of violation, Party B will exact an economic penalty from Party A. Where circumstances are serious, Party B shall pursue legal liability in accordance with the law.(emphasis added)

In response to the complaint, the CFA report to the Chinese government stated that “[T]he committee urges the government to guarantee and respect the rights of Chinese seafarers to form trade unions of their choice and to affiliate with organizations freely chosen by them, including directly with an international organization if they so wish.” Moreover the Committee clearly demands that China refrain from “having recourse to any act of anti-union discrimination, especially the arrest and detention of Chinese seafarers who pursue their legitimate grievances through the organization of their choice (in the present case the ITF).”

Again lodged by the ICFTU, the most recent complaint - Case 1930 - stressed the need to obtain information on the whereabouts of detained labor activists, the chronic failure to implement the labor law and the issue of collective bargaining. China’s response to this complaint was the fullest of any to date. The government claimed it had made inquiries and could confirm that collective bargaining was widespread in China. However, it ignored the issue of the lack of freedom of association, without which collective bargaining is reduced to a farce. Instead, it replied that the labor activists mentioned in the complaint had all been identified as criminals or people in need of Reeducation Through Labor.

This complaint was processed at a time when the Chinese authorities were deliberating over the sentences of Shenzhen labor activists Li Wenming and Guo Baosheng, who were both mentioned in the ICFTU complaint. Although found guilty of conspiring to overthrow the government, a charge that can carry a sentence of 10 years and longer, the two were eventually given lighter terms of three-and-a-half years. Although it would be presumptuous to conclude that the complaint resulted in the “light” sentence, it was definitely contributed to the considerable pressure from the international labor movement on these cases.

 

INCREASING FORMAL COOPERATION

The overall picture of the evolution of China’s involvement with the ILO is clear: procedural compliance; an increased willingness to employ the standards set in non-controversial conventions such as Convention 26 on minimum wages and Convention 170 on hazardous chemicals in its domestic legislation; and a steadfast refusal to compromise on the issue of freedom to organize and join a trade union of one’s choice. China has admittedly recognized the pre-1949 ratification of Convention 144 which states that workers and employers organizations attending the ILO should enjoy freedom of association. However, this convention is sufficiently obscure so as to not pose a threat to the Chinese government’s position.

From ignoring the ILO and its conventions, China has moved to viewing the organization as important to its international status. Indeed, the recent contacts and calming of tensions between the ACFTU and the ICFTU appear to relate directly to China’s tactics at the ILO. During the ICFTU-Asia Pacific Regional Office (APRO) visit to China in 1997, the ACFTU explicitly stated that it feels it is being denied its rightful place as a worker delegate on the ILO’s Governing Body. The ICFTU is blocking the ACFTU’s assumption of this seat. Clearly, the government views the ACFTU’s potential normalization of relations with the ICFTU as an important step toward the ACFTU regaining its position on the Governing Body and increasing China’s influence in the organization.

China Labour Bulletin concludes that trade union delegations to the ILO should regard China’s progress with great caution. The Chinese government has consistently argued against any strengthening of the ILO’s supervisory mechanism. Furthermore, it voiced strong opposition to the 1998 initiative, the Declaration on Fundamental Principles on Rights at Work, until it was assured that the core labor standards in the Declaration would not be immediately applicable. The Chinese government and the ACFTU seemingly want the ILO to remain a body with limited power. CLB believes that achieving the opposite must be the aim of genuine trade unionists active at the ILO. Indeed, strengthening the authority of ILO conventions and recommendations and enforcing their genuine implementation as soon as possible must remain the objective and priority.

In preparing this article, CLB drew heavily on the valuable information presented in Ann Kent, China the United Nations and Human Rights: The Limits of Compliance (University of Pennsylvania Press, 1999)

China Labour Bulletin (CLB) is a Hong Kong-based labor rights monitoring organization. More information on CLB and its activities can be obtained on the internet at: www.china-labour.org.hk or by writing to: P.O. Box 11362, General Post Office, Hong Kong.

 

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