Corporate social responsibility: a legal framework for socioeconomic development in Tibet.
In the Tibetan context, using all of the above-mentioned CSR tools is vital, but two tools in particular deserve special focus: stakeholder engagement and community investment.
a. Stakeholder Engagement
When a company, whether State-owned, private, or foreign, wishes to start a new investment or improve upon an existing operation, stakeholder engagement is crucial. It allows the company to understand how the business opportunity will be received in the community in which it will take root and the associated benefits and challenges. If done properly, it can allow the investment to occur in ways that meet the concerns and desires of both the company and the community of stakeholders with the end result of maximizing social value while minimizing societal harm.
Tibet is no different than any other locale in that Tibetans want to have agency and a voice in determining how business investments where they live will transpire. Therefore, companies seeking to do business in Tibet must engage Tibetans around the best ways to approach the business opportunity in each local Tibetan area. The goal is to create a space in which Tibetans can be active, ongoing participants whose consultation and consent (184) is a prerequisite to the creation, implementation, and monitoring of any business opportunity which affects them. The key is to produce mechanisms for stakeholder engagement that focus on the importance of utilizing local knowledge to create successful business ventures. (185) As noted above, (186) Ruggie states that conducting human rights due diligence (by utilizing stakeholder engagement) must be context-specific, and must take into account differences in local language. (187) Therefore, a business plan designed in Lhasa for a Tibetan community will not work for a Chinese community in Shanghai; similarly those plans developed in Beijing will not work in Shigatse. Rather, successful plans must grow out of the area in which they will later operate and must therefore be location-specific. For many companies in China this is a new concept; (188) for others there is a desire to learn how to use international best practices to respect human rights. (189) In either case, utilizing this concept is vital for business ventures to maximize the chance for success.
The promotion of stakeholder engagement can be found in numerous sources, but those most applicable to Tibet are found in both Chinese and international law and norms.
i. Chinese Legal Sources for CSR and Stakeholder Engagement
The emergence of Chinese CSR law must be understood within the context of socioeconomic challenges associated with economic development, cultural values and norms, and China's desire to be part of global economic norms. These challenges (including, among others, land confiscation by companies and local governments, the release of unsafe products into the marketplace, illegal labor practices, and uncontrolled pollution) have led to increased protests and unrest throughout the country. (190) According to Chinese data, these "mass group incidents"--which include all types of group protests from sit-ins, strikes, group petitions, rallies, demonstrations, marches, traffic-blocking and building seizures, public melees, riots, and inter-ethnic strife--have ballooned from about 8,700 incidents in 1993, to 32,000 in 1999, to about 50,000 in 2002, surpassing 58,000 in 2003, (191) and to 87,000 in 2005. (192)
In an effort to alleviate this social tension, the government (in addition to passing new legislation and promoting economic and social programs) began a public campaign for Social Harmony in 2005. (193) From a cultural perspective, this campaign signaled a desire to restore order and balance within the country by drawing on the traditional Confucian values of social harmony. (194) Toward this end, Chinese business leaders began to view CSR as a central tool to utilize in this effort. (195) Also at play was Chinese awareness about the need to align China with global business developments or else risk diminishing China's competitive advantage, as failing to embrace CSR could result in a variety of sanctions. (196)
Out of this confluence of forces came two sources (197) of Chinese law that promote CSR principles in general, and stakeholder engagement in particular. The first source applies to those companies that are listed in the Chinese Securities Market, while the second applies to Chinese State-owned companies.
The first source, Chapter 6 of the Code of Corporate Governance for Listed Companies (198) requires that companies respect the interests of stakeholders. The English translation reads:
Chapter 6. Stakeholders
81. A listed company shall respect the legal rights of banks and other creditors, employees, consumers, suppliers, the community and other stakeholders.
82. A listed company shall actively cooperate with its stakeholders and jointly advance the company's sustained and healthy development.
83. A company shall provide the necessary means to ensure the legal rights of stakeholders. Stakeholders shall have opportunities and channels for redress for infringement of rights.
84. A company shall provide necessary information to banks and other creditors to enable them to make judgments and decisions about the company's operating and financial situation.
85. A company shall encourage employees' feedback regarding the company's operating and financial situations and important decisions affecting employees' benefits through direct communications with the board of directors, the supervisory board and the management personnel.
86. While maintaining the listed company's development and maximizing the benefits of shareholders, the company shall be concerned with the welfare, environmental protection and public interests of the community in which it resides, and shall pay attention to the company's social responsibilities.
While this code contains broad pronouncements that are vague as to implementation, it is encouraging because all companies listed in China must not exclusively focus on shareholder primacy, as western countries often demand, but instead also engage with the full range of their stakeholders, including Tibetans for those companies operating in Tibet.
The second source of law is the revision of the Company Law of the People's Republic of China, which took effect on January 1, 2006. Article 5 (199) requires companies to comply with "social morality and business morality" and to "bear social responsibilities." On January 4, 2008, this general CSR prescription was strengthened through implementation guidelines issued by the State-owned Assets Supervision and Administration commission (SASAC), the Chinese oversight organization for State-owned enterprises. (200) The guidelines reinforce the overarching need to develop a harmonious society through the use of CSR. Section 2(7) states that integrating CSR into business practices will help "build a harmonious relation between the enterprise and its employees ... [and] ... contribute to the China's [sic] undergoing program of building a harmonious society." (201)
Stakeholder engagement is placed at center stage in sections 3(9) and 4(18). Section 3(9) states that corporate governance should be improved through "democratic decision-making" and section 4(18) requires "... a regular communication and dialogue mechanism concerning CSR ... [to] ... be established, so that the enterprise can have feedback from its stakeholders and give its response quickly. All the information and feedback should be publicized to receive supervision from stakeholders and society." (202)
It goes without saying that what will give the above legislation value and meaning is proper implementation and enforcement, and it is unclear to what extent this has occurred. (203) Widespread problems are frequently encountered in factory settings in China, suggesting that implementation and enforcement will be challenging. For example, CSR codes of conduct are normally used, "but double-bookkeeping, fraud, and audit manipulation and evasion are common". (204) At the same time, however, having the outer parameters of the legal framework in place is a significant first step toward CSR promotion and practice and something that very few western countries have achieved. (205) The existence of these Chinese laws should allow for a harmonization with the international legal concepts of stakeholder engagement discussed below, and thus utilization in the Tibetan context.
ii. International Law: Free, Prior, and Informed Consent
In human rights terms, stakeholder engagement is often referred to as Free, Prior, and Informed Consent (FPIC): the principle that a community has the right to give or withhold its consent to proposed projects that may affect it. (206) "Consent must be freely given, [acquired] prior to implementation of activities and be [established] upon an understanding of the full range of issues implicated by the activity or decision in question." (207) FPIC is found in several international regulatory instruments, some of which China has ratified and others to which China is not yet a party.
International Convention on the Elimination of All Forms of Racial Discrimination
FPIC is addressed in the International Convention on the Elimination of All Forms of Racial Discrimination, to which China is a member country. (208) Like other conventions, this treaty has a committee body--the Committee on the Elimination of Racial Discrimination (CERD)--that offers general recommendations and comments as authoritative interpretations of the treaty's meaning. Although these do not have binding legal effect, they are nevertheless instructive as to the ways the treaty should be utilized and implemented. CERD therefore provides a legal basis for the obligation of China, Chinese companies, and foreign investors to adopt an FPIC approach to investment in Tibet.
In 1997, CERD offered general recommendations on State obligations and indigenous rights with respect to FPIC by calling upon States to "ensure that members of indigenous peoples have rights in respect of effective participation in public life and that no decisions directly relating to their rights and interests are taken without their informed consent." (209) CERD elaborated upon indigenous rights under FPIC in a series of decisions relating to specific countries. When discussing Australia in 2000, for example, it recognized indigenous peoples' right to "effective participation ... in decisions affecting their land rights, as required under article 5(c) of the Convention and General Recommendation XXIII of the Committee, which stresses the importance of ensuring the 'informed consent' of indigenous peoples." (210) Furthermore, in subsequent years CERD stated that:
As to the exploitation of the subsoil resources located subjacent to the traditional lands of indigenous communities [in Ecuador], the Committee observes that mere consultation of these communities prior to exploitation falls short of meeting the requirements set out in the Committee's General Recommendation XXIII on the rights of indigenous peoples. The Committee therefore recommends that the prior informed consent of these communities be sought, and that the equitable sharing of benefits to be derived from such exploitation be ensured ...; (211) [in the case of Guatemala] [T]he Committee notes with concern that mining licences have been granted by the Ministry of Energy and Mines to concession enterprises and regrets that indigenous peoples were not consulted or informed that the permission to exploit the subsoil of their territory had been awarded to such enterprises.... The Committee recommends that when taking decisions having a direct bearing on the rights and interests of indigenous peoples the State party endeavour to obtain their informed consent, as stipulated in paragraph 4(d) of its general recommendation 23 ... [;] (212) [and in the case of Guyana] ... that the representatives of indigenous communities be consulted, and their informed consent sought, in any decision-making processes directly affecting their rights and interests, in accordance with the Committee's General Recommendation No. 23[;] (213) [and that] the State party undertake environmental impact assessments and seek the informed consent of concerned indigenous communities prior to authorizing any mining or similar operations which may threaten the environment in areas inhabited by these communities. (214)
While these individual decisions relate to incidents in specific countries, they suggest that China, like other countries with indigenous populations, has an obligation to consult Tibetans and to share the benefits of mineral extraction with them.
International Labor Organization Convention No. 169
Perhaps the most well-known source of international law containing the FPIC principle is the International Labor Organization Convention No. 169 (ILO-169). (215) As part of the ILO's labor standards, this convention specifically addresses the rights of indigenous peoples. (216) The convention requires a commitment to good faith negotiations, cooperation, and consent when States are interacting with indigenous peoples. Article 7(1) speaks broadly of the right for indigenous peoples to determine their development priorities:
The peoples concerned shall have the right to decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual well-being and the lands they occupy or otherwise use, and to exercise control, to the extent possible, over their own economic, social and cultural development. (217) Moreover, with respect to land and resource exploitation, Articles 15(2) and 6(2) can be read in conjunction. Article 15(2) mandates that governments: [E]stablish or maintain procedures through which they shall consult [indigenous peoples] ... with a view to ascertaining whether and to what degree their interests would be prejudiced, before undertaking or permitting any programmes for the exploration or exploitation of such resources pertaining to their lands. The peoples concerned shall wherever possible participate in the benefits of such activities, and shall receive fair compensation for any damages which they may sustain as a result of such activities. (218)
Article 6(2) requires that this consultation process be carried out "... in good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent." (219)
While China is a member of the ILO, (220) it has not yet signed and ratified ILO-169, (221) and thus does not have a legal duty to comply with ILO-169. However, the Convention is a "persuasive authority" for non-member countries with respect to FPIC. (222) Furthermore, as noted above under Ruggie's second pillar, (223) companies have the responsibility to respect all internationally recognized human rights; and China's endorsement of the UN Guiding Principles (224) indicates its implicit expectation that companies operating inside its borders will respect human rights. When this is taken in combination with the principle of consistent best practices (from the CSR tools laid out above), domestic and foreign companies operating in Tibet must take ILO-169 into consideration both prior to and during an investment undertaking. Not doing so--that is, adhering to the principles of the Convention in an ILO member country while denouncing them when operating in non-member country--has the potential to undermine a company's brand/reputational image; and, its social license to operate may be adversely affected both in China and abroad. The reason is simply because as FPIC increasingly becomes accepted as a global standard, (225) Tibetans (in Tibet and abroad) may question why ILO-169 does not apply to them and may protest over its lack of utilization in Tibet.
UN Declaration on the Rights of Indigenous Peoples
Another legal instrument that suggests an obligation for China to create a process for consulting and gaining consent of the Tibetan community in connection with direct investment in Tibet is the adoption by the UN General Assembly of the Declaration on the Rights of Indigenous Peoples (DRIP) in September 2007, with China voting in favor. (226) Article 32(1) and (2) state, respectively:
1. Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.
2. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources. (227)
As a declaration, it is technically a form of soft law (228) and therefore not binding on States. However, by voting for it, China has publicly and implicitly indicated a willingness to consider the priorities of Tibetans in developing their natural resources, even though China has yet to operationalize this into specific action. Moreover, adoption of the convention by 143 member countries (229) signifies building momentum and broad international support for the rights of indigenous peoples.
FPIC as "Hardening" Law
For a variety of reasons, both legal and practical, the distinction between FPIC as soft versus hard law is dissolving. FPIC is "hardening" into binding law as States (230) use it as the foundation for legal decisions and regulations. (231) When soft law becomes part of the "consistent conduct of States acting out of the belief that the law requires them to act that way," it becomes customary international law and therefore binding on States, a process that has begun to happen with DRIP. (232)
In addition, FPIC is now mandatory for those companies seeking financing from the International Finance Corporation (IFC). The IFC's Performance Standards are intended to help ensure that IFC-funded projects are pursued within a sustainable development framework. (233) The Performance Standards not only incorporate the UN Guiding Principles, (234) they also require an FPIC approach. (235) In 2002, the IFC opened an office in Chengdu "to help spur development in the country's less-developed western regions," (236) presumably to help China with its Great Western Development campaign. China is now the IFC's third largest portfolio country. (237) If the IFC has not already funded companies to work on projects in Tibet, (238) this will likely occur in the future. Such companies will therefore be contractually obligated (239) to use an FPIC approach for their investments.
Beyond such legal mandates, companies are increasingly adhering to FPIC through their own volition. For example, the International Council on Mining and Metals (ICMM) (240) released a position statement (241) in May of 2013 in which member companies committed to using a FPIC approach for future investment projects. The statement indicates that companies will "[w]ork to obtain the consent of indigenous communities for new projects (and changes to existing projects) that are located on lands traditionally owned by or under customary use of Indigenous Peoples and are likely to have significant adverse impacts on Indigenous Peoples..." (242) ICMM companies and others using an FPIC approach are doing so presumably because it will help reduce their legal, operational, and reputational risk, (243) they find it easier to administer a single business approach across all global operations, and because they take their responsibility to respect human rights seriously. (244) As such, FPIC can be seen as an emerging normative/legal obligation that requires consultation and consent prior to and during investing.
