CHI Deqiang*
Abstract: Prior to World War II, human rights were mainly considered to be matters that came under the domestic jurisdiction of each state. The United Nations Charter, adopted in 1945, includes human rights provisions. The adoption of the Universal Declaration of Human Rights in 1948 that marked the initial formationof international human rights law. Today, the world has formed a relatively comprehensive system of international human rights law and mechanisms. Since the founding of the People's Republic of China, and in particular after the it introduced its reform and opening-up policy in 1978, the Chinese government has actively participated in international human rights causes. To date, the Chinese government has ratified 26 human rights conventions and fulfilled the obligations required by these. China has put forward and continually enriched a theory of human rights with Chinese characteristics, emphasizing the importance of state sovereignty in safeguarding human rights and the resolution of human rights controversies through dialogue, thereby contributing to the global human rights cause.
Keywords: international human rights law ♦ theory of human rights with Chinese characteristics ♦ sovereignty
I. Development of International Human Rights Law
The concept of human rights emerged in ancient times, but it was Enlightenment thinkers in western countries, as represented by Locke and Rousseau, who first proposed a theory of human rights. Human rights became political opposition to feudal autocracy and played an important role in propelling the American Revolution and the French Revolution, and they were embodied in United States Declaration of Independence in 1776, the Declaration of the Rights of the Man and of the Citizen of 1789, and the first ten amendments to the Constitution of the United States (the “Bill of Rights”). After the victory of the bourgeois revolution, human rights gradually became a concept enshrined in national laws, Thus the concept of human rights became recognized in the political and legal systems of modern capitalist countries.1
Human rights captured the attention of the scholars specializing in international law, but their focus has changed in the course of history. The earliest human rights issue falling within the scope of international law was related to protecting the rights of religious minorities.
The Vienna Treaty concluded between the King of Hungary and the Prince of Transylvania in 1606 claimed freedom of religion for the Protestants, which may be the earliest attempt by the international community to use international law to protect human rights. The Peace of Westphalia concluded in 1648 is usually seen as the midwife to the birth of modern international law. It is considered to be the first multilateral treaty in the sense of modern international law. It officially opened the process of protecting human rights within the framework of international law. The treaty confirmed individual religious freedom, by providing Protestants in Germany the same religious freedom as Roman Catholics.
In addition to protecting the rights of minorities, the international community also applied international law to a few areas, such as combating the slave trade, promoting the protection of international labors, and international humanitarian law. However, the viewpoint generally accepted by the international legal scholars2 is that it was the end of World War II that brought human rights within the sphere of international law. Before World War II, human rights issues were regarded as something within the jurisdiction of each country and which belonged exclusively to the scope of domestic law. Only after World War II did human rights fully enter the realm of international law.
After World War II, people all over the world drew lessons from the catastrophes brought by the war. The Nazi genocide of Jews, the Nanjing Massacre by Japanese invaders, and other cruel conduct during the war outraged the international community, and made the international community aware of the importance of protecting human rights for maintaining international peace and security. Therefore, human rights-related provisions were included in the Charter of the United Nations formulated in 1945: the preamble reaffirmed faith in the fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small. Article (3) stipulates that promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion is one of the purposes of the UN Charter; Article 55 provides that the United Nations promote universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion; Article 56 states that all members pledge themselves to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Article 55.3 In addition, the human rights-related provisions of the UN Charter include Articles 62,468,5 and 76.6
The human rights provisions in the UN Charter are general provisions on human rights, and the nature of the human rights provisions of the Charter are quite controversial.7 However, there is no doubt that its human rights provisions have laid down legal and conceptual foundations for the development of international human rights law and made human rights a common concern8 for the international community. Due to the reflection on the acts committed prior to and during World War II and the joint efforts of all countries, the human rights provisions in the UN Charter not only have unprecedented historical significance, but also laid an important legal foundation for the human rights-related activities of the United Nations after the war.9
