LIU Zhigang*

 

Abstract: The paths for applying the international human rights conventions in China should be recognized as follows: On the premise of respecting the Constitution of China, systematic human rights which could coordinate the relationship between the Constitution of China and international human rights conventions. The source of the human rights legislation obligations of the legislative organs of China is the Constitution of China, not the international human rights conventions. The legislature should understand and grasp the main contents of the human rights legislation obligations of the legislature according to Paragraph 3 of Article 33 of the Constitution while the interpretation of this clause must be based on the relevant provisions of the international human rights conventions. Human rights legislative obligations of the legislature can be classified into two types: legislative protecting obligations and legislative relief obligations of human rights. The NPC and its Standing Committee should be structurally responsible for the human rights legislation obligation, and the State Council and other organs of the State not for the legislation protection of human rights. A special human rights law should be enacted by the NPC.

 

Keywords: international human rights conventions; legislative protection; human rights; constitutional analysis

 

The International Covenant on Economic, Social and Cultural Rights (ICESCR) was signed by the Chinese Government on October 27th 1997 and approved by the National People's Congress on February 28th 2001. Likewise, the International Convention on Civil and Political Rights (ICCPR) was signed by the Chinese Government on October 5th but hasn't been approved yet. Article 2.1 of ICESCR provides that each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures. Article 2.2 of ICCPR states that where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the present Covenant. According to the above-mentioned provisions, it is an important issue in present rule of law practice in China to stand by China's prior undertakings under international human rights conventions via domestic legislation. But since human rights legislative guarantee involves the relationship between the international human conventions and China's Constitution, the relationship between the international human rights conventions and domestic legislation and hence many aspects deriving subsequently about obligatory sources and contents of human rights legislation, the academic circle doesn't have the same understanding of such issue, which inevitably affects the practice of human rights legislative guarantee in China. With this as basis, this article analyses the issues of human rights legislative guarantee from the angle of constitution so as to learn from other scholars in this field.

 

 

From the point of jurisprudence, the application of the international human rights conventions in the States Parties is a fundamental issue in the relationship between international law and domestic law. As for this issue, the academic circle puts forward two positions, monism and dualism. And monism can be classified into two opinions, that is, international law prevails over domestic law or domestic law prevails over international law. In rule of law practice, international law holds different positions from domestic law of each State party. As for China, no clear position is stated in the Constitution about the relationship between international law and China's Constitution and other laws. Recently, domestic academic circle has been engaged in research into the issues of transformation of international human rights convention but with inconsistent points of view. Some scholars summarize the major academic points into 4 categories¹. (1) The package solution. The so-called package solution means that China may put forward reservation when there is conflict between International Bill of Human Rights, human rights notions existing in international society and China's Constitution and other laws. (2) The complete 3-step solution. The first step is to fill in gaps. The provisions embodied in the international conventions shall be written in China's Constitution or other laws when there are no such compatible provisions thereof. The second is to make amendment. If any provisions of China's Constitution or constitutional laws are in conflict with international human rights conventions, comprehensive amendments as well as repeal shall be made thereto. The third is to make perfection. When some provisions in China's Constitution and other laws are not complete compared with international human rights convention, these parts shall be made complete for perfection. (3) The cost-sharing solution. This solution refers to a general provision made in China's Constitution, constitutional laws or other laws. It states that where China's laws are in conflict with international conventions, the latter prevails unless China made reservation thereto. (4) The solution of making special human rights law. The suggested solution is to make special human rights law in addition to the Constitution. On the one hand, international human rights conventions are transformed into domestic laws. On the other hand, the basic human rights rules stipulated respectively in national constitution and constitutional laws shall be integrated and detailed into special and systematic human rights rules.