Therefore, CERD, ILO-169, DRIP, and the IFC's Performance Standards in combination suggest a series of obligations that would apply in the following manner to companies operating within an FPIC framework in Tibet. If, after consultation with a company, Tibetans believe the business investment (from the extractive industries or otherwise) will benefit the local community, Tibetans then have the right to accept the project. The converse is similarly true; if after consultation Tibetans reject the project, the company must respect this decision. The right to such rejection is further grounded in the International Covenant on Civil and Political Rights (ICCPR), (245) a treaty to which China is a signatory. (246) Alternatively, if Tibetans believe a project will be more beneficial for the local community if pursued in a way that is different from the company's initial plan, this decision too must be respected and a mutually beneficial solution must be crafted involving all affected parties. (247) In addition, there must also be space for continued consultations throughout a project's existence that allows for changes to be made at any time. The key point is that under an FPIC framework Tibetans must be empowered to determine the direction of any business investment that affects them anywhere on the Tibetan plateau. From the company perspective, obtaining this consent is crucial because it will help mitigate potential company infringement on human rights by avoiding the likelihood of Tibetan protests (248) against company projects that can lead to the intervention of Chinese security forces, attacks on protestors, and the consequent loss of life. (249)
These FPIC obligations are situated among the several layers of stakeholder engagement legal obligations discussed above, depending on who the actor is. To summarize, foreign companies and private Chinese companies must comply with Chapter 6 of the Chinese Code of Corporate Governance, (250) and the FPIC obligations which are grounded in Ruggie's second pillar that requires companies to respect all internationally recognized human rights by utilizing human rights due diligence. Chinese State-owned companies must meet these same three obligations (251) with two in addition: they must also comply with the Company Law of the People's Republic of China, and its associated SASAC implementation guidelines, and with Ruggie's first pillar. As Ruggie indicates, "Where a business enterprise is controlled by the State or where its acts can be attributed otherwise to the State, an abuse of human rights by the business enterprise may entail a violation of the State's own international law obligations." (252) Finally, underpinning all of these is the Chinese government's duty to protect human rights; it must do this by ensuring all three business types (foreign, domestic, and State-owned) respect human rights pursuant to Ruggie's first pillar by guaranteeing that proper regulation is implemented and enforced.
SUMMARY OF POTENTIAL LEGAL RESPONSIBILITIES AND OBLIGATIONS (253)
Company Type Chinese For- Chinese State- eign Private owned Chinese Law Chap 6 for Listed Com- [check] [check] [check] panies Company Law/SASAC [check] Guidelines International Law UN Guiding Principles Pillar One [check] Pillar Two [check] [check] [check] ICCPR [check] [check] [check] FPIC CERD [check] [check] [check] ILO 169 [check] [check] [check] DRIP [check] [check] [check] IFC Performance [check] [check] [check] Standards
iii. Application to Individual Companies
This article is intended to provide an overall CSR framework with reference to specific tools and laws, some (or all) of which apply to individual companies operating in Tibet. Determining which are relevant to a particular company must necessarily be evaluated on a case-by-case basis. However, for illustrative purposes, the below high-level analysis is intended to demonstrate how operating within a CSR framework might work for companies that are currently in Tibet. Toward that end, the below discussion centers on two examples, one company that is foreign and has not encountered any public-facing human rights challenges, the St. Regis Hotel, and the other which is domestic and has encountered human rights problems, China Gold International. (254) In looking at each company, it is helpful to classify the risks each faces into three categories: legal, operational, and reputational.
The St. Regis Hotel is one of nine hotel brands owned by its United States publicly-traded parent company, Starwood Hotels and Resorts Worldwide, Inc. (255) In November 2010, it entered Tibet by opening its first hotel in Lhasa. (256) At present, there is no public indication that the hotel has encountered any human rights problems. (257) Before it opened, however, there was concern about it displacing Tibetan residents in order to build its facilities. (258) If this did in fact occur, the company will have to rectify such abuse pursuant to pillar three of the UN Guiding Principles. (259) Going forward, the St. Regis should utilize CSR for a variety of reasons.
From a legal perspective, the hotel will need to carry out human rights due diligence in order to identify actual and potential adverse human rights impacts, pursuant to pillar two of the UN Guiding Principles. The St. Regis will have to carry this out not only because this is the new international norm that China has endorsed, but also because the Starwood Hotels and Resorts group explicitly holds itself to this standard. (260) Carrying out human rights due diligence will require assessing the hotel's operations against all international human rights, but particular attention will have to focus on forced labor and human trafficking, two of the hotel industry's biggest challenges.
Failure to respect human rights will expose the St. Regis not only to a breach of its own self-proclaimed legal standards, but also to operational and reputational risk. Disregarding the rights of its workers, for example, could result in a labor strike, and thus make it difficult, if not impossible for the hotel to function and serve its guests. The discovery of human rights abuse at the hands of the hotel could also result in reputational challenges that could harm business competitiveness. In this instance, by using social media, activists could highlight the abuse(s) and steer potential customers away from the St. Regis to competitors that have a better reputation. This could culminate in a boycott that could result in a loss of business for the St. Regis, and in a worse case scenario force it to leave Tibet, as occurred with the InterContinental. (261) Conversely, by carrying out human rights due diligence (which includes reporting publicly on such efforts), the St. Regis could gain a competitive advantage by being a leader among its peers. Besides potentially benefitting the St. Regis, such actions could serve as a model to other international and domestic companies around the importance of utilizing CSR and thus help promote its presence in Tibet.
The challenges China Gold International faces are different than those faced by the St. Regis, but China Gold International could also benefit from using CSR. China Gold International is a copper and gold mining company headquartered in Canada and dually listed on the Hong Kong and Toronto stock exchanges. (262) Although it is based in Canada, it presently only operates two mines, both of which are in China (and one of which is in Tibet). Several of its senior leadership and board directors also work for China National Gold, a Chinese State-owned company (263) that is the largest gold producer in China and also China Gold International's principal shareholder. (264) China Gold International calls itself "the overseas flagship company of China National Gold Group Corporation." (265) For these reasons, China Gold International can arguably be characterized as a Chinese domestic company that has international ambitions.
On March 29, 2013, China Gold International faced a mining disaster (266) at its Tibet mine in which 83 workers (eighty-one Chinese and two Tibetans) were buried and killed by a landslide. (267) The miners worked for Huatailong Mining Development, a subsidiary of China Gold International. (268) In the initial aftermath, the official government explanation was that a natural disaster caused the landslide. (269) Like the Chinese Government, China Gold International pointed to natural causes and offered few specifics, initially telling reporters to refer to "the news" because it was a "sensitive issue." (270) On April 7, 2013, a little more than a week after the disaster, China Gold International issued its final statement on causality, reaffirming its belief that it was geological. (271) In response, foreign experts (272) and advocates (273) called into question this explanation, suggesting the landslide was manmade. To date, there has been no further elaboration by China Gold International on the landslide's cause.
Focusing squarely on this incident reveals the risks and liability the company faces, even taking the company at its word that the disaster happened as a result of geological factors. Because the right to life has been violated, one has to question the prudence of putting its workers in such a dangerous location.
From a legal perspective, China Gold International is subject to Chinese, international, and even Canadian law. Given the close relationship with China National Gold--in management, share ownership, and its self-proclaimed connection--there is a strong argument that China International Gold is a State-owned company and therefore must comply with Chinese State-owned CSR laws, namely those that focus on stakeholder engagement, such as the Company Law of the People's Republic of China and its SASAC implementation guidelines. Section 4(18) of the SASAC guidelines requires "... a regular communication and dialogue mechanism concerning CSR ... [to] ... be established, so that the enterprise can have feedback from its stakeholders and give its response quickly ..." (274)
Based on public information from its website, it is unclear whether China Gold International had this type of mechanism in place when the disaster struck. The experience of other mining companies (275)--that have also experienced massive landslides, but which averted worker injury precisely because they used an early warning stakeholder engagement system--suggests that China Gold International was not using such a system and thus may be in violation of Section 4(18). Because there is a lack of clarity around whether China has implemented and is enforcing its CSR laws, (276) China Gold International may face no repercussions in China for its workers' deaths.
Regardless, the company may face liability under Canadian law. In the summer of 2013, a ruling by a Canadian court suggested a willingness by Canadian courts to use tort law to hold domestic companies liable for human rights violations committed overseas by subsidiaries. The plaintiffs in the case are indigenous Mayans from Guatemala who brought suits against Hudbay (a Toronto-based mining company) and its wholly controlled subsidiaries for alleged atrocities committed in Guatemala by the subsidiaries. (277) Should the court ultimately find Hudbay to be liable, China Gold International could then also be liable under the same theory for its workers' deaths at its mine in Tibet.
In addition to these obligations, China Gold International still has a responsibility to respect international human rights pursuant to pillar two of the UN Guiding Principles. Due to the deaths of the workers, the company failed to respect the right to life as required by the ICCPR, (278) and thus the company has an obligation to provide an adequate remedy to the family members of the dead. (279)
Furthermore, there is evidence that China Gold International failed to use an FPIC approach when it initially secured its mining site. The area in which its Tibet mine is located is the Gyama Valley, a place revered by Tibetans because it was the birthplace in the seventh century of Songtsen Gampo, the first king of the Tibetan empire. (280) As such, the area is popular among Tibetan pilgrims who traditionally flocked to the area to see its sacred mountains, caves, shrines, and rock paintings. (281) Due to mining, however, much of the area is closed. Consequently, local Tibetans have been protesting the mine for years. (282) In addition to complaints over disrespect of religious traditions, Tibetan protests have also been grounded in labor and environmental concerns. In 2009, China Gold International used villagers' water because of a drought, which led to protests by the locals and the detention of many villagers by the police. A year later there were rallies by Tibetans and supporters of Tibet outside the company headquarters in Vancouver. (283) Tibetans also voiced displeasure at a lack of jobs (284) being offered
to Tibetans, displaying resentment that employment went almost exclusively to migrant workers. (285) Given that China Gold International did not halt its operations, it appears these community objections were never taken into consideration, but instead were dismissed--all in violation of an FPIC approach.
Even if China Gold International is not held liable in China, under Canadian law, or even for its violation of FPIC, it could still face reputational challenges that could result in business difficulties. As FPIC and the UN Guiding Principals further crystalize and take root internationally, stakeholders will reward companies that abide by these standards and laws and punish those that do not. For China Gold International, this could manifest itself most acutely through shareholder resolutions calling for divestment. Two of its largest, current shareholders, The Vanguard Group and The Canada Pension Plan Investment Board, (286) routinely face shareholder resolutions by activists. (287) Here, a successful campaign by Tibet supporters could result in Vanguard and the Canada Pension fund wanting to distance themselves from China Gold International; the companies could then pressure China Gold International to change its practices or risk divestment. A loss of investment could prove destabilizing to China Gold International, particularly since its share price fell 13% the day after its mining disaster. (288)
This reputational risk exists on top of operational risks. If China Gold International does not use FPIC going forward, and if it does not enhance (or start using for the first time) a stakeholder engagement mechanism, it could face strikes by workers and surrounding communities for its failure to secure and maintain a social license to operate. (289) These strikes could result in mine closures with the ancillary disruption to revenue streams, causing an inevitable drop in share prices and profit margins. (290) Worst of all, the company could be liable for additional worker deaths if security personnel are called in to break up crowds through gunfire that results in protestors dying. (291)
As indicated, the above analysis on both companies is high level and based on publicly available information in English; an actual human rights impact assessment would have much more breadth, depth and rigor. It is therefore possible that either or both companies have used CSR tools centered on stakeholder engagement (as required by Chinese law, international law, human rights due diligence, and FPIC). However, given that these tools require public reporting on human rights performance, their utilization by each company remains an open question. As these responsibilities and obligations gain greater currency and traction, laggard companies who do not use CSR tools will be in greater danger of legal liability, and thus will also risk undermining their operations and tarnishing their reputations. Conversely, those companies that take a leading role will see their legal liability--and therefore their operational and reputational risk--diminish. Ultimately, the St. Regis, China Gold International, and any other company operating in Tibet will be most successful when they approach their impact on human rights as a problem to be solved, rather than an issue to be managed. (292)
IV. Environmental Considerations
Although the focus of this article centers on promoting respect for human rights, CSR's other focus is environmental sustainability. A brief discussion of how this relates to international law vis-a-vis China and Tibet is therefore of great importance.
China is a party to several multilateral environmental agreements, some of which incorporate the FPIC principle. For example, the Convention on Biological Diversity (293) aims to promote development that is environmentally sustainable. Article 10(c) of the Convention requires State parties to "[p]rotect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation or ... sustainable use requirements." (294) This legally binding article gets coupled with consideration of indigenous rights and protection and management of traditional lands in a recommendation adopted by the 7th Conference of the Parties (295) to the Convention in Decision VII/28 on Protected Areas. In relevant part it states that, "the establishment, management and monitoring of protected areas should take place with the full and effective participation of, and full respect for the rights of, indigenous and local communities consistent with national law and applicable international obligations." (296) In 2004, The Secretariat of the Convention put forth the Akwe: Kon Guidelines to support the Convention. They are intended to serve as "voluntary guidelines for the conduct of cultural, environmental and social impact assessments regarding developments proposed to take place on, or which are likely to impact on, sacred sites and on lands and waters traditionally occupied or used by indigenous and local communities." (297) The Akwe: Kon Guidelines call on governments or the "proponent of a development proposal"--which presumably includes business entities--to establish "a process whereby local and indigenous communities may have the option to accept or oppose a proposed development that may impact on their community." (298) The Akwe: Kon Guidelines are not binding on States or companies, but they do provide persuasive support for FPIC principles and their relevance when the impact of a project is on land that is sacred or used ceremonially. (299)
For Tibet, sustainable environmental development raises issues of both domestic and international concern. In the Tibetan context, taking seriously the need to "protect and encourage customary use of biological resources in accordance with traditional cultural practices" necessarily requires an understanding of how Tibetans view the natural environment in which they live. For many Tibetans, much of the land they live on has attached to it a sacred or religious importance. Working with Tibetans to understand this is therefore vital, as not doing so can lead to tension and protest between local communities and business operations, as discussed in the illustrative examples above. (300)
In addition to being distracting to business operations, one has to presume such demonstrations also disrupt revenue streams. As noted by Sherman above, (301) engaging in proactive stakeholder engagement can result in creating a stable operating environment and therefore substantial cost savings, (302) a situation which one has to assume did not occur in the above-discussed examples between the companies and local Tibetan communities. Furthermore, unless stakeholder engagement has occurred subsequent to these incidents, protests of a similar nature will likely reoccur.
From an international perspective, the Tibetan environment is of great importance to the rest of the world, particularly to Asia. The Tibetan glaciers are the source of many of Asia's largest rivers including the Brahmaputra, the Indus, the Sutlej, the Karnali, the Arun, the Salween, the Mekong, the Yangtze, the Yellow River, and the Irrawaddy. (303) These rivers flow into eleven mega-deltas in coastal zones around Asia, which are also connected to seven mega-cities. The millions of people that live in these areas outside China's borders are dependent upon these water sources. (304)
However, these glaciers are melting, which will increasingly result in floods and water shortages. Liu Shiyin of the Chinese Academy of Science's Cold and Arid Regions Environment and Engineering Research Institute has stated that "the shrinking of glaciers has picked up speed in the past decades.... While there might be more water in the rivers at present because of the increased melting, in the long run, the glacier water will decrease, and droughts will follow." (305)
Shortages are occurring in Tibet due to increased tourism and development, (306) and elsewhere in China due to increased household and industrial consumption. (307) Consequently, China is now diverting rivers in an attempt to alleviate this problem within its borders, much to the consternation of downriver countries including Bangladesh, India, and Kazakhstan, among others. (308)
From the CSR perspective, companies must appreciate this challenge. Those companies working on water diversion projects must understand the consequences of their actions and the potential for social tension the projects entail. Those companies working in Tibet (but in industries unrelated to water diversion) must also be aware of their business operations' environmental consequences. In both cases, working toward sustainable usage of these water resources is vital, not only to appease Tibetan sentiment, (309) but also to avoid regional conflict among the countries in Asia that are dependent upon this water.
b. Community Investment
As previously stated, using all CSR tools in Tibet is vital, but two in particular deserve special attention. The first is stakeholder engagement, discussed above, (310) and the second is community investment, discussed below.
