HAN Dayuan*

 

Abstract: Counterterrorism, de-radicalization and anti-violence are the major tasks of the international community. As the arch ene-my of human rights, terrorism destroys the constitutional order and endangers people’s lives, freedom and safety. It is the obligation of modern countries and the core value of legal states to safeguard human rights. Human rights should be effectively safeguarded under the premise of building a sound constitutional order and national security. Public order and social stability foster a sound environment for the protection of human rights. In the face of terrorism’s severe threat to human rights, all countries are re-examining the order of human rights values and seeking mechanisms and procedures to balance National Security and Human Rights through their constitutions. The concepts of human rights and social order and the ways to explain the two are different due to different constitutional systems and cultural and religious traditions. However, they do have something in common, that is, counterterrorism and de-radicalization do not conflict with human rights protection. Efforts should be made to foster a view of human rights based on security and a view of security based on human rights, and a dynamic principle of proportionality established for counterterrorism and human rights protection, so endowing the traditional principle of proportionality with flexible, rich value connotation.

 

Keywords: national security   terrorism   human rights   principle of proportionality

 

Counterterrorism, de-radicalization and anti-violence are the major tasks of the international community. Terrorism destroys the social order, endangers people’s lives, freedom and property and profanes human civilization and human values. In the new situation of national security, all countries are exploring mechanisms to balance national security and human rights and striving to establish a sound, interactive mechanism to safeguard national security and human rights and rectify the traditional theoretical category and thinking patterns that make national security and human rights antagonistic to each other.

 

 

The text of China’s Constitution is the premise and foundation to understand and apply it. The wording of the Constitution was carefully thought out. People deliberated over the connotations of the text of the Constitution.¹ In the traditional theories of public law, national security is a comparatively marginalized concept and comprehended as a concept antagonistic to human rights, or a negative concept. Yet, based on the interdependence of national security and human rights, security and human rights are of equivalently paramount value and national security is the important basis of human rights protection.

 

 

The word “state” appears with great frequency in the text of China’s Constitution, occurring 149 times.² The meaning and usage of the word “state” are different in various articles in the Constitution, but in general the word has the following three connotations:

 

 

The most common use of the word “state” is to represent the whole unified political entity, which can be specifically divided into the “state” in the sense of sovereignty (to other countries) and sovereign power (to domestic affairs) respectively.

 

In the first sense, as stipulated in Paragraph 2 of the Preamble of the Constitution of the People’s Republic of China: “After 1840, feudal China was gradually turned into a semi-colonial and semi-feudal country. The Chinese people waged many successive heroic struggles for national independence and liberation and for democracy and freedom.” As stipulated in Article 67: “The Standing Committee of the National People’s Congress exercises the following functions and powers:...(18) to decide, when the National People’s Congress is not in session, on the proclamation of a state of war in the event of an armed attack on the country or in fulfillment of international treaty obligations concerning common defense against aggression.”

 

In the second sense, the common expression is “state power”, “state organs”, “the structure of the State”, “state functionary”, “state authority” and “state administrative organization”, etc. As in Article 57 of the Constitution (“The National People’s Congress of the People’s Republic of China is the highest organ of state power. Its permanent body is the Standing Committee of the National People’s Congress”), Article 96 (“Local people’s congresses at various levels are local organs of state power”), Article 85 (“The State Council, that is, the Central People’s Government, of the People’s Republic of China is the executive body of the highest organ of state power; it is the highest organ of state administration”) and Article 89 (“The State Council exercises the following functions and powers: ...(4) to exercise unified leadership over the work of local organs of state administration at various levels throughout the country, and to formulate the detailed division of functions and powers between the Central Government and the organs of state administration of provinces, autonomous regions, and municipalities directly under the Central Government”), the “state” here is not the antithesis of the local area. Otherwise, there’s no need to modify with the words “highest”, “local” and “local organs of state administration at various levels” etc.

 

 

“State” often corresponds to “society”, as in the expression: “state and society”, etc. For instance, as stipulated in Article 45 of the Constitution: “Citizens of the People’s Republic of China have the right to acquire material assistance from the state and society when they are old, ill or disabled”, “The state develops social insurance, social relief and medical and health services that are required for citizens to enjoy this right”, “The state and society ensure the livelihoods of disabled members of the armed forces, provide pensions to the families of martyrs and give preferential treatment to the families of military personnel” and “The state and society help make arrangements for the work, livelihood and education of the blind, deaf-mutes and other handicapped citizens”.

