China’s massive Belt and Road Initiative continues to expand its project financing activities to around 147 countries in the world as of this writing. This exceptional global footprint, undertaken primarily through sovereign lending or sovereign-driven financing, puts China in a privileged position of international responsibility to ensure respect, protection, and fulfillment of human rights in global business activities. This post shows that China’s numerous international human rights treaty obligations and unilaterally-assumed legally binding commitments under its Universal Periodic Review already encompass specific obligations upon China to act under duties to prevent and redress human rights impacts in its Belt and Road Initiative. The 2024 Advisory Opinion of the International Court of Justice in Legal Consequences Arising from the Practices and Policies of Israel in the Occupied Palestinian Territory, Including East Jerusalemreiterated the Court’s pronouncement that “international human rights instruments are applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory.” (para. 99 of 2024 Advisory Opinion).
To the extent that China can be seen to exercise any form of its jurisdiction outside of its own territory through Belt and Road Initiative projects abroad (e.g. whether through any effective control exercised over the actual conduct of borrowing States in the BRI; effective control over the conduct of Chinese natural or juridical persons operating in BRI projects; or effective control exercised over territories and populations in which BRI infrastructure projects are being undertaken), China’s commitments under international human rights treaty and customary law will thus continue to apply with respect to any such extraterritorial exercises of jurisdiction throughout BRI countries. Unfolding recent reports (see here, here, and here) show considerable variability and heterogeneity over the contours, terms, and impacts of BRI infrastructure operations throughout the world. Due to the continuous expansion, scope, and duration of the BRI infrastructure connectivity projects, China — arguably more than any other State in the world thus far — has a direct and critical ability to influence the lived experiences and enjoyment of civil, political, economic, social, cultural, and environmental rights throughout diverse human populations and communities around the world. After the International Court of Justice’s landmark July 2024 Advisory Opinion, the extraterritorial applicability of international human rights law obligations to this global network of infrastructure connectivity projects spanning most of the world’s population and territory is well worth revisiting.
The Applicability of China’s International Human Rights Treaty Obligations to its Belt and Road Initiative
The People’s Republic of China is a State Party to the International Covenant on Economic, Social and Cultural Rights (ICESCR), the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), the Convention against Torture (CAT) and Other Cruel, Inhuman and Degrading Punishment, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the Convention on the Rights of the Child (CRC), among several international human rights and related treaties. States Parties to the ICESCR, such as China, have the specific obligation to respect economic, social, and cultural rights and not to violate such rights when these States Parties “prioritize the interests of business entities over Covenant rights without adequate justification, or when they pursue policies that negatively affect such rights.” Likewise, States Parties to the ICESCR, such as China, have the obligation to protect economic, social, and cultural rights and to this end “must effectively prevent infringements of economic, social and cultural rights in the context of business activities.” These obligations apply in both territorial and extraterritorial dimensions: “extraterritorial obligations arise when a State party may influence situations located outside its territory, consistent with the limits imposed by international law, by controlling the activities of corporations domiciled in its territory and/or under its jurisdiction, and thus may contribute to the effective enjoyment of economic, social, and cultural rights outside its national territory.” In the particular case of China’s outsized role as sovereign lender (and/or development contractor) in innumerable infrastructure and connectivity projects across over 70 States under China’s Belt and Road Initiative (BRI), China remains bound to ensure that it sufficiently regulates the business activities of corporations domiciled in China or under its jurisdiction to prevent any violation of economic, social, and cultural rights in the territories of host States to BRI investment.
Responsible Development and International Law
The same extraterritorial application of China’s human rights obligations under ICERD, CEDAW, CAT, CRC, among other international human rights and related treaties, militates in favor of China’s duty to actively regulate business activities in BRI countries to prevent violations of international human rights protected under these treaties (ICERD Articles 2, 3, and 5; CEDAW Articles 2 and 3; CAT Article 2; CRC Articles 2, 3, and 5). The International Court of Justice has long affirmed the duties of States to prevent violations of human rights obligations even outside their territories in Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa), when the Court declared that:
“South Africa, being responsible for having created and maintained a situation which the Court has found to have been validly declared illegal, has the obligation to put an end to it. It is therefore under obligation to withdraw its administration from the Territory of Namibia. By maintaining the present illegal situation, and occupying the Territory without Title, South Africa incurs international responsibilities arising from a continuing violation of an international obligation. It also remains accountable for any violations of its international obligations, or of the rights of the people of Namibia. The fact that South Africa no longer has any title to administer the Territory does not release it from its obligations and responsibilities under international law towards other States in respect of the exercise of its powers in relation to this Territory. Physical control of a territory, and not sovereignty or legitimacy of title, is the basis of State liability for acts affecting other States.” (Italics added, at para. 118.)