After the United Nations was established, it started drafting the documents concerning international human rights. The Economic and Social Council set up the Human Rights Committee to formulate the International Bill of Human Rights. After the unremitting efforts of the Drafting Committee, the Universal Declaration of Human Rights (hereinafter referred to as the Declaration) was adopted by the United Nations General Assembly at its third session on December 10, 1948, with 48 countries voting for it, zero against, and eight abstentions. The Declaration with the International Covenant on Economic, Social and Cultural Rights formulated in 1966 and the International Covenant on Civil and Political Rights (ICCPR) as well as its two optional protocols are collectively referred to as the “International Bill of Human Rights”. The Declaration consists of a preamble and 30 articles. The preamble explains the reasons and purposes of the Declaration, “as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.” Articles 1 and 2 of the Declaration set out the basic ideas and principles; Articles 3 to 21 outline civil and political rights; Articles 22 to 27 detail economic, social, and cultural rights; Articles 28 to 30 are final provisions. Some scholars have criticized the Declaration for being mainly influenced by western human rights thought, and claim that the Declaration focuses on human rights and freedoms enjoyed by individuals, stresses civil and political rights (up to 19 articles), and ignores economic, social and cultural rights (only six articles). Besides, it has other deficiencies and limitations. However, compared with the Declaration of the Rights of Man and the Citizen in the 18th century, the 1948 Declaration has not only enriched the content of human rights, but also absorbed and integrated the values of the world’s major religious and cultural traditions. For example, the word “conscience” in Article 1 of the Declaration came from the suggestion of the Chinese representative Zhang Pengchun, which was added based on the values of Confucian culture.10
The formulation of the Declaration marked a milestone in the history of the development of international human rights law. Although the Declaration was adopted in the form of a resolution of the General Assembly of the United Nations,11 and was only recommendatory in nature and not legally binding. However, as time has gone by, the Declaration has undergone repeated state practice and opinion juris and it has evolved into the rules of customary international law. No country in the world has blatantly claimed to refuse to comply with the provisions of the Declaration; instead, various countries have shown compliance with the Declaration on different occasions. Lawmakers from many countries have written the provisions similar to those set out in the Declaration into their countries’ constitutions. The principles stipulated in the Declaration have been quoted or reiterated by many important international organizations or in conference resolutions and documents. At the same time, the Declaration also forms the basis for two international human rights conventions formulated in 1966, the specialized human rights conventions formulated under the guidance of the United Nations, as well as many regional human rights conventions. Therefore, the Declaration is called the “Constitution” of international human rights law and is the source of the international human rights law system.
The adoption of the Declaration has greatly promoted the development of international human rights and accelerated the legislation of international human rights law. In 1968, the United Nations convened the first World Conference on Human Rights in Tehran and adopted the Tehran Declaration. Human rights, security and development have now become the three pillars of the United Nations. Under the auspices of the United Nations, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights were adopted, and other specialized human rights conventions were also formulated. Various regional human rights protection systems have continued to develop, and Europe, the Americas, and Africa have established relatively comprehensive regional human rights protection mechanisms. After more than 70 years’ development, the international system of human rights law has been fully established, and international human rights law has become the fastest growing branch of international law. The international system of human rights law is made up of legally binding treaties, conventions, and non-legally binding soft law such as declarations and guiding principles, including those applicable worldwide and some formulated by regional organizations and thus being valid only in certain areas. In the international human rights law system, there are nine core human rights conventions: namely the International Convention on the Elimination of All Forms of Racial Discrimination, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Rights of the Child, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the International Convention for the Protection of All Persons from Enforced Disappearance, the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, the Convention on the Rights of Persons with Disabilities.
As a founding member of the United Nations and a permanent member of the UN Security Council, China has consistently recognized and respected the purposes and principles of the United Nations in promoting human rights. For more than 20 years after the founding of the People’s Republic of China, because of the blockade of certain western countries, China was barred from the United Nations for a long time and had few opportunities to participate in relevant activities of the United Nations. In 1971, the 26th session of the UN General Assembly passed a resolution recognizing that the representative of the Government of the People’s Republic of China is the sole legal representative of China in the United Nations. Since then, the Chinese government has sent representatives to the UN General Assembly, the Economic and Social Council, the Commission on Human Rights and other activities launched by the UN institutions to review human rights issues and formulate standards for international human rights. China has contributed a lot to enriching the definition of human rights and promoting the cause of international human rights. China values the positive role of international human rights instruments in promoting and protecting human rights. On the one hand, China has proactively participated in the drafting and discussion of many important international human rights instruments, such as the Declaration on the Right to Development, the Convention on the Rights of the Child and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; on the other hand, based on China’s specific conditions, China is party to many international human rights conventions formulated by the United Nations.13 So far, China has joined 26 international human rights conventions and related protocols.