 

The author of this article thinks that all the solutions above mentioned are not acceptable for the following reasons. (1) As for the package solution, when the announced reservations are made undue, this may deviate from the original intent of concluding or acceding the international human rights conventions. From the point of jurisprudence, the reservation system is meant to make compromise between the general international human rights convention and the States Parties' human rights legislation. What's reflected and embodied in the international conventions is the common human rights position of all the States Parties while the announced reservation clause illustrates special position of the States Parties making the clause. In accordance with the accord principle of Article 19 of Vienna Convention on the Law of Treaty and taking into consideration the generalization of international human rights conventions, denial of the reservation announced when the relevant states parties concluded or acceded the convention may provoke fundamental conflict with the stand points of the states parties who announced the reservation. This may lead the parties to decide not to conclude or accede the convention, which shadows negative impact on the generalization of the conventions. Conversely, if the relevant countries are allowed to make reservation at will, these conventions shall be partitioned and transformed in fact into different bilateral or multilateral treaties. Therefore, undue use of the reservation system to solve the relationship between international human rights convention and domestic law via package solution is not realistic. (2) The previously mentioned complete 3-step solution is seemingly thorough but not practical either for the following reasons. This solution will entail many legislative resources, including not only the amendment and repeal of relevant human rights legislation but also amendment to the Constitution itself. Apparently, it benefits the resolution of the conflict between domestic human rights laws and international human rights conventions. Yet due to a large number of international human rights conventions, different time for concluding and acceding the conventions and inconsistent content of these conventions, to carry out this solution may endanger the stable legal system in China. Improper use of legislative resources will result in heavy burden on the legislature. (3) The cost-sharing solution involves hidden perils difficult to solve in the future legislation although it may save much undue cost incurred for such legislation. While the legislature gives up its obligation to make human rights guarantee systematic, empirical and precise, such state organs as the legislative, executive, adjudicating and prosecuting bodies shall be left with much room for free will. (4) The difficulty for carrying out the solution of making human rights law is how to cooperate with the fundamental rights provided in the constitution and what its status is compared with other laws.

 

To summarize, the author of this article thinks that with respecting domestic constitution as an essential prerequisite, the relationship with international conventions may be coordinated by means of relevant domestic human rights legislation. The reasons are as following. First, the fundamental position of China on human rights issues justifies that international human rights conventions don't prevail over China's Constitution, which deems that these conventions cannot be directly used as sources for domestic human rights legislation regardless the Constitution when China is to apply these conventions. It is quite clear and straightforward, including the following aspects. (1) Human rights are the rights generally enjoyed by all the people, of which no states can deprive people. Determination of the scope of human rights and the protection of human rights are internal affairs of a country, where foreign countries shall not intervene. (3) Only when a country infringes on the human rights of its people or people of other countries can the international society stop it without force if possible. (4) Chinese government respects and protects human rights of its people and actively promote the development of the human rights protection. (5) Collective right to live and right to develop are most important human rights for Chinese people. At the same time, protection of the citizens' rights shall be enforced on the basis of economic development. Under this position, international human rights conventions are not superior to China's Constitution. Their application in China is via China's Constitution and relevant domestic human rights legislation. Second, provisions of relevant domestic laws concerning the application of international law don't involve any content of human rights protection. Though some laws in China state that international laws prevail over internal laws in the effect, such as Article 238 of Civil Procedure Law of 1991 and Article 142 of the General Principles of the Civil Law of 1986, these laws don't cover human rights protection. In nature, human rights issues are different from what these laws regulate. Therefore, the author of this article thinks that application path of the international human rights conventions is that the legislature adopts human rights law systems under China's Constitution in harmony with the international human rights conventions which China conclude or accede.