“…the Court considers that the International Covenant on Civil and Political Rights is applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory…The International Covenant on Economic, Social and Cultural Rights…applies both to territories over which a State party has sovereignty and to those over which that State exercises territorial jurisdiction.” (Italics added, at paras. 107-111).
Significantly, in its 22 March 2023 Concluding Observations on China’s Third Universal Periodic Review, the United Nations Committee on Economic, Social and Cultural Rights noted the extraterritorial impacts of China’s Belt and Road Initiative, expressing concern about “reports of the negative effects of [China’s] lending practices and conditions in connection with the Belt and Road Initiative infrastructure development in third countries, which are negatively affecting the enjoyment of economic, social and cultural rights in third countries.” (para. 22). The Committee specifically held that China should “(a) review its current loan repayment conditions to ensure that borrowing countries are not overloaded with unsustainable debt…;(b) ensure that future loans are negotiated in accordance with international best practices and with a view to protecting and facilitating the enjoyment of economic, social and cultural rights, including a transparent process free from corruption; (c) extend loans only to projects with a sustainable cost-benefit ratio and that entail the use of the borrowing country’s domestic suppliers and laborers; (d) rely less on lengthened payment timetables and extended grace periods for borrowing countries that are having repayment difficulties and more on renegotiation and/or debt cancellation; and (e) ensure that conditionalities contribute positively to the enjoyment of human rights, particularly economic, social and cultural rights.” (at para. 23.) As a State Party to the International Covenant on Economic, Social and Cultural Rights, the Committee emphasized that China likewise owes extraterritorial duties to ensure respect for the enjoyment of economic, social, and cultural rights in third countries affected by BRI projects.
The BRI’s Human Rights Concerns
Since the 2013 launch of the Belt and Road Initiative by China’s President Xi Jinping, numerous adverse human rights impacts have been reported from around a decade of projects undertaken worldwide through the Belt and Road Initiative. Construction of the Lower Sesan Dam in Cambodia, which was undertaken by a Chinese state-owned company as part of the BRI, was reported to have resulted in the forced displacement of thousands of indigenous peoples and ethnic communities, the lack of transparency of information on project impacts, the lack of consultation with indigenous peoples and ethnic communities, and severe environmental impacts. Forced labor practices, trafficking, debt bondage, arbitrary wage garnishing, intimidation and threats, physical violence, poor living conditions, and other labor abuses have been widely reported in many BRI projects in African, European, Middle Eastern, Asian, Pacific, Latin American, and Caribbean countries. Reeducation programs, forced encampment, forced abortions and sterilizations of Uyghur women, de facto slave labor, and a whole slew of human rights violations and anti-Islamic policies against Uyghurs in Xinjianghave also been reported as part of BRI labor practices. The Business and Human Rights Resource Centre (BHHRC) published its own report in 2021, specifying 679 incidents of serious and sustained human rights abuses committed by Chinese companies under China’s Belt and Road Initiative, most especially in Southeast Asia projects in Myanmar, Laos, Cambodia, and Indonesia. Displacement, forced labor practices, and reeducation programs have contributed to a track record of human rights violations across China’s BRI developments.
These adverse human rights impacts also stem from environmental violations. Despite China’s projection of the Belt and Road Initiative as an alternative to international development lending, it appears that the human right to a healthy, safe, sustainable, and clean environment has also been seriously imperiled by BRI projects, which often entail massive impacts such as deforestation, water contamination from mining operations, communities’ displacement from land without consultation or compensation, and generating massive emissions of greenhouse gases, as reported in the International Federation for Human Rights’ ongoing BRI Watch publications from June 2020 to March 2022. Sustainability concerns and recommendations have also been raised in regard to the carbon footprint of Belt and Road Initiative projects, especially in dense cities.
