What are the benefits of the FHA guarantee

Free trade agreement between Switzerland and China definitely without human rights guarantees

The free trade agreement with China comes into force on July 1, 2014. Switzerland ratified the agreement, although it does not contain any provisions on the protection of human rights. There are no guarantees for Switzerland that in the future goods that have been manufactured using forced labor will not come onto the Swiss market under favorable import conditions.

The agreement had been fought in vain by civil society in Switzerland. In parliament, motions for an optional referendum and for rejection had no chance. For example, the Council of States ignored human rights concerns and, as a second council, approved the Free Trade Agreement (FTA) between Switzerland and China. In the final vote, only 3 Councilors of States voted against the agreement, with 25 votes in favor and 11 abstentions. Due to the legal situation, it was expected that the Council of States would come back to the decision of the National Council and at least clear the way for a referendum on the agreement with China.

According to a representative survey from the summer of 2013, 75% of the Swiss population were in favor of giving greater consideration to human rights in free trade agreements.

Legal opinion: Optional referendum is mandatory

In a legal opinion from February 2014, international lawyer Oliver Diggelmann from the University of Zurich came to the conclusion that, contrary to the opinion of the Federal Council and Parliament, the FTA with China must be subject to an optional referendum. This is because the agreement is politically controversial and, because of its great economic importance, it contains legislative provisions which certainly meet the criterion of "importance". The latter is required by the Federal Constitution, Article 141 (1) (d) (3), so that an enactment is subject to an optional referendum.

Federal Councilor Johann Schneider-Ammann said on March 20, 2014 in the Council of States that although the business is important, the criteria for being subject to the optional referendum are not met. "That is why it is very legitimate to recommend that the free trade agreement not be subject to the optional referendum, because criteria such as those that Professor Diggelmann brought into play must not be brought into play." This “argumentation” convinced a majority in the Council of States: 23 Councilors of States followed Schneider-Ammann's recommendation, only 16 remained skeptical and voted for the possibility of a referendum.

National Council: A solid majority against human rights

On the eve of International Human Rights Day, the National Council refused to reject the Switzerland-China free trade agreement in its present form by a whopping 130 majority against 56 because it did not contain any serious provisions to protect human rights. With its request to negotiate an additional human rights protocol, the left was at a losing position, as the bourgeois parties unanimously supported the negotiated free trade agreement. The motion to subject the international treaty to an optional referendum also had no chance.

The finest hour of hollow rhetoric

The debate in the National Council turned out to be the finest hour of hollow rhetoric. In particular, Federal Councilor Johann Schneider-Ammann has glossed over the present free trade agreement in an almost cynical way in the service of Swiss economic egoism. His empty words were gratefully and benevolently swallowed by the majority of the National Council. After all, in the run-up to the elections in 2011, an equally large majority of the members of the National Council asserted that they would give human rights greater weight in future free trade agreements. Since then, 63 parliamentarians in the Grand Chamber have apparently changed their minds, including names such as Viola Amherd, Christophe Darbellay, Doris Fiala, Kurt Fluri, Hans Grunder, Ursula Haller Vannini, Ruth Humbel, Martin Landolt, Corrado Pardini, Lukas Reimann, Alexander Tschäppät , Daniel Vischer, Hansjörg Walter and many others. This shows that there are definitely left turning necks.

With this in mind, it was no surprise that on the morning of December 10, 2013, the National Council voted against submitting the free trade agreement with China to the optional referendum with an almost equally clear majority of 109 to 52 votes.

Human rights situation in China

China is regularly pilloried by human rights organizations. Oppression of ethnic minorities, excessive use of the death penalty, forced labor for the production of cheap products, miserable working conditions or rigorous censorship and severe repression against human rights defenders: the violations are systematic and affect a wide range of fundamental rights. However, the free trade agreement makes no reference to this. The granting of commercial policy advantages is not linked to compliance with minimum standards for human and labor rights. The word «human rights» is not even mentioned in the more than 1,000-page contract.