 

 

Human rights legislation occupies a significant position in human rights protection system in a country, and possesses an important role in forming the specific content of human rights and in enriching, perfecting and guaranteeing human rights. However, where in deed does the human rights legislative obligation of the legislature come from? Does it derive from the constitution, the fundamental and supreme law of a state, or is it directly endowed from international human rights conventions? The opinions of the academic circle hereto range widely. Relevant provisions in each State's Constitution and some specific expressions in the international human rights conventions make this issue appear to be messy. The standpoint of the author towards this issue is that the sources of human rights legislative obligation of the legislature in China is the Constitution rather than the international human rights conventions. In other words, human rights legislative obligation in China comes from all the provisions concerning fundamental rights in the Constitution and not just from the clause of human rights guarantee stated in Article 33.3 of the Constitution. The specific reasons are as follows:

 

On the one hand, the international human rights conventions are not the sources of human rights legislative obligation of the legislature of each State Party. Intuitively, there are specific provisions concerning the legislative obligation of each State Party in ICESCR and ICCPR, such as Article 2.1 of ICESCR and Article 2.2 of ICCPR. According to the above-mentioned provisions, the legislature of each State Party bears the obligation to implement the concluded or acceded international human rights conventions via legislation. Therefore, does it mean that the obligation of human rights legislation of each State Party, including China, originates directly from the provisions of the international human rights conventions? The author doesn't think so for the definition of this issue involves the interpretation of the legal relationship between international laws and the Constitution. As previously mentioned, the relationship between international laws and each State Party's Constitution can be reflected either from relevant provisions of each State Party's Constitution or from relevant provisions of the concluded or acceded international treaties of each State Party. Moreover, the definition of the relationship between international treaties and each State Party's Constitution is described divergently in each other on the content. In international laws, the viewpoint concerning the relationship between international laws and the Constitution is on the whole consistent, that is, international laws prevail over the Constitution. The provisions concerning this issue in each State Party's Constitution, by contrast, are inconsistent which can be classified into two types: international law prevails over the Constitution and the Constitution prevails over the international laws. Rather than being structurally expanded to the domestic law domain, the provisions in international law can only be applied to the international domain handling the relationship between States. In the domestic law domain, though the definition between international law and domestic law is diversely stated in each State Party's Constitution, it is each State Party's Constitution which imposes obligation on the legislature to enact relevant human rights legislation and implement relevant contents concerning human rights in the international human rights conventions, whether the opinion is that international laws prevail domestic law or vice versa. In China, there are no specific provisions in the current Constitution concerning such issues like the relationship between the international human rights conventions and the Constitution and the application of the international human rights conventions in China. Nevertheless, in accordance with China's consistent position on human rights issues, it is impossible for the international human rights conventions to be the direct source of the legislative obligation of the legislature.

 

On the other hand, the human rights guarantee clause of Article 33.3 and other fundamental rights clauses of the current Constitution are the source of the human rights legislative obligation of the legislature in China. The Second Session of the Tenth National People's Congress approved the fourth amendment to the Constitution on March 14th 2004, stipulating "the State respects and guarantees human rights" as Article 33.3. The clause newly added in the amendment that "the State respects and guarantees human rights" is generally called the human rights clause, which is regarded by some scholars as the source of China's human rights obligation. For example, some scholar points out that "'respecting and guaranteeing human rights', as a constitutional principle, will provide important guidance for China's legislation. Respecting and guaranteeing human rights means that when adjusting social relationship more attention will be paid to the balance between power and rights, the balance between power and obligation and the equality between rights and obligation. The rational adjustment of the relationship of rights and obligations between individuals and the society as well as between individuals will help achieve the harmonious development of the society."² Some other scholar also suggests that "the main binding force of adding the human rights clause into the Constitution for the legislature is reflected as the human rights legislative obligation."³ The author thinks that, from the angle of the human rights connotation and the logical relationship between it and fundamental rights, this clause indeed belongs to the "human rights clause." Other fundamental rights stated in the Constitution shall also be classified into the scope of the "human rights clause." The former belongs to the "human rights clause" in a narrow sense while all the fundamental rights including the former and the latter in the Constitution fall into the scope of the human rights clause in a broad sense. As the source of legislative obligation of the legislature, the constitutional clauses shall not be confined only to the former. Rather, it should define from a broad sense. The reason is as follows: when the Constitution was amended in 2004, the academic circle had argued about whether the provision setting mode of human rights be added into the Constitution. Opinions can be divided into different types, preamble theory, general principle theory and fundamental rights theory, among which the fundamental rights theory was adopted at last. At present, the human rights guarantee clause, Article 33 of the Constitution, falls into the scope of fundamental rights of citizens just like the other fundamental rights. Indeed, viewing from the connotation of the human rights guarantee clause and its association with right of equality in the textual logic, the nature of the human rights guarantee clause differs from general fundamental rights clauses. It is more appropriate to be classified as a principled fundamental right which is similar to the right of equality. Anyway, it cannot be regarded as an independent constitutional principle and further be taken as the source of developing human rights thereof. Just as Professor Han Dayuan said, "the human rights clause itself cannot serve as the basis for finding and developing new rights, and it only provides a kind of interpretation rule or principle."⁴ Although respecting and guaranteeing human rights is stated in Article 33.3 of the Constitution, for implementing such type of State obligation, this human rights guarantee clause must be combined with other fundamental rights clauses in the Constitution to achieve appropriate understanding and localization of the scope of fundamental rights. With this as basis, the human rights clauses in a broad sense including all the fundamental rights serve as the source of human rights legislative obligation of the legislature.