 

 

“State” sometimes refers to the central government in relation to local governments. As stipulated in Article 118 of the Constitution: “The organs of self-government of the national autonomous areas independently arrange for and administer local economic development under the guidance of state plans” and “In exploiting national resources and building enterprises in the national autonomous areas, the state shall give due consideration to the interests of those areas.”

 

“Political community” is the core of the above connotations of “state”, reflecting the will and national traditions of the political community.

 

 

 

The basis of national security in China’s Constitution is chiefly reflected in different texts of the Preamble, General Principles, “The Structure of the State” and “the Fundamental Rights and Duties of Citizens”. “The Constitution is assigned with the special mission to safeguard national security which is of paramount importance in the Constitution.”³

 

The statement about the general assignment and objectives of the state in the Preamble of China’s Constitution reveals the historical mission of the People’s Republic of China as a political community. As stipulated in the Preamble of the Constitution: “The basic task of the state in the years to come is to concentrate its effort on social modernization; promote coordinated development of material civilization, political civilization, spiritual civilization, social civilization and ecological civilization; build China into a rich, democratic, civilized, harmonious and beautiful socialist power with high modernization and realize the great rejuvenation of the Chinese nation.” The stipulation about the objectives of state development is the constitutional foundation for the survival of the state.

 

Articles 28 and 29 of the General Principles of the Constitution clearly stipulate the responsibilities and obligations of the state to safeguard national security. For instance, Article 28 stipulates: “The state maintains public order and suppresses treasonable and other counter-revolutionary activities; it penalizes criminal activities that endanger public security and disrupt the socialist economy as well as other criminal activities; and it punishes and reforms criminals.” Article 29 stipulates the obligation of the armed forces of the People’s Republic of China to protect the state and that “their tasks are to strengthen national defense, resist aggression, defend the motherland, safeguard the people’s peaceful labour, participate in national reconstruction and do their best to serve the people”.

 

Chapter 2 “The Fundamental Rights and Duties of Citizens” of the Constitution, in addition to the stipulation of the obligation to “maintain national security”, also stipulates to “safeguard national reunification and national unity” and “abide by the Constitution and laws”. Article 51 of the Constitution stipulates: “Citizens of the People’s Republic of China, in exercising their freedoms and rights, may not infringe upon the interests of the state, of society or of the collective, or upon the lawful freedoms and rights of other citizens.”

 

Chapter 3 “The Structure of the State” of the Constitution specifically defines the functions and demarcations of different state organs, virtually determining the subject of duty to maintain national security and concretely implement the obligation to safeguard national security.

 

 

The text of China’s Constitution has different statements on “national security” or “the motherland’s security”. Article 2 of the National Security Law of the People’s Republic of China defines national security as: “National security refers to the ability of a state to safeguard its political power, sovereignty, unity and territorial integrity, people’s welfare, sustainable economic and social development, other major interests from domestic and foreign dangers and threats and safeguard sustained security.” According to the text of the Constitution, national security has the following fundamental characteristics.

 

National security is the foundation for the survival of the state. It can be said that the objectives, policies, basic systems of the state and the regulations of the state or-gans stipulated in the Constitution are aimed at guaranteeing the survival of the state.

 

The core value of national security is people’s security. Article 3 of the National Security Law of the People’s Republic of China stipulates: “The work relating to national security should be done with people’s security as the tenet, political security as the fundamental and economic security as the basis.” The core of national security is people’s security. The Constitution is not merely the foundation for the survival of a state but guarantees the human rights of people to enjoy the welfare. The guarantee for the fundamental rights and freedom of the citizens is the core value of the Constitution, that is to say, it guarantees the rights and freedom of the people through the Constitution to realize the principle that “state power belongs to the people”. For this reason, the core value of national security is not the organs or the organizational systems Wolfgang Benidecker holds the view that a fundamental element of human security is doubtlessly people’s security, that is, their life, livelihood, personal security and dignity should not be threatened. ⁴ It can be said that national security should not be dissociated from human rights but be integrated in the concept of national security. In this sense, national security and human rights are in high correlation rather than two opposite concepts.