NGO campaign challenges parliament

On July 6, 2013, after two and a half years of negotiations, the Free Trade Agreement (FTA) between Switzerland and China was signed in Beijing. According to the federal administration's timetable, the agreement should come into force at the beginning of July 2014. The NGO coalition “China Platform” is calling for the FTA to be rejected and renegotiated with China.

On December 1, 2013, “China-Plattform” started a social media campaign, which held up a mirror to the parliamentarians: It is remarkable that 72% of the elected members of the National Council in a Smartvote poll before the 2011 elections supported the demand that human rights should be given greater consideration in free trade agreements. You can now prove that it was not an empty election promise.

Step backwards compared to own practice

From a human rights perspective, the agreement is a step backwards compared to the free trade agreements recently concluded by Switzerland within the framework of the EFTA or bilaterally. Together with other organizations of the “China Platform”, Public Eye has repeatedly called for catchy and binding human rights provisions for the FTA with China. This requires joint target agreements, effective monitoring mechanisms and sanction options.

As the detailed human rights analysis of the “China Platform” shows, these are completely absent from the present agreement. Compliance with human rights is not even affirmed in the legally non-binding preamble. And the issue of minority rights, undoubtedly a particularly relevant issue in the context of China, is completely ignored in the agreement. Has the Federal Council lost track of human rights in the negotiations with China?

This question arises because all recent Swiss free trade agreements, including those with Colombia, Ukraine and Hong Kong, affirmed the commitment to human rights as well as to the Universal Declaration of Human Rights. The fact that Switzerland does not apply the same yardstick to a country that is responsible for notorious human rights violations is incomprehensible and unacceptable.

Rules for fair competition

The purpose of the FTA is to create binding rules for trade between Switzerland and China. This undoubtedly includes compliance with internationally agreed minimum labor standards. The eight core labor standards of the International Labor Organization (ILO) apply as such. The Foreign Policy Commission of the National Council apparently also saw it that way when, before negotiations began, it demanded that the Federal Council integrate a sustainability chapter, the focus of which is “compliance with the core labor standards by both contracting parties”.

However, one looks in vain for a binding provision in the agreement that would call for compliance with these minimum standards. It is incomprehensible. China has not yet ratified four of the eight ILO core labor standards, including those on freedom of union and the abolition of forced labor. This gives China an unfair competitive advantage - and its products will in future still benefit from preferential treatment by the FTA on the Swiss market, even if they were manufactured under forced labor or otherwise disregarding minimum labor standards. That is shocking.

Shifting labor issues into a separate agreement that is not linked to the FTA cemented the separation of labor and human rights on the one hand and free trade on the other. The separate agreement must be subject to the FTA's dispute settlement procedure so that appropriate sanctions can be initiated in the event of non-compliance.

Foreign policy coherence put to the test

In its foreign policy in the field of human rights, the Federal Council focuses in particular on the abolition of the death penalty and the protection of particularly vulnerable groups, including minorities and human rights defenders. It is precisely in these areas that China is accused of serious human rights violations. The preferential treatment of China in terms of trade policy without demanding human and labor rights is thus a blatant case of foreign policy incoherence.

The human rights regression of the China FTA compared to previous Swiss agreements must also be interpreted as a lack of coherence. In doing so, Switzerland is damaging its good reputation as a representative of a consistent human rights policy at the multilateral level. In addition, China will not refrain from referring to the agreement with Switzerland when it comes to human rights claims on the part of future trading partners.

For a free trade agreement that conforms to human rights

The EvB and its partner organizations are calling on parliament not to ratify the free trade agreement with China in its present form. The agreement must be turned back to the Federal Council. This with the task of renegotiating an agreement that complies with human rights and that does not fall behind the modest level of the free trade agreements concluded in Switzerland in recent years.

As in all other free trade agreements since 2009, human rights and the ILO core labor standards must also be affirmed in the preamble of this FTA. It is to be hoped that Parliament will have a human rights compass at hand when it is discussing the free trade agreement with China.