 

 

 

What should be the main contents of the human rights legislative obligation of the legislature? The Constitution and the Legislation Law have no direct provisions hereto. The legislature should understand and grasp the main contents in accordance with Article 33.3 of the Constitution while the interpretation of this clause must be based on the relevant provisions of the international human rights conventions. The reason is that: this clause in effect is the transformation of the international human rights protection obligation assumed by the State Party into domestic laws. It is essentially the institutional medium for the State Party to implement the State Party's obligation of human rights protection. Then, what are the obligations of human rights protection undertaken by the State Party from the angle of the international human rights law? In accordance with the provisions of the international human rights conventions, the obligations assumed by the State Party tend to be diverse, including obligations to other States Parties such as the obligation to submit report, the obligation to accept the supervision from relevant human rights commissions, the obligation to be the object of inter-state complaints and individual appeal, the obligation to attend relevant judicial litigations and fulfill judicial decisions, and obligations of the States Parties to all the individuals within its territory and subject to the jurisdiction thereof. The essence of the former is procedural obligations which means to supervise and urge the fulfillment of the conventions by the States Parties. The latter is substantive obligations directly relating to the implement of human rights protection obligations of the States Parties. Therefore, it is necessary to accurately define the complete contents concerning the States Parties' human rights protection obligations determined by the international human rights conventions in order to identify the exact connotation of the clause of "the State respects and guarantees human rights" in the Constitution. Since there is no clear definition in the international human rights conventions, the opinions of the academic circle differ from each other. For example, American scholar Henkin thinks that "International Bill of Human Rights requires the States to acknowledge, respect and guarantee human rights in their domestic system."⁵ Norwegian scholar Eids classifies the State obligations into three types: the obligation to respect the right owner's freedom and autonomy; the obligation to protect the right owner from being infringed by others through legislation and provisions of effective relief; the obligation to help everyone obtain all possible resources to create a better life as well as directly obtain basic necessities of living.⁶ Dutch scholar Van Hoof thinks that the State undertakes four levels of obligations, either for civil and political rights or for economic, social and cultural rights, that is, the obligation to respect, the obligation to protect, the obligation to ensure and the obligation to promote the human rights.⁷ Some domestic scholar sums the content of the State's human rights protection obligation in the sight of international human rights law up in four aspects: the obligation to acknowledge human rights, the obligation to respect human rights, the obligation to guarantee and promote human rights and the obligation to protect human rights.⁸ The author deems that the four types of obligations summarized by the domestic scholars cover both economic, social and cultural rights and civil and political rights and reflect the common idea of all the international human rights conventions that China has concluded or acceded. Therefore, it can be applied to clarify the connotation of Article 33.3 of the Constitution that "the State respects and guarantees human rights," and further be taken as the background for defining the human rights legislative obligation of the legislature.