 

It is the constitutional obligation of citizens to safeguard national security. Article 54 of China’s Constitution clearly stipulates: “The citizens of the People’s Republic of China have the obligation to safeguard the security, honors and interests of the motherland.” The motherland is the land opened up by the ancestors for survival and it is the fundamental morality and obligation of all the community members to love and safeguard the motherland. The “motherland’s security” in the Constitution is directly translated into national security. To love the motherland, the state and patriotism are the requirements specified in the text of China’s Constitution. Clause 2, Article 24 of the Constitution stipulates that the state “advocates loving the motherland”. Article 39 of the 2018 Amendment to the Constitution includes the socialist core values in the Constitution in which “to love the state” is reaffirmed as the mainstream value of the state and further identified by the state. The motherland is not merely based on the state of land for survival but concurrently requires the sense of belonging to the state and the identification with national culture. To love the motherland is in essence the obligation to love the state and patriotism in the Constitution is also based on this logic.

 

National security is the fundamental requirement for national governance. National security is the basis for the state’s governance system and the guarantee for the construction of a legal state. With the deepening of China’s reform and opening-up and China’s participation in international affairs, China’s national security is confronted with numerous challenges and huge pressure. The report of the 18th National Congress of the Communist Party of China stressed that “improving the strategies and working mechanism of national security and keeping highly alert to and firmly cautious to the secession, permeating and subverting activities of the hostile forces to guarantee national security.” The Third Plenary Session of the 18th CPC Central Committee clarified the overall strategy of “promoting legal construction of national security” and put forth “setting up the National Security Council (NSC) and improving the mechanisms and strategies of national security to ensure national security.” On April 15, 2014, at the first session of the National Security Commission, General Secretary Xi Jinping put forward the Overall Outlook for National Security which emphasized “correctly grasping the new characteristics and new trend of the changing situations of national security, adhering to the overall outlook of national security and finding a new path of national security with Chinese characteristics”. On January 23, 2015, the Political Bureau of the Central Committee of the Communist Party of China reviewed and approved the Guideline of Strategies to National Security guided by the Overall Outlook for National Security. On July 1, 2015, the Standing Committee of the National People’s Congress voted for the National Security Law of the People’s Republic of China which identified the guiding role of the Overall Outlook for National Security in legal form.

 

National security is an inclusive and ever-changing concept. It has changed from “national security” from the political and military perspectives centered on the state to “cooperation security” including economic, social and environmental security, then to “human security” focused on humans.5 In practice, national security is a comprehensive concept whose connotations and denotations are always changing. For instance, external security and internal security, homeland security and citizens’ security, traditional security and nontraditional security, development and security, self-security and common security, as a whole, have formed an organic system. In China, a complete national security system has now been formed, including citizens’ security, territorial security, sovereignty security, political security, military security, economic security, cultural security, technology security, ecological security and information security. Among them, the core is citizens’ security. We need to balance different ranks of value in the national security system, give reasonable consideration to different security elements and prevent conflicts between different security elements.

 

In short, national security is an interconnected normative system, in which the Constitution is in the top position and boasts the supreme legal authority. Such norms as the National Security Law and Anti-secession Law are the materialization of the Constitution and the specific reflection of the essence of the Constitution. Therefore, the making of laws on national security should adhere to the principle that “lawmaking should reflect the essence of the Constitution” and reasonably balance the norms on human rights and the norms stipulated in the National Security Law to provide the uniform legal foundation to maintain national security.

 

 

 

In China’s Constitution, human rights refer to the freedoms or qualifications a person should have. These rights exist based on basic moral requirements and indicate the basic qualifications of human survival. Their connotations chiefly include: First, human rights in the sense of the constitutional principles; second, human rights in the sense of state values; third, human rights translated into the content of the basic rights. As a constitutional principle, human rights have the potency to bind all public power and social life.6 The interpretations of human rights in the Constitution, however in different modes of expression, have some consensus, that is to say, the essence of human rights is to respect human dignity. Therefore, “however the subject of infringement is, the obligation of the state is to ensure that everyone under its rule should enjoy their due dignity.”⁷

 

National security and human rights are inherently interconnected. Independent while interconnected, they are not two contradictory concepts. In the traditional theory and practice of public laws, the academic circle has not attached enough importance to the interdependence of human rights and national security. As to the relations of the two, there’s no systematic argumentation on the function of national security in guaranteeing human rights.