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(Article from 07/09/2013)

Anyone looking for the word human rights in the Free Trade Agreement (FTA) between Switzerland and China will do so in vain. This is shown by an analysis of the China Platform, an association of five Swiss development and human rights organizations. In view of the poor human rights situation in China, the outcome of the negotiations is not acceptable. Also in the future there will be no guarantee that Chinese products that have been manufactured in violation of human rights or labor rights will not be sold in Swiss shops.

After several years of negotiations, Switzerland and China agreed on a free trade agreement in May 2013. After some speculation about its content, the agreement has been publicly available since July 6, 2013. The government representatives on both sides signed the document on the same day.

Systematic human rights violations ...

A particularly clear example of the need for minimum human rights standards are the Chinese forced labor camps, in which it is estimated that more than three million people are interned, some without a court judgment and in disregard for the most basic rule of law norms. Another example of systematic human rights violations is the ban on independent trade unions in China. The more than 200 million migrant workers are also systematically discriminated against in many human rights issues.

...accepted

The China platform of non-governmental organizations comments in an unmistakable way that such serious human rights violations in the free trade agreement with China are not countered with any clauses:

“The Federal Council will therefore grant Chinese products from labor camps equal treatment; Swiss companies operating in China are not given the opportunity to exclude the purchase of products from labor camps. By signing the free trade agreement, the Federal Council accepts the lack of freedom of trade unions in China and thus the lack of the right of workers in China to conduct collective wage negotiations. In doing so, he supports trade liberalization at the expense of human rights in China, propagates unfair competition with China by promoting dumping practices and thereby endangers the jobs of Switzerland as a business location. "

China platform demands

In the free trade agreement, human rights and the international core labor standards of the ILO must be anchored in a binding manner and a control and sanctioning mechanism for violations established, was the central demand of the China platform during the negotiations on the free trade agreement. The demands were supported in 2012 with a petition that over 23,000 people had signed for the attention of the Federal Council.

The China Platform is all the more disappointed in its reaction to the free trade agreement, which did not implement any of the differentiated demands. The analysis shows that Switzerland has fallen behind its own modest standard of incorporating human rights and a sustainability chapter at least in a blanket way into bilateral free trade agreements. This is all the more serious because China could now bring the FTA into play with Switzerland as a precedent in negotiations with other countries.

Calculation or derailment?

As if the Federal Council wanted to make explicit its implicit disinterest in the human rights situation in China, following the conclusion of the FTA, Federal Councilor Schneider-Ammann made a sweeping claim that the human rights situation in China had improved and, secondly, Federal President Ueli Maurer spoke out at the subsequent meeting Friendship visit to Beijing increased to testify that the time had come "to draw a line under the Tiananmen massacre". One does not really know whether this inexperienced utterance is to be classified as a power-political calculation or as a naive derailment. It is definitely a scandal.

How next?

The Foreign Policy Commission of the National Council also took the position during the negotiations that the free trade agreement must include a sustainability chapter which, among other things, ensures that the core labor standards of the International Labor Organization (ILO) are complied with.

Now it remains to be seen whether the present free trade agreement with China will be ratified by parliament. If this happens without rectification, a referendum from the left will not be ruled out.

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On President Maurer's visit to China

Press article prior to the FHA publication

Additional information

(Article from 11/30/2011)

A legal opinion prepared on behalf of an NGO coalition confirms the demands for the inclusion of human rights criteria in the free trade agreement between Switzerland and China, which is currently being negotiated. One of the concerns expressed in the study is that strict patent protection could affect the Chinese people's right to food and health. The NGO coalition, consisting of the Declaration of Berne EvB, the Alliance Sud, the Society for Threatened Peoples and the Society for Swiss-Tibetan Friendship, is pleased with the result of the investigations.

The report was prepared by the head of the competence center for human rights at the University of Zurich, Christine Kaufmann, with the assistance of Jonatan low. The Zurich Competence Center also forms the subject area “Human Rights and Business” in the Swiss Competence Center for Human Rights SKMR.