China’s leveraging of debt financing to gain geopolitical power further exacerbates the country’s human rights violations. With 147 countries having signed on to BRI projects (or which have expressly indicated their intention to do so), the Council on Foreign Relations observes that the usual terms of the debt financing contracts under the BRI “often contain clauses…[where] China also frequently retains the right to demand repayment at any time, giving Beijing the ability to use funding as a tool to enforce Chinese hot button issues such as Taiwan or the treatment of Uyghurs….China views BRI projects as a commercial endeavor, with loans close to a market interest rate that it expects to be fully repaid…Some BRI investments have involved opaque bidding processes and required the use of Chinese firms. As a result, contractors have inflated costs, leading to canceled projects and political backlash.” Moreover, the dual-use functionality of China’s “Shekou model” of building integrated ports, parks, and cities, remain subject to possibilities of China’s takeover in the event of payment defaults, as shown in the problematic cases of China’s takeover of Sri Lanka’s Hambantota port, China Merchants’ operational control of Djibouti’s ports in Africa, and China’s control of mining operations in Ecuador. Human rights impacts that were reported from such serious losses of sovereign control or ownership of a country’s resources to China in Sri Lanka, as well as in Djibouti and Ecuador, include mass forcible evictions and land displacement of indigenous peoples, worker abuses and labor violations, violations of the right to an adequate standard of living, the right to a healthy safe sustainable and clean environment, and the right to development, among others. The continuing lack of transparency over China’s sovereign lending practices in BRI projects, especially on the terms of China’s new bailouts or rescue loans for already heavily indebted BRI borrowing countries (and the undisclosed taxpayer burdens or natural resources burdens entailed by deeper public borrowing), also creates a significant obstacle to safeguarding the fundamental right of peoples not to be deprived of their own means of subsistence under Article 1(2) of the International Covenant on Economic, Social and Cultural Rights.
In 2019, China’s President Xi Jinping declared that the Belt and Road Initiative “must be green and sustainable”. The United Nations Agenda 2030 for Sustainable Development, which China also signed, specifically states that Agenda 2030 is “guided by the purposes and principles of the Charter of the United Nations, including full respect for international law. It is grounded in the Universal Declaration of Human Rights, international human rights treaties, the Millennium Declaration, and the 2005 World Summit Outcome. It is informed by other instruments such as the Declaration on the Right to Development.” (Agenda 2030, at para. 10.) Accordingly, while China has increasing influence in the international human rights system through the BRI (with at least 35 member States of the UN Human Rights Council being BRI borrower States in Asia and Africa) and its own leadership within the United Nations, China can wield its influence responsibly by taking the lead on internalizing human rights in its administration of its BRI lending policies, and ultimately shape BRI projects into a genuinely “green Belt and Road Initiative” that fully internalizes respect for human rights, including the right to development, the right to a healthy safe, sustainable environment, apart from all interrelated, indivisible, and interdependent civil, political, economic, social and cultural rights. This can be done, first and foremost, by funding only BRI projects that enable States to devise climate actions that “respect, promote, and consider their respective obligations on human rights, the right to health, the rights of indigenous peoples, local communities, migrants, children, persons with disabilities and people in vulnerable situations and the right to development, as well as gender equality, empowerment of women and intergenerational equity” (Preamble, twelfth paragraph, Paris Agreement on Climate Change). China can also draw on institutional cooperation for BRI projects using the environmental sustainability and human rights expertise of the BRI’s International Green Development Coalition with the United Nations Environment Programme and other partners. It can start applying human rights audits to BRI projects, as well as making sure that BRI projects are also a human rights partnership with debtor countries, and as such remain subject to continuous human rights monitoring, transparency and accountability mechanisms open to groups, communities, and peoples affected by BRI projects. Doing so would be well in line with China’s own 2021-2025 National Action Plan, where it committed to specifically promote “responsible business conduct in global supply chains…[encouraging] Chinese businesses to abide by the UN Guiding Principles on Business and Human Rights in their foreign trade and investment, to conduct due diligence on human rights, and to fulfill their social responsibility to respect and promote human rights.” (at p. 44 of China’s 2021-2025 National Action Plan). Most importantly, ensuring that the BRI aligns fully with the internalization and implementation of human rights guarantees in BRI project countries would be entirely consistent with China’s declared commitments to “contribute to the international cause of human rights” (at p. 43 of China’s 2021-2025 National Action Plan), such as by fully implementing the Agenda 2030 for Sustainable Development and its emphasis on respecting human rights in development decision-making around the world.
