On China’s Reform and Opening-up and
the Evolution of the Views of Human Rights
 
LIU Zhiqiang^*

 
Abstract: The dominant human rights views in a country or re-gion is closely related to the economic and social development of that country or region and is closely related to human rights practices. Since the launch of reform and opening-up, the development of Chi-na’s conception of human rights has gone through many stages. The changes of contemporary Chinese human rights conceptions have gone through the stages from the views of human rights to the theories of human rights, to the norms and practices of human rights, and hu-man rights conceptions developed from avoidance to controversy, from passiveness to initiative, and from learning to construction, which reflects the continuous development of China’s human rights cause. By analyzing the journal records through a search of the human rights and its related keywords, it is possible to chart the evolution and his-torical context of contemporary Chinese human rights theory.

Keywords: history of conceptions  human rights conceptions  reform and opening-up
 
Since the launch of reform and opening-up, human rights in China have made great achievements, evolving from general concepts and theories to norms and practic-es. The concept of human rights is fundamental to organizing and coordinating a mul-titude of individuals to achieve their goals. In comparisons of human rights thought, the concept of human rights has a clearer value orientation, and it is more closely linked to human rights practices. The way in which human rights are percieved is an essential element of human rights ideology. To investigate the evolution of the human rights ideology in China requires careful analysis of its conceptual elements and the recognition of the multi-level relationship between various human rights concepts, or the understanding of the relation of the content and structure of the human rights ideology. The changes in the conception of human rights in China are very much in keeping with China’s social development. The debate on human rights, the human rights pressure in international diplomacy, the different understanding of human rights in various countries, and the impact of human rights norms and practices have in es-sence corresponded to the rise, argument, formation and perfection of human rights conception in China since the reform and opening-up was launched. The study of the evolution of the conception of human rights in China can be very helpful in the under-standing of the ideological significance of human rights in China.

 
I.  Human Rights Conceptions and the Rise of the Views of Human Rights in China
 
In the initial period of reform and opening-up, the human rights concept in Chi-na was revived and made various adjustments. New ideas such as “emancipating the mind, seeking truth from facts” and “implementing the ‘three non-isms’” contributed greatly to the new ideological and cultural studies in China. It can be said that reform and opening-up have played a decisive role in the development of human rights in China. People have witnessed the implementation of various democratic rights. The concept of human rights was initiated by the scholars’ introduction and illustration, which laid an important foundation for the cause of socialist human rights. A statisti-cal study of the human rights research papers published in the main journals of China Knowledge Resources General Database (CNKI for short), reveals that 211 articles are on the theme with human rights, and to better understand their significance, it is rewarding to analyze the context and meaning of the term “human rights” in various journals at different times.
 

Table 1    Examples of Articles from 1978 to 1990
 

 

It can be seen from Table 1 that there are very few articles discussing “human rights” at this stage, and the term “human rights” was used in a small number of arti-cles to respond to Western attacks on human rights in China. The Western bourgeois conception of human rights is an idealist view of history. Although there had been debates on the essence of human rights in the West, the theory of “natural rights” is the dominating theory. China adheres to Marxism as the guiding theory, believing that “the right can never go beyond the economic structure of society and the cultural de-velopment of society restricted by economic structure”.¹ That is to say, human rights are not endowed by nature nor gifted, but the product of a certain mode of production of society. Therefore, human rights should only be discussed in the context of social development. The development of human rights in China should be in line with so-cial development in China. In fact, the development of people’s political, cultural and social rights can only be guaranteed by the development of social productive forces.

 
 The human rights diplomacy of the United States took shape against a specific his-torical background. The European cultural tradition of classical human rights deeply influenced the bourgeois revolution in the United States, and its theoretical foundation was freedom, equality, justice, dignity and personal values. Specific rights included freedom of speech, freedom of thought, freedom of belief, sanctity of private property and so on. Particular attention was paid to the protection of citizens’ property rights. This view of human rights is combined with US national interests to form the soft power of the United States in its expansion of hegemony, and with the hard power of economy and military that constitutes its dual-track foreign policy.² More importantly, such different ideological orientation behind human rights could leave more room for the United States to fight against and compete with the Soviet Union. Such strategies were also in line with the long-term goals and interests of American national security.
 