 

 

National security in the Constitution primarily refers to regime security or the political security of a state, aimed at safeguarding the basic systems of the state. The 1994 report of the United Nations Development Programme put forth seven elements of national security including “political security”. The US scholar Samuel Phillips Huntington brought forward in the Political Order in Changing Societies that political security primarily depends on the balance and combination of power of the satisfied strata, unsatisfied strata and exploring strata in the political system. ⁸

 

China is a socialist country implementing a people’s democratic dictatorship led by the working class and based on the worker-peasant alliance. The leadership of the Communist Party of China is the essential characteristic of socialism with Chinese characteristics. Therefore, to ensure human rights and national security regime security should be the priority. Without regime security, the survival of the state would be under direct threat and human rights protection in the country would lose its foundation. General Secretary Xi Jinping has stated that people’s security is the tenet of national security and political security is the foundation of national security.⁹ Especially, in the modern world, the Western countries and those beyond and socialism and capitalism are in a furious scramble of ideology. The Western countries with the United States as the representative have tried whatever measures to refuse and throttle China’s rise and development and brought severe challenges to China’s political security.

 

 

With different definitions, terrorism has the general character, that is, “it is the action to exercise or threaten to exercise violence against the third party for some political purposes.” However different the specific patterns of manifestation of terrorism are, they are in essence challenges to the order of modern civilization and the severest injurious act against human rights. General Secretary Xi Jinping has called for a zero tolerance attitude to the “three forces”, namely, terrorism, separatism and extremism.

 

To effectively cope with the threats of terrorism in all forms, all countries have adopted tough legal measures and meanwhile paid attention to balancing the relations of security and human rights. For instance, a majority of clauses in the USA Patriot Act are aimed at countering terrorist activities but some clauses infringe on people’s constitutional rights, especially the right of privacy and personal freedom.

 

Terrorism is not merely a domestic issue of all countries but also a global challenge, which cannot be addressed by the precautions and actions of a single country. With the incessant development of international anti-terrorism laws and counterterrorism cooperation, international anti-terrorist legal systems have been gradually established, for instance, formulating international conventions on counterterrorism, adopting an international legal system on counterterrorism and coping strategies and striving to establish international legal measures and an international cooperation mechanism on counterterrorism.

 

 

How to handle the relations between freedom of speech and national security in the current relations between human rights and national security is a universal concern of all countries. It is a general tendency in recent years to prioritize national security in some individual cases. We can exemplify it with some cases of constitutional judgment.

 

In Germany, the typical case is to ban some specific contents of speech based on the identification of the country and its history to prevent infringements on public peace and national security. One case is that: Rallies were held in Wunsledel, Bavaria, each year in honor of Rudolf Hess, who was deputy head of the National Socialists (Nazi Party) of Germany. To prevent such rallies, the legislative body of Germany amended the Criminal Code on March 24, 2005, adding Clause 4, Article 130: “Those who support, eulogize or defend Nazi tyranny publicly or in rallies and destroy public peace by infringing on the dignity of the victims should be imprisoned for no more than three years or fined.” After the administrative body banned neo-Nazi rallies ac-cording to the Criminal Code and the Rally Code, the parties concerned successively lodged administrative proceedings and constitutional appeals.

 

The Federal Constitutional Court of Germany held the view that Clause 4 of Article 130 of the Criminal Code is neither a general law stipulated in Article 5 of the Basic Law of the Federal Republic of Germany nor an expressly stated special law involving protection for adolescents. However, the Basic Law is the “antagonistic programme” to Nazi rule, reflecting the national identification in a special period of history. The speeches endorsing Nazi tyranny are different from ordinary speeches, generating tensions surpassing those of competition of ordinary opinion, which may cause social turmoil, destroying identification and endangering peace and tranquility. In this sense, Clause 4 of Article 130 of the Criminal Code does not run counter to the Basic Law. Additionally, the existence of the special law does not negate freedom of speech in essence. The Basic Law does not ban ordinary speeches that may generate effects only on mind and shouldn’t be interfered with unless the speeches surpass the pure field of spirit and aggressively damage the legal interests protected by the legal order or some dangerous status. Disapproval for some social values does not compose the boundary of freedom of speech. In contrast, the boundary is the active attack on and challenge to the basic order of freedom and democracy.

