9.5.2006   

EN

Official Journal of the European Union

C 110/68

1.1

This exploratory opinion is at the request of the UK presidency. The development of a strategic partnership with China is one of the priorities of the British presidency. Commissioner Mandelson has also highlighted the need to build relations with China based on human rights and the notion of a more developed plural civil society.

1.2

The EU is based on values common to all its Member States, which it affirms and promotes in its relations with the rest of the world. These values include the respect for human dignity, freedom, democracy, equality, the rule of law and human rights. On the basis of these values the EU endeavours to build partnerships with third countries and international, regional or worldwide organisations which share the principles of universality and the indivisibility of human rights and fundamental freedoms.

1.3

Europe has a major political and economic stake in supporting China's successful transition to a stable, prosperous and open country that fully embraces democracy, free market principles and the rule of law.

1.4

China has experienced extremely rapid economic growth and social structural change that has contributed to a rising income for sections of the population, but which has been accompanied by increasing inequalities in living, environmental, health and working conditions as less advantaged groups have been left behind. The absence of channels through which the aggrieved can legitimately and effectively articulate their rights and aspirations has led to a rising tide of social unrest which threatens the hopes of the Chinese government, fully shared by the EU, to build a prosperous and harmonious society.

1.5

The Committee has previously expressed the view that a strong and independent civil society makes a major contribution to good governance and to political, economic and social stability. Its contacts with civil society outside the EU, in developed as well as developing countries, confirm this conviction. The Committee has therefore advocated the development of free, independent and representative non-governmental organisations of employers, workers, farmers, consumers, environmentalists, cooperatives, etc. It calls for legislation guaranteeing the rights of these organisations and for ratification and implementation in law and practice of international instruments covering these rights. These fundamental points of view underlie the Committee's strong interest to cooperate with the established, as well as the emerging, civil society in China. The Committee will try to involve the European Federations of the organisations represented in it on this.

1.6

The aim of this opinion is to examine the nature, the function and the operational framework within which Chinese civil society organisations operate and to make recommendations to enable EU and Chinese civil society improve relations between the EU and China. Before briefly discussing the main issues, the Committee wishes to point out that its observations will be made in a spirit of mutual respect. If it comes to international standards by which the EU Members States as well as China are bound, violations of theses standards cannot be considered as the internal affairs of a country. In such cases, respect for the standards in law as well as in practice is a responsibility shared by the international community.

2.1.1.1

NGOs have only developed in China since the beginning of reforms in 1978. By the end of 2004, there were 289 476 registered NGOs in China. It is not known how many of these are strong enough to allow them to act as partner organisations for EU bodies. In addition, an estimated 3 000 to 6 500 foreign NGOs are currently operating in China.

2.1.1.2

The Chinese definition of NGOs includes organisations in both social and economic spheres, therefore trade and industry associations are considered NGOs. The Committee considers that employer's federations and trade unions are an important part of organised civil society, although they are not NGOs in the strict sense of the term.

2.1.1.3

Chinese NGOs are divided into ‘social organisations’, which are membership organisations, and ‘private non-enterprise units’, which are non-membership, non-profit social service organisations, such as private schools and hospitals.

2.1.1.4

There are eight big national social organisations which are often referred to more specifically as ‘people's organisations’ or ‘mass organisations’. These organisations, which include the All-China Federation of Trade Unions (ACFTU), the Communist Youth League (CYL), and the All-China Women's Federation (ACWF), were in fact created by the state and perform administrative and other functions on its behalf. The ACFTU, the CYL, and the ACWF function as the Communist Party's labour, youth, and women's department respectively. Calling such organisations NGOs is therefore misleading.

2.1.1.5

In order to exist legally Chinese NGOs must be approved and registered by the Ministry of Civil Affairs or its local branches in order to exist legally. The registration of NGOs is governed by three regulations:

2.1.1.6

Current regulations make it difficult for some NGOs to register. This is mainly for two reasons:

2.1.1.7

As a result of these rules, many grassroots NGOs have been unable to register, either because they fail to find government agencies that are willing to act as their professional management units, or because other NGOs with similar missions have already been registered in the geographical area where they intend to base their operations. In order to exist legally, some NGOs have registered with Industry and Commerce Bureaux as businesses instead, even though they engage in public-benefit activities and are non-profitmaking.