China has tried to construct its own human rights theory in response to the West’s diplomatic attack on human rights in China, but at the beginning of reform and open-ing-up, the ideological circle was deeply influenced by the idea of class struggle, and human rights were applied mostly to the international political struggle. In the course of proletarian revolutionary movement, Marx, on the one hand, enthusiastically marked the historical progress the human rights movement in Europe and America, while highlighting the hypocrisy of the essence of bourgeois human rights. On the other hand, Marx spared no efforts to promote the workers’ movement in their pursuit of human rights.³ To sum up, at this stage of time, the modern concept of human rights was only appearing in China, before people gradually came to realize the important value of the concept of human rights for the construction of the state system and the full realization of people’s rights. However, can we reconstruct new core concepts of human rights with Chinese characteristics that are in accordance with the Marxist theory to replace Western liberalism that has freedom and political participation as its core human rights concepts? What impact do the cultural resources in China have on the reconstruction of the human rights concept in China? These require further inves-tigation and analysis.
 
II.  The Theory of Human Rights and the Debate on the Views of Hu-man Rights in China
 
Since the early 1990s, more and more research on human rights has been carried out, and with the development of China’s economy and society, the discussion on human rights has moved from concepts to theories. This is closely related to the his-torical background at that time. Jiang Zemin, the general secretary of the CPC Central Committee, after reading a letter from the US Kennedy Center for Human Rights to Zhou Guangzhao, president of the Chinese Academy of Sciences, said that human rights issues cannot be avoided, and instructed that should be seriously studied and publicized. Later, the Chinese Academy of Social Sciences, the Party School of the Central Committee of the Communist Party of China carried out various human rights

researches. The Publicity Department of CPC Central Committee organized the series of “Human Rights Research” compilations and the Information Office of the State Council published a White Paper on the Situation of Human Rights in China. The ideological liberation in terms of human rights entered a new phase. In addition, other important events taking place both at home and abroad further promoted the study and research of human rights. First, in early 1992, Deng Xiaoping put forward the political policy of mainly opposing the “left” and reversed the rigid and dogmatic binary ideo-logical thinking of being either capitalism or socialism. Second, the United Nations convened the second World Conference on Human Rights in Vienna in 1993, at which the Vienna Declaration and Program of Action were approved. The representative of China participated in the human rights conference and participated in the discussion, drafting and formulation of the Vienna Declaration and Program of Action. Third, China signed the International Covenant on Economic, Social and Cultural Rights in 1997 and the Covenant on Civil and Political Rights in 1998. The State Compensation Law was enacted in 1994. The Criminal Procedure Law was amended in 1996. The 15^th National Congress of the Communist Party of China in 1997 and the 16^th National Congress of the Communist Party of China in 2002 further decided to make the “respect for and protection of human rights” one of the ruling objectives. The following figure is the number of articles published in important journals with the theme of human rights during this period.
 
The exploration and formation of Marxist human rights theory requires break-throughs in the original Western human rights theory. In the previous responses to Western human rights theory, the human rights of the bourgeoisie were considered hypocritical and untrue. To prove it had understandably become the focus of academic attention. As mentioned earlier, the Western human rights theory was based on the natural law theory of classical liberalism, and therefore “any interpretation, doubt, correction or denial of the concept of human rights will inevitably include a review of the natural law theory”⁴ and “the real effective criticism comes from the denial of the cognitive approach of natural law and the doubt of its legitimate rationality and eternality.”⁵

 
Human rights are not “natural” but the product of a specific economy. Marxist human rights theory reveals the essence of human rights and the close relationship be-tween human rights and the economy. “To analyze the concepts of freedom, equality and human rights in the light that economic relations determine the general process of social life, people will easily conclude that these concepts are the product of history”,⁶ or that without the premise of historical development, we cannot explain the origin of human rights. During this period, more and more Chinese scholars engaged them-selves in the study and research of human rights, resulting in more thorough discus-sion of Marxist human rights theory and important fields of study like the source of human rights, the subject of human rights, human rights and the right to subsistence, and the protection of human rights. To illustrate this change, journal articles from 1991 to 2003 are analyzed to make a list of the use of the term human rights to present the new understanding of human rights during this period (see Tables 2 to 5).

