Zhang Wei

I. Symposium on National Human Rights Institutions and Research Topics

Academic research in the Chinese mainland on national human rights institutions started in February 2003. From October 16-17, 2004, the China University of Political Science and Law organized an international symposium in Qingdao, Shandong Province, on research about national human rights protection institutions, inviting experts from Australia, South Africa and Canada to brief the symposium on related information concerning the Asia-Pacific region and South Africa as well as to provide information about Canada’s National Human Rights Commission. Chinese participants also discussed the possibility of establishing a national human rights organization in China.

Based on the viewpoints expressed at the 2004 Qingdao symposium, quite a few participants had some misconceptions about the nature of national human rights institutions. For example, some experts regarded such institutions as being the same as parliamentary human rights committees. Analyzing the Paris Principles, which includes the principle on national institutions for promoting and protecting human rights, we find that the functions of parliamentary human rights committees have many limitations and do not have extensive power to promote and protect human rights. For example, those institutions certainly do not engage in human rights education. Meanwhile, government agencies for human rights protection are not the national institutions referred to in the Paris Principles because such agencies cannot be independent of the government. In an ideal situation, if the government sets up a dedicated agency in addition to a parliamentary committee and if there is a legally established national human rights institution, the protection of human rights in a country will be greatly improved.[page]

Funded by the Swedish International Development Agency, from 2004 to 2008, the China University of Political Science and Law held several seminars in Beijing similar to that in Qingdao, listening to the views of a lot of experts and scholars on the establishment of a national human rights institution. Between 2007 and 2008, members of a special task force visited the national human rights commissions of both Thailand and the Republic of Korea. On the basis of these activities, the China University of Political Science research group, led by University President Xu Xianming, authored a feasibility report on China’s establishment of a national human rights institution and related legislative proposals. In October 2007, the task force discussed the report and the draft legislation with scholars at Sweden’s Raoul Wallenberg Institute of Human Rights and Humanitarian Law. Both the university and the institute decided to apply for national human rights institution research funds from the Swedish International Development Agency. The application was approved in early 2008.

During the period of preparing the application, the two sides spent three months having repeated discussions about all stages of their plan, in order to ensure linkage between all their activities and ensure the effectiveness of their activities. First, based on the characteristics of university research, the research team recruited global expert instructors to promote the idea of a national human rights institution, giving lectures at six universities in northwest, east, south and north China. The expert instructors, led by Xu himself, popularized basic theories about international and domestic human rights protection at the universities and explained the basics of national human rights institutions. Since 2009, the task force has organized two-week summer courses on human rights at the China University of Political Science and Law, offering free access to teachers and students from more than 40 Chinese universities. More than 1,000 university students have been educated in this field, learning about the basics of national human rights institutions. Since 2011, the task force has introduced such courses into the training programs for courts in Shandong and Henan provinces. After learning about the operations of national human rights institutions, judges from the two provinces widely came to believe that establishment of a national human rights institution would create positive interactions among judicial organs and push forward justice.

While popularizing the idea of a national human rights institution, the research group analyzed and defined the relationship between national human rights institutions and governmental, parliamentary, judicial and other state organs. It also carefully studied the functions and powers that a national human rights institution should have, analyzed a possible link between national human rights institutions and the United Nations and nongovernmental organizations, and reviewed international and regional coordination mechanisms and operating modes of national human rights institutions. During the study, the research team found that national human rights institutions could be built on existing human rights protection mechanisms to further promote and facilitate the development of human rights. The new institutions are not intended to replace existing ones, but to supplement and improve the existing mechanism. Independent national human rights institutions do not contradict the existing political party system. National human rights institutions, in accordance with the state’s ratification of and accession to international human rights treaties, offer domestic legislative, administrative and judicial authorities advice and consultation. Such institutions are authorized by law and operate fully under the framework of the constitution and the law.[page]

II. Domestic Research on National Human Rights Institutions

In recent years, the academic study of national human rights institutions has developed from scratch, and gradually has gone from shallow to deep. Relevant research topics have covered the genesis and development of national human rights institutions, the functions and roles of national human rights institutions, the relationship between national human rights institutions and other national authorities, the domestic legislative bases for international human rights organizations, and comparative studies of human rights organizations in other countries and regions.