For many companies, especially those in the west, community investment is not a new concept. While it is similar to philanthropy, it goes beyond check writing or one-time charitable activities. (311) Instead, it is a form of investment whereby companies partner with governments and/or NGOs to identify community challenges and then offer long-term resource assistance to help alleviate those difficulties. As such, it is not the case of companies blindly handing over money as a philanthropic gesture, but it is rather a means of engaging in strategic, targeted giving with a specific aim in mind, all while ensuring accountability mechanisms that ensure the resources are used appropriately. In all cases the end goal is to improve the community in which the company operates.
Community investment can be promoted through legal mechanisms--in China, community investment is required for State-owned companies, (312) though the precise mechanism for doing so is unclear--and it can be accomplished on a voluntary basis. Legal promotion can exist using responsible contracting (313) through what are commonly referred to as "impact and benefit agreements" or "socioeconomic agreements." (314) These contracts contain within them negotiated agreements between the company and the local community where the investment will occur. The idea is to address any adverse environmental or social impacts the business operation may engender and to ensure that local communities will benefit. (315) The range of topics in such contracts is long, but can include, among others: employment hiring policies that give preference to locals with training programs included; clauses that ensure local communities receive economic benefits such as royalties or profit shares; environmental considerations that aim to minimize or mitigate environmental harm; and social and cultural clauses aimed at respecting areas of cultural significance and developing social programs. (316) In some cases these are viewed as private contracts entered into voluntarily, but in other situations they are a precondition to obtaining an operating license or permit. (317) In the case of Tibet, these agreements could cover hiring Tibetan management, using the Tibetan language in the workplace, offering skills training to Tibetans, and engaging in efforts to preserve the natural environment, among others. (318)
While the law plays a role in community investment, much of the worldwide work in this area currently comes from companies who voluntarily take on individual initiatives in innovative ways by partnering with governments and NGOs. In Tibet there are many community development needs. Two in particular deserve elaboration. As indicated above, a large percentage of Tibetans are undereducated and therefore illiterate. In addition to preventing these individuals from gaining formal employment, lacking education results in the prevention of self- empowerment and enrichment in all areas of life. Corporate community investment therefore has the potential to make great strides in this area by partnering with others to determine educational needs and solutions. (319) Furthermore, while voluntary efforts would be welcomed, Chinese law requires Chinese State-owned companies to provide employee education. (320)
Health care is another significant difficulty facing Tibetans on the plateau. Among other serious challenges, problems include: high child and infant mortality rates, (321) iodine deficiency, (322) malnutrition in children, (323) rickets in children due to vitamin D deficiency, (324) and even the plague. (325) There are also fears that the Qinghai-Tibet railway will increase the HIV/AIDS rate as migrants from provinces with higher rates travel to the TAR. (326) While working to alleviate health and education challenges is primarily the duty of the State, the current unsustainable (327) Chinese government investment in the TAR is not meeting the needs of Tibetans and therefore partnering with the foreign and domestic business community is necessary.
Furthermore, two additional reasons support corporate community investment as they enhance business opportunity. Most obvious is that a healthy and educated workforce is more efficient and able to perform at higher levels. More significant is that working to alleviate these challenges can also result in the creation of new business opportunities through Base of the Pyramid (BoP) initiatives. BoP is a concept coined by economist C.K. Prahalad in his book The Fortune at the Bottom of the Pyramid. (328) BoP refers to the largest but poorest socioeconomic group in the world. In global terms, it is the 2.5 billion people (329) who live on less than $2 per day. The concept is used by people who seek to develop new models of doing business that deliberately target this demographic so as to create new markets while concurrently working toward poverty alleviation.
Prahalad published his book in 2004 and since then many commentators have worked to refine his vision. From among these critiques arise a few common themes separating those business enterprises that have succeeded from those that have failed. The first is that companies must understand the customer. Business cannot assume to know what the poor will buy and must not confuse what they think the poor need with what the poor actually want. Therefore, companies must partake in rigorous stakeholder engagement to understand what the 'wants' are from the perspective of those in poverty. The other major challenge is pricing. Companies who failed did not take into account the fact that the poor have cash flow irregularities, little savings, little access to credit, and therefore a difficult time paying off purchases in installments. The solution is either a very low price or to link pricing with micro-finance options. Also important is to view the poor not solely as customers but also as suppliers; this encourages productive linkages in the local economy by promoting local economic ownership and labor. (330) While the BoP markets will vary in size and scope depending on the industry, the potential for new customers and suppliers holds out the promise for enlarged business opportunities, especially in Tibet.
i. Additional Reasons Why Business Should Invest in Tibet In Particular
Notwithstanding the challenges that Tibetans face, Tibet, like any other emerging market, holds out great potential for business investment. This is due to the abundance of human and natural resources, and because of the region's underdevelopment gap compared to neighboring provinces that China desires to close.
As such, Tibet provides a wealth of business opportunities. It has vast natural resources including minerals such as gold and rare earth metals, oil and gas, arable land, forest products, and freshwater resources. It also has vast potential for renewable energy, including wind and solar. It is strategically placed against neighboring Chinese
regions and other countries such as India that are on a rapid path of development. Moreover, it has untapped human potential with a population of an estimated 6 million individuals, many of whom are largely unconnected to international markets and therefore lack access to numerous services, including reliable electricity, financial services, and cell phone and internet connections, among others. Collectively, these 6 million individuals represent potential consumers, employees, and suppliers.
Companies can therefore bring a number of substantial benefits to Tibetans such as decent and healthy employment opportunities, higher levels of income, access to new technologies, and sustainable economic development. They can help foster growing the economy in a way that has more equitable socioeconomic results than those that presently exist. Companies can also help develop Tibetan capacity around much-needed business skills, competencies, and capabilities. If done in a careful and considered way, this responsible investment could improve livelihoods, help to protect Tibet's natural environment and rich biodiversity, and address key development needs. In turn, such investment could provide healthy returns for investors, boosting both the business community and Tibetans.
Investment in Tibet, therefore, is needed both in general terms (providing standard goods and services) and in specialized ways (investment that has development goals in mind). Toward the latter type, by pursuing BoP measures in Tibet, companies could help overcome community challenges--under education, health care, etc.--that are not necessarily created by business but are barriers to business entry and success and which also detract from the general welfare of the Tibetan community. The end result would be the creation of new markets (331) that meet unfulfilled socioeconomic needs. (332)
For companies that presently invest in Tibet, utilizing CSR will help enhance business operations. Given the Tibetan protests and self-immolations over the mining practices of some companies, this sector stands to make the biggest gains at present. Undoubtedly, using stakeholder engagement and community investment will help extractive companies better understand the various Tibetan contexts in which they are operating, the associated benefits and challenges, and thus help them realize a more stable operating environment and cost savings.
Furthermore, for foreign companies that wish to enter Tibet, using CSR will help minimize risk and thus ensure smoother operations and likelihood of business success. This is particularly true with respect to reputational risk. Many foreign companies have foregone investment in Tibet because they believe it involves too much political risk that would harm their corporate reputation. This is not an unfounded concern given the widespread international support Tibetans receive that focuses close attention on human rights and environmental issues in the region; often this support takes the form of protests and campaigns against companies. (333) These foreign protests exist because at present there are no examples of foreign companies that abide by CSR standards in Tibet. Therefore, if foreign companies invested responsibly in Tibet under a CSR framework, such companies would surely receive backing from Tibetan supporters abroad and thus overcome the reputational/political risk that many companies currently find to be a barrier to market entry. In turn, these frontrunner companies would also help promote CSR in Tibet and serve as a model for other foreign and domestic companies to follow suit. By contrast, those foreign companies that invest without the use of CSR will find the concentrated attention of foreign Tibet supporters focusing a spotlight on the negative environmental and human rights impact of their company operations.
Tibetans are in great need of socioeconomic development. However, the past and present government-initiated development approaches have not worked effectively. The result is that Tibetans live in under-developed conditions. This gives rise to Tibetan social instability and unrest with the further consequence that business opportunities are unable to be maximized. New tools for development must therefore be utilized.
With the expansion of Tibet's infrastructure, business opportunities await. Where these opportunities can further the social and economic needs of Tibetans by using CSR tools--especially stakeholder engagement and community investment--the potential for value creation is greatest, not only for Tibetans but also for business, and by extension the Chinese government.
Toward this end, CSR pilot projects and case studies will need to be explored, developed, and applied in Tibet. (334) At present CSR efforts in China are almost exclusively focused in the eastern parts of the country and not in Tibet. (335) Working toward this will require each actor to play its proper role. As such, Tibetans will need to view themselves as stakeholders and help companies of all types understand Tibetan socioeconomic needs and desires. Companies, in turn will have to design business plans in accordance with the diverse range of Tibetan perspectives. Companies will likely find that drawing upon the lessons learned from the successes and failures of CSR experiences in eastern China will be vital for helping to develop Tibetan models of CSR, but they will also have to craft initiatives that focus on the unique Tibetan context(s) and draw upon international best practices.
These business prospects and related CSR opportunities have little chance at succeeding, however, unless the Chinese government creates the space for them to take root and flourish. If the new Chinese leadership wishes to assist Tibet in developing responsibly through business investment, it will have to create additional CSR laws and regulations and ensure the existing legislation is implemented and enforced. Baring this and other new approaches, alleviating Tibetan social unrest--and therefore obtaining the social stability that the Chinese government so greatly desires--seems like a distant prospect. For the benefit of Tibetans, the business community and the Chinese government, one hopes a new approach (336) will be tried.
Chris Fletcher (1)
(1.) Chris Fletcher (BA, cum laude and with departmental honors, Macalester College, 2005; Thomas J. Watson Fellow, 2005-2006; JD, Northeastern University School of Law, 2011) is an attorney with expertise in corporate social responsibility and international human rights. Fletcher has worked with Tibetan populations (both in Tibet and the Diaspora) on and off for over a decade. He would like to thank his colleagues and friends for providing feedback to improve this article. The views expressed here are his own. Email: email@example.com
(2.) See Elizabeth C. Economy, The Game Changer: Coping with China's Foreign Policy Revolution, 89 Foreign Affairs 142,143 (2010) [hereinafter The Game Changer], See also China Responsible for 75% of Poverty Reduction in the Developing World Since 1980, Finfacts Ireland (Oct. 12,2005), http://www.finfacts.ie/irelandbusinessnews/publish/article_10003611.shtml (citing former World Bank President Paul Wolfowitz as saying, "China, as we all know, has been the fastest growing economy in Asia for the past 20 years and has lifted more than 400 million people above US$1 a day poverty levels in that time.").
(3.) Bob Davis, Economic Growth Rate Hard to Maintain, WALL ST. J. (July 14,2010), http://online.wsj.com/article/SB10001424052748703792704575367022494247074.html.
(6.) For example, China controls an estimated 97% of the world market of rare earth metals. Release of Fisherman Reflects China's Rising Economic, Military Power, PBS Newshour (Sept. 29, 2010), http://www.pbs.org/newshour/bb/business/july-dec10/china_09-29.html.
(7.) John W. Miller and Marcus Walker, China Dethrones Germany as Top Goods Exporter, Wall St. J. (Jan. 6, 2010), http://online.wsj.com/article/SB126272143898416853.html.
(8.) David Barboza, China Passes Japan as Second-Largest Economy, N.Y. Times (Aug. 15, 2010), http://www.nytimes.com/2010/08/16/business/global/16yuan.html?_r=1.
(9.) Shen Hu, China's Gini Index at 0.61, University Report Says, Caixin Online (Dec. 10, 2012), http://english.caixin.com/2012-12-10/100470648.html (noting that, "according to the report, the combined income of all households in eastern provinces was about 2.7 times that of the west and the central regions.").
(10.) Max Fisher, Study: Income Inequality Skyrockets in China, Now Among World's Highest, Wash. Post (Dec. 11,2012), http://www.washingtonpost.com/blogs/worldviews/wp/2012/12/11/ study-incomeinequality-skyrockets-in-china-now-among-worlds-highest/.
(11.) Map of the Tibetan Plateau, Land of Snows: Expert Travel Advice on the Tibetan Plateau, http://www.thelandofsnows.com/wp-content/uploads/2012/01/tibet_map_2.jpg.
(12.) Map of All Chinese Provinces, Including the Tibetan Autonomous Region (TAR), The Tibetan and Himalayan Library, University of Virginia, http://www.thlib.org/places/maps/#iframe=http://www.thlib.org/places/maps/interactive/ ?css_url=http://www.thlib.org global/css/thd1-style.css&parent_url=http://www.thlib.org/places/maps/ &x=1050&y=850.
(13.) Map of the TAR and Tibetan Autonomous Counties (TACs) and Tibetan Autonomous Prefectures (TAPs), The Tibetan and Himalayan Library, University of Virginia, http://www.thlib.org/places/maps/#iframe=http://www.thlib.org/places/maps/interactive/ ?css_url=http://www.thlib.org/global/css/thd1style .css&parent_url=http://www.thlib.org/places/maps/&x=1050&y=850.
(14.) A Simple Map of the Three Traditional Provinces of Tibet Overlaid on a Map of Modern Provincial Boundaries of the People's Republic of China, Wikimedia Commons, http://commons.wikimedia.org/wiki/File:Tibet_provinces.png.
(15.) For a fuller discussion, see, e.g., Elliot Sperling, The Tibet-China Conflict: History And Polemics (2004) (offering an attempt to provide insight into both the Tibetan and Chinese historical perspectives of Tibet's contested political status).
(16.) Note that there are other scholars whose work focuses on socioeconomic development in Tibet. Though this scholarship is undoubtedly helpful, these scholars typically approach their work from a different discipline--e.g. anthropology and geography--and also tend to focus on data gathered primarily thorough fieldwork focused on regions or sub-regions/cities in Tibet. By contrast, Fischer's work is compelling because of the source of his data (Chinese government statistics) and the results of his economic analysis (macro-level implications in Tibet). For an example of an author from a different discipline who comes to similar conclusions as Fischer, see Emily T. Yeh, Taming Tibet: Landscape Transformation And The Gift Of Chinese Development (2013) (offering analysis, particularly in Chapter 3, of China's development policies in Tibet through data gathered by ethnographic research) [hereinafter Taming Tibet],
(17.) See Tibet at a Glance, Central Tibetan Administration, http://tibet.net/about-tibet/tibetat-a-glance/ (noting that the total population of Tibet is 6 million of which a little over 2 million live in the TAR).
(18.) United Nations Development Program, China Human Development Report (1997), available at http://www.cn.undp.org/content/dam/china/docs/Publications/ UNDP-CHNHDR-Publications-China-Human-Development-Report-1997.pdf [hereinafter UNDP China 1997],
(19.) United Nations Development Program, China Human Development Report (1999), available at http:/ /hdr.undp.org/sites/default/files/china_1999_en.pdf [hereinafter UNDP China 1999],
(20.) UNDP China 1997, supra note 17, at 13; UNDP China 1999, supra note 18, at 96-101.