 

In terms of applying the principle of proportionality, the Constitutional Court held the view that the ban accorded with this principle because the premise of interfering with the freedom of speech is to “protect the legitimate interests”. The state should not interfere with the subjective world of personal beliefs. However, when the speeches harm legal interests in the external field, the state might interfere with them. In Article 130 of the Criminal Code, the lawmakers properly comprehend that social stability requires peaceful public debate and the protected “public peace” involves the external effects of speeches, that is, banning the speeches having triggered attacks on legal interests or other illegal actions. The aim of Article 130 of to maintain public peace and peaceful co-existence of interpersonal relations is correct.

 

Germany’s Constitutional Court held the idea that the principle of definiteness does not exclude the important documents requiring the explanations of the judges and the elements “destroying public peace” are not separately stipulated but can be explained together with other components of Clause 4 of Article 130, specifically describing the slightly controversial element of “destroying public peace”. The lawmakers’ branding the actions blatantly endorsing, eulogizing and defending ferocious Nazi rule at rallies as “destroying public peace” accords with the principle of definiteness.

 

In August 2018, the Constitutional Court made its verdict in the so-called Nazi Granny Case. The 89-year-old Germany woman Ursula Haverbeck was called “Nazi Granny” by the German media. She has repeatedly voiced her views negating the Holocaust and declared that “the statement about the gas chamber in Auschwitz was false”, “there were no 1.1 million people killed there” and “the Holocaust was the biggest, longest lie in history”, etc. According to the Basic Law and other laws of Germany, negating the Holocaust is the crime to incite racial hostility and deserves imprisonment of three months to five years. Although she had been sentenced many times, she could still lodge an appeal for the most recent verdict. Additionally, the authorities required the doctors to provide a certificate on her health condition. So she was exempt-ed from imprisonment. Previously, her lawyer lodged an appeal to the Constitutional Court on the excuse that the judicial decision violated her freedom of speech.

 

On August 3, the Constitutional Court of Germany rebuffed the appeal and pointed out “the punishment for the crime of negating Nazi’s genocide basically conformed to Clause 1 (Protection for Freedom of Speech), Article 5 of the Basic Law”; stressed that “disseminating verified false advocacy and deliberately fallacious ideas” was not protected by the freedom of speech; said that negating the Holocaust “violated the restrictions of peaceful public debate and symbolized the collapse of public peace”. The case defined the boundary of freedom of speech. The freedom of speech of any country or region should be based on law rather than be without demarcation; the premise of freedom of speech is its conformity with laws and regulations. Every country has related laws restricting freedom of speech.

 

In recent years in the United States, the judicial authorities have adjusted their criteria of judgment in balancing human rights and national security to reflect the principle of prioritizing national security. Traditionally, the characteristic of the cases balancing freedom of speech and national security in the United States Constitution was that the United States Constitution is generally not concerned with the content of speech but makes judgment according to the degree of danger, forming the bad ten-dency test, direct incitement test and present and clear danger test. The “present and clear danger test” was initiated in the sentence against Schenck with the participation of Justice Holmes. In his judgement in Schenk vs The United States, Justice Holmes thought that “The character of any action depends on the environment... The problem of each individual case is whether the speech naturally leads to present and clear danger in some special circumstances whose substantive evils should be banned by the parliament.” Nonetheless, it was merely a nominal principle shadowed by the profound bad tendency test.

 

With the increasingly austere situation of counterterrorism in recent years and with national security under threat, the Federal Supreme Court of the United States adjusted the modes to protect freedom of speech. In the case of Holder v. Humanitarian Law Project in 2010, the Supreme Court didn’t support the advocacy on freedom of speech of the accused. The accused Humanitarian Law Project was aimed to stimulate the legitimacy and non-violent operation of the Liberation Tigers of Tamil Eelam in the modes of donation and legal aid. The “speeches” advocated by the accused were identified by the court as “help” for crimes. Justice Roberts proposed that the verdict could only apply to the actions “in conspiracy with foreign terrorist organizations, controlled by foreign terrorist organizations or preached by the leaders”. The case produced some effects on the circuit court. In the case of United States v. Mehanna in 2013, the public prosecutor accused a defendant of “illegally coordinating material support” for terrorists, including the action that he independently translated and spread texts advocating jihad. The defendant insisted that his action was only to show his dissatisfaction with the act of war of the US government and his freedom of speech should be protected. However, the court thought that his translating of the offered material support for the terrorists and didn’t make verdict according to the risk principle established in the case of Brandenburg.

