This is the second part of a post on the Beijing Human Rights Forum held in September 2013 in anticipation of the upcoming Universal Periodic Review of China. Part I introduced the pending Review, described recent human-rights-related legal reform in China, and summarized governmental attitudes on human rights expressed at the Forum. (photo credit)
Voices against human rights universalism
The most vocal human rights relativist at the Forum was Lord Davidson of Glen Clova, House of Lords, UK, a former General Advocate for Scotland. He asked the question “Is it correct to regard human rights as universal?”, and answered it with a vigorous “no”, drawing on examples of prisoners’ voting rights, same-sex marriages, and the like.
Professor Li-Ann THIO from Singapore gave another powerful human rights-relativist talk. According to professor Thio, the goal should be human welfare, whether through human rights or other venues. The focus should be more on results, more on “doing good than on feeling good”. Professor Thio concluded with the question that she thought should be asked to everyone: Do you want the right to a house, or do you want a house?
The answer might seem obvious to rights-sceptics like THIO. But it merits two remarks: First of all, the realisation of most needs and wishes of personal life such as having a house, depends on complex economic, financial and political conditions. People wanting a house are completely dependent on those external conditions if they cannot at least have a say in shaping policies that influence them. Even with regard to the house itself, most people will prefer to decide for themselves whether they indeed want a house, or whether to spend their money first on the education of their children, or on world-wide travelling, for example. Some individuals who prefer non-settled living may indeed not even want a fixed house, and want to remain free to decide on their lifestyle.
Second and most importantly, people do not only want a house but they also want to be able to rely on their home and want to be sure that they cannot be simply evicted for the sake of some infrastructure project. This security is only given when they have a right to the house. In that sense, having a right to a house is an indispensable precondition of securely having a house.
The “putting the people first”-philosophy of the Chinese Government and the “Chinese dream”
The idea that a government should first of all provide a house (without necessarily granting a right to a house) is just one concretion of the Chinese Government’s philosophy of government for the people. In fact, a number of Chinese speakers highlighted the Chinese concept of “putting the people first”-philosophy. This appears to mean both that the group has a certain priority before the individual and also that the welfare of the people must be the objective of government, that “the state is for the people“, as HUANG Mengfu, Vice-Chairman of the National Committee of the 11th CPPCC, Chairman of the China Foundation for Human Rights Development, said. Besides, and somewhat in contrast, LI Junru, Vice-President of the China Society for Human Rights Studies said that “the dignity of the state is a precondition of dignity of individuals“.
The idea of a government for the people implies that a pure output-legitimacy of governance suffices. My objection would be that the outcomes are often controversial. Because there can be reasonable disagreement about them, they need to be defined in an open, bottom-up and inclusive debate, and be subject to constant reassessment. The outcomes should not be imposed in a paternalist way which risks to dissatisfy the actual needs of human beings. This is up to each individual him/herself − as the ultimate authority of his or her own wishes, needs and aspirations.
Two stances recurred in the contributions of the Chinese speakers (just as in the Chinese Government memorials mentioned above): the theme of a specific Chinese way to realise human rights and the theme of development as the primordial human right (see below). First, many speakers highlighted that there is a specific Chinese way of realising human rights, and that due regard should be paid to the national context, notably to the fact that China is a big and populous country, characterised by uneven regional development, especially by great regional differences as far as the standard of living is concerned. A new Leitmotif is the “Chinese dream”, the current Chinese President XI Jinping’s slogan of governance and which – according to one speaker – is a dream about a socialist system with Chinese characteristics. A Russian speaker insisted that “we have to respect the social and cultural archetypes in one country.” A Chinese speaker deplored the “extreme Westernisation of human rights language.”
Human rights and (Chinese) culture
The calls for attentiveness to culture are not without merit. Universality does not mean uniformity in all respects. Human rights law does not prescribe a one-size-fits-all. Universality should not overshadow particularity. The specifications of each culture should be taken into account but only within limits. States do enjoy a latitude in realising human rights, and the international constitutional principles of subsidiarity and decentralisation should also give human rights protection. Indeed, it is best to let states sort out their level of protection in a democratic debate. But, crucially, this needs in fact an open debate, and the leeway given to states must not undercut the agreed universal standards. The problem of course remains to clearly identify those.
Importantly, cultures are not “archetypes” and watertight compartments but evolving spaces which constantly absorb elements of other cultures, especially in times of globalisation. Also, it must not be forgotten that human rights have been and continue to be, fought for against culturally imprinted habits and traditions, against ruling elites, and against the establishment. Chinese “culture” cannot lawfully be used as a justification for human rights violations. According to Art. 2(1) of the UN-Convention on the Protection and Promotion of the Diversity of Cultural Expressions of 20 October 2005, which China ratified in 2007, “[c]ultural diversity can be protected and promoted only if human rights and fundamental freedoms, such as freedom of expression, information and communication, as well as the ability of individuals to choose cultural expressions, are guaranteed. No one may invoke the provisions of this Convention in order to infringe human rights and fundamental freedoms as enshrined in the Universal Declaration of Human Rights or guaranteed by international law, or to limit the scope thereof.”