2.1.1.8

Some NGOs also choose not to register at all. Although non-registration makes them illegal, many such organisations have been left alone by the government, mainly because the government considers their activities harmless. However, their non legal status means that such NGOs are particularly vulnerable to periodic government efforts to ‘clean up and rectify’ the NGO sector. There is considerable evidence that the Chinese authorities have been intervening more actively to monitor and control the activity of such NGOs in the past year, in the belief that unauthorised non-governmental organisations are actually or potentially anti-governmental organisations and may prove to be a destabilising force.

2.1.1.9

The Committee understands that a new regulation on NGOs is currently being drafted. It will, for the first time, require all foreign NGOs also to register.

2.1.1.10

A distinction is often made between ‘government-organised’ and ‘popular’ NGOs in China. The former (GONGOs) are initiated by the government and receive government subsidies. Their staff are often on the government's payroll, and their leadership positions are usually held by retired government officials. By contrast, popular NGOs are initiated by individual citizens and receive no government subsidies. Their staff are not government employees and they do not have officials occupying their top management positions.

2.1.1.11

GONGOs sometimes have better connections to the government. Because of such connections, the government may place more trust in GONGOs and adopt a more hands-off approach, thereby allowing them more de facto autonomy. GONGOs also have better access to the government and more opportunities to participate in decision-making.

2.1.1.12

The vast majority of popular NGOs seek to work together with the government instead of emphasising their independence. After more than two decades of market reform, the Chinese government has reduced its direct control over economic and social activities, however, it still holds considerable sway in these spheres. Without a certain degree of endorsement and support from government agencies and officials, no NGO can function properly. Gaining access to the government is the only way NGOs can be effective, therefore Chinese NGOs in general value access and influence over independence from the government in the knowledge that the government still has the power to control them, and will use it if they cross certain limits.

2.1.1.13

In managing NGOs, the Chinese government is torn by conflicting goals. On the one hand, it encourages the growth of NGOs, in order to pass on to them certain functions which it used to perform itself under the planned economy model. For example, it hopes that NGOs can share its burden of social welfare provision and help mobilise societal resources to supplement government social spending. On the other hand, the government is wary of NGO activism developing into social movements which may challenge it politically and cause instability. As a result, over the last two decades, the government has launched several ‘clean up and rectification’ campaigns to consolidate its control over NGO activities whenever it felt that its control had slipped. Despite these periodic campaigns, the trend of civil society growth and expansion has not been halted, as testified by the continued increase in the number of NGOs.

2.1.1.14

In official publications, the Government has stated that it is facilitating the work of hundreds of foreign NGOs, active in more than twenty different fields in China, by granting them legal status.

However, it has also shown a strong preoccupation with foreign-based NGOs and their Chinese partner organizations. Several Chinese NGOs have reported that they have been target of intensified control. They have also drawn attention to the fact that environmental and gender issues are now being considered by the authorities to be ‘sensitive’.

2.1.1.15

The Government's main justification is that social stability and the creation of a ‘harmonious society’ are absolute priorities. The same reasons have been given for the arrests of dissidents, and censorship of the internet. The Committee notes that Western companies have sold China security tools and firewalls to control and restrict freedom of expression and information. Some of these companies have gone so far as to sign pledges of ‘self discipline’, promising to follow Chinese censorship laws.

2.1.1.16

It is striking that, although corruption is widespread and also a topical item in China, local NGOs have not begun to tackle this issue so far.

2.1.1.17

Academics are important contacts for NGOs, both those based abroad and Chinese. Foreign NGOs, but also the European Commission, frequently cooperate with them and support their research activities.