Conclusion
China cannot afford silence or inaction towards the BRI projects’ glaring human rights impacts and ecosystem harms on local communities, vulnerable groups, indigenous peoples, and populations around the world. Its aspirations towards global hegemonic leadership and global market dominance remain dependent on fostering trust and cooperation with very diverse nations within the Global South, which throughout Africa, Asia, Latin America, Oceania, and Eastern Europe themselves have powerful individual histories of rejecting and resisting colonization or any imperial control over their natural resources and territories. As more countries in the Global North are already de-risking from China investments and financing due to security concerns, China will inevitably need to deepen its economic relationships with the Global South. Ensuring that the Belt and Road Initiative projects will not cause transboundary environmental harms and human rights impacts to populations within the Global South can credibly demonstrate China’s capacity for genuine global leadership, enduring cooperation, and equal partnership with countries of the Global South.
China’s Duties to Prevent and Redress the Human Rights Impacts of the Belt and Road Initiative
Written by Diane DesiertoChina’s massive Belt and Road Initiative continues to expand its project financing activities to around 147 countries in the world as of this writing. This exceptional global footprint, undertaken primarily through sovereign lending or sovereign-driven financing, puts China in a privileged position of international responsibility to ensure respect, protection, and fulfillment of human rights in global business activities. This post shows that China’s numerous international human rights treaty obligations and unilaterally-assumed legally binding commitments under its Universal Periodic Review already encompass specific obligations upon China to act under duties to prevent and redress human rights impacts in its Belt and Road Initiative. The 2024 Advisory Opinion of the International Court of Justice in Legal Consequences Arising from the Practices and Policies of Israel in the Occupied Palestinian Territory, Including East Jerusalem reiterated the Court’s pronouncement that “international human rights instruments are applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory.” (para. 99 of 2024 Advisory Opinion).
To the extent that China can be seen to exercise any form of its jurisdiction outside of its own territory through Belt and Road Initiative projects abroad (e.g. whether through any effective control exercised over the actual conduct of borrowing States in the BRI; effective control over the conduct of Chinese natural or juridical persons operating in BRI projects; or effective control exercised over territories and populations in which BRI infrastructure projects are being undertaken), China’s commitments under international human rights treaty and customary law will thus continue to apply with respect to any such extraterritorial exercises of jurisdiction throughout BRI countries. Unfolding recent reports (see here, here, and here) show considerable variability and heterogeneity over the contours, terms, and impacts of BRI infrastructure operations throughout the world. Due to the continuous expansion, scope, and duration of the BRI infrastructure connectivity projects, China — arguably more than any other State in the world thus far — has a direct and critical ability to influence the lived experiences and enjoyment of civil, political, economic, social, cultural, and environmental rights throughout diverse human populations and communities around the world. After the International Court of Justice’s landmark July 2024 Advisory Opinion, the extraterritorial applicability of international human rights law obligations to this global network of infrastructure connectivity projects spanning most of the world’s population and territory is well worth revisiting.
The Applicability of China’s International Human Rights Treaty Obligations to its Belt and Road Initiative
The People’s Republic of China is a State Party to the International Covenant on Economic, Social and Cultural Rights (ICESCR), the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), the Convention against Torture (CAT) and Other Cruel, Inhuman and Degrading Punishment, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the Convention on the Rights of the Child (CRC), among several international human rights and related treaties. States Parties to the ICESCR, such as China, have the specific obligation to respect economic, social, and cultural rights and not to violate such rights when these States Parties “prioritize the interests of business entities over Covenant rights without adequate justification, or when they pursue policies that negatively affect such rights.” Likewise, States Parties to the ICESCR, such as China, have the obligation to protect economic, social, and cultural rights and to this end “must effectively prevent infringements of economic, social and cultural rights in the context of business activities.” These obligations apply in both territorial and extraterritorial dimensions: “extraterritorial obligations arise when a State party may influence situations located outside its territory, consistent with the limits imposed by international law, by controlling the activities of corporations domiciled in its territory and/or under its jurisdiction, and thus may contribute to the effective enjoyment of economic, social, and cultural rights outside its national territory.” In the particular case of China’s outsized role as sovereign lender (and/or development contractor) in innumerable infrastructure and connectivity projects across over 70 States under China’s Belt and Road Initiative (BRI), China remains bound to ensure that it sufficiently regulates the business activities of corporations domiciled in China or under its jurisdiction to prevent any violation of economic, social, and cultural rights in the territories of host States to BRI investment.