The National People’s Congress and its Standing Committee have revised relevant laws many times, such as the Criminal Law and Criminal Procedure Law. For example, the Ninth Amendment to the Criminal Law that took effect in 2015 has cancelled the death penalty for nine crimes (the Eighth Amendment to the Criminal Law cancelled the death penalty for 13), in an effort to strictly control and carefully apply the death penalty. Meanwhile, Chinese lawmakers have raised the standards for the application of the death penalty. The Supreme People’s Procuratorate established the death penalty review prosecutor’s office to strictly enforce the legal supervision procedures for the death penalty review; the Criminal Procedure Law specifies a series of stipulations to safeguard the defendants’ legal rights, including public trial, exclusion of illegally seized evidence, presumption of innocence, defense lawyers, and prohibiting extorting confessions by torture; in terms of political rights such as the right to vote, political participation and right of supervision, freedom of religious belief, and freedom of speech. China has also made remarkable achievements. For example, China has established the largest grassroots democratic election system, and a rising number of women participate in the deliberation and administration of state affairs; it has strengthened the protection of freedom of religious belief and enhanced the protections of legitimate rights and interests enjoyed by religious circles; it protects the freedom of speech and the press in accordance with the law. All of such measures show that China is preparing to ratify the International Covenant on Civil and Political Rights as soon as possible.
As for the International Covenant on Economic, Social and Cultural Rights, China ratified it in 2001. China earnestly fulfills its obligations under the Convention, and adopted appropriate legislative, judicial, and administrative measures to ensure that citizens can fully enjoy and realize various economic, social and cultural rights. In line with the requirements of the Convention, the Chinese government submitted its first compliance report to the Committee on Economic, Social and Cultural Rights in 2003 and a second compliance report in 2010; according to the National Human Rights Action Plan (2016-2020), China is writing the third compliance report and will submit it to the Committee on Economic, Social and Cultural Rights for consideration. With the rapid development of the Chinese economy, the Chinese government has taken active measures to ensure its citizens can enjoy economic, social and cultural rights, increased fiscal investment, and the great achievements Chinese government scored in this regard captured the world’s attention, such as targeted poverty alleviation and eradication, promoting higher-quality jobs and maximum employment, and sharply raising the standards for social security systems, increasing investment in education, raising the take-up of compulsory education, protecting the right to education of migrant workers’ children and the disabled, making the public health services more accessible and fairer, and integrating the ecological civilization into the human rights protection system.
Among the above nine international core human rights conventions, except for the International Covenant on Economic, Social and Cultural Rights, China has also ratified the International Convention on the Elimination of All Forms of Racial Discrimination (1981) and the Convention on the Rights of the Child (1992), the Convention on the Elimination of All Forms of Discrimination against Women (1980), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1988) and the Convention on the Rights of Persons with Disabilities (2008). In line with the requirements of these conventions, Chinese government submits compliance reports to relevant committees established under the conventions and participates in the review of compliance reports. For example, in recent years, the Committee on the Rights of the Child considered the combined third and fourth periodic reports on China’s implementation of its commitments under the Convention on the Rights of the Child; the Committee on the Elimination of Discrimination against Women considered the combined seventh and eighth periodic reports of on China’s implementation of its commitments under the Convention on the Elimination of All Forms of Discrimination against Women; and the Committee against Torture considered the sixth periodic report of the China’s implementation of its commitments under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
In 2017, China submitted follow-up reports to the Committee against Torture and the Committee on the Elimination of Discrimination against Women, submitted follow-up reports after the first report on its implementation of the International Covenant on Civil and Political Rights in the Macao Special Administrative Region was reviewed, submitted the combined 14th to 17th periodic reports on the implementation of the International Convention on the Elimination of All Forms of Racial Discrimination to the Committee on the Elimination of Racial Discrimination and the reports were reviewed in August 2018.14
III. China’s Contribution to the Cause of International Human Rights
Since the founding of the People’s Republic of China in 1949, especially after the policy of the reform and opening-up was introduced, the Chinese government set things right politically, ideologically, organizationally. The Chinese government made economic development the central task, implemented the reform and opening-up policy, and vigorously developed the economy. The economic boom in China provided a solid material foundation for the Chinese people to fully exercise their human rights. China has continuously explored human rights theories and practice, and has made unique contributions to the cause of global human rights.