Results of the study: obligations for Switzerland

The study contains an overview of the legal basis, an assessment of some human rights risks in the context of the free trade agreement with China, a selection of suitable options for incorporating human rights criteria into the free trade agreement, and suggestions for further action. The report comes to the following conclusion:

  • Clarification obligation
    Switzerland has a legal obligation to clarify the human rights implications of a free trade agreement with the People's Republic of China.
  • Duty to identify the specific human rights sensitive areas
    A risk assessment of the effects of the free trade agreement on the human rights situation in the People's Republic of China must be carried out.
  • Duty to conduct negotiations in a manner sensitive to human rights
    Switzerland has a fundamental obligation to incorporate the results of these clarifications into the negotiations with China and to work towards a corresponding outcome of the negotiations.

Confrontation is inevitable

With this report, the Swiss negotiating delegation had to deal seriously with the human rights approach. The evasive and soothing stance of the Federal Council on the question of the coherence between human rights and trade policy, as outlined in the answer of 7September 2011 on an interpellation of the FDP parliamentary group is expressed, should no longer be sufficient in the future. Since the negotiations with China are taking place in the greatest discretion, it will probably only be possible to assess whether this dispute has taken place and what results it has brought about only post-festum.

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(Article from November 23, 2010)

From the beginning of 2011, Switzerland will be negotiating a free trade agreement with China. Alliance Sud, the Bern Declaration, the Society for Threatened Peoples and the Swiss-Tibetan Friendship Society have come together to critically monitor the preparations and negotiations for the planned agreement. The four development and human rights organizations share concerns about the unsatisfactory human rights situation in China and the risk of conflicts between trade and human rights obligations.

Position paper

In a position paper they formulated their concerns and demands and stated that free trade must not degenerate into an end in itself. The negotiations should focus on human rights. The four organizations therefore demand that, firstly, the human rights effects of trade agreements be analyzed in advance and, secondly, that binding human rights clauses be incorporated. In order for civil society organizations, but also parliament and the public, to review the Federal Council's commitment to human rights issues, transparent information about Swiss positions and demands as well as the course of negotiations must also be provided.

Call for human rights impact assessments

Trade agreements can have a negative impact on human rights, particularly economic and social rights. Various UN human rights bodies, non-governmental organizations and, increasingly, academic circles have been warning against this for years. It is primarily the Chinese government that must protect the rights of its people. If, however, Switzerland signs a free trade agreement with China, it has obligations under international law to ensure that this agreement does not encourage human rights violations. Quite apart from that, common sense in development policy and the moral imperative also speak in favor of agreements that conform to human rights. And human rights impact assessments can make an important contribution in that the negotiations are based on their results.

Demand for binding human rights clauses

Binding human rights clauses have long been the rule in trade agreements between the EU and other countries. The ILO core conventions must be used as a normative standard for human rights clauses in the field of labor law. This requires that production conditions are recognized as relevant under commercial law. Binding review mechanisms that can be ensured by independent expert groups and competent civil society organizations are also crucial. The general dispute settlement procedure of FHA should then be used to enforce the obligations entered into by the parties.

Furthermore, human rights clauses with appropriate incentive systems can serve to positively influence the human rights situation in China and to take measures in the event of serious violations of fundamental rights.

Foreign policy commission of the National Council for sustainability clauses

Shortly before the position paper was published, the Foreign Affairs Committee of the National Council APK-N dealt with the free trade agreement with China. It has spoken out in favor of strengthening the social and ecological components in the Budesrat's negotiating mandate: “With 13 to 11 votes, it approved a proposal that demands that a sustainability chapter be integrated into the free trade agreement. This is to ensure that the Federal Council is based on the so-called "best practice" free trade agreements of other countries and that the agreement also includes social and ecological factors in addition to the economic dimension. The focus is on compliance with the core labor standards of the International Labor Organization (ILO) by both contracting states ».

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