Major research achievements include Professor Wan Exiang’s “On the Relationship Between National Human Rights Institutions And the Judiciary,” Professor Xu Xianming’s “The Need for Establishing National Human Rights Institutions,” Professor Han Dayuan’s “National Human Rights Obligations and the Functions of National Human Rights Institutions,” Professor Qi Yanping’s “National Human Rights Protection Responsibilities and the Establishment of National Human Rights Institutions,” “A Comparative Study of the Investigation of Human Rights Violation Complaints Among Asian-Pacific Countries’ National Human Rights Institutions,” and Professor Zhang Wei’s “On the Institutional Characteristics of National Human Rights Institutions,” and “On the Establishment Of a National Human Rights Institution in Accordance with Domestic Law.” These papers systematically discussed the origin, development, legislative basis and human rights protection functions of national human rights institutions and their relationship to related national agencies. In 2007, the China Society for Human Rights Studies compiled the book, Human Rights and the Harmonious World. Related articles in volumes 4, 6 and 7 of Human Rights Studies, edited by Professor Xu Xianming, and the book, Research on National Human Rights Institutions, published in 2010, comprehensively explained the origin, development, functions and significance to human rights protection of national human rights institutions.[page]

In 2011, the China Society for Human Rights Studies compiled A General Overview on National Human Rights Institutions, the first reference book in China offering information on national human rights institutions in various countries and the most comprehensive introduction to various countries’ national human rights institutions. At present, 116 countries and regions have established national human rights institutions. A General Overview on National Human Rights Institutions lists 89 such institutions that have been applied for authentication from the United Nations. The book provides detailed descriptions of the history, establishment, function, type and authentication of these institutions, comprehensively commenting on their development, and creating an important reference for human rights research.

In addition, there have been many dissertations and theses on related topics by students at Peking University, Renmin University of China, Shandong University and the China University of Political Science and Law.

III. Proposals for Establishing a National Human Rights Institution

In general, academic and research circles hold a positive view about research on national human rights institutions. However, a political decision from China’s top leadership is needed regarding whether China should establish a national human rights institution and how to build it. International comments on countries that have already set up national human rights institutions vary. The toughest issue is coordination between national human rights institutions and the government, which is particularly controversial in countries that have two-party or multiparty political systems. Anti-government critiques from national human rights institutions may have a heavy impact on the government during elections. As a result, the government is prone to adopt methods directed toward the national human rights institutions or their leaders to force them to reduce their supervision of government.[page]

The United Nations Paris Principles encourage countries to plan and design national human rights institutions based on their own conditions. Meanwhile, five points in particular deserve attention as China considers establishing a national human rights institution.

First, earnest preparation. The process of establishing a national human rights institution is especially important to guaranteeing legitimacy of the institution and its good functioning. It is suggested that the process, which is as important as the institution itself, should be led by the highest organ of the government. The process should be kept transparent and open to people from all walks of life, including representatives of nongovernmental organizations, lawyers, teachers, scholars, officials, judges, deputies to national people’s congresses and people from various political parties. Wider participation will win the trust of the people in the national human rights institution and lay a solid foundation and social support for its operation in the future. Generally speaking, a government department could be authorized to help set up a guidance committee to organize legislative consultation activities, popularize the activities and arouse the motivation to establish a national human rights institution. The legislative consultation activities should cover all the important issues associated with the national human rights organization. It should not only cover domestic human rights conditions and the legislative basis for establishing the national human rights institution, and the authority and function of the institution, but should also cover the composition of the institution’s staff and the method of their appointment, as well as the internal management model for the institution and the selection of the location of the institution, etc. From the experience of Asian-Pacific countries that have already set up national human rights institutions, a lack of sufficient consultation generally leads to the national human rights institution lacking sufficient authority, the members of the organization being insufficiently representative of society, and the organization having insufficient resources. Without fully soliciting suggestions from social groups, the public might feel that such a national human rights institution represents only a few people or a few interest groups, but does not promote and ensure each person’s rights without discrimination. A national human rights institution without the broadest social support and trust cannot effectively perform its duties.[page]