(21.) UNDP's human development index consists of a simple average of three measures: income, longevity, and education.
(22.) UNDP China 1999, supra note 18, at 62.
(23.) This is also referred to as the Western Development Strategy or the Go-West Campaign. For more information see, e.g., Tibet Information Network, China's Great Leap West (2000).
(24.) The provinces include Gansu, Guizhou, Qinghai, Shaanxi, Sichuan, and Yunnan.
(25.) The autonomous regions include Guangxi, Inner Mongolia, Ningxia, Tibet, and Xinjiang.
(26.) Andrew Fischer, The Disempowered Development of Tibet in China: A Study in the Economics Of Marginalization 132 (2013) [hereinafter The Disempowered Development of Tibet],
(27.) Andrew Fischer, Tibet Watch Report: Perversities of Extreme Dependence and Unequal Growth in the TAR 4 (2007), www.tibetwatch.org / Tibet%20Watch%20Special%20Report%20Andrew%20Fischer.pdf [hereinafter Perversities of Extreme Dependence].
(28.) Andrew Fischer, The Great Transformation of Tibet? Rapid Labor Transitions in Times of Rapid Growth in the Tibet Autonomous Region, 30 Himalaya: The Journal of the Association for NEPAL and Himalayan Studies 63, 65 (2011) [hereinafter The Great Transformation of Tibet],
(29.) Andrew Fischer, Educating for Exclusion in Western China: Structural and Institutional Dimensions of Conflict in the Tibetan Areas of Qinghai and Tibet OXFORD: CENTRE FOR RESEARCH ON Inequality, Human Security and Ethnicity, CRISE Working Paper No. 69,6 (2009), available at http://repub.eur.nl/res/pub/17871/[hereinafter Educating for Exclusion],
(30.) The Disempowered Development of Tibet, supra note 26, at Figure 4.1,136.
(31.) Educating for Exclusion, supra note 29.
(33.) For a fuller analysis of the economic picture see Perversities of Extreme Dependence, supra note 27. See also Andrew Fischer, State Growth and Social Exclusion in Tibet: Challenges of Recent Economic Growth (2005); and Tashi Rabgey and Tseten Wangchuk Sharlho, Sino-Tibetan Dialogue in the Post-Mao Era: Lessons and Prospects 26 (2004) [hereinafter Sino-Tibetan Dialogue] (noting that the "cost of maintaining this artificial prosperity has increased over time. For example, a Chinese research study found that the fixed capital cost of increasing workers in Tibetan areas had increased 7.5 times in just ten years. In the 1980s, the cost to add one worker to the economy was 3,508 yuan, while in the 1990s it was 29,510 yuan.... The recent launch of the Great Western Development campaign appears to have reinforced these patterns. In 2001, for example, it was estimated that for every yuan the economy grew, government spending increased by two yuan. The massive increase in state spending--75% in 2001 alone--has been used disproportionally for the construction of large scale-state projects, such as the [Qinghai-Tibet railway], and to expand government and party administration").
(34.) Perversities of Extreme Dependence, supra note 27.
(35.) See Andrew Fischer, The Revenge of Fiscal Maoism in China's Tibet, Int'l. Inst. Of Social Studies, Working Paper No. 547, 6,13 (2012) available at http:/ /repub.eur.nl/res/pub/32995/ [hereinafter The Revenge of Fiscal Maoism]; The Disempowered Development of Tibet, supra note 26, at 148,152.
(36.) Andrew Fischer, Authenticating Tibet: Answers to China's 100 Questions 264-66 (Anne-Marie Blondeau and Katia Buffetrile eds., 2008) [hereinafter Authenticating Tibet],
(37.) The Disempowered Development of Tibet, supra note 26, at 129,181.
(38.) Perversities of Extreme Dependence, supra note 27, at 12-13.
(39.) Authenticating Tibet, supra note 36, at 266.
(40.) Perversities of Extreme Dependence, supra note 27, at 13.
(41.) Id. at 14.
(42.) Id. at 10. See also The Revenge of Fiscal Maoism, supra note 35, at 17 (noting that "Government administration was no longer reported as a separate category of government expenditure in the CSY data from 2007 onwards." Thus, it is impossible to provide a more recent picture of what is occurring in this category).
(43.) Perversities of Extreme Dependence, supra note 27, at 10.
(44.) Tracking the Steel Dragon: How China's Economic Policies and the Railway are Transforming Tibet, INT'L. CAMPAIGN for Tibet 14 (2008), http://www.savetibet.org/tracking-the-steeldragon/ [hereinafter Tracking the Steel Dragon] (citing to Fischer and other sources).
(45.) Id. at 14.
(46.) The Disempowered Development of Tibet, supra note 26, at 218, Figure 5.8.
(47.) Id. at Figure 5.8.
(48.) Id. at Figure 5.8, 221.
(50.) Perversities of Extreme Dependence, supra note 27, at 16.
(51.) The Disempowered Development of Tibet, supra note 26, at Figure 5.10 (noting this was the highest rate of any Tibetan area).
(52.) Perversities of Extreme Dependence, supra note 27, at 16.
(53.) Authenticating Tibet, supra note 36, at 242 (Fischer estimates that as of 2008 only 15% of Tibetans were profiting from the growth.).
(54.) Perversities of Extreme Dependence, supra note 27, at 16-17.
(55.) The Disempowered Development of Tibet, supra note 26, at 233 (noting "It was only at the lowest and most subordinate levels of state-sector employment, i.e. non-permanent workers on contract, where Tibetan representation increased, from 71 percent in 2000 to 82 percent in 2003, although the total numbers employed at this level fell dramatically, from 23,453 workers in 2000 to 6,912 workers in 2003....").
(56.) Educating for Exclusion, supra note 29, at 13.
(58.) Id. at 14.
(59.) The Great Transformation of Tibet, supra note 28, at 74 (noting that it is unclear whether these trends have continued since 2003 because this particular data set is no longer disaggregated by the Chinese government in its statistical yearbooks, which ceased doing so in 2004); The Disempowered Development of Tibet, supra note 26, at 234.
(60.) The Disempowered Development of Tibet, supra note 26, at 253 (noting that "Because literacy in any official language qualifies someone as literate in the Chinese surveys, this measure does not necessarily offer a good evaluation of Chinese literacy: the government itself estimated sometime in the early 2000s that about 80 percent of the rural population of the TAR did not speak or understand Chinese, meaning that a significant proportion of literate rural Tibetans were illiterate in Chinese.").
(61.) Educating for Exclusion, supra note 29, at 18.
(64.) Id. For example, in Qinghai the rates in 2004 were 32% (rural) to 5.9% (city); in Gansu 25.4% (rural) to 5.6% (city); and Sichuan 14.4% (rural) to 3.6% (city).
(65.) Educating for Exclusion, supra note 29, at 18.
(66.) The Disempowered Development of Tibet, supra note 26, at Table 6.1.
(67.) Educating for Exclusion, supra note 29, at 18.
(68.) The Disempowered Development of Tibet, supra note 26, at 257.
(69.) Id. at Table 6.1.
(70.) Id. at 258.
(72.) Educating for Exclusion, supra note 29, at 19. See below chart from Fischer:
Table 2: Illiteracy rates among the population aged 15+, by sex, 2004 survey Total Rural City Male Female Male Female Male Female TAR 33.5% 54.0% 33.5% 51.8% 33.2% 58.8% Qinghai 13.6% 30.9% 20.1% 44.1% 2.8% 9.1% Gansu 13.1% 26.0% 17.7% 33.4% 2.1% 9.2% Sichuan 7.2% 15.8% 9.3% 19.7% 1.5% 5.6% China 5.8% 14.9% 19.4% 2.2% 7.4% Source: CPSY (2005: Tables 1-27,1-28 and 1-30).
(73.) Educating for Exclusion, supra note 29, at 19.
(74.) The Disempowered Development of Tibet, supra note 26, at Table 6.2. See below chart from Fischer:
Table 6.2: Illiteracy rates among the population aged 15+, by sex, 2009 survey Total Rural City Male Female Male Female Male Female TAR 31.6% 47.2% 33.6% 48.0% 24.3% 47.2% Qinghai 7.8% 21.6% 11.1% 28.8% 1.2% 5.2% Gansu 10.0% 21.9% 12.7% 26.6% 2.7% 8.6% Sichuan 4.9% 13.4% 6.4% 17.5% 1.3% 4.2% China 3.8% 10.5% 5.4% 14.2% 1.1% 4.2% Source: CPEY (2010: Tables 2-28, 2-29, 2-30 and 2-31).
(75.) The Disempowered Development of Tibet, supra note 26, at 259.
(77.) Educating for Exclusion, supra note 29, at 19.
(78.) The Disempowered Development of Tibet, supra note 26 at 260.
(79.) Educating for Exclusion, supra note 29 at 20.
(80.) Id. See below table from Fischer:
Table 3: Education levels of the population aged 6+, by sex, 2004 survey 6+ population with education including and above: Primar Secondary Sub- Fe- Sub- Fe- Total Male male Total Male male TAR 62.8% 71.4% 54.0% 15.9% 17.7% 14.2% Gansu 80.2% 87.4% 72.6% 44.5% 50.0% 38.7% Qing- 83.3% 88.6% 77.7% 48.4% 54.6% 42.0% hai Sichuan 89.9% 93.6% 85.9% 50.0% 53.8% 46.2% China 90.8% 94.7% 86.8% 58.5% 63.6% 53.2% 6+ population with education including and above: Primar Tertiary Sub- Sub- Fe- Total Total Male male TAR 62.8% 0.9% 1.3% 0.6% Gansu 80.2% 4.5% 5.2% 3.8% Qing- 83.3% 5.7% 6.4% 4.9% hai Sichuan 89.9% 3.6% 4.1% 3.1% China 90.8% 5.8% 6.6% 4.9% Source: CPSY (2005: Tables 1-23).
(81.) Educating for Exclusion, supra note 29 at 20.
(82.) Fischer believes that Tibetans who have a tertiary education are likely to have a functional degree of both written and spoken Chinese fluency. Thus, the percentage of those who attended college is the same as those with this skillset. See The Disempowered Development of Tibet, supra note 26, at 266.
(83.) Educating for Exclusion, supra note 29, at 20.
(84.) Although the below chart shows 2010 census data, the census tabulation was not was available at the time of Fischer's writing so the ethnic decomposition of the schooling levels could not be calculated. Thus, the 2009 data is most accurate as a means of comparison.
(85.) The Disempowered Development of Tibet, supra note 26, at Table 6.3. See below table from Fischer:
Table 6.3 Levels of schooling among the population aged six and older in the 2000 census, 2009 survey and 2010 census (2010 census results with respect to the entire population) 6+ population with a level of schooling of at least Junior Seco- Primary dary 200 200 201 200 200 201 0c 9s 0c 0c 9s 0c TAR 47.1 62. 59. 12. 18. 22. % 7% 3% 7% 4% 7% Qing- 72.8 86. 79. 38. 45. 44. hai % 2% 7% 6% 1% 4% Gansu 80.2 85. 83. 39. 50. 51. % 0% 9% 9% 0% 4% Si- 89.1 90. 87. 42. 51. 52. chuan % 8% 4% 7% 2% 8% China 90.5 92. 88. 52. 62. 61. % 9% 5% 3% 8% 8% Senior Secon- dary Tertiary 200 200 201 200 200 201 0c 9s 0c 0c 9s 0c TAR 5.5 5.6 9.9 1.5 1.7 5.5 % % % % % % Qing- 14. 19. 19. 3.6 8.8 8.6 hai 9% 1% 0% % % % Gansu 13. 16. 20. 2.9 4.8 7.5 7% 6% 2% % % % Si- 10. 16. 17. 2.7 5.6 6.7 chuan 9% 1% 9% % % % China 15 21. 23. 3.8 7.3 8.9 8% 1% 0% % % % Source: calculated from CSY (2002, table 4-12), CSY (2010, table 3-12) and CSY (2011, table 3-10)
(86.) The Disempowered Development of Tibet, supra note 26, at Table 6.3.
(87.) Id. at Table 6.4. See below table from Fischer:
Table 6.4: Levels of schooling among the population aged six and older in the 2009 survey by rural and city residency (town residency not included) 6+ population with a level of schooling of at least: Rural City Prim. J. Sec. S. Sec. Tert. Prim. J. Sec. S. Sec. Tert. TAR 61.6% 16.8% 3.9% 1.1% 65.6% 34.4% 19.5% 7.2% Qing- 81.7% 29.8% 5.4% 0.7% 96.1% 77.2% 47.7% 25.2% hai Gansu 81.7% 41.0% 8.6% 0.9% 94.3% 73.4% 42.8% 19.0% Si- 88.3% 41.8% 7.7% 1.0% 96.7% 74.3% 42.4% 21.8% chuan China 90.5% 53.2% 9.7% 1.5% 97.0% 80.1% 44.5% 20.3% Source: calculated from CPEY (2010, tables 2-25 and 2-27).
(88.) Id. at 265.
(90.) Id. at 266.
(92.) Educating for Exclusion, supra note 29, at 21-25; The Disempowered Development of Tibet, supra note 26, at 266-268.
(93.) Educating for Exclusion, supra note 29, at 15; Ma Rong, Population Structure and Changes in the Tibet Autonomous Region: An Analysis of the Recent Census Data 5,16, Presentation at the International Conference on "Tibet Autonomy" at Harvard University (Nov. 28-29, 2007),
http://www.case.edu/affil/tibet/tibetanSociety/documents/TAR-Census2.pdf (noting "The in-migrants [to TAR] mainly come from nearby provinces such as Sichuan and Gansu" and "Han construction workers ... moved into Tibet for employment opportunities and a higher income. Some other ethnic groups (especially Hui from Gansu and Salar from Qinghai) also joined this flow").
(94.) Sophie Song, China Now Has More Than 260 Million Migrant Workers Whose Average Monthly Salary Is 2,290 Yuan ($374.09), Int'l. Business Times (May 28, 2013), http://www.ibtimes.com/china-now-has-more-260-million-migrant-workers-whose-averagemonthly-salary-2290-yuan-37409- 1281559 (noting that "Most migrant workers have not completed more than middle school-level education. In 2012,1.5 percent of migrant workers were illiterate, 14.3 percent completed elementary school, 60.5 percent middle school, 13.3 percent high school, and 10.4 percent completed higher education.").
(95.) Mount Everest is Singing for Joy: Everyone Else is Worried, The Economist (Oct. 7, 2010), http://www.economist.com/node/17204635?story_id=17204635&fsrc=rss [hereinafter Mount Everest is Singing for Joy] (noting that "the rail link to Lhasa brought disproportionate benefits to ethnic Han Chinese whose language and culture enabled them to take quicker advantage of the Han tourist influx.").
(96.) Edward Wong, China's Money and Migrants Pour into Tibet, N.Y. Times (July 24, 2010), http://www.nytimes.com/2010/07/25/world/asia/25tibet.html?_r=l &pagewanted=all [hereinafter China's Money and Migrants Pour into Tibet],
(97.) See Sino-Tibetan Dialogue, supra note 33, at 16 (noting the 1993 protest in Lhasa over similar issues having to do with economic exclusion).