 

 

Human rights legislation can be viewed from both broad and narrow senses. Broadly speaking, all contents of the State legislation and laws which mean to guarantee human rights and take it as the starting point of human rights guarantee can be referred to as human rights legislation. In a narrow sense, only the legislation which directly regulates and guarantees human rights can be called human rights legislation.⁹ The human rights legislation mentioned here is viewed in a narrow sense. The human rights legislative obligation of the legislature generally can be classified into two types: legislative protecting obligation of human rights and legislative relief obligation of human rights. The so-called legislative protecting obligation of human rights refers to the obligation of the legislature to actively exercise the legislative power in accordance with the Constitution, turning human rights clauses stated in the Constitution into specific human rights legislation in order to protect human rights through such legislation. The so-called legislative relief obligation of human rights means the obligation of the legislature to remove relevant clauses which are not in line with the constitutional spirit of human rights guarantee from human rights legislation via amendment and repeal of human rights legislation. There exists a close logical relationship between the two types of obligations. "The legislative protecting obligation of human rights of the legislature serves as the prerequisite and foundation for the legislative relief obligation of human rights. The existence of the latter relies on the existence of the former. The latter is the guarantee of the former. When human rights legislation of the legislature is out-of-date and cannot accomplish the historical mission of protecting human rights or when it has degenerated to evil legislation infringing on human rights, the legislative relief obligation of human rights of the legislature then stands out to guarantee human rights through amending or repealing such inappropriate laws." "The interaction and combination of the legislative protecting obligation and the legislative relief obligation of human rights of the legislature establishes the legislative protection system of human rights clauses."¹⁰ From the point of jurisprudence, the content of fundamental rights in the Constitution can be achieved either through constitutional review, constitutional interpretation, and judicial application of the Constitution or through laws generated from legislation. These measures are all indispensable for protecting human rights. However, considering the current situation in China, the achievement of fundamental rights in the Constitution through legislation is of more realistic significance. The reason is that: the practical effect of the aforementioned measures for realizing human rights is not positive. For constitutional review, though the current Constitution establishes the constitutional review system where the NPC and its Standing Committee exercise the supervisory right of the Constitution, such constitutional review in essence equals to the supervision of the constitutionality of laws enacted by itself or its superior which is untenable logically since the NPC and its Standing Committee are the legislature at the same time. Moreover, the current Constitution and other relevant laws have no specific provisions on the procedure of constitutional review. The constitutional review system therefore is nonexistent actually. For constitutional interpretation, though the NPC Standing Committee exercises the right to interpret the Constitution according to the current constitutional provisions, there is no procedure of constitutional interpretation in the Constitution or other relevant laws. Hence, this system is also in an empty state. As for the issue of judicial application of the Constitution, in accordance with the judicial interpretation issued by the Supreme People's Court in 1955 and 1986, the Constitution cannot serve as the basis of trial in civil and criminal trials. According to the provisions of Administrative Procedure Law, the courts shall handle administrative cases in accordance with laws, regulations, autonomous regulations and specific regulations etc. The Constitution is not the basis for handling administrative cases. Thus, the Constitution bears no judicial applicability in China. The only way for it to take effect therefore is legislation. The fundamental rights in the Constitution can only be achieved after the enactment of specific laws by the legislature. Otherwise, the human rights in the Constitution will only exist in the fundamental law. It shows that compared with other measures for achieving human rights in the Constitution, the human rights legislation possesses more significance in China. Just as German scholar Hesse said, "laws need to be enacted in life areas and life relations where the majority of fundamental rights shall guarantee in order to make the function of the fundamental rights fully exerted. The enactment is mainly the task of legislation."¹¹

 

 

