Human Rights à la Chinoise: Impressions from the 6th Human Rights Forum in Beijing on the Eve of the Second UPR of China, Part I

The Beijing Human Rights Forum, the 6^th of its kind was held in “the golden season of autumn” on 12-13 September 2013, under the theme: “Constructing an Environment for Sustainable Human Rights Development”. The Forum took place at a critical date, only a few weeks before the second Universal Periodic Review of China, which is scheduled for October this year. As a heavily government-influenced event, the Forum shed some light on what to expect from the Chinese Government in the upcoming review.

The Universal Periodic Review of China

The compilation prepared by the High Commissioner for Human Rights (UN Doc. A/HRC/WG.6/4/CHN/2 of 16 Dec. 2008) lists the international obligations which bind China and which thus form the yardstick of the review: China has ratified more than 20 international Human Rights Covenants, among them the CECSR, the CAT, the CEDAW, and the CPD. Importantly, the ratified treaties are not self-executing in the Chinese legal system, i.e. they cannot be directly applied by Chinese courts (XUE Hanquin and JIN Quian, “International Treaties in the Chinese Domestic Legal System”, Chinese Journal of International Law 8 (2009), 299-322).

So far, China has not ratified several important treaties, such as the Rome Statute. It signed the CCPR in 1998, but did not ratify it. Meanwhile, the time lapse after signing  the CCPR has been longer than the 15 years it took the U.S.to ratify (which signed in 1977 and ratified in 1992) – but we should not forget that the USA has, as opposed to China, never ratified the CESCR.

In the first UPR of China in 2009, a number of recommendations were made to the country. China accepted some but rejected many; among them very important ones such as to ratify the CCPR as quickly as possible and to withdraw the Chinese reservation to Art. 8(1) CECSR (freedom of trade unions), and to become a party to the Rome Statute.

According to para. 34 of the UPR foundational document (“United Nations Human Rights Council: Institution-building, I. Universal Periodic Review Mechanism”, Annex 1 to High Commissioner’s resolution 5/1), the focus of the second UPR will be first of all the implementation of the accepted recommendations of the previous cycle. This means that even if China subsequently tackled some of the recommendations it had formally rejected, these aspects cannot officially be on top of the review agenda.

At the Human Rights Forum, a UN officer of the Universal Periodic Review team, Christophe Pechoux, explained the spirit and objectives of the process. First, it covers all countries, treated on the same footing. Second, it is characterised by a growing participation of civil society actors. According to Pechoux, the UPR has brought about a paradigm change in international relations: it has detabooised human rights and builds on collaboration (as opposed to confrontation). Most importantly, the UPR offers new opportunities for dialogue between governments and civil society, especially on the national level.

One practical problem of the UPR is the lack of time for input by the stakeholders during the session itself. During the first review, apparently non-governmental organisations with affinities to China used the upmost of the speaking time. The procedure in October will be somewhat different, with an extremely short speaking time allotted to each stakeholder so that every single one will be heard.

Recent human-rights-related legal reform in China

While some decades ago, “human rights” might have been a taboo in the Chinese political discourse, this is surely no longer the case. The Chinese Constitution, as of 14 March 2004 contains human rights provisions (Chapter 2: “The Fundamental Rights and Duties of Citizens”; Art. 33-56). Actually, a new taboo rather is (to my personal chagrin), the term “constitutionalism”. The reason is that the Chinese constitution is subject to broad interpretation by the Chinese Communist Party, which de facto sits above the constitution. For this reason, the concept of constitutionalism is seen by communist ideologues as a destruction of the Communist Party’s “people’s democratic dictatorship.”

China has recently undertaken various legal reforms and issued a number of documents that are relevant for improving the protection of human rights. Since a constitutional reform of 1999, China has called itself a “socialist state under the rule of law” (Art. 5(1) of the Chinese Constitution).

The Information Office of the State Council issued a White Paper “Progress in China’s Human Rights in 2012” on 14 May 2013. In October 2012, the Information Office of the State Council published a White Paper “On the judicial reform in China”. Importantly, a reform of the criminal procedure law took effect on 1 January 2013 which inter alia prohibits the extraction of evidence by coercion (torture and mistreatment), and foresees the exclusion of evidence obtained by illegal means. The reform also extended the scope of public trials, introduced better protection of rights of suspects and rights of defendants and rights of minors and aspires to make sure that the procedure for death-penalty cases are standardised. Finally, the Chinese system of popular petitions has been improved.

However, the overall context of these reforms is not very reassuring. Half a year after the installment of the new Chinese leader XI Jinping as the Chinese President in March 2013, the political direction of the government is not yet clear. In fact, political observers perceive a political set-back.

The Human Rights Forum and the governmental attitudes on human rights

The Forum was organised by two associations, the “China Society for Human Rights Studies” and the “China Foundation for Human Rights Development.” Both associations might be qualified as “GONGOs” (government-sponsored NGOs), and in fact numerous Chinese office holders were speakers at the Forum (for example the Minister of the State Council of the Information Office of China, representatives of the party school of the Central Committee of the Chinese Communist Party (CPC), a counselor of the Ministry of Foreign Affairs of China, a senior judge of the Chinese Supreme People’s Court, and the like). A free CD on the Chinese Communist Party was distributed, too. Most presentations dealt with social rights, such as education and employment, whereas free speech, freedom of assembly, or religious freedom were hardly mentioned.

The majority of non-Chinese speakers came from countries which do not stand out for best practices under international human rights standards (e.g. Indonesia, Mongolia, Pakistan, Russia, South Korea, Saudi Arabia, Singapore). Still, the panels were somewhat more colourful than at standard European academic events, for example there were many African women. Speakers from Western countries were hand-picked, and those who obtained a prominent slot in the plenary were clearly sympathetic to the official Chinese position on human rights.

Part II of this post will discuss the voices against “Western-style” human rights in China presented at the Forum, which focused on Chinese cultural specificity and the emphasis on development as a human rights, and will offer concluding remarks.