(98.) Tibet at a Turning Point: The Spring Uprising and China's New Crackdown, Int'l Campaign for Tibet 18 (2008), https://www.savetibet.org/tibet-at-a-turning-point/ [hereinafter Tibet at a Turning Point] (offering a map with protest sites).
(99.) Id. at 5.
(100.) Tibet: Pilgrims and Progress, The Economist (Feb. 4, 2010), http://www.economist.com/node/15452843 (noting that the Chinese government said losses from the protests amounted to 280m yuan/$41million US dollars). See also Taming Tibet, supra note 16, at ix (noting that in "March 2008, Tibetan protestors set fire to, damaged, and destroyed roughly one thousand shops run by Han and Hui migrants in Lhasa, killing nineteen people and sending much of the capital of the Tibetan Autonomous Region up in flames.").
(101.) The Illusion of Calm in Tibet, The Economist (July 10,2008), http:/ /www.economist.com/node/11706247 (noting that "Migrants from elsewhere in China, mainly neighboring Sichuan, are indeed flocking to the region.... Tibet's problem is the pace of this influx. No official figures are published. But it appears to have accelerated rapidly in recent years thanks to a rapid growth in tourism, which has received a big boost from the railway").
(102.) Self-Immolations by Tibetans, Int'l. Campaign for Tibet, http://www.savetibet.org/resources/fact-sheets/self-immolations-by-tibetans/.
(103.) Another Tibetan Burns Self to Death, Toll Reaches 78, Phayul (Nov. 20,2012), http://phayul.com/news/article.aspx?id=32477&article=Breaking%3a+Another+Tibetan+bur ns+self+to+death%2c+Toll+reaches+78; 18-Year-Old Sets Self on Fire, Third Self-Immolation in Two Days, PHAYUL (Nov. 26, 2012), http://phayul.com/news/article.aspx?id=32523&article=Breaking%3a+18-yearold+sets+self+on+fire%2c+Third+self- immolation+in+two+days.
(104.) The difficulty of gaining access to independent journalist coverage in Tibet must be highlighted. See, e.g., Max Fisher, North Korea is More Accessible to Foreign Journalists than Tibet is, Washington Post (Dec. 17,2013), http://www.washingtonpost.com/blogs/worldviews/wp/2013/12/17/north-korea-is-moreaccessible-to-foreign-joumalists-than- tibet-is/ (noting "[t]he Associated Press even has a tiny bureau in Pyongyang; a deal with the devil, some critics charge, but if nothing else it produces an awful lot of very good photos of life in North Korea. There is nothing close to an analogous foreign media presence in Tibet.").
(105.) It must be mentioned that the examples discussed are those found in independent media sources outside China. However, foreign reporters are often banned from travelling to the TAR, which makes it difficult to obtain more comprehensive coverage on the types of protests and companies involved. Although the examples discussed here exclusively address Chinese extractives companies, it is certainly plausible that protests of a similar nature have also occurred against foreign companies or Chinese companies from other sectors.
(106.) As is discussed infra in Section III(a)(ii), companies operating in Tibet should be using Free, Prior, and Informed Consent (FPIC) as they pursue their investments. Given the large-scale protests discussed here, one has to assume FPIC was not used.
(107.) Standoff at Tibet Goldmine, Radio Free Asia (May 24,2009), http://www.rfa.org/english/news/tibet/mine-05242009130753.html.
(108.) 13 Arrested, Five Injured as Tibetans Protest Chinese Mining in Marklmm, Tibetan Review (May 17,2010), http://www.tibetanreview.net / news.php?&id=6356.
(109.) Police Fire on Mine Protesters, Radio Free Asia (Aug. 16, 2010), http://www.rfa.org/english/news/tibet/mine-08262010142756.html.
(110.) Tendar Tsering, Chinese Mining Officials Open Fire on Tibetan Workers, PHAYUL (Sept. 20, 2011), http://phayul.com/news/article.aspx?id=30027&article=Chinese+mining+officials+open+fire +on+Tibetan+workers.
(111.) Katy Yan, Tibetan Village Stops Mining Project Near the Nu River, Int'l Rivers (Feb. 16, 2012), http://www.internationalrivers.org/blogs/246/tibetan-village-stops-mining-projectnear-the-nu-river.
(112.) Tibetan Shot Dead in Anti-Mining Protest in Markham, Phayul (Aug. 16, 2012), http://www.phayul.com/news/article.aspx?id=31913&t=l.
(113.) Thousands of Tibetans Protest Against Mine, Radio Free Asia (May 28, 2013), http://www.rfa.org/english/news/tibet/mine-05282013170400.html.
(114.) Mass Protest in Tibet Against Chinese Mining, Phayul (Aug. 16, 2013), http://phayul.com/news/ article.aspx?id=33874&article=Mass+protes+in+Tibet+against+Chinese+mining.
(115.) Chinese Security Forces Crack Down on Tibetan Mine Protesters, Radio Free Asia (Aug. 16, 2013), http://www.rfa.org/english/news/tibet/mine-08162013183325.html.
(116.) See Memorandum on Genuine Autonomy for the Tibetan People, Int'l Campaign For Tibet (2008), https://www.savetibet.org / policy-center/ memorandum-on-genuine-autonomy-for-the-tibetan-people/ (the latest iteration elaborating upon issues that have been presented from the beginning of the Sino-Tibetan dialogue starting with Five-Point Peace Plan and the Strasbourg Proposal of 1988).
(117.) This is the first railway to link eastern China to the western Tibetan areas.
(118.) Mount Everest is Singing for joy, supra note 95.
(119.) Work Starts on Tibet Railway Extension, Railway Gazette (Sept. 30,2010), http://www.railwaygazette.com/nc/news/single-view/view/work-starts-on-tibet-railwayextension.html (quoting the Minister of Railways Liu Zhijun as saying, the railway "will play a vital role in boosting tourism in the southwestern part of Tibet and promoting the rational use of resources along the line").
(120.) Tracking the Steel Dragon, supra note 44, at 21 n.44 ("A report published by China Bidding stated that the Chaida'er-Muli Railway control project was launched 'recently' in Gangcha County in Qinghai province, involving a total length of 142.04 km. 'Two years later, the transportation capacity of coal of Chaida'er-Muli Railway will increase to 14 million tonnes, and the coal reserves along Chaida'er-Muli Railway is 3.3 billion tonnes.'") (quoting China Bidding, April 28, 2006, available at www.chinabidding.com).
(121.) St. Regis began its presence in China with the opening of a hotel in Lhasa in November 2010. See First St. Regis Resort in China Debuts in Tibet November 2010, Business Wire (Sept. 15, 2010), http://www.businesswire.com/news/home/20100915006913/en/St.-Regis-ResortChina-Debuts-Tibet-November [hereinafter First St. Regis in Tibet],
(122.) A Taj in Tibet?, Phayul (Feb. 23, 2013), http://phayul.com/news/article.aspx?id=33086&article=A+Taj+in+Tibet%3f (noting Taj Hotels announced its desire to expand its presence in China by opening a new hotel in the Tibetan areas of Sichuan).
(123.) China's Money and Migrants Pour into Tibet, supra note 96.
(124.) There is also the possibility that factories in eastern China will move westward as wages on the eastern seaboard are viewed as too high; this opens up the prospect of manufacturing moving to Tibet once the transportation infrastructure is in place. See, e.g., David Barboza, China Shifts Away from Low-Cost Factories, N.Y. Times (Sept. 15,2010), http://www.nytimes.com/2010/09/16/business/global/ 16factory.html (noting that in an effort to seek lower costs, "some Pearl River Delta factories are relocating to poor inland regions of China where wages are as much as 30 percent lower than in coastal provinces.").
(125.) For an example from Peru of proactively engaging with stakeholders to identify small problems before they turn into big problems see JOHN GERARD RUGGIE, Just BUSINESS: Multinational Corporations and Human Rights (2013) at xxxvi-xlii [hereinafter just Business].
(126.) See, e.g., Corporate Social Responsibility: A Legal Analysis (Chip Pitts ed., 2008) [hereinafter Pitts]; Gare Smith, An Introduction to Corporate Social Responsibility in the Extractive Industries, 11 Yale Hum. Rts. & Dev. L.J. 1 (2008); Defining Corporate Social Responsibility, Corp. Soc. Resp. Initiative, Harvard Univ. Kennedy School of Gov. (last visited Mar. 10,2014), http://www.hks.harvard.edu/m-rcbg/CSRI/init_approach.html.
(127.) For an excellent overview of the history of CSR, see Just Business, supra note 124, at Introduction and Ch. 1.
(128.) Pitts, supra note 126.
(130.) Id. at Ch. 5.
(131.) Id. at Ch. 6.
(132.) Defined by the author as the areas of a company's business activities and relationships in which it has a direct impact. With respect to business activity, this would involve a company analyzing its potential and actual impacts arising from its own activities on groups such as employees, communities, and consumers. It would determine which policies and practices may harm human rights and the environment and adjust those actions to prevent harm from occurring. Examples of activities with direct impact might include the production process itself; the products or services the company provides; its labor and employment practices; the provision of security for personnel and assets; and the company's lobbying or other political activities. With respect to business relationships, a company would work to ensure that it is not implicated in third party harm to human rights/environment through its relationships with such parties. This possibility can arise from a company's business activities, including the provision or contracting of goods, services, and even non-business activities, such as lending equipment or vehicles. Therefore, a company would need to understand the track records of those entities with which it deals in order to assess whether it might contribute to or be associated with harm caused by entities with which it conducts, or is considering conducting business or other activities. This analysis of relationships would also include looking at instances where the company might be seen as complicit in abuse caused by others. For more on this, see Human Rights Council, Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and other Business Enterprises, [paragraph] [paragraph] 5-25, U.N. Doc. A/HRC/8/16 (15 May, 2008), available at http://www.business-humanrights.org/ Links/Repository/446573/jump (wherein John Ruggie states why he disfavors the commonly used UN Global Compact phrase "Sphere of Influence").
(133.) Pitts, supra note 126, at Ch. 7.
(134.) Id. at Ch. 8.
(135.) Id. at Ch. 9.
(136.) Id. at Ch. 10.
(137.) id. at Ch. 11.
(138.) Id. at 536.
(139.) Just Business, supra note 125 (offering Ruggie's account of the process of his mandate and the results it produced).
(140.) For the collection of Ruggie's work pursuant to his mandate see http: //www.businesshumanrights.org/SpecialRepPortal/Home.
(141.) Human Rights Council Res. 8/7, Mandate of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, 28th meeting, U.N. Doc A/HRC/RES/8/7 (June 18, 2008), available at ap.ohchr.org/documents/E/HRC/resolutions/A_HRC_RES_8_7.pdf.
(142.) Special Representative of the U.N. Secretary-General for Business & Human Rights, UN Guiding Principles for Business & Human Rights (March 24, 2011), available at http://www.business-hu manrights.org/media/documents/ruggie/ruggie-guidingprinciples-press-release-24-mar-2011 .pdf.
(143.) Human Rights Council Res. 17/4, Human Rights and Transnational Corporations and Other Business Enterprises, U.N. Doc A/HRC/RES/17/4 (June 16, 2011), available at http://www.business-humanrights.org/media/documents/un-human-rights-councilresolution-re-human-rights-transnational- corps-eng-6-jul-2011.pdf
(144.) Press Release, Human Rights Council, New Guiding Principles on Business and Human Rights endorsed by the UN Human Rights Council, (Mar. 10, 2014), available at http://www.ohchr.org/RU/NewsEvents/Pages/DisplayNews.aspx?NewsID=l 1164&LangID =E.
(145.) Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, Further Steps Toward the Operationalization of the "Protect, Respect and Remedy" Framework, f 1 U.N. Doc A/HRC/14/27, (April 9, 2010), at http://www.reports-and-materials.org/Ruggie-report-2010.pdf [hereinafter Ruggie 2010 report] (emphasis added).
(146.) Special Representative of the Secretary-General on the Issue of Human Rights and Trans national Corporations and Other Business Enterprises, Guiding Principles on Business and Human Rights: Implementing the United Nations "Protect, Respect, and Remedy" Framework, [paragraph] X U.N. Doc A/HRC/17/31 (Mar. 21, 2011), available at http://www.businesshumanrights.org /media/documents/ruggie/ruggie-guiding-principles-21-mar-2011.pdf [hereinafter Ruggie 2011 report].
(147.) Ruggie, 2011 report, supra note 146, at 9.
(148.) Id. at 14.
(149.) Id. at 16.
(150.) Ruggie, 2010 report, supra note 145, at 17.
(151.) Ruggie, 2011 report, supra note 146, at 16-17; Ruggie, 2010 report, supra note 145, at 17.
(152.) Ruggie, 2011 report, supra note 146, at 17.
(154.) Id. at 18.
(155.) Ruggie, 2010 report, supra note 145, at 13 ("Because companies can affect virtually the entire spectrum of internationally recognized rights, the corporate responsibility to respect applies to all such rights.").
(157.) Id. (internal quotations omitted).
(158.) Id. See also Pitts, supra note 126, at Ch. 2 (discussing the various drivers of CSR).
(159.) The EU recently passed a resolution calling on the European Commission to include a CSR clause in all of the European Union's trade agreements. This may mark the end of CSR as a voluntary act within the EU. See Tafadzwa Pasipanodya, European Parliament Adopts Resolution on Corporate Social Responsibility, Corporate Social Responsibility And The Law (Dec. 22, 2010), http://www.csrandthelaw.com/2010/12/articles/trade/european-parliament-adoptsresolution-on-corporate-social- responsibility. See also Vivek Krishnamurthy, Mandatory Social and Financial Reporting: Coming Soon to the European Union, Corporate Social Responsibility And The Law (Mar. 3, 2014), http://www.csrandthelaw.com/2014/03/mandatory-social-and financial-reporting-coming-soon-to-the-european-union (indicating that reporting on social and financial reporting for European companies may soon be mandatory).
(160.) See infra Part III(a)(i).
(161.) While there is not yet an agreed-upon definition, it is often said that "a social license to operate" derives not from a government or legal body, but rather only from broad acceptance of a company's activities by society or local communities. Without this endorsement, a business may not be able to operate without incurring serious delays and costs. For a fuller discussion, see Just Business, supra note 125, at 10,17,18,94,138.
(162.) See Elizabeth C. Kurucz, Barry A. Colbert & David Wheeler, The Business Case for Corporate Social Responsibility, in The Oxford Handbook of Corporate Social Responsibility 83 (Andrew Crane et al. eds., 2009) (discussing the mixed data in this area); see also Joshua Margolis & Hillary A. Elfenbein, Do Well by Doing Good? Don't Count on It, 86 Harv. Bus. Rev. 19 (Jan. 2008) (describing results of the largest meta-study looking at the relationship between CSR and profitability, in which the authors found a slight positive correlation).
(163.) Just Business, supra note 125, at 191.
(164.) See e.g. Cone Communications, 2006 Millennial Cause Study, available by request at http://www.conecomm.com/2006-millennial-cause-study (discussing the millennial generation and its attitudes toward companies. Among other things, the study found that nearly eight out of ten want to work for a company that cares about how it contributes to society, while more than half would refuse to work for an irresponsible corporation).
(165.) Pitts, supra note 126, at 42.