As mentioned above, the human rights legislation of the legislature is the best way to implement the human rights guarantee clauses in China's Constitution. However, the problem is that in the long-term legislative practice, China has established a legislation system with one unity system, two legislative institutes and different levels of legislation. The legislative bodies includes not only the central state organs but the local state organs. The central state organs cover the NPC and its Standing Committee, the State Council, ministries and commissions directly under the State Council and bodies directly under the State Council exercising administrative function while the local state organs cover the people's congresses and their standing committees of the provinces, autonomous regions and municipalities directly under the central government, the people's congresses and their standing committees of cities divided into districts and autonomous prefectures as well as their respective people's governments. Besides, the people's congresses of national autonomous areas also possess legislative power. Then, which legislatures of the above shall undertake the human rights legislative obligation? Is the legislative power of human rights authorized to all the above legislatures or limited to a certain scope (such as the NPC and its Standing Committee)? The opinions of the academic circle differ on this issue which can mainly be classified into two types. One is the theory of unlimited scope claiming that the human rights legislative obligation of the legislature has no level requirements and effect restrictions. The legislation which is in line with human rights requirement and reflects the contents of human rights can be called human rights legislation. The other is the theory of limited scope. The so-called the theory of limited scope means that the human rights legislative obligation shall comply with certain level and effect requirement. Not all the legislation concerning human rights can be regarded as appropriate human rights legislation. Only when the legislation abides by the legal level and effect can it be called as appropriate human rights legislation.¹² The author thinks that the theory of limited scope is more preferable. The reasons are as follows:

 

First, the scope of legislative authority differs when laws are of different levels. For example, though the Constitution is law in nature, it is totally different from other legal forms. Rather than excessively assuming the responsibility of human rights legislative guarantee, the Constitution can only comparatively fixedly confirm human rights introductorily. As another example, in accordance with the provisions of the Legislation Law, the NPC and its Standing Committee has the power to formulate laws while the State Council exercises the power to formulate administrative regulations. Nevertheless, laws and administrative regulations are different in respect of the scope of legislative matters. In accordance with the legal reservation principle, such matters as the deprivation and restriction of personal freedom, the deprivation of a citizen's political rights and expropriation of property not owned by the state shall only be governed by laws. If the State Council formulates these matters in the form of administrative regulation, such administrative regulation then will be regarded as illegal due to the violation of the principle of legal reservation.

 

Second, the formation and limitation of human rights tend to be two aspects of one matter. Indeed, except the principle of legal reservation determined by Article 9 of the Legislation Law, there is no clear division between the State Council and the NPC and its Standing Committee, between the people's congresses and their standing committees of provinces, cities divided into districts and autonomous prefectures and the central state organs as well as between the governments of provinces, cities divided into districts and autonomous prefectures and the central government concerning specific legislative matters. Hence, the State Council, relevant local people's congresses and their standing committees, and even local people's governments can undertake the human rights legislative obligation theoretically. However, due to the structural correlation between the formation of the human rights contents and the limitation of human rights, the intervention of the legislation of human rights matters of some bodies may in fact go over to the opposite of human rights guarantee.

 

Empirically, de facto limitation exists concerning the assumption of human rights legislative obligation inside the legislature. The state organs with legislative power shall undertake their respective human rights legislative obligation according to the Constitution and the Legislation Law. From the matter-of-course angle, the NPC and its Standing Committee should be structurally responsible for the human rights legislative obligation, and the State Council and other state organs are inappropriate for assuming the guarantee obligation of human rights legislation. Furthermore, state organs beyond the NPC and its Standing Committee are also inappropriate for neither creative nor executive human rights legislation.

 