2.1.1.18

Hong Kong continues to have a thriving NGO community active in providing services as well as in advocacy. In both areas it is maintaining contacts with NGOs in neighbouring areas of mainland China.

2.2.1

Both the EU and China have declared that they wish to promote interactions between their respective civil society organisations. China's EU Policy Paper of 2003 states that ‘People-to-people exchanges and those between non-governmental organisations of China and the EU should be encouraged’.

2.2.2

Although exchanges between civil society organisations in the EU and China have taken place, such exchanges have not yet had any major impact on bilateral relations. In EESC's Opinion on EU-China Relations prepared in 2003, several recommendations were made on strengthening civil society dialogues. For example, point 4.7 suggested that ‘The EU should support and enhance dialogue between organised civil society, economic and social interest groups in China and the EU on issues such as social justice (poverty reduction, gender, greater participation, environmental protection, etc.) and that it should include dialogue on issues such as human rights, good governance and minorities' policies’.

2.2.3

Point 4.14 proposed that ‘Future visits of the Economic and Social Committee in China should not only be used to strengthen contacts with the China Economic and Social Council, but also to renew and to widen contacts with the NGO community in China, (and in particular with the free and independent among them) working in areas such as healthcare and environmental protection, along the same lines as during the visit of July 2002’.

2.2.4

So far, no substantial progress has been made on these points. During the EESC visit to China in October 2005, the presidents of the EESC and CESC signed an addendum to the Joint Declaration by Presidents of 2002. The addendum proposes the establishment of a mechanism of annual meetings to intensify civil society contacts between the EU and China. It also proposes to ask the next EU-China summit to request the setting-up of an EU-China Civil Society Round Table.

2.2.5

These proposals represent concrete steps to strengthen EU-China civil society linkages. They have the potential of enabling civil society to play a more significant role in EU-China relations ‘including the SAR Hong Kong and Macao’.

2.2.7

In China legislation on workers and trade union rights is much more restrictive than the regulations on NGOs. The European Commission, the European Parliament and the Committee itself have repeatedly drawn attention to these restrictions, which violate international labour standards, to which China and the Member States of the EU are both bound. In particular China regularly violates international standards the ILO Conventions 87 and 98 on Freedom of Association and on Collective Bargaining.

2.2.8

The Chinese government claims that there is comprehensive legislation covering workers and trades union rights, however there is a serious gap between legislation and prevailing practice. The Chinese government has very recently acknowledged this. A Committee of the Chinese People's Congress has studied the situation in 200 enterprises and concluded that in 80 % of these companies workers rights as laid down in the legislation are seriously violated. The problems are most acute in light industry, in building and construction and in the mining sectors.

2.2.9

In the Committee's view a full discussion of the role of civil society in EU-China relations must include a discussion of these difficulties. It is important that the Committee expresses its views on them and makes proposals for EU-China cooperation in this area which should contribute to improvements. These proposals should be studied and discussed in the framework of the EESC-CESC cooperation.

2.2.10

As a member of the ILO, China must respect the rights laid down in Conventions 87 and 98. These rights are incorporated in the Declaration of Philadelphia, which is part of the ILO Constitution. Violations of these rights by Member States that have not yet ratified Conventions 87 and 98, can be discussed within the ILO supervisory system, more specifically in the Governing Body's Committee on Freedom of Association. The basis of assessments made by this Committee is the extensive case law on freedom of association and collective bargaining, developed over several decades and universally considered to be the result of objective, impartial and independent legal analysis.

2.2.11

China has been criticised repeatedly during the past few years, sometimes strongly, for violations of the rights laid in Conventions 87 and 98. The major point of discrepancy between China's trade union legislation and Convention 87 is the trade union monopoly granted to the All China Federation of Trade Unions (ACFTU). The Convention does not rule out the existence of one single trade union representing the interests of workers, if that is the wish of the workers, that is completely in line with the ILO standard. What is in conflict with the Convention is the establishment of a trade union monopoly, by law, which outlaws efforts of workers who want to set up an alternative organisation outside the ACFTU framework.