(166.) Examples include: Ben and Jerry's, Burt's Bees, Newman's Own, Patagonia, Stony-field, Timberland, and Tom's of Maine, among others.
(167.) Recall the infamous story of Kathy Lee. The National Labor Committee alleged that Lee's jeans, which were sold at Wal-Mart, were being made by teenagers under sweatshop conditions. One such worker testified on Capitol Hill, and Lee was forced to confront the issue live on her television program and later before Congress. Keep in mind this occurred in 1996, well before the rise of internet-technology and social media, and the pressure these tools represent.
(168.) See Danette Wineberg and Phillip H. Rudolph, Corporate Social Responsibility: What Every In-House Counsel Should Know (2004), available at http://www.lexmundi.com/images/lexmundi/PDF/Rudolph_ACC.pdf.
(169.) See, e.g., Liz Alderman, Public Outrage Over factory Conditions Spurs Labor Deal, N. Y. Times (May 19, 2013), http://www.nytimes.com/2013/05/20/business/global/hm-led-laborbreakthrough-by-european- retailers.html?pagewanted=l&_r=0 (discussing how public and NGO pressure helped spur H&M to sign "an agreement that for the first time would legally bind Western retailers to invest in improving worker safety in Bangladesh and other low-cost countries."). Note, however, that the source of this pressure is not limited to NGOs. See, e.g., Christopher Yates, Adidas Agrees to Pay Severance to Workers, Cornel Daily Sun (Apr. 25, 2013), http://www.cornellsun.com/section/news/content/2013/04/25/adidas-agrees-payseverance-workers (noting how Adidas paid severance pay to workers after facing pressure from universities).
(170.) See, e.g., Rebecca Smithers, New App Launches for Ethical Shoppers, Guardian (Feb. 4, 2011), http://www.guardian.co.uk/environment/2011/feb/04/app-ethical-shopping (noting that a new driver in this area is the creation of smart-phone apps for shoppers who care about ethical consumption).
(171.) See Save the Money FAQ, GROUPON.COM, http://www.groupon.com/pages/save-themoney-faq (last visited Mar. 10, 2014).
(172.) Groupon-Tibet--2011 Super Bowl Commercial Ad, YOUTUBE.COM (Feb. 6, 2011), http://www.youtube.com/watch?v=pOwJOcp-Mxk (Actor Timothy Hutton states: "Mountainous Tibet, one of the most beautiful places in the world.... The people of Tibet are in trouble.
Their very culture is in jeopardy. But they still whip up an amazing fish curry. And since 200 of us bought at groupon.com, we are each getting thirty dollars worth of Tibetan food for just fifteen dollars at Himalayan Restaurant in Chicago.").
(173.) See, e.g., Mark Memmott, Groupon's 'Tibet' Super Bowl Ad: Harmless Fun Or Offensive?, NPR.ORG (Feb. 7, 2011), http://www.npr.org/blogs/thetwo-way/2011/02/07/133560977/groupons-tibet-superbowl-ad-harmless-fun-or-offensive; see also Laurie Segall, Groupon Spends Big on Controversial (Tasteless?) Super Bowl Spots, CNNMoney (Feb. 7, 2011), http://money.cnn.com/2011/02/06/technology/groupon_superbowl_ad/; Wailin Wong and Gregory Karp, Groupon Super Bowl Commercial Gains the Wrong Kind of Attention, Chic. Trib. (Feb. 8, 2011), http://articles.chicagotribune.com/2011-02-08/entertainment/ ct-biz-0208-groupon-ad-20110207_1_cool-ad-human-rights-commercials ("Chicago marketing company Alterian, which measures social media activity around Super Bowl advertisers, found that Groupon had the most mentions of any advertisers on Sunday but ranked last in sentiment on Alterian's index.'Groupon far and away had the most negative conversations relative to its (total) number of conversations,' said Scott Briggs, who headed Alterian's study.").
(174.) Andrew Nason, One Last Post on the Super Bowl, Groupon Blog (Feb. 10, 2011), https://blog.groupon.com/cities/one-last-post-on-the-super-bowl/.
(175.) Note the litigation between a California citizen and Nike over allegations that Nike engaged in false advertising and misrepresentation about working conditions in its factories. After a five-year court battle, the suit settled with Nike paying out 1.5 million. Kasky v. Nike, Inc., 27 Cal. 4th 939 (2002).
(176.) The Exxon Valdez oil spill occurred in 1989, and it was not until 2008, almost 20 years later, that the Supreme Court finally ruled on the amount of punitive damages Exxon owed. See Frank Langfitt, Supreme Court Cuts Damages in Exxon Valdez Spill, NPR.ORG (Jun. 25, 2008), http://www.npr.org/templates/story/story,php?storyld=91881057.
(177.) See, e.g., Are the Odds Against BP in Appeal Over Damage Claims?, PBS NewsHour (July 9, 2013), http://www.pbs.org/newshour/bb/nation/july-dec13/bp2_07-09.html; Jef Feeley, BP Seeks to Halt Some Gulf Oil-Spill Settlement Payments, BLOOMBERG (April 1, 2013), http://www.bloomberg.com/news/2013-04-01/bp-seeks-to-halt-some-gulf-oil-spillsettlement-payments.html (noting that "the [BP settlement] resolved most private plaintiffs' claims for economic loss and property damage related to the explosion of the Deepwater Horizon rig in April 2010 and the ensuing spill.... [But it] excludes claims of financial institutions, casinos, private plaintiffs in parts of Florida and Texas, and residents and businesses claiming harm from the Obama administration's moratorium on deep-water drilling prompted by the spill. It also doesn't cover federal government claims and those of Gulf Coast states Louisiana and Alabama, or lawsuits against co-defendants.").
(178.) See C.B. Bhattacharya and Sankar Sen, Doing Better at Doing Good: When, Why, and How Consumers Respond to Corporate Social Initiatives, 47 Cal. Mgmt. Rev. 9 (2004) (discussing corporate awareness of how CSR polices affect the bottom line and therefore the need to adopt them).
(179.) See, e.g., Charles Duhigg and David Barboza, In China, Human Costs Are Built Into an iPad, N. Y. Times (Jan. 25, 2012), http://www.nytimes.com/2012/01/26/business/ieconomyapples-ipad-and-the-human-costs-for- workers-in-china.html.
(180.) See, e.g., Stephanie Clifford, Some Retailers Say More About Their Clothing's Origins, N.Y. Times (May 8, 2013), http://www.nytimes.com/2013/05/09/business/global/fair-trade-movement-extends-to- clothing.html (discussing how the factory fire that killed 1,127 factory workers in Bangladesh is forcing brands to be more transparent about sourcing practices).
(181.) In 2009 Denmark passed legislation that requires companies to report on their CSR efforts. See Danish CSR Legislation, http://csrgov.dk/legislation (last visited Mar. 10, 2014).
(182.) See, e.g., Mark Nordstrom, Myanmar (formerly Burma) and Human Rights, GE Citizenship Blog (Feb. 12, 2013), http://www.gecitizenship.com/blog/2013/02/myanmar-formerly-burma-and-human- rights/ (giving an example of a company that adheres to the UN Guiding Principles because as "a business enterprise, under the UN Guiding Principles, GE is obligated to respect human rights" [and] "as a practical matter, [because] governments around the globe are enacting regulations and statutes that are turning human rights into hard law").
(183.) John Sherman, Whose Risk Is It? Corporate Catastrophe and Human Rights, Harvard Law School Forum on Corp. Governance and Fin. Reg. (Aug. 14, 2010), http://blogs.law.harvard.edu/corpgov/2010/08/14/whose-risk-is-it-corporate-catastrophe-and-human-rights/#more-11687. See also Rachel Davis and Daniel M. Franks, The Costs of Conflict with Local Communities in the Extractive Industry, First Int'l Seminar on Social Responsibility in Mining (Oct. 2011), http://shiftproject.org/publication/costs-conflict-local-communities-extractive- industry; Human Rights Violations Can Be Costly for Business, Jakarta Post (June 14, 2013), http://www.thejakartapost.com/news/2013/06/14/human-rights-violations-can-be-costly- business.html (elaborating upon the example of the company that lost $6.5 billion "because of delays in securing permits, staffers being kidnapped, and disrupted operations" and noting that "mining companies faced the same challenge ... [where] ... some companies with $3 billion to $5 billion in investment could lose as much as $20 million a week because of delays in production").
(184.) See discussion infra, Part III(A)(2) (companies operating in Tibet should be using Free, Prior, and Informed Consent (FPIC) as they pursue their investments).
(185.) The process of identifying relevant stakeholders (what is often referred to as "stakeholder mapping") can be complex and challenging. As Ruggie indicates in his 2011 report, supra, note 146, companies should draw on internal and/or external independent human rights experts in order to assess any actual or potential human rights impacts. For Tibet, this necessarily means creating partnerships between outside experts and local Tibetans who together can map out the relevant stakeholders for a given business venture.
(186.) Ruggie, 2011 report, supra note 146, at 17-18.
(187.) This necessarily means that stakeholder engagement in Tibet must be conducted in whatever language/dialect the local Tibetan population speaks.
(188.) See John Ruggie, Human Rights Policies of Chinese Companies: Results From A Survey, Business & Human Rights Resource Centre 6 (Sept. 2007), http://www.businesshumanrights.org/Documents/Ruggie-China- survey-Sep-2007.pdf (in the survey of Chinese companies that Ruggie carried out as part of his mandate, he found that of those companies surveyed, none "mention community consultation policies or methods, and none discusses human rights or social impact assessments.") (emphasis in original).
(189.) See, e.g., Mark Nordstrom, China and Human Rights, GE Citizenship Blog (May 3, 2013), http://www.gecitizenship.com/blog/2013/05/china-and-human-rights-2/ (offering an example from the Global Business Initiative on Business and Human Rights conference in Beijing during which a Chinese company indicated that, due to a lack of experience, Chinese companies must attend these types of conferences to learn how to manage their human rights impacts).
(190.) Edward F. Ahnert, China Begins to Take Corporate Social Responsibility Seriously: CSR and Social Harmony in the PRC 2-3 (2008), http: / / www.responsiblebiz.biz/resources-1/ ChinaBeginstoTakeCSRSeriously.pdf?attredirects=0&d=1 [hereinafter China Begins to take Corporate Social Responsibility Seriously].
(191.) Murray Scot Tanner, Chinese Government Responses to Rising Social Unrest, Testimony Presented to the US China Economic and Security Review Commission 2 (Apr. 14, 2005), http://www.rand.org/pubs/testimonies/2005/RAND_CT240.pdf.
(192.) China Strives to Prevent, Handle Mass Incidents, China View (Dec. 9, 2006), http://news.xinhuanet.com/english/2006-12/09/content_5460405_1.htm.
(193.) China Begins to Take Corporate Social Responsibility Seriously, supra note 190, at 3.
(194.) Id. See also Joe W. (Chip) Pitts III, Corporate Social Responsibility: Current Status and Future Evolution, 6 Rutgers J.L & Pub. Pol'y 334, 334,400 (2009) [hereinafter Current Status and Future Evolution].
(195.) China Begins to Take Corporate Social Responsibility Seriously, supra note 190, at 3 (noting that at a 2006 CSR conference in Beijing, "the honorary chairman of the China Daily CEO Roundtable remarked that 'the concept of a harmonious society is really China's rephrasing of the concept of CSR, sustainable development and human rights in China'").
(196.) Current Status and Future Evolution, supra note 194, at 399 (discussing these potential sanctions as consumer boycotts, divestment actions, and trade sanctions).
(197.) There are additional sources of CSR laws in China; however, the ones presented here are those that are accessible to the author and/or available in English. See infra note 202.
(198.) Code of Corporate Governance for Listed Companies in China (promulgated by the China Sec. Reg. Comm'n, State Econ. and Trade Comm'n, Jan. 7, 2001), translated in and available at http://www.ecgi.org/codes/documents/code_en.pdf.
(199.) Company Law of the People's Republic of China (promulgated by Nat'l People's Cong., Oct. 27, 2005, effective Jan. 1, 2006), art. 5, translated in and available at: http://www.chinadaily.com.cn/bizchina/2006-04/17/content_569258.htm [hereinafter Company Law of People's Republic of China].
(200.) Guidelines to the State-owned Enterprises Directly under the Central Government on Fulfilling Corporate Social Responsibilities, translated in and available at: http://www.sasac.gov.cn/n2963340/n2964712/4891623.html [hereinafter Guidelines to the State-owned Enterprises].
(202.) Chinese CSR law is not limited to these two. See China Begins to take Corporate Social Responsibility Seriously, supra note 190, at 12-13 (discussing other laws related to Foreign Invested Enterprises, Banking, etc.).
(203.) There may be secondary sources in Chinese that evaluate this; however, nothing in English could be located that provides insight into this area.
(204.) Current Status and Future Evolution, supra note 194, at 398. See also Dexter Roberts et al., Secrets, Lies and Sweatshops, BusinessWeek (Nov. 27, 2006), http://www.businessweek.com/stories/2006-11-26/secrets-lies-and-sweatshops (discussing the extensive fraud some Chinese factories engage in so as to prevent auditors from uncovering unfair or illegal labor practices).
(205.) For example, Denmark recently passed legislation that requires companies to report on their CSR efforts. See Law on CSR Reporting, supra note 181; Danish Commerce and Companies Agency, About the Danish Law: Report on Social Responsibility for Large Businesses (2008), www.eogs.dk/graphics/Samfundsansvar.dk/dokumenter/about%20the%20Danish%201aw.pdf.
(206.) For a fuller overview of this concept and its status in international law see Forest Peoples Programme & Tebtebba Foundation, Indigenous Peoples' Rights, Extractive Industries and Transnational and Other Business Enterprises (2006), available at http://www.business-humanrights.org/Documents/Forest-Peoples-Tebtebba-submission-to-SRSG-re-indigenous-rights-29- Dec-2006.pdf [hereinafter Indigenous Peoples' Rights],
(207.) Id. at 45. See also Cathal Doyle & Jill Carino, Making Free, Prior & Informed Consent a Reality, Indigenous Peoples and the Extractive Sector (2013), available at http://www.piplinks.org/system/files/Consortium+FPIC+report++May+2103+-+web+version.pdf.
(208.) For current membership list see Int'l Convention on the Elimination of All Forms of Racial Discrim., Mar. 7, 1966, 660 U.N.T.S. 195, available at http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-2&chapter=4&lang=en.
(209.) Comm. on the Elimination of Racial Discrimination, General Recommendation XXIII (51) Concerning Indigenous Peoples, 1,235th meeting, [paragraph] 4(d), U.N. Doc. CERD/C/51/Misc.13/Rev.4. (18 August 1997), available at http://www.unhchr.ch/tbs/doc.nsf/%28Symbol%29/73984290dfea022b802565160056felc?O pendocument.