If the aforesaid propositions are tenable, then the further question comes to the author is: which method shall the NPC and its Standing Committee adopt for the human rights legislation? That is to say, shall a distributed mode or a centralized mode of the human rights legislation be adopted? The so-called distributed legislative mode means that the legislature enacts specific laws for all fundamental rights in the Constitution, stipulating for each fundamental right in detail the content, the guarantee scope, the limitation boundary and the legal liability to bear when violation occurs, in order to provide direct legal basis for the exercise of fundamental rights and the regulation of fundamental rights by state organs. The so-called centralized legislative mode refers to the formulation of a special human rights law, specifying the contents, limitations, principles and the alike of fundamental rights stipulated in the Constitution, which provide the guidance of a value and the requirement of a principle for the legislature's formulation of special laws.¹³ In the current situation of the human rights legislation in China, the distributed mode is adopted for the human rights legislation. The legal forms include both laws and administrative regulations, local laws and regulations, autonomous regulations and specific regulations. There are even contents concerning human rights in rules. Such situation of the human rights legislation can, of course, encourage different organs' initiatives in the human rights legislation to a certain extent. However, disadvantages are quite evident, such as the low level of the human rights legislation, the insufficient of protection, the undue limitations on human rights and the limited protection scope of human rights. The author suggests that in order to implement the guarantee obligation of human rights in the Constitution, the NPC may formulate a special human rights law to make uniform provisions on the fundamental rights stipulated in the Constitution and clarify the detailed contents like the scope, types and protection mode of the fundamental rights. Meanwhile, other types of the human rights legislation shall be limited and even abolished step by step. Nevertheless, such special human rights laws shall be identified as law rather than the Constitution in nature. It will otherwise trigger issues on other levels in the practice of human rights guarantee. In recent years, more and more domestic scholars propose to proceed with the human rights legislation via laws. For example, some scholar points out that "considering the fundamental law status of human rights in the whole Constitution, the form of the human rights legislation of the legislature can only be the legal form in a narrow sense rather than the normative form under laws;" "the provisions on fundamental human rights in the form of administrative regulation by administrative organs do not conform to the norm and effect level of the human rights legislation."¹⁴ From the current situation of the human rights legislation practice in China, the time is not right for formulating uniform human rights law. It is realistically rational to proceed with the human rights legislation in the legal forms of administrative regulation. In the long term, however, the centralized human rights legislation in the form of law will contribute more to the legislative guarantee of human rights.

 

* LIU Zhigang ( 刘志刚 ), Professor at School of Law, Fudan University.

 

1. See Liu Liantai, Comparative Study of International Bill of Human Rights and China's Constitution, the Law Press, 2006, at 261‒264.

 

2. Zhao Qizheng, "Speech on the Theory Seminar of Human Rights into the Constitution and Human Rights Guarantee by Rule by Law," Human Rights into the Constitution and Human Rights Guarantee by Rule by Law edited by China Society for Human Rights Studies, Unity Press, 2006, at 4‒5.

 

3. Qin Qiang, "Study on the Human Rights Legislation Obligation of the Legislature—On the Background of Human Rights into the Constitution," Northern Legal Science, No.5, 2012.

 

4. Han Dayuan, "Normative Analysis of the Human Rights Clause in the Constitutional Text," The Jurist, No.4, 2004.

 

5. Louis Henkin, "A Post-cold War Human Rights Agenda," Yale J. Int'l L 19, 1994, at 249‒250.

 

6. Asbjorn Eids, "Economic Social and Cultural Rights as Human Rights," in Asbjorn Eids Catarina Krause and Allan Rosas eds., Economics, Social and Cultural Rights: A Textbook, 1995, at 35‒40.

 

7. G. J. H van Hoof, "The Legal Nature of Economic Social and Cultural Rights: A Rebuttal of Some Traditional Views," in Philip Alston and Katarina Tomasevski eds., The Right to Food, 1993, at 106‒107.

 

8. See Sun Shiyan, "The State's Obligation under the International Human Rights Law," Law Review, No. 2, 2001.

 

9. See Hu Jinguang and Han Dayuan, Contemporary Human Rights Guarantee System, China University of Political Science and Law Press, 1993, at 93.

 

10. See supra note 3.

 

11. Hesse, The Constitutional Outlines for the Federal Republic of Germany, translated by Li Hui, The Commercial Press, 2007, at 247.

 

12. See supra note 3.

 

13. Wang Guanghui, "Retrospect and Perspective of Human Rights Legislation in New China," Journal of Zhengzhou University, No. 6, 2007.

 

14. See supra note 3.