A. Human rights theory with Chinese characteristics brings new ideas to international human rights theories
The thoughts on human rights protection originated from western enlightenment thinkers. Experiencing the bourgeois revolution and subsequent developments, the human rights theories prevalent in western countries have developed into a mature and sound theoretical system, and they have always dominated the international human rights field, almost monopolizing the discourse of international human rights. It is difficult for the legislation of the international human rights law to fully reflect the demands of developing countries. The standards for international human rights established via international human rights legislation are largely equivalent to the standards recognized by western countries.
After more than 70 years’ development, China has become the world’s second-largest economy, which has laid a solid material foundation for Chinese people to fully enjoy human rights. With the deepening of reform, economic development and the expansion of opening to the outside world, Chinese people’s legal concepts and our awareness of human rights protection are enhanced, especially when China ratified the International Covenant on Economic, Social and Cultural Rights in 2001 and Chinese lawmakers wrote the human rights protection into China’s Constitution in 2004, which indicated that the cause of human rights protection in China had reached a new level. China’s research on human rights is now flourishing, and the theory of human rights with Chinese characteristics has gradually formed and is being continuously enriched and improved.
The theory of human rights with Chinese characteristics is an important part of the system of theories of socialism with Chinese characteristics and an important achievement in adapting Marxism to Chinese conditions. The theory of human rights with Chinese characteristics is rooted in China’s conditions, with particular emphasis on integrating the universal principles of human rights with the country’s specific conditions. The theory of human rights with Chinese characteristics does not deny the universal principles of human rights and recognizes that it is significant to use universal standards practiced within the framework of the international human rights law to safeguard human rights. But it holds that human rights are closely related to a country’s historical traditions, culture, religion, value orientation, resources, and economic development. The level and degree of enjoying human rights vary in different countries. The specific methods, means and models for realizing human rights are also different. Human rights have their particularities. Different from the human rights theories in western countries15, which emphasize the priority of individual rights, civil rights, and political rights, Chinese human rights protection is based on China’s history and fits its conditions. Chinese theories of human rights emphasize the importance of economic, social, and cultural rights for the promotion and protection of human rights, and pay special attention to collective human rights, such as the right to live and the right to development, which are of great significance to enjoying individual human rights. In recent years, research around the theories of human rights with Chinese characteristics is booming, and scholars have made great achievements with their research on the theory of human rights with Chinese characteristics. The basic guiding principles for establishing a system of the theory of human rights with Chinese characteristics have taken shape, including general principles, general goals, general paths, and general strategies16. The content of the theory of human rights with Chinese characteristics has been gradually enriched, including the original concept of human rights, the subject of human rights, the content of human rights, the nature of human rights, the value orientation of human rights, forms of human rights, the harmony in human rights, the attribute of human rights and the fulfillment of human rights17. We can say that the system of the theory of human rights with Chinese characteristics has basically taken shape.
Under the guidance of the theory of human rights with Chinese characteristics, on the one hand, China has accelerated the pace of making human rights law, and formulated a string of new laws, such as the General Principles of Civil Law, the Anti-Domestic Violence Law, the Charity Law, the Public Cultural Service Guarantee Law, and the Environmental Protection Tax Law. The law makers also revised a batch of laws, including the Criminal Law, the Population and Family Planning Law, the Education Law, the Environmental Protection Law, and the Civil Procedure Law, and has basically established a comprehensive legal system with the Constitution as its the core and other laws regulating a specific area, including administrative regulations and the laws made by local legislators. On the other hand, China proactively participates in the legislation of the international human rights law, interprets China’s human rights propositions on international occasions such as the United Nations General Assembly and the United Nations Human Rights Council, in an effort to build China’s say and influence in the area of international human rights protection.