(210.) Comm, on the Elimination of Racial Discrimination, Concluding Observations of the Committee on the Elimination of Racial Discrimination: Australia, [paragraph] 9, U.N. Doc. CERD/C/56/Misc.42/rev.3 (Mar. 24, 2000), available at http://tb.ohchr.org/default.aspx?Symbol=CERD/C/304/Add.101. See also Concluding Observations of the Committee on the Elimination of Racial Discrimination: United States of America, [paragraph] 400, U.N. Doc CERDA/56/18 (August, 14 2001), available at http://www2.ohchr.org/english/bodies/cerd/cerds59.htm (Noting "The Committee recommends that the State party ensure effective participation by indigenous communities in decisions affecting them, including those on their land rights, as required under article 5 (c) of the Convention, and draws the attention of the State party to general recommendation XXIII on indigenous peoples which stresses the importance of securing the "informed consent" of indigenous communities and calls, inter alia, for recognition and compensation for loss. The State party is also encouraged to use as guidance the ILO Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries") (emphasis in original).
(211.) Comm, on the Elimination of Racial Discrimination, Concluding Observations of the Committee on the Elimination of Racial Discrimination: Ecuador, [paragraph] 16, U.N. Doc. CERD/C/62/CO/2 (Mar. 21, 2003), available at http://www.unhchr.ch/tbs/doc.nsf/0/7d39346db560977c1256d010043870?opendocument.
(212.) Comm, on the Elimination of Racial Discrimination, Concluding Observations of the Committee on the Elimination of Racial Discrimination: Guatemala, 119, U.N. Doc. CERD/C/GTM/CO/11 (May 26, 2006), available at http://www.unhchr.ch/tbs/doc.nsf/0/df983f78c4a7b2dac1257180004891ec/$FILE/G0642036.pdf.
(213.) Comm, on the Elimination of Racial Discrimination, Concluding Observations of the Committee on the Elimination of Racial Discrimination: Guyana, [paragraph] 14 U.N. Doc. CERD/C/GUY/CO/14 (Apr. 4, 2006), available at http://www.unhchr.ch/tbs/doc.nsf/898586b2dc7b4043c1256a450044f331/ c7d1cd668afb40ec125714c00311bbb/$FILE/G0G4117.pdf.
(214.) Id. at [paragraph] 19.
(215.) Int'l Labour Org., C169 Indigenous and Tribal Peoples Convention (1989), http://www.ilo.org/wcmsp5/groups/public/--ed_norm/-- normes/documents/publication/wcms_100897.pdf [hereinafter C169].
(216.) As stated below, China is not a signatory to ILO 169. However, ILO 169 provides the most comprehensive definition of indigenous peoples, which broadly reflects customary international law. Indigenous is defined in relevant part as: "... peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of ...t he establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions." C169, supra note 215, at Article 1(1). See Secretariat of the Permanent Forum on Indigenous Issues, The Concept of Indigenous Peoples, U.N. Doc PFII/2004/WS.1/3 (Jan. 19-21, 2004). See also Amy K. Lehr and Gare A. Smith, Implementing a Corporate Free, Prior and Informed Consent Policy: Benefits and Challenges 10 (Foley Hoag LLP eds., 2010), http://www.foleyhoag.com/NewsCenter/Publications/eBooks/Implementing_Informed_Co nsent_Policy.aspx [hereinafter Implementing FPIC] ("[T]he development of rights specifically for indigenous peoples is due to the need to address the historic marginalization of indigenous peoples in many societies, including a failure to recognize their historical use of land and a lack of opportunity for them to participate meaningfully in national political systems due to geographic, linguistic, and cultural barriers.").
(217.) C169, supra note 215, at Article 7(1).
(218.) Id. at Article 15(2).
(219.) Id. at Article 6(2).
(220.) For an alphabetical list of ILO member countries (185 countries), see NORMLEX, Country Profile, ILO, http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:1:0 (last visited Mar. 10, 2014).
(221.) For current list of member countries, see NORMLEX, Ratifications of C169, ILO, http://www.ilo.org/dyn/normlex/en/f?p=1000:11300:0::NO:11300:P11300_INSTRUMENT_I D:312314 (last visited Mar. 10, 2014).
(222.) Implementing FPIC, supra note 216, at 11.
(223.) See supra Section II.a
(224.) See supra note 143.
(225.) Implementing FPIC, supra note 216, at 72.
(226.) Press Release, G.A., General Assembly Adopts Declaration on Rights of Indigenous Peoples; 'Major Step Forward' Towards Human Rights for All, Says President, U.N. Doc. GA/10612 (Sept. 13, 2007), http://www.un.org/News/Press/docs/2007/ga10612.doc.htm [hereinafter Major Step Forward].
(227.) G.A., United Nations Declaration on the Rights of Indigenous Peoples, G.A. Res. G1/295, [paragraph] 32, U.N. Doc. A/61/L.67 (Sept. 13, 2007), http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf.
(228.) As noted in Ruggie's 2007 report to the General Assembly, "Soft law is 'soft' in the sense that it does not by itself create legally binding obligations. It derives its normative force through recognition of social expectations by states and other key actors. Some soft law instruments may contain elements that already impose, or may come to impose, obligations on states under customary international law, which would give them binding effect independent of the soft law instrument itself." Special Representative of the Secretary-General, Business and Human Rights: Mapping International Standards of Responsibility and Accountability for Corporate Acts, n.41, U.N. DOC. A/HRC/4/035 (Feb. 9, 2007) available at http://www.business-humanrights.org/Documents/SRSG-report-Human-Rights-Council-19- Feb-2007.pdf (citations omitted).
(229.) See Major Step Forward, supra note 226.
(230.) See e.g. Peru recently passed legislation requiring prior consultation with indigenous people, a right contained in the ILO Convention 169, Galdu Resource Centre for the Rights of Indigenous Peoples, Peruvian Congress Passes Law Of Right To Prior Consultation With Indigenous Peoples (May 24, 2010), http://www.galdu.org/web/index.php?odas=4551&giella1=eng; See also The Indigenous Peoples' Rights Act of 1997 (Republic Act No. 8371/1997) (Phil.), available at http://www.gov.ph/1997/10/29/republic-act-no-8371/.
(231.) Implementing FPIC, supra note 216, at 70 ("Although the Declaration is not binding, domestic and regional human rights courts have already begun to reference it in their rulings, and have found that States violated their human rights obligations by handing out concessions without FPIC. Such legal cases create a risk that companies could lose their concessions, even though companies have no direct, legally binding duty under international law to obtain FPIC. These judgments are particularly likely to be applied to countries that voted for the Declaration.").
(232.) Id. at 12 n.20 (noting that domestic courts such as Belize have started to refer to DRIP in their legal decisions, citing it as persuasive authority).
(233.) See Int'l Finance Corp., IFC Performance Standards on Environmental and Social Sustainability, 2 (2012), available at http://www.ifc.org/wps/wcm/connect/c8f524004a73daeca09afdf998895a12/IFC_Performan ce_Standards.pdf?MOD=AJPERES [hereinafter IFC Standards].
(234.) Int'l Finance Corp., UN Guiding Principles on Business and Human Rights and IFC Sustainability Framework, 1 (no date given), available at http://www.ifc.org/wps/wcm/connect/c3dedb0049c51e71886d99da80c2ddf3/UNGPsandIF C-SF-DRAFT.pdf?MOD=AJPERES (last visited Mar. 10, 2014) ("The analysis confirms that IFC's approach of assessing and managing the environmental and social risks and impacts of its investment operations, including IFC procedural and substantive requirement placed on its clients through the Performance Standards, is broadly convergent with the GPs, and their emphasis on due diligence.").
(235.) IFC Standards, supra note 233, at 14, 47-52.
(236.) Int'l Finance Corp., IFC in China, available at http://www.ifc.org/ivps/wcm/connect/region_ext_content/regions/east+asia+and+the+pacific/countries life+in+china_(last visited Mar. 10, 2014).
(238.) Based on the information the IFC provides on its website, the extent to which projects it has funded in China have impacted Tibetan communities is unclear. See http://tinyurl.com/kd79nau (search results from IFC website do not indicate what, if any, investment has actually occurred in Tibet).
(239.) IFC Standards, supra note 233, at 2 ("... IFC requires its clients to apply the Performance Standards to manage environmental and social risks and impacts so that development opportunities are enhanced.") (emphasis added).
(240.) ICMM currently consists of 21 of the largest mining and mineral companies in the world and 33 national and regional mining associations. Members operate at more than 800 sites across 62 different countries, employing around 800,000 people worldwide. ICMM members produce 50 percent of the world's copper and platinum, 40 percent of its iron ore, nickel, and gold, and 25 percent of the world's zinc. See International Council on Mining and Minerals Members, available at http://www.icmm.com/members.
(241.) Int'l Council on Mining and Metals, Indigenous Peoples and Mining Position Statement (May 2013), available at www.icmm.com/document/5433 [hereinafter Indigenous Peoples and Mining].
(243.) Implementing FPIC, supra note 216, at 12, 14-15 (As DRIP and FPIC more generally start "to affect the domestic legal framework and social expectations within which companies operate, it becomes a factor companies may need to take into consideration as part of their risk mitigation process. This is particularly important given the risk that some countries may apply the principle retroactively, which would affect existing company concessions," and that "[w]hen the State has not sought or been granted consent to hand out a concession, and this conflicts with the expectations of indigenous peoples using that land, companies are left to face the resulting social unrest, and may face risks to the investments they have made in the area. Therefore, to protect themselves from operational, reputational, and even legal risk, a small number of companies are voluntarily seeking consent after they are granted concessions.") (emphasis added).
(244.) See Myanmar (formerly Burma) and Human Rights, supra note 182. See also Implementing FPIC, supra note 216, at n.21 ("Soft law standards can be linked to practical implications for those who violate them. In the area of business and human rights, such standards can have concrete effects because national law incorporates them, socially responsible investors use them to screen companies, and advocates utilize the standards to shame wrong-doers.").
(245.) U.N. GAOR Human Rights Council, Special Rapporteur on the Rights on Indigenous Peoples, Extractive Industries and Indigenous Peoples, 24th sess., [paragraph] 19, U.N. Doc A/HRC/24/41 (July 1, 2013) available at http://unsr.jamesanaya.org/docs/annual/2013-hrc-annual-report-en.pdf ("The rights to freedom of expression and to participation are firmly established in international human rights law. By virtue of these rights, indigenous individuals and peoples have the right to oppose and actively express opposition to extractive projects, both in the context of State decision-making about the projects and otherwise, including by organizing and engaging in peaceful acts of protest. States are bound to respect and protect rights of freedom of expression and participation, and may impose limitations on the exercise of those rights only within narrow bounds and for reasons of public order.").
(246.) China signed the ICCPR on October 5, 1998. Although China has not ratified the ICCPR, as a signatory it is obliged to refrain from acts that would defeat the treaty's object and purpose. See Vienna Convention on the Law of Treaties art. 18, May 23, 1969, 11SS U.N.T.S. 331 ("A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when ... it has signed the treaty ... subject to ratification... until it shall have made its intention clear not to become a party to the treaty").
(247.) Like stakeholder mapping, engaging in FPIC can be challenging and companies are encouraged to seek outside expertise. See, e.g., Christina Hill, Serena Lillywhite and Michael Simon, Oxfam Australia, Guide to Free, Prior, and Informed Consent (June 2010), available at http://www.culturalsurvival.org/sites/default/files/guidetofreepriorinformed-consent_0.pdf.
(248.) See Just Business, supra note 125.
(249.) Implementing FPIC, supra note 216, at 19.
(250.) This assumes the companies are listed on the Chinese Securities Market.
(251.) The three obligations being: 1) Chapter 6 of the Chinese Code of Corporate Governance, 2) all internationally-recognized human rights in general, and 3) FPIC in particular.
(252.) Ruggie, 2011 report, supra note 146, at 9.
(253.) See China Begins to take Corporate Social Responsibility Seriously, supra note 202 (indicating that there are other CSR laws; those discussed here focus on stakeholder engagement).
(254.) There is no comprehensive list of companies operating in Tibet (in so far as an English internet search provides), but searching online indicates there are several companies operating. Of those found, the majority are domestic, though there are also a handful of foreign companies.
(255.) See Company Overview: http://www.starwoodhotels.com/corporate/about/index.html.
(256.) See First St. Regis in Tibet, supra note 121. See also Four Points by Sheraton--Lhasa, http://www.starwoodhotels.com/fourpoints/property/overview/index.html?propertyID=31 82 (indicating that Four Points by Sheraton, another Starwood hotel brand, also has a hotel in Lhasa).
(257.) See Starwood Hotel Global Citizenship Policies and Reporting, http://www.starwoodhotels.com/corporate/about/citizenship /policies.html [hereinafter Starwood Policies and Reporting] (indicating that the hotel group has several human rights policies in place, but no reporting on the utilization or effectiveness of those polices).
(258.) Andrew Yeh, Lhasa to be Given the Five Star Hotel Treatment, Financial Times, Feb. 23, 2007, http://www.ft.com/cms/s/0/95ff58a4-c2cd-11db-9e1c000b5df10621.html#axzz2pN2cvJ00 [hereinafter Five Star Treatment].
(259.) See Ruggie 2010 report, supra note 145.
(260.) See Starwood Policies and Reporting, supra note 257 (indicating in its Human Trafficking Position Statement that it supports "the Guiding Principles outlined in the UN's 'Protect, Respect and Remedy' Framework for Business and Human Rights by taking a zero tolerance approach to human trafficking within our spheres of influence").
(261.) Five Star Treatment, supra note 258 ("Western multinationals involved in previous projects in Tibet have drawn the ire of overseas activists ... InterContinental Hotels stopped managing a Holiday Inn in Lhasa in 1997 after years of boycotts and other protests").
(262.) See China Gold International Resources Corp. (last visited Mar. 10, 2014), www.chinagoldintl.com.
(263.) See China National Gold Group Corporation, (last visited Mar. 10, 2014), http://www.chinagoldgroup.com/eng/index.html.
(264.) See China Gold International Resources Corp. (last visited Mar. 10, 2014), www.chinagoldintl.com.
(265.) See Mission Statement, China Gold Int'l Res. Grp. (last visited Mar. 10, 2014), http://www.chinagoldintl.coml'corporate/mission_statement/.
(266.) Edward Wong, Fatal Landslide Draws Attention to the Toll of Mining on Tibet, N.Y. Times (Apr. 2, 2013), http://www.nytimes.com/2013 /04/03/world/asia/deadly-tibetan-landslidedraws-attention- tomining.html?pagewanted=2&pagewanted=all&_r=0 [hereinafter Fatal Landslide Draws Attention].
(267.) Did China Cover Up a Mining Disaster?, Asia Sentinel (Apr. 23, 2013), http://www.asiasentinel.com/econ-business/did-china-cover-up-a-mining-disaster/.
(268.) Didi Tang, Rescuers Search for Survivors as Landslide Buries 83 Workers at Tibet Gold Mine, National Post (Mar. 30, 2013), http://news.nationalpost.com/2013/03/30/rescuers-searchfor-survivors-as-landslideburies- 83-workers-at-tibet-gold-mine-one-confirmed-dead/.
(270.) Did China Cover Up a Mining Disaster, supra note 267.
(271.) Press Release, China Gold International, Commanding Center for the Rescue Team Releases Conclusions on the Causes of March 29, 2013 Landslide in Tibet, April 7, 2013, available at http://www.chinagoldintl.com/investors/news_releases/index.php?&content_id=247.