2.2.12

The Trade Union Law also defines the political orientation of the single trade union by stipulating inter alia, that it shall uphold the leadership of the Communist Party of China. It furthermore prescribes the principle of ‘democratic centralism’ which, as practised in China is alien to any democratic organisation.

2.2.13

A law on collective bargaining does not exist in China. There are regulations for collective contracts which have rather a consultative than a negotiation character. ‘Collective consultation’ is considered to be the appropriate instrument for settling differences of interests between workers and employers. Nothing in these regulations reflects key components of ILO Convention 98 on the Right to Bargain Collectively, like the promotion of collective bargaining by the government and the principle that bargaining parties must not interfere in each others' internal affairs.

2.2.14

As regards the application of the right to organise, in practice, no independent trade unions are allowed in China, and all efforts to set them up are severely repressed. Initiators of such efforts face arrest, usually prison sentences and sometimes ‘re-education through labour’ -camps or placement in psychiatric hospitals. Despite this repression, there is a clear trend in collective action taken outside the ACFTU, including organising activities. Independent activists and NGOs supporting workers seeking to defend their legal rights have played an important role in supporting the rule of law in China, but have come under increasing administrative and police pressure during 2005.

The People's Congress Committee report, referred to earlier, has noted with regard to the application in practice of the law of 1995 on collective contracts that in 80 % of companies in the private sector contracts are not in place as demanded by the law. If there is a contract, its validity is usually less than one year. Contracts contain more articles on workers' obligations than on workers' rights. The situation is slightly better in the state owned companies, according to the report.

2.2.15

An area of workers' rights which is frequently referred to in publicity on work place conditions where trade union activity is lacking is occupational health and safety. A well known example is the mining industry.

2.2.16

This is an interesting area for discussion and cooperation when exploring the role that civil society could play in EU-China relations. The issue of occupational health and safety is, of course, of a different nature than fundamental workers' and trade union rights. China has not ratified any relevant ILO Conventions, and many have not even been ratified by EU Member States. Obviously, the right to organise is relevant for the implementation of certain provisions of occupational health and safety policies.

2.2.17

Against this background, the Committee welcomes the decision of the Chinese government to appoint 100 000 worker safety representations in China's 24 000 coal mines and its willingness in helping to train them.

2.2.18

With respect to workers' and trade union rights, the Economic and Social Council of the United Nations noted in its reaction to China's first report on the implementation of the International Covenant on Economic, Social and Cultural Rights i.e. the following principal subjects for concern in addition to the prohibition of the right to organise and hazardous working conditions:

2.3.1

ILO Conventions 87 and 98 not only protect the rights of workers but also employers' rights. Since the late 1990s, the China Employers' Confederation (CEC) is trying to develop some basic functions of a representative employer's organisation. So far, progress is slow though not because of government interference. Financial weakness, dominance by the large state owned enterprises and the absence of a system of industrial relations in which it could play a role are the main causes of its very limited role. Subsidiaries of foreign-based multinationals do not play any role in the CEC.

2.3.2

The CEC does not seem to be inclined to engage in fully-fledged representation of the interests of its members. It considers that the Party is capable of representing all the interests in China without contradictions, and by consequence it defines its role in modest terms: to guide members to follow the government's macro and micro regulations, to help solve specific problems and to ask for fair treatment when appropriate. The other major employers' organisation, the All China Federations of Industry and Commerce, holds the same views.

It is however interesting to note that a number of new organisations, for example, the All China Business Owners Federation represent the interests of ‘new capitalists’. Also there are a number of socio-professional organisations representing academics and professional interests providing a close link between professionals and the government and provide a forum to meet and discuss ideas and progress.

2.4.1

Against this background, the Committee must reiterate its concern about ongoing and increasing social dissatisfaction and unrest. According to official figures, 2004 saw some 74 000 major workers' protests, involving more than 3.7 million people. In 2003, the government counted 58 000 actions. Since 1994, when there were 10 000, the figure has been constantly rising. Widespread social unrest is a major threat to stability. Apparently, the Party and the government still think that continued high economic growth and propose attempts to reduce the most glaring inequalities will to be acceptable to the Chinese workforce. As such they are having to walk a tightrope between rapid development and stability.