Responsible Development and International Law
The same extraterritorial application of China’s human rights obligations under ICERD, CEDAW, CAT, CRC, among other international human rights and related treaties, militates in favor of China’s duty to actively regulate business activities in BRI countries to prevent violations of international human rights protected under these treaties (ICERD Articles 2, 3, and 5; CEDAW Articles 2 and 3; CAT Article 2; CRC Articles 2, 3, and 5). The International Court of Justice has long affirmed the duties of States to prevent violations of human rights obligations even outside their territories in Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa), when the Court declared that:
Likewise, in its Advisory Opinion in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the International Court of Justice emphasized the extraterritorial application of international human rights treaties:
Using its own unique sovereign lending contract practices in the Belt and Road Initiative, China variably asserts some form of de facto territorial jurisdiction or wields significant sovereign control in BRI countries, whether through its operational control or acquisitions of overseas ports through long-term or perpetual leases (such as Hambantota Port in Sri Lanka or its construction of China’s overseas naval base in Djibouti Port); lending to shell companies for infrastructure projects that allowed heavily indebted countries to avoid reporting the debts backed by sovereign guarantees that would ultimately require debt repayment through public funds; requiring deep collateralization of BRI loans using the natural resources of a State or a State’s overseas escrow account which are readily available for execution, garnishment, attachment, or seizure; and compelling the exclusive imposition or application of the law of the People’s Republic of China in the execution, performance, and implementation of all BRI projects overseas.
Significantly, in its 22 March 2023 Concluding Observations on China’s Third Universal Periodic Review, the United Nations Committee on Economic, Social and Cultural Rights noted the extraterritorial impacts of China’s Belt and Road Initiative, expressing concern about “reports of the negative effects of [China’s] lending practices and conditions in connection with the Belt and Road Initiative infrastructure development in third countries, which are negatively affecting the enjoyment of economic, social and cultural rights in third countries.” (para. 22). The Committee specifically held that China should “(a) review its current loan repayment conditions to ensure that borrowing countries are not overloaded with unsustainable debt…;(b) ensure that future loans are negotiated in accordance with international best practices and with a view to protecting and facilitating the enjoyment of economic, social and cultural rights, including a transparent process free from corruption; (c) extend loans only to projects with a sustainable cost-benefit ratio and that entail the use of the borrowing country’s domestic suppliers and laborers; (d) rely less on lengthened payment timetables and extended grace periods for borrowing countries that are having repayment difficulties and more on renegotiation and/or debt cancellation; and (e) ensure that conditionalities contribute positively to the enjoyment of human rights, particularly economic, social and cultural rights.” (at para. 23.) As a State Party to the International Covenant on Economic, Social and Cultural Rights, the Committee emphasized that China likewise owes extraterritorial duties to ensure respect for the enjoyment of economic, social, and cultural rights in third countries affected by BRI projects.
The BRI’s Human Rights Concerns
Since the 2013 launch of the Belt and Road Initiative by China’s President Xi Jinping, numerous adverse human rights impacts have been reported from around a decade of projects undertaken worldwide through the Belt and Road Initiative. Construction of the Lower Sesan Dam in Cambodia, which was undertaken by a Chinese state-owned company as part of the BRI, was reported to have resulted in the forced displacement of thousands of indigenous peoples and ethnic communities, the lack of transparency of information on project impacts, the lack of consultation with indigenous peoples and ethnic communities, and severe environmental impacts. Forced labor practices, trafficking, debt bondage, arbitrary wage garnishing, intimidation and threats, physical violence, poor living conditions, and other labor abuses have been widely reported in many BRI projects in African, European, Middle Eastern, Asian, Pacific, Latin American, and Caribbean countries. Reeducation programs, forced encampment, forced abortions and sterilizations of Uyghur women, de facto slave labor, and a whole slew of human rights violations and anti-Islamic policies against Uyghurs in Xinjianghave also been reported as part of BRI labor practices. The Business and Human Rights Resource Centre (BHHRC) published its own report in 2021, specifying 679 incidents of serious and sustained human rights abuses committed by Chinese companies under China’s Belt and Road Initiative, most especially in Southeast Asia projects in Myanmar, Laos, Cambodia, and Indonesia. Displacement, forced labor practices, and reeducation programs have contributed to a track record of human rights violations across China’s BRI developments.