(272.) Dave Petley, So was the Tibet Landslide, which Killed 83 People, Really "Natural"? You be the judge, AGU Blogosphere (Apr. 13, 2013), http://blogs.agu.org/landslideblog/2013/04/13/so-was-the-tibet-landslide-which-killed-83people-really-natural-you- bethe-judge/; Did China Cover Up A Mining Disaster?, supra note 267 (quoting Petley as saying the "[Properties of the landslide are consistent to what you'd expect to see from mining rather than from natural processing").
(273.) See, e.g., Central Tibetan Administration: Environment and Development Desk, Assessment Report of the Recent Landslide Event in the Gyama Valley: Its Possible Cause and Impacts, 7-11, April 9, 2013, http://tibet.net/wp-content/uploads/2013/04/AR-Gyama-9-April.pdf.
(274.) See Guidelines to the State-owned Enterprises, supra note 200; China Begins to Take Corporate Social Responsibility Seriously, supra note 202.
(275.) See, e.g., McKenzie Romero and Andrew Adams, Massive Landslide Stops Production at Bingham Canyon Mine, Deseret News (Apr. 11, 2013), http://www.deseretnews.com/article/865578042/Kennecott-confirms-significant-landslideat-Bingham-Canyon-Mine.html (discussing the first of two landslides that occurred in 2013 at the Bingham Canyon Mine, the largest mine in the world, during which no workers were injured because the company had anticipated the landslide and thus "[A]ll employees were evacuated in pre-emptive measures"); Alex Haber, Second Landslide Hits Rio's Bingham Canyon Mine, 100 Workers Evacuated, Australian Mining (Sept. 16, 2013), http://www.miningaustralia.com.au/news/second-landslide-hits-rio-s-bingham-canyonmine-10 (discussing the second of two landsides at the Bingham Canyon Mine in which no workers were harmed because the company had predicted the landslide would occur and was prepared).
(276.) See supra note 203.
(277.) Xander Meise Bay, ATS of the North? Canadian Court Allows Suit to Continue for Human Rights Abuses Committed Abroad, Corporate Social Responsibility and the Law (Aug. 7, 2013), http://www.csrandthelaw.com/2013/08/ats-of-the-north-canadian-court-allows-suitto-continue-for-human- rightsabuses-committed-abroad/. See also Hudbay Minerals Versus Mayan Q'eqchi Plaintiffs Of Guatemala, RIGHTS ACTION (Jan. 6, 2014), http://www.rightsaction.org/action-content/hudbay-minerals-versus-mayan-qeqchiplaintiffs-guatemala (quoting Canadian law firms' legal advice on the implications this suit has for Canadian parent company liability vis-a-vis their out-of-country subsidiaries' impact on human rights).
(278.) See ICCPR, supra note 246, at Part III ("Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.").
(279.) It is unclear whether this has occurred. See Press Release, China Gold International, China Gold International Resources is Assisting with Comfort and Relief after the Geological Disaster. The Company Appreciates Public Support, April 15,2013, http://www.chinagoldintl.com/investors/news_releases/index.php?&content_id=248 (China Gold International offered approximately "RMB5 million for temporary assistance to the families of the victims from the landslide with transportation, accommodation and memorial service arrangements.").
(280.) See Fatal Landslide Draws Attention, supra note 266.
(284.) Interview by Author with Staff of Voice of America Tibet Service-Identity Withheld for Protection (January 25, 2014) (indicating that in addition to protests over the environmental and religious mistreatment, Tibetans also regularly protested at not being offered employment by China Gold International; instead these jobs went to migrant workers imported to Tibet by the company).
(285.) China Releases Names of Tibet Landslide Victims, XINHUA (Apr. 3, 2013), http://news.xinhuanet.com/english/china/2013-04/03/c_132283267.htm (indicating that of the 83 workers covered by the landslide, only two were from Tibet; the rest were migrant workers).
(286.) See China Gold International Resources Corp, supra note 262.
(287.) See, e.g., Network in Solidarity with the People of Guatemala, Resolution asks Goldcorp to Respect International Law and Voluntarily Suspend the Marlin Mine in Guatemala, http://org2.salsalabs.com/o/6497/p/dia/action/public/index.sjs?action_KEY=6696 (last visited Mar. 10, 2014) (offering an example of a shareholder resolution aimed at a mining company for alleged human rights violations); Investors Against Genocide, Vanguard Resolution, http://www.investorsagainstgenocide.org/campaigns/vanguard/ (last visited Mar. 10, 2014) (offering an example against Vanguard in particular).
(288.) China Gold Tibet Mine Rescue Suspended as Death Toll Rises to 36, Bloomberg News (Apr. 1, 2013), http://www.bloomberg.corn/news/2013-04-01/china-gold-s-tibetan-mine-accidentdeath-toll-rises-to-21 .html.
(289.) See supra note 161 (defining social license to operate); Implementing FPIC, supra note 216, at 72.
(290.) See infra notes 301-302.
(291.) See Implementing FPIC, supra note 216, at 19.
(292.) This is simply to say that many companies take a reactive approach to human rights, rather than proactively addressing challenges. The ability of companies to reduce the potential for a negative impact is greatly enhanced when they proactively address challenges. See Just Business, supra note 125.
(293.) See Convention on Biological Diversity, China National Biodiversity Conservation Strategy and Action Plan (2011-2030), http://www.cbd.int/doc/world/cn/cn-nbsap-v2-en.pdf (last visited Mar. 10, 2014).
(294.) Convention on Biological Diversity, June 5, 1992, I.L.M. 8/8 Article 10(c), available at http://www.cbd.int/doc/legal/cbd-en.pdf.
(295.) The Conference of the Parties (COP), like CERD noted above, exists to help guide member countries on the implementation and utilization of the Convention on Biological Diversity. While its decisions are not legally binding, they do provide persuasive authority for how parties should act, and in many cases are intended to deepen the existing legal obligations embodied in the Convention.
(296.) Conference of Parties to the Convention on Biological Diversity at its Seventh Meeting, Feb. 9-Feb. 20, 2004, Decision VII/28 Protected Areas [paragraph] 22, U.N. Doc. UNEP/BDP/COP/7/28, available at http://www.cbd.int/decision/cop/?id=7765.
(297.) Conference of Parties to the Convention on Biological Diversity at its Seventh Meeting, Feb. 9-Feb. 20, 2004, Decision VII/16, [paragraph] F, U.N. Doc. UNEP/BDP/COP/7/16, available at http://www.cbd.int/decision/cop/?id=7753.
(298.) Secretariat of the Convention on Biological Diversity, Akwe: Kon Voluntary Guidelines for the Conduct of Cultural, Environmental and Social Impact Assessment regarding Developments Proposed to Take Place on, or which are Likely to Impact on, Sacred Sites and on Lands and Waters Traditionally Occupied or Used by Indigenous and Local Communities [paragraph]8 (2004), available at http://www.cbd.int/doc/publications/akwe-brochure-en.pdf.
(299.) Implementing FPIC, supra note 216 at 15.
(300.) See supra section 1(c).
(301.) Sherman, supra note 183. See also Just Business, supra note 125 at 137-139 (noting the cost of conflict associated with stakeholder pushback "can include delays in design, siting, granting of permits, construction, operation, and expected revenues; problematic relations with local labor markets; higher costs for financing, insurance, and security; reduced output; collateral impacts such as diverted staff time and reputational hits; and possible project cancelation, forcing a company to write off its entire investment and forego the value of the lost reserves, revenues, and profits, which could run into several billion dollars for large-scale operations").
(302.) From the corporate finance perspective, stakeholder engagement in conjunction with human rights due diligence can also be viewed as a way of decreasing unsystematic risk. As such, this can lead to an increase in profits, and ultimately, valuation. Conversely, not engaging in human rights due diligence has the potential to be a liability that greatly impacts the costs of company operations.
(303.) Central Tibetan Administration, Environmental Desk of the Department of Information and International Relations, Tibet's Environment and Development Issues, http://tibet.net/important-issues/tibets-environment-and-development-issues/(last visited September 11,2014).
(304.) Intergovernmental Panel on Climate Change, Climate Change 2007: Impacts, Adaptation and Vulnerability. Contribution of Working Group II to the Fourth assessment Report of the Intergovernmental Panel on Climate Change 493 (M.L. Parry, O.F. Canziani, J.P. Palutikof, P.J. van der Linden and C.E. Hanson eds., 2007), http://www.ipcc-wg2.gov/AR4/website/10.pdf.
(305.) Glaciers Melting at a Alarming Speed, China Daily (July 24, 2007), http://www.chinadaily.com.cn/china/2007-07/24/content_5441827.htm. See also The Game Changer, supra note 2 at 146.
(306.) Tibet Water Supply to Double by 2020, Tibet Travel SERVICE (May 16, 2007), http://www.tibettravel.cn/Tibet_Travel_News/Tibet_water.htm.
(307.) The Game Changer, supra note 2 at 146.
(309.) Tibetans also view many of the water sources as sacred.
(310.) See supra Part III (A)(i-iii).
(311.) For a fuller discussion see Pitts, supra note 126, at Ch. 11.
(312.) See Guidelines to the State-owned Enterprises, supra note 200, at Art. 15 ("Participating in social public welfare programs. [State owned enterprises] ought to encourage their employees to volunteer for social services, and actively participate in community and social welfare program, such as charity, donations, and giving support to schools, cultural or hygiene activities. Upon the occurrence of major natural disasters and emergency accidents, [State owned enterprises] also need to provide financial, material and manpower support.").
(313.) Ruggie, 2010 report, supra note 145, at f 24.
(314.) See generally Pitts, supra note 126, at 503-10 (giving an overview of these types of contracts).
(315.) Id. at 504.
(316.) Id. at 505-06.
(317.) Id. at 507 (This is what occurs with mining companies in Canada that operate in indigenous communities, and is offered as an example of a possible model because it is unclear whether similar initiatives are being used in China/Tibet).
(318.) See Tibetan Central Administration, Guidelines for International Development Projects and Sustainable Development in Tibet (2004), http://tibet.net/wp content/uploads/2013/05/guidelines.pdf.
(319.) See Machik as an example of an NGO working to empower rural Tibetans by creating better educational opportunities, http://www.machik.org/(last visited Mar. 10, 2014).
(320.) See Company Law of People's Republic of China, supra note 199, at Art. 17 (requiring companies to "... reinforce the vocational education and in-service training of its employees so as to improve their personal quality"). This is reinforced in the Guidelines to the State-owned Enterprises, supra note 200 at Art. 14 (requiring companies to "... provide on-duty education and training, as well as equal opportunities of personal development"). Although employee education is narrower than education for the community as a whole, it lends support for the broader need to provide education to all Tibetans.
(321.) Tibet Information Network, Delivery and Deficiency: Health and Health Care in Tibet 70 (2002).
(322.) Iodine deficiency plagues Xinjiang, Tibet, Xinhua (May 20,2007), http://www.chinadaily.com.cn/china/2007-05/20/content_876455.htm.
(323.) Cesar Chelala, Tibet's Forgotten Children, Phayul (Dec. 13, 2007) http://www.phayul.com/news/article.aspx?id=18810&t=1 [hereinafter Tibet's Forgotten Children],
(325.) China Vows to Strengthen Rat Plague Prevention, Xinhua (Nov. 20, 2007), http://news.xinhuanet.com/english/2007-11/20/content_7116619.htm.
(326.) Tracking the Steel Dragon, supra note 44 at 69.
(327.) Authenticating Tibet, supra note 36, at 267; see also Sino-Tibetan Dialogue, supra note 33.
(328.) C.K. Prahalad, The Fortune at the Bottom of the Pyramid: Eradicating Poverty Through Profits (2004).
(329.) This number sometimes gets quoted as high as 4 billion. See, e.g., Erik Simanis and Stuart Hart, The Base of the Pyramid Protocol: Toward Next Generation BoP Strategy Cornell Center for Sustainable Global Enterprise 1 (2008), available at http://www.baseofthepyramid.nl/BoPProtocol2008.pdf (defining BoP as "the more than four billion people globally with per capita incomes below $1,500 (purchasing power parity)").
(330.) For a sampling of these studies, see, e.g., Ashish Karamchandani, Michael Kubzansky and Paul Frandano, Emerging Markets, Emerging Models (2009), available at http://community-wealth.org/sites/clone.community-wealth.org/files/downloads/reportkaramchandani-et-al.pdf; Erik Simanis and Stuart Hart, The Base of the Pyramid Protocol: Toward Next Generation BoP Strategy (2008), http://www.baseofthepyramid.nl/BoPProtocol2008.pdf; and Nancy E. Landrum, Advancing the "Base of the Pyramid" Debate, 1 Strategic Mgmt. Rev. 1 (2007), available at http://www.scribd.com/doc/38353993/Advancing-the-Base-of-the-Pyramid-Debate.
(331.) For examples of BoP products see Esther Addley, Inventor's 2020 vision: To Help 1bn of the World's Poorest See Better, Guardian (Dec. 21, 2008), http://www.theguardian.com/society/2008/dec/22/diy-adjustable-glasses-josh-silver (describing self-adjusting adaptive eyeglasses). See also One Earth Designs, http://www.oneearthdesigns.org/solsource.html (promoting SolSource 3-in-1, a solar energy device developed for Tibetans that provides users with a low-cost and portable means of cooking, heating, and electricity generation).
(332.) China Begins to take Corporate Responsibility Seriously, supra note 190, at 15.
(333.) See, e.g., UN body asks InterContinental Group to Respond to Tibet Campaigners, Phayul (Jan. 27, 2014), http://phayul.com/news/article.aspx?id=34491&article=UN+body+asks+InterContinentai+g roup+to+respond+to+Tibet+campaigners (describing a campaign against the InterContinental group by Tibet supporters regarding the hotel's plan to open a hotel in Lhasa).
(334.) See, e.g., Global Business Initiative, Sustainable Business and Investment in the Global Context: Rights, Risks and Responsibilities (2013), http://www.global-businessinitiative.org /wp-content/uploads/2012/05/E vent-Series-Summary-Beijing-China-2013English.pdf. This report is a summary of a conference event which committed as a follow-up item to carry out "The Corporate Responsibility to Resect Case Study Project," which will aim connect the UN Guiding Principles and Chinese corporate practices. Part of this project could focus efforts at business operations in Tibet.
(335.) See, e.g., International Centre for Human Rights and Democratic Development, Human Rights Impact Assessments for Foreign Investment Projects: Learning from Community in the Philippines, Tibet, the Democratic Republic of Congo, Argentina and Peru (2006), available at http://publications.gc.ca/collections/collection_2007/dd-rd/E84-212007E.pdf (offering perhaps the only publically available human rights impact assessment of a foreign company's operations in Tibet).
(336.) See Tibet policy: Bold New Proposals, The Economist (June 22, 2013), http://www.economist.com/news/china/21579847-welcome-signs-some-officials-are-laststarting-question-policies-tibet- bold-new (discussing a potential rethinking of Tibet policies by the Chinese Government; such an opening by implication could include a new approach to socioeconomic development by using CSR).
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|Title Annotation:||III. Applying CSR to Tibet through Conclusion, with footnotes, p. 151-179|
|Publication:||Yale Human Rights and Development Law Journal|
|Date:||Jan 1, 2014|
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