 

Generally speaking, as to national security, legal order and human rights protection, although the United States stressed the “present and clear test”, the principle of national security has often been prioritized and the balancing of national security and freedom of speech has been considered when judging the content of speeches.

 

 

In balancing personal freedom and national security, all the countries universally stress national security. Especially, Western countries have successively adjusted policies on security and human rights and implemented new policies and measures prioritizing national security.

 

In March 2019, the German government proposed to the Turkish government that it hoped the Turkish residents in Germany could participate in the religious activities in the communities to cut off the financial and institutional connections between Muslim and Turkish government and prevent the threats of terrorism.

 

In February 2019, the Home Office decided to deprive Shamima Begum, a British girl who joined a terrorist organization in Syria in 2015 UK citizenship on national security grounds and prevention of terrorist threats. According to the British law, if the Home Office thinks the measure to restrict a citizen’s personal freedom is good for public security and judges he or she won’t become a stateless person, his or her civic rights can be deprived.

 

On March 19, 2019, the Federal Supreme Court issued a verdict on the jurisdiction of Trump administration to detain immigrants and allowed the administrative bodies to detain released legal immigrants and adopt detention measures with indefinite duration for the reason that they were dangerous to the society and could be directly detained without the restrictions of normal legal procedures for national security. The focus of the verdict was whether the federal government had the right to detain the convicted immigrants (usually for minor crimes) for indefinite duration after they’d been released for years. The measure of arbitrarily restricting personal freedom obviously didn’t conform to the principles and theories of the United States Constitution. However, the Supreme Court thought that the administrative bodies had the right to adopt restrict measures for the need of national security.

 

The above cases manifest that the Western developed countries do not risk national security to protect human rights but adjusted the rules to seek reasonable balance, prioritized national security, applied strict restrictive measures and flexibly adopted the principle of proportionality.

 

 

Over the four decades since the reform and opening-up, China’s human rights undertaking has registered positive achievements and contributed China’s experience to the development of the world’s human rights cause. In the new era, violence and terrorism are still threatening the core national interests and maintaining national security still faces various challenges. As to national security and human rights protection, we should do well the following work.

 

First of all, the concept of people-centered human rights should be established.

 

The report of the 19th National Congress of the Communist Party of China pointed out: “It is imperative to adhere to people-centered development thinking and constantly stimulate overall development of the people.” China should basically realize socialist modernization by 2035. In the grand blueprint, human rights protection is one of the basic objectives. By then, “people’s rights of equal participation and equal development should be fully protected” and the state, government and society under the rule of law should be basically established. It put forth the clear objectives of human rights development in the new era: “It is imperative to adhere to the concept of people-centered development, people’s all-round development and people’s status as their own masters. “People’s interests must be put in the paramount place and China’s achievements in reform and development should benefit all the people more and in a fairer way.” It is a major theoretical proposition to understand human rights from the perspective of the principal status of the people and to develop the undertaking of human rights from the perspective of the people. The subjectivity of the people and the supremacy of people’s interests are prioritized in the field of human rights, chiefly manifested in materializing “people foremost”, that is the protection of everyone’s dignity and guaranteeing their basic rights as stipulated in the Constitution. This is the basic starting point for us to coordinate national security and human rights protection.

 

Second, the relations between national security and human rights should be reasonably balanced according to the new concept of development and constitutional principles. Individuals are the cornerstones of the state and how to maximize individual rights is the premise and starting point of the state to make all policies and human rights protection fundamentally marks the legality of the state. Human rights can be incessantly promoted in overall social development. The concept of development directly influences the modes, methods and steps of human rights development. The report of the 19th National Congress of the Communist Party of China pointed out: “Development is the foundation and pivotal issue to solve all the problems of China. Development must be scientific and efforts should be made to persistently implement the idea of innovative, coordinated, green, open and shared development.” The new idea of development significantly enriched and renewed the connotations of human rights and highlighted the theme of human rights development in the new era.