2.4.2

The Committee remains convinced that the early development of a modern system of industrial relations with free and independent actors is one of the crucial safeguards for stable economic transition. Genuine tripartite consultation in line with the definition of ILO convention No 144, which is based on the notion of autonomous workers and employers organizations, could be a cornerstone of such a system.

2.4.3

Under the present conditions, the role of a civil society in the process towards such a system can only be a very limited one.

On the employers' side, subsidiaries of foreign multinationals and the European Chamber of Commerce in Beijing could engage themselves more in that process. However, they have not shown great commitment so far. Perhaps the instrument of corporate social responsibility, in which the Chinese Government has shown some interest to date can play a role.

Trade unions in the EU are, generally speaking, reluctant to cooperate with the ACFTU as long as this organisation does not seem to be inclined to enter the area of representation of the interests of their members. There is an interest in supporting activities in China with respect to making workers aware of their rights, training them in areas like occupational health and safety, and providing them with legal assistance in court. Sometimes they cooperate with local NGOs. If such activities will lead eventually to the establishment of an adequate system of industrial relations, they are the first (and necessarily very cautious) steps on a very long road.

3.1

It is clear that having an effective engagement between civil societies in the EU and China will not be easy. The two cultures and the political systems are very different and we do not, as yet, understand each other very well. While this is so there is the danger that China will respond to EU concerns by saying that our experience is not relevant to the situation; telling them that they should be ‘more like us’ will not work. However, engagement will be beneficial and must be undertaken.

3.2

The EU needs to enhance its understanding of the complexity of civil society development in China. While the emphasis on working with and support for genuinely independent civil society organisations in China is understandable and should continue to be maintained, the EU needs to appreciate that even popular (as opposed to government-organised) NGOs tend to have informal ties to the government and they attach more importance to access to the government than their own independence. The European Commission should continue to explore the potential of some of the ‘mass organisations of state’, like the All-China Women's Federation (ACWF) for the promotion of democracy, human rights, and the rule of law in China. In recent years, some new initiatives and innovative projects on these fronts have been launched by GONGOs, mass organisations, and their local branches.

3.3

It is therefore recommended that the EU adopts a multi-pronged approach, working simultaneously with different types of NGOs, engaging them in different ways which take into account their different strength and competence. It should also expand its contact with civil society organisations at regional and local levels.

The additional agreement on enhancing cooperation between the European ESC and the ESC of China seeks to intensify their working relations by establishing annual Presidential level meetings with the delegations of each side to be composed of representatives of various economic and social components of organised civil society. It also foresees a joint approach to ask the EU-China summit to set up a bilateral Round Table on the basis of existing cooperation between the European ESC and its counterpart in China. It is recommended that should this proposal be agreed that membership on the Chinese side include not only governmental organisations but should include significant representation from the civil society organisations together with a facility for delegates to meet with independent civil society organisations in the margins of Round Table meetings.

3.4

With regard to the rule of law in China, many civil society representatives who met the EESC delegation suggested that the enforcement of existing laws rather than the drafting of new laws should be a priority. Many problems and deficiencies in governance, human rights' protection, and democratisation can be attributed to the disregard for and non-compliance with existing legal provisions. In advocating improvements in these areas, it is therefore recommended that the EU lay more emphasis on the need to respect existing laws. Asking the Chinese government to abide by laws which it has drawn up itself can add force to the EU's advocacy.

3.5

The EESC recognises that the Chinese government remains deeply concerned about maintaining political and social stability and fears that unrestricted NGO activities may lead to instability. It is recommended that the EU should continue to seek to stress to the Chinese government that stability and a vibrant civil society are not incompatible, as long as the rule of law is respected. It can do so by using its own examples, in particular those made by its new Member States in Central and Eastern Europe, to demonstrate to the Chinese government that a well-developed civil society can serve to improve governance and enhance stability.