Table 2    Relevant Articles on the Sources of Human Rights

 

 

Table 2 shows that one of the most important issues in China’s human rights research during this period was to try to ascertain the origin of human rights and to identify from what human rights derive. The major arguments the Chinese scholars made were that human rights came from “struggle, business and prepayment”. Some studies borrowed and adapted ideas from Marxist theory on the capitalist commodity economy. However, although the commodity economy can be used to demonstrate the generation of rights, it is very arbitrary to correlate it with the concept of human rights. Meanwhile, China signed two major human rights conventions of the United Nations, which attests that the mainstream international human rights theory and do-mestic human rights ideas have something in common. Since international treaties stipulate that human rights are “the inherent rights of everyone”, it is safe to say that human rights are derived from human nature, and this nature includes both natural and social attributes.⁷
 
Table 3 shows the arguments surrounding who is the subject of human rights. From the relevant literature in the database, we can see that the academic circles have basically reached a consensus that the subjects of human rights are individuals and collectives. The question then arises about which subject should be preferred as far as human rights protection is concerned. Some scholars believe that individuals should be integrated into the collective, ignoring individual human rights. To ignore individ-ual human rights when they are not fully protected obviously disregards the value and dignity of the individual. Most scholars believe that the two should be dialectically unified and coordinated. Collective human rights are the premise while individual human rights are the goal. One of the objectives of collective human rights is the real-ization of individual human rights.
 
Table 4 illustrates the discussion of the concept of “right to subsistence”. Since reform and opening-up, the productive forces have become greater, substantially en-suring people’s right to subsistence. What needs heeding, however, is the fact that the connotation of the right to subsistence is constantly expanding, to include the right to peace, the right to the environment, and the right to light. For example, the realization of the right to the environment requires the government to perform related duties to meet higher requirements and standards

 Table 5 illustrates the discussion of the international protection of human rights, as well as the relationship between human rights and sovereignty. The differences in time and space between domestic and international protection of human rights are cru-cial to the tension between human rights and sovereignty. Citizens’ political rights and economic rights should be protected by the state at home. Other countries must not in-terfere, otherwise, they will violate the international principles of non-interference in internal affairs. The problem is how international protection can be applied when do-mestic protection is lacking. Chinese scholars propose to strictly limit several human rights violations as listed in international treaties to set the boundary of international protection.
 
From this, we can see that at this stage China was committed to deconstructing the Western liberal conceptions of human rights, or to find Chinese moral resources for the origin of human rights, to demonstrate the objective existence of collective hu-man rights as the subject of human rights, to regard subsistence as the primary human right as far as human rights are concerned, and to combine domestic protection with international protection in the course of the protection of human rights, giving rise to several important categories of human rights concepts in China. As can be seen here, the discussion on human rights theory in China during this period is unprecedented. It is justifiable to say that the 1990s was a time of human rights enlightenment in China.
 
III.  Human Rights Norms and the Views of Human Rights in China
 
In 1989, Chinese President Jiang Zemin sent a letter to congratulate the 50^th anni-versary of the publication of the Universal Declaration of Human Rights, stating that “the Chinese government and people combine the universal principle of human rights with China’s national specifics.” In October 1997 and October 1998, the Chinese gov-ernment signed the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights.⁸ In 2003, Hu Jintao, the general secretary of the CPC Central Committee, put forward the scientific concept of people-oriented development. The “people-oriented” principle is a core concept of hu-man rights concepts in contemporary China. It proposes that economic, social and cul-tural rights and civil and political rights are two inseparable components of the human rights system,⁹ which was consistent with the basic spirit of the two UN human rights conventions China had previously signed. By establishing legal obligations on human rights to be observed by all signatories, international human rights treaties have played an increasingly extensive and profound role in the practice of human rights in all countries. With the view of international human rights standards, how to promote na-tional human rights construction by accepting and fulfilling international human rights obligations and taking into account the universality and particularity of human rights is a realistic problem that needs to be addressed at present. In the past, due to their failure to see the differences of human rights as an objective social existence and hu-man rights as ideology in the forms of theory and human rights legal system, Chinese human rights theorists ignored the universality of human rights and took into con-sideration only their class nature.¹⁰ It can be said that human rights concepts, human rights theories, and human rights law are all products of people’s consciousness. They will change as the times change. Human rights with an objective existence are the bottom line of basic human rights out of the consideration of the needs for subsistence and dignity. The theoretical basis of the particularity of human rights lies in how and to what extent human rights are realized since the realization of human rights in China is bound to be restricted by political, economic, historical, religious and other factors in the country. Therefore, the universality and particularity of human rights should be balanced. Western countries should respect the specifics of developing countries while developing countries should respect international human rights and work hard for their realization.