These adverse human rights impacts also stem from environmental violations. Despite China’s projection of the Belt and Road Initiative as an alternative to international development lending, it appears that the human right to a healthy, safe, sustainable, and clean environment has also been seriously imperiled by BRI projects, which often entail massive impacts such as deforestation, water contamination from mining operations, communities’ displacement from land without consultation or compensation, and generating massive emissions of greenhouse gases, as reported in the International Federation for Human Rights’ ongoing BRI Watch publications from June 2020 to March 2022. Sustainability concerns and recommendations have also been raised in regard to the carbon footprint of Belt and Road Initiative projects, especially in dense cities.
China’s leveraging of debt financing to gain geopolitical power further exacerbates the country’s human rights violations. With 147 countries having signed on to BRI projects (or which have expressly indicated their intention to do so), the Council on Foreign Relations observes that the usual terms of the debt financing contracts under the BRI “often contain clauses…[where] China also frequently retains the right to demand repayment at any time, giving Beijing the ability to use funding as a tool to enforce Chinese hot button issues such as Taiwan or the treatment of Uyghurs….China views BRI projects as a commercial endeavor, with loans close to a market interest rate that it expects to be fully repaid…Some BRI investments have involved opaque bidding processes and required the use of Chinese firms. As a result, contractors have inflated costs, leading to canceled projects and political backlash.” Moreover, the dual-use functionality of China’s “Shekou model” of building integrated ports, parks, and cities, remain subject to possibilities of China’s takeover in the event of payment defaults, as shown in the problematic cases of China’s takeover of Sri Lanka’s Hambantota port, China Merchants’ operational control of Djibouti’s ports in Africa, and China’s control of mining operations in Ecuador. Human rights impacts that were reported from such serious losses of sovereign control or ownership of a country’s resources to China in Sri Lanka, as well as in Djibouti and Ecuador, include mass forcible evictions and land displacement of indigenous peoples, worker abuses and labor violations, violations of the right to an adequate standard of living, the right to a healthy safe sustainable and clean environment, and the right to development, among others. The continuing lack of transparency over China’s sovereign lending practices in BRI projects, especially on the terms of China’s new bailouts or rescue loans for already heavily indebted BRI borrowing countries (and the undisclosed taxpayer burdens or natural resources burdens entailed by deeper public borrowing), also creates a significant obstacle to safeguarding the fundamental right of peoples not to be deprived of their own means of subsistence under Article 1(2) of the International Covenant on Economic, Social and Cultural Rights.
China’s Obligation to Prioritize Human Rights
In light of its own extraterritorial obligations under the ICESCR, ICERD, CEDAW, CRC, and other related international human rights treaties, China cannot simply punt and attribute the human rights impacts of BRI projects to any alleged governance failures, regulatory gaps, or poor legislative or administrative quality in BRI host States. As seen from the ever-deepening footprint of its State-owned companies themselves undertaking BRI project contracts, China is not merely a passive lender in BRI projects. Empirical studies and investigative reports collectively find that BRI projects result in the diminution of democratic freedoms, human rights, labor protections, and considerable environmental damage as well as climate change impacts in the countries where such BRI projects are being implemented. As China shifts from being “the world’s largest bilateral lender to also its largest debt collector”, it bears stressing that China itself could be held directly responsible for the action or inaction of business entities in the BRI projects that result in violations of human rights within any of the 147 countries to date that are signed up to BRI projects: “(a) if the entity concerned is in fact acting on that State party’s instructions or is under its control or direction in carrying out the particular conduct at issue, as may be the case in the context of public contracts; (b) when a business entity is empowered under the State party’s legislation to exercise elements of governmental authority or if the circumstances call for such exercise of governmental functions in the absence or default of the official authorities; or (c) if and to the extent that the State party acknowledges and adopts the conduct as its own.” Applying the explicit terms of its own international human rights treaty commitments, as well as its own unilateral commitments in its Universal Periodic Review (at para. 28.1 to 28.346, especially paras. 28.131, 28.132, 28.133, 28.134, 28.138, and 28.143), China has continuing duties to prevent contractors from committing international human rights violations in BRI projects around the world, as well as to provide the counterpart framework for ensuring appropriate and effective redress for any human rights victims suffering harm under any BRI project.