Second, establishing a national human rights institution in accordance with the constitution or basic law. Establishing a national human rights institution based on the constitution is the best choice. It not only ensures the greatest legal guarantee for the national human rights institution, but also shows the fundamental human rights orientation of the Chinese people. It would also help gain support from the international community. In order to maintain the stability of the constitution, one can consider the method of enacting an amendment to the constitution, and within the constitution stipulate that a national institution should be established to regulate and protect human rights. Then a special law should be passed with detailed stipulations on the national human rights institution. Alternative choices would be to draft a special law, in accordance with the Paris Principles, to set up a national human rights institution, such as the law on the National Human Rights Commission; or one could consider passing a human rights act that calls for promoting and ensuring human rights while at the same time establishing a national human rights institution in accordance with the Paris Principles. Regardless which legislative means is adopted, the establishment of the national human rights institution should meet requirements of the Paris Principles.

Third, expansion of human rights protection. Before establishing a human rights institution, the scope of promoting and ensuring human rights should be defined. The wider the concept of human rights is, the more comprehensive the responsibilities of a national human rights institution are, which might help show the country’s resolve in promoting and ensuring human rights as well as display its value system. Chapter Two of the Constitution of the People’s Republic of China (PRC) stipulates the basic rights and obligations of citizens. In addition to this, the PRC government, in line with the international human rights conventions it has already ratified or joined, takes the responsibility of ensuring the human rights of people living within the boundaries of the PRC. The domestic laws and international conventions constitute the whole of the legal system for ensuring human rights in China. The national human rights institution should be authorized to ensure all the human rights mentioned above.[page]

Fourth, personnel and financial independence should be ensured for a national human rights institution, which must be independent of the government or of any social group or individual. Independence is a prerequisite for promoting and ensuring human rights. Therefore, in preparation for the national human rights institution, the legal framework for the law should clearly stipulate key factors that ensure the independence of the institution. These factors are mainly involved with the allocation and management of financial and material resources, the appointment of personnel, and the relationship with legislative and governmental bodies, judicial organs and nongovernmental organizations. The institution is fundamentally an abstract concept. How it operates entirely depends on the quality of its staff. Therefore, it is necessary to treat the selection and appointment of staff very seriously. The process of selection and appointment must be open, transparent and broadly accessible to the public so that the institution can gain a good reputation and have talented human resources. Selection of the institution’s leadership should also be taken seriously. Their social reputation and human rights value orientation will directly affect the image and reputation of the institution.

Fifth, the broad responsibilities of a national human rights institution. The national human rights institution should undoubtedly be authorized to carry out education, research and consultation. However, there is controversy over whether countries should give such organizations the authority to investigate human rights violations or accept individual human rights complaints. In the Asia-Pacific region, many countries have authorized their national human rights institutions to investigate violations and accept individual complaints, which has been widely acclaimed by the international community. In considering what authority to give the human rights institution, the starting part should be to consider whether the institution can effectively carry out its responsibilities. When the institution is newly established, its responsibilities may focus on publicity, education, research and consultation, with no responsibility for taking or handling individual human rights complaints. On this basis, the institution can solidly fulfill its responsibilities and earn recognition from the public. As the human rights environment gradually improves, the national human rights institution can be given new responsibilities for promoting and ensuring human rights. However, giving the institution a lot of practical functions that it is not able to fulfill will reduce the credibility of the institution. Such a situation should be avoided.

(The author is deputy director of the Human Rights Research Academy of the China University of Political Science and Law and an associate professor.)