 
It should be said that the impact of international human rights agreements has been of great significance in shaping the modern conception of human rights in Chi-na. At the same time, international human rights agreements provide guidelines for human rights norms in contemporary China and play an important role in promot-ing the practice of human rights norms in the country. With the international human rights agreements, human rights have finally transcended the boundaries of traditional sovereign states and become universally accepted values and beliefs. On the basis of cultural consciousness, the agreements reconcile the rights appeals of the East and the West and, in a sense, of all human beings. At the same time, they reflect the power of rationality. For the first time, the universal predicament is addressed in the light of the rights discourse in the world.¹¹ Statistics obtained through searching the key words of international human rights agreements show that the number of articles published by domestic periodicals and newspapers has increased since China signed the Interna-tional Covenant on Civil and Political Rights in 1998. Discussions on human rights in the country during the period from 1999 to 2003 have multiplied. “Before the signing of the Convention, people felt nervous when dealing with human rights issues, but af-ter the Convention was signed, people felt calm and confident.”¹² However, while eco-nomic, social and cultural rights are considered human rights along with civil and po-litical rights, there is still the need to accommodate the domestic legal framework with the international human rights agreements, and in particular, to integrate the essential spirit of human rights in the international human rights conventions in the domestic human rights system. Admittedly, a country’s human rights norms are closely related to its basic national conditions and the practice of the law, but international human rights agreements provide guidance for the construction of human rights norms in China and function as an important reference for the concrete practice of human rights norms. Consequently, since 2003, there have appeared more in-depth discussions on international human rights treaties, which have promoted the construction of human rights norms and helped shape China’s conception of human rights, a conclusion we arrive at by extracting and analyzing typical articles on international human rights conventions during this period.

 

Table 6  Relevant Articles on the Implementation of International Conventions in China
 

As can be seen from Table 6, a consensus has generally been reached that as far as China’s human rights theory is concerned natural rights that accord with morality and universality should be transformed into legal rights in substantive law. That is to say, the specific provisions in the international covenants on human rights should be internalized in China’s domestic legal system and play a huge role in promoting the process of the reform of the rule of law in China to realize the marriage between hu-man rights protection and the rule of law. China has always attached great importance to international cooperation in the field of human rights and has always participated in the human rights activities of the United Nations in an active and responsible manner, playing an important role in world human rights affairs. From the point of view of the protection of human rights and the rule of law in China, the issue worthy of attention is how the concepts, values and principles of human rights are internalized in the country’s internal legal system, and further, how human rights should be specifically transformed from conceptual human rights to legal human rights.

On March 14, 2004, the Second Session of the Tenth National People’s Congress approved the Amendment to the Constitution of the People’s Republic of China, which states that “the State respects and guarantees human rights” and included as Article 33, paragraph 3, of Chapter 2 of the Constitution, “Basic Rights and Duties of Citizens”. Thus, the concept of “respecting and protecting human rights” has been highlighted as a constitutional norm instead of a political norm. Since the 1990s, Chinese scholars have conducted in-depth research on the category of human rights ontology and for-mulated a framework of Chinese human rights theory based on Marxism, including the concept of human rights, the subject of human rights, the relationship between human rights and sovereignty, the content of human rights and the international pro-tection of human rights, etc. It can be seen that academic research still centers on the basic theory of human rights. In essence, what the scholars mainly discuss at this stage is the proper form of human rights. Of course, there is an essential difference between the due rights proposed by scholars in China and the “natural rights” mentioned in the Western natural human rights theory. Due rights are the internal cause for the emer-gence and development of human rights, which are represented by the fact that social relations are the prerequisite for human rights, and the nature and condition of social relations determine the nature and condition of human rights, thus human rights and human rights awareness are interdependent.¹³ For human rights to be fully guaranteed, they need to be transformed from due human rights to legal human rights, that is, to turn human rights into very specific basic rights through legal means. The legal effect is the greatest when a statement such as “The state respects and guarantees human rights” is included in the Constitution and incorporated into the existing normative system. The Human Rights Protection Clause outlines, promotes and governs the con-stitutional provisions on “basic rights of citizens”¹⁴ and emphasizes that protecting the basic rights of citizens means protecting human rights, an indication of the moral re-quirements for state power. Human rights have thus risen from the norms of the ruling party to the will of the state and are universally binding on all citizens of the country. 