In 2019, China’s President Xi Jinping declared that the Belt and Road Initiative “must be green and sustainable”. The United Nations Agenda 2030 for Sustainable Development, which China also signed, specifically states that Agenda 2030 is “guided by the purposes and principles of the Charter of the United Nations, including full respect for international law. It is grounded in the Universal Declaration of Human Rights, international human rights treaties, the Millennium Declaration, and the 2005 World Summit Outcome. It is informed by other instruments such as the Declaration on the Right to Development.” (Agenda 2030, at para. 10.) Accordingly, while China has increasing influence in the international human rights system through the BRI (with at least 35 member States of the UN Human Rights Council being BRI borrower States in Asia and Africa) and its own leadership within the United Nations, China can wield its influence responsibly by taking the lead on internalizing human rights in its administration of its BRI lending policies, and ultimately shape BRI projects into a genuinely “green Belt and Road Initiative” that fully internalizes respect for human rights, including the right to development, the right to a healthy safe, sustainable environment, apart from all interrelated, indivisible, and interdependent civil, political, economic, social and cultural rights. This can be done, first and foremost, by funding only BRI projects that enable States to devise climate actions that “respect, promote, and consider their respective obligations on human rights, the right to health, the rights of indigenous peoples, local communities, migrants, children, persons with disabilities and people in vulnerable situations and the right to development, as well as gender equality, empowerment of women and intergenerational equity” (Preamble, twelfth paragraph, Paris Agreement on Climate Change). China can also draw on institutional cooperation for BRI projects using the environmental sustainability and human rights expertise of the BRI’s International Green Development Coalition with the United Nations Environment Programme and other partners. It can start applying human rights audits to BRI projects, as well as making sure that BRI projects are also a human rights partnership with debtor countries, and as such remain subject to continuous human rights monitoring, transparency and accountability mechanisms open to groups, communities, and peoples affected by BRI projects. Doing so would be well in line with China’s own 2021-2025 National Action Plan, where it committed to specifically promote “responsible business conduct in global supply chains…[encouraging] Chinese businesses to abide by the UN Guiding Principles on Business and Human Rights in their foreign trade and investment, to conduct due diligence on human rights, and to fulfill their social responsibility to respect and promote human rights.” (at p. 44 of China’s 2021-2025 National Action Plan). Most importantly, ensuring that the BRI aligns fully with the internalization and implementation of human rights guarantees in BRI project countries would be entirely consistent with China’s declared commitments to “contribute to the international cause of human rights” (at p. 43 of China’s 2021-2025 National Action Plan), such as by fully implementing the Agenda 2030 for Sustainable Development and its emphasis on respecting human rights in development decision-making around the world.
Conclusion
China cannot afford silence or inaction towards the BRI projects’ glaring human rights impacts and ecosystem harms on local communities, vulnerable groups, indigenous peoples, and populations around the world. Its aspirations towards global hegemonic leadership and global market dominance remain dependent on fostering trust and cooperation with very diverse nations within the Global South, which throughout Africa, Asia, Latin America, Oceania, and Eastern Europe themselves have powerful individual histories of rejecting and resisting colonization or any imperial control over their natural resources and territories. As more countries in the Global North are already de-risking from China investments and financing due to security concerns, China will inevitably need to deepen its economic relationships with the Global South. Ensuring that the Belt and Road Initiative projects will not cause transboundary environmental harms and human rights impacts to populations within the Global South can credibly demonstrate China’s capacity for genuine global leadership, enduring cooperation, and equal partnership with countries of the Global South.
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