 

Third, efforts should be made to positively participate in global governance of human rights and explore the open, self-confident publicity mechanism. For instance, national security has constitutional legitimacy and priority of national security is the universal tendency of the international community. However, to publicize it to the international community, proper modes of discourse and languages understandable to the international community should be adopted to clearly show China’s basic policies and stance on human rights. All the countries should reach basic consensus on the uni-versality of human rights but apply different methods to specifically exercise human rights. The concept of common destiny of mankind advocated by China will play a positive role in boosting self-confidence of the Chinese in human rights, spreading the Chinese spirit and contributing Chinese wisdom to the international human rights of speech.

 

Finally, preventability of security in the relevance of human rights and national security should be well controlled to prevent destruction of the security environment. “Insecurity in essence occurs before unsafe incidents.” As to human rights protection and national security, efforts should be made to “complete the national security system, enhance the legal guarantee system for national security and boost the ability to prevent and withstand safety risks.”¹⁰ The state should fulfill its functions to prevent all sorts of risk and promptly eliminate the conflicts between security and human rights.

 

 

 

*HAN Dayuan ( 韩大元 ), Professor of the School of Law, Director of the Human Rights Research Center of Renmin University of China.

 

1.In the Constitution, the same word may indicate different concepts. For instance, in the Preamble of the US Constitution, the meaning of “people” is different from that in Article 10 of its amendment. Henry Paul Monaghan, “We the People[s], Original Understanding, and Constitutional Amendment”, Columbia Law Review 96 (1996):133.

 

2.The word “state” has different meanings in the US Constitution, as pointed out by James Madison, father of the US Constitution. See Robert A. Rutland et al. ed., Papers of James Madison 17 (1975): 307-309. It was approved by the Supreme Court of the United States. In the 1869 version, the Supreme Court of the United States particularly analyzed the different meanings of “state” mentioned in the Constitution. See Texas v. white, 74 U.S (7 Wall), 700, 720-721(1869). The court holds the view that the “state” in the Constitution is a concept linking the people, territory and the government. It is a political community founded by free citizens, owning its territory, organized by the government with the authorization and restrictions of the written consti-tution and with the consent of the ruled. But it is sometimes used to refer to the concept of people or political community to be differentiated from the government.

 

3.Liang Yan, “On the position of national security in China’s Constitution”, Journal of Chengdu Institute of Public Administration 1 (2015): 21-24.

 

4.Wolfgang Benidecker, “Interaction of Human Security and Human Rights”, trans. Huang Jue, International Journal of Social Sciences 4 (2008):12.

 

5. Ibid., 33.

 

6.The Constitutional Council of France’s practice of constitutional judgment based on the principle of human rights in the Preamble of the Constitution is worthy of learning. The 1946 Constitution actually banned the Constitutional Council from making constitutional judgment based on the Preamble in the Constitution. How-ever, the 1958 Constitution canceled similar restrictive regulation and allowed constitutional judgment based on human rights in the Preamble of the Constitution. Without materialization of basic rights, it was imperative to endow human rights with constitutional principles. In 1970, the Constitutional Council made constitutional judgment based on the Preamble of the Constitution in the agreement of the European Community; in the de-cision on the freedom of association in 1971, the Constitutional Council further clarified the normative value of the Preamble of the Constitution and enabled the uniform foundation for the coordination between the Constitution and other norms.

 

7.OnumaYasuaki, Human Rights, States and Civilization (Shanghai: SDX Joint Publishing Company, 2003), 21.

 

8.Samuel Huntington, “Political Order in Changing Societies (Shanghai: Shanghai People’s Publishing House, 2008).

 

9.Xinhua News Agency, “Important Speech of Xi Jinping at the First Session of the 19th National Security Com-mission of the People’s Republic of China”, People’s Daily, April 18, 2018.

 

10.Xi Jinping, “Decisively Building the Moderately Prosperous Society and Achieving Great Victory of Socialism with Chinese Characteristics — Report at the 19th National Congress of the Communist Party of China”, People’s Daily, October 27, 2017.