 
The tendency of synchronizing the use of “human rights” and the “Constitution” shows that the value of human rights in the Constitution and the value and function of the Constitution in the protection of human rights are interdependent and interactive. Human rights are the core value of the Constitution and the Constitution is the funda-mental guarantee of human rights. That is to say that modern human rights awareness is an indispensable ideological basis for the realization of constitutional governance, and citizens’ basic rights need to be realized by the state through the Constitution and the law. The basic norms of citizenship are the legal norms “formed by human beings to regulate the rights that are critical to human beings in accordance with the actual conditions of a certain historical period”.¹⁵ The value of human rights is the founda-tion of constitutional rights, and the rights regulated by the Constitution are essentially derived from human rights.
 
In short, the changes in China’s human rights conception at this stage can be summarized by the following: First, the revision of the subject of human rights. The inclusion of human rights in the Constitution means that the spirit and principles of human rights become connotational. In the texts of the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights the word “everyone” is frequently used, which indicates that the subject of human rights should be all peo-ple, not just citizens in the country. Second, the established human rights system is changed from a closed system to an open system. It is impossible for the Constitution to include the fundamental rights of all people but it is possible to establish a constant-ly improving human rights system by setting the basic principles for human rights. Third, revision of human rights standards and values. When China signed the Interna-tional Human Rights Convention, human rights standards were no longer the single standard of the country. The constitutional human rights clause integrates the interna-tional and domestic standards, which indicates that the culture of rights will become the mainstream culture of the country. It then can be concluded that during this period China accept the concept of human rights values in an active and open manner to pro-mote the progress of human rights.

 
IV.  Human Rights Practice and the Improvement of the Views on Human Rights in China
 
As China’s human rights cause continues to develop, China’s human rights con-ception of human rights is constantly being updated in the new era. In 2012, the re-vised Criminal Procedure Law included the general rule of “respecting and protecting human rights”. In November 2013, the Third Plenary Session of the 18^th CPC Central Committee approved the Decision of the CPC Central Committee on Deepening Sev-eral Important Issues of Reform in an All-round Way, making “improving the Judicial Protection System of Human Rights” an important goal of reform, and the proposition of judicial protection of human rights was first included in the Communist Party of China’s document of guiding principles. In October 2014, the Fourth Plenary Session of the 18^th CPC Central Committee approved the Decision of the CPC Central Com-mittee on Several Important Issues in Comprehensively Advancing the Rule of Law, which put forward the requirement to further strengthen the judicial protection of human rights. As an outcome of the decisions of the CPC and the policies adopted by the state, people are more and more familiar with human rights and in their awareness that human rights are always related to judicial protection. By searching and analyzing the key words for the judicial protection of human rights, the subjective human rights consciousness can be illustrated and the relationship between the human rights con-cept and judicial protection well explained. Through searches on the theme, full text, keywords and titles of the judicial protection of human rights, we noted an obvious increase of “judicial protection of human rights” after 2012.¹⁶ From this, it can be seen that there are more and more references to the “judicial protection of human rights” in the literature during this period, which is significant for the conception of human
 
 

16. According to CNKI database statistics, the number of “human rights and judicial guarantees” before 2012 was less than 200, while the number of “human rights and judicial guarantees” reached 400 each year after 2012.