3.6

Given the extreme sensitivity of labour issues in China at present, the Chinese government may not be ready to loosen control over labour organisations. Only if the key issue of freedom of association is systematically addressed in the international dialogue with China, can it be hoped that the government will relax its grip on trades unions.

3.7

Given the Chinese government's willingness to see the development of trade and industry associations; it is recommended that EU use this opportunity to help Chinese trade and industry associations to learn from the experience of their European counterparts. Eventually positive development in any segment of civil society could have a ripple effect on other segments.

3.8

Against the background of possible reduction in the EU's development assistance to China, both Chinese NGO leaders and representatives of foreign NGOs in China argue that the EU should at least maintain its current level of financial support to civil society organisations in China. At present there is very limited financial assistance to civil society organisations from the Chinese government, private sector sponsorship of NGO activities is also underdeveloped. It is recommended that the EU should therefore consider maintaining or even increasing its financial support to civil society organisations in China, but targeting it at actions which also promote fundamental and workers' rights. The EESC welcomes the programmes of support for the development of civil society in China provided and proposed by the Commission, and recommends that the EU should consider increasing its financial support to civil society organisations in China but would stress the importance of incorporating support for grassroots organisations by providing small grants on the basis of a simplified application process, including the provision of technical support for the preparation of such applications.

3.9

Equally important is continued EU support of capacity-building programmes for Chinese NGOs. It is recommended that the design of such programmes should be improved to suit the specific needs of Chinese NGOs and must include consulting with them.

3.10

Chinese civil society representatives also argue that the EU should use its influence to promote NGO-government and NGO-business partnerships in China. It should encourage the Chinese government to create channels for NGOs to voice their opinions on public issues to the government. This is an issue which the EU should take up. In its Opinion on EU-China Relations of 2003, the EESC stated that meaningful interest representation by NGOs could only take place on the basis of freedom of association (point 3.13). While freedom of association is currently restricted in China, there is still scope for increasing NGO participation in decision-making. The EU can show the Chinese government and NGOs how civil society organisations in Europe perform advocacy functions, monitor government performance and provide input into public policy so that China can take some positive lessons from the European experience.

3.11

Despite various restrictions on press freedom, the Chinese media have played a crucial role in fostering civil society growth in recent years. It is recommended that the EU explores ways of supporting a continued active role of the media in China; including possible exchange visits by journalists between the EU and China.

3.12

The EESC recognises that civil society in Hong Kong continues to play an indispensable role in defending democracy and human rights in Hong Kong and serving as an important source of inspiration and support for civil society in mainland China. It is recommended that contacts and cooperation with civil society in Hong Kong should be maintained.

3.13

It is recommended that the EESC should, and other relevant European civil society organisations, monitor and encourage the Commission to follow up as appropriate, violations of fundamental rights with the European Parliament, and with the CESC.

3.14

The discussion of the right to organise and the right to collective bargaining should be central to the Committee's work with the CESC on human rights' issues.

The Commission must continue its dialogue with the Chinese government with a view to helping it to overcome its deep suspicion of ‘Anti-government Organisations’, the ‘Solidarnosc-effect’ and the ‘coloured revolutions’. It should try to give a positive content to the ‘labour cooperation of various kinds’ which the Chinese government has identified as an important point in its proposals for Economic Cooperation and Trade in its ‘EU Policy Paper’ of October 2003. The structural EU-China dialogue on labour, employment and social affairs, agreed between Commissioner Špidla and the Chinese minister of Labour and Social Security, might provide a good opportunity for doing so. The Committee will try to use its own contacts with the CESC similarly.

3.15

The EESC will explore the role corporate social responsibility and international Codes of Conduct for Multinational Enterprises (in particular the OECD Guidelines) can play in the contribution of foreign companies to the development of a system of industrial relations in China.

It is recommended that special attention is paid to the role trade unions, employers' organisations and, where relevant, NGOs can play in the promotion of safer and healthier working conditions at the workplace.