Also, we should not forget that within the United Nations Human Rights Commission which drafted the Universal Declaration of Human Rights, the acknowledged intellectual leader was a Chinese: Peng-Chun Chang (Mary Ann Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (New York: Random House 2001), 44). Chang was a strong backer of the social and economic rights in the universal declaration. He referred to the Confucian idea of economic and social justice, and often quoted Mencius.
At the forum, the UN Chief of the Universal Periodic Review team, Christophe Pechoux, gave an excellent talk on the universality of human rights, not based on theories but on his own experience in the field. If human rights were Western values, he asked, how could one explain that they fueled decolonisation, and that so many human beings aspire the protection of human rights. He gave examples from his work: When he visited prisoners, they did not tell him that their protection was a Western concept. When he reunited a mother with her son, she did not tell him that family protection was a Western value. When he brought medical care to persons, they did not tell him that this was a Western concept. In 31 years in the field, Pechoux said, he did not meet anyone who said that protection against torture etc. were Western values. He also alluded to the Chinese concept of a “harmonious society” by saying that this does not need to be a silent society. “A society is like an orchestra which needs all instruments, not just the first violin.”
Development as the primordial human right?
Numerous speakers at the Human Rights Forum referred to the relationship between development (understood as a human right) and other, notably political human rights. Many pointed out that the rights to food and housing are probably the most important human rights and that the further development of China is a precondition for the respect of human rights in the country. For example, CHEN Shiqiu, Vice-president of the China Society for Human Rights Studies, said that human rights will be protected “only by achieving sustainable development, otherwise human rights is only empty talk.”
Again, something can be said in favour of this view. If human beings do not have food and housing and are illiterate, they will lack capacities and any energy for participating in the political affairs of their country. The “liberal” human rights cannot be enjoyed if the material conditions of subsistence are lacking. However, as Nobel Prize winner Amartya Sen has argued, political participation, free speech and open debate is in turn also a precondition for improving a government of a country in the currently extremely complex financial and economic circumstances. A wise group of leaders alone will simply lack information to take sufficiently reflected decisions. If the population is fully informed about the political and economic situation, if a nationwide debate takes place on political measures to take or not to take, then the chance of conducting a reasonable policy to prevent hunger and combat poverty is much heightened (Amartya Sen, Development as Freedom (Oxford: Oxford University Press 1999); see also Olivier Rubin, Democracy and Famine (London: Routledge 2011)). Such a debate, again, is pre-conditioned on access to information and education, to that we come to a full circle. This circle or mutual interdependence of ‘social’ rights on the one hand and ‘political’ rights on the other hand is one meaning of the UN mantra on the indivisibility and interdependence of all human rights. Another well-known aspect of the interrelationship between human rights protection and development is that development requires economic investment, and that entrepreneurship needs legal predictability, legal stability, and the protection of property. Therefore, human rights protection is an important catalyst for economic growth (see on this the 2013 World Development Report on Jobs, issued by the World Bank).
Construing or undermining human rights protection? In search for an overlapping consensus
My personal key experience of the Forum was the encounter with a reporter of the principal newspaper People’s Daily. The reporter asked in advance for an interview, and was quite persevering about this – approaching me various times, and following me almost into the lady’s room. When I said that I would answer in writing and that the reporter must promise me that my answers would neither be changed nor taken out of context, she agreed – but never sent any questions.
Overall, the 6th Human Rights Forum was deeply ambivalent: it was on the one hand, to a large extent, a token exercise, a piece of propaganda. On the other hand, it offered the possibility of genuine exchange, not only during the coffee breaks but also in the smaller discussion groups, where a number of Chinese scholars demanded more legal reforms, notably in the areas of prisoners’ rights, children’s rights, and women’s rights. For example, a Chinese colleague reclaimed the children’s right to education against the background that – as he recounted – China’s expenditure on education is less than half of the world level, only one tenth of the OECD level.
In the end, the Forum can be seen as confirming the gist of all constructivist theories about (legal) norms and especially rights, namely that these ideas construct our social reality (Emanuel Adler, Constructivism, in: Walter Carlsnaes/Beth Simmons/Thomas Risse (eds.), Handbook of International Relations (2d ed. Los Angeles: Sage 2013) 112-144). From this perspective, the Chinese Human Rights Forum has indeed manifested that human rights have emerged as a new constitutive rule not only of domestic governance but also of international relations. However, the meaning given to this constitutive rule still differs vastly. The Forum did not reveal a universal understanding of human rights. On the contrary, the appropriation of the concept of human rights by the Chinese establishment, as evinced in the Forum, rather tends to sap it.
Personally, I am convinced that whatever the historical genesis of the idea of human rights is, it is less relevant than the concept’s capacity to legally structure global, both inter-state and inter-personal relations. In the UN Human Rights Commission in the 1940s, the Commission’s master-mind Peng-Chun Chang, had, according to Mary Ann-Glendon, “an exceptional ability to understand other cultures and to ‘translate’ concepts from one frame of reference to another” (Glendon at 226). It is this ability of translation that we should develop and train in our scholarly efforts. The objective should be, to use a term by John Rawls, an “overlapping consensus” on the concept of human rights, independently of diverging philosophical, moral and cultural foundations. Let us hope that such an overlapping consensus on human rights will at some point emerge, broaden and deepen. Let us hope that the “East-West” human rights dialogue at Forums such as these does not continue as a dialogue des sourds.