 
The essence of judicial protection of human rights is the further construction of institutional human rights, and it is also the inevitable path to realize all the connota-tions of human rights. In the past, China’s human rights concept mainly focused on the “right to subsistence”, making it the core human right and one of the most import-ant conceptions of human rights. Historically, we adhered to the view that “the right to subsistence is the primary human right” because China has been in an unstable period of economic development for a long time, with low level of productivity and imperfect social distribution system, leading to a low standard of living in China. When reform and opening-up made possible great leaps in productivity, it was inevitable that people would make a different choice in terms of human rights when allocating resources. The right to subsistence, or the right to basic living and survival, is the basic human right. Of course, the new theory extends the right to the right to the environment, the right to peace, etc. but above all, the realization of the right to subsistence requires meeting people’s basic needs, before other human rights are realized. After decades of reform and opening-up, China’s comprehensive national strength has increased at an unprecedented rate, and consequently its major social contradictions have changed. Although most people’s rights to subsistence have been realized, problems such as imbalance and inequality in development still exist, and additionally a small a number of people still need to realize their right to subsistence. Therefore, the state’s “precise poverty alleviation” policy will certainly help the realization of the right to subsis-tence of all people in China. “Development for the people” means that human rights in the new era should be expanded from the right to subsistence to the right to devel-opment, and the right to development means that both individuals and collectives are entitled to enjoy the resources and benefits brought about by the socio-economic and political development of the country. From this, it is obvious that the judicial protec-tion of human rights is also an inevitable requirement for the realization of the right to development. On the one hand, judicial reform and operation require a lot of social resources, and it is inconceivable that there are not enough economic resources as the material basis for judicial reform. On the other hand, political development is a grad-ual process. For example, previously, the concept of human rights first needed to be stipulated in the Constitution, before it could be applied to governance and the overall legal system.
 
The human rights discourse is an external expression of the human rights con-ceptions. An important sign of China’s conception of human rights in the new era is having a human rights discourse. A human rights discourse system with Chinese characteristics deriving from the past human rights theories is in need. Take adhering strictly to the “four self-confidences” as an example. The expression was formulated in response to the current prevailing Western human rights discourse system, with an obvious holistic methodological color as far as human rights values were concerned. Collective human rights are the inevitable result of history, because individuals must participate in certain social relations in social reality, and the resulting collective constitutes their overall interests, which in turn constitutes the protection of individual human rights. To realize collective human rights in China, the image of Chinese human rights or China’s national interests need to be safeguarded. It is then very natural that adhering strictly to the “four self-confidences” of Chinese human rights, namely the road, theory, system, and culture, become an important consideration in constructing the human rights discourse in China. Another example is the emphasis of the promotion of “the construction of new international relations and the building of a community with a shared future for human beings.”¹⁷ On March 23, 2011, the 37^th session of the UN Human Rights Council approved the two “constructions” proposed by China, namely “the construction of a new international relationship of mutual re-spect, fairness, justice, cooperation and win-win” and the “construction of a commu-nity with a shared future for human beings”.¹⁸ The community with a shared future for human beings emphasizes that all countries should do their best to communicate and cooperate with each other in the field of human rights and achieve win-win results. Understandably, human rights are always an important consideration for the practice of law in a country or region. A country’s conception of human rights in a country the concept, theory, norms and practices of human rights in the country, and human rights are bound to be increasingly and continuously protected.

 
V.  Conclusion
 
Since the launch of reform and opening-up, China’s conception of human rights has gone from being general concepts of human rights to a human rights theory to human rights norms and practices. The changes in China’s understanding of human rights reflect the continual development of China’s human rights cause. In the initial stage of reform and opening-up, China made progress in terms of ideological emanci-pation and economic development. However, the idea of a class struggle still persisted. Human rights were still criticized by some as capitalist propaganda. Changes began to emerge in 1991 when human rights were taken into consideration in the observation and study of contemporary Chinese social issues and when a contemporary Chinese human rights theoretical system centering on issues in China was constructed, in an effort to promote the legal construction and disseminate knowledge of human rights in contemporary China.
 
The human rights conception in contemporary China approached human rights from the macro and general to the specific and concrete. As mentioned earlier, the initial human rights research was mainly a response to the international human rights situation, and the human rights research was mostly carried out at the macro level. These macroscopic topics included mostly the introduction of foreign human rights theories and the translation of foreign human rights works so that they could be ap-plied by Chinese scholars. For more than 20 years, China has actively participated in and supported various international human rights activities. At the same time, the domestic human rights protection system has been continuously improved, and human rights have been regarded as the objectives of value in terms of legislation, justice and administration.