The important theories and viewpoints embodied in the theory of human rights with Chinese characteristics have spread widely in the international community, and this has begun to break the long-standing dominance of western human rights theories in international human rights protection, enriched international human rights theories and provided useful valuable reference for other developing countries.
B. Focusing on the significance of sovereignty in the protection of human rights
The relationship between sovereignty and human rights, that is, whether human rights are above sovereignty or sovereignty is above human rights, has always been the focus of controversy in protecting international human rights. western academics put forward the theory that “human rights are above sovereignty”. Its essence is to restrict or even deny the principle of state sovereignty, so as to provide a legal basis for foreign countries to interfere in the domestic affairs of foreign countries. Since the end of the 1980s, with the constant deepening of globalization, western countries made a great hue and cry about the theory that human rights are above sovereignty. From the end of the last century to the beginning of this century, the so-called humanitarian interventions that took place in the Kosovo War, Afghanistan War, Iraq War, and Libya War were all based on the theory that human rights are above sovereignty. However, these so-called humanitarian interventions in international practice have not brought peace and well-being to the people of the target countries, as promised by the countries involved. Instead, they have dragged the target countries into a more turbulent and chaotic situation, even bringing greater humanitarian catastrophes to them. The selfish motivation hidden in the so-called humanitarian interventions has drawn widespread criticism from the international community.
Sovereign power is the most essential attribute of a country. Although human rights are no longer a matter only under domestic jurisdiction after World War II, but have become a common concern of the international community, it is undeniable that human rights are still a matter belonging to the domestic jurisdiction and are part of the “internal affairs” of a country. A country shall shoulder the primary responsibility for ensuring the fulfillment of human rights enjoyed by its citizens. The extent to which citizens can enjoy human rights depends on the country’s economic development, rule of law, political system, culture, religion, and other factors. What kind of human rights treatment a country gives to its citizens first of all belong to its domestic legal issues. In terms of the international protection of human rights, a country’s accession to international human rights conventions means that the state is willing to assume treaty obligations and adopt legislative, judicial, administrative, and economic measures to ensure its citizens fully enjoy such human rights. Individuals usually do not directly enjoy the human rights stipulated in international human rights conventions. Thus it can be seen whether a citizen’s human rights could be protected by domestic laws or international treaties is inseparable from a sovereign state. National sovereignty is the prerequisite and guarantee for the protection of human rights.
Old China was reduced to a semi-colonial and semi-feudal society after the Opium War in 1840. National sovereignty was lost, and there was constant warfare, an unstable society, economic depression, no security of livelihood, and extreme poverty. People were enslaved and oppressed by foreign countries, and human rights were impossible protect. During the near century-long journey, Chinese people were engaged in an indomitable struggle. But after they defeated the imperialist aggressors, and overthrew the reactionary rule of the Kuomintang. China’s sovereignty was fully restored. Chinese people were finally liberated and the position of the people as masters of the country was guaranteed. Chinese people draw lessons from such a period of humiliated history, and especially cherished their hard-earned sovereignty after the founding of the People’s Republic of China in 1949. Chinese authorities consistently adhere to the principle of national sovereignty in dealing with international relations, and do not interfere in the internal affairs of other countries.
On the issue of the relationship between sovereignty and human rights, China insists on the significance of national sovereignty for the protection of human rights. As the Chinese saying goes: “A thing cannot exist without its basis”. Without national sovereignty, human rights protection is bound to be an empty talk. At the same time, China also recognizes the responsibility and obligations of national sovereignty in protecting human rights, has taken various measures to implement its commitment to protect human rights in practice, and tries hard to create a favorable environment for its people to fulfill their human rights.
C. Promoting political dialogue and negotiation as the means to settle disputes rather than confrontation
China has always opposed the politicization of human rights and hegemonism in the field of human rights. It does not use any excuses (including human rights) in international relations to interfere in other countries’ internal affairs, nor does it attach any political conditions to its foreign aid. It promotes the use of dialogue rather than confrontation to resolve disputes between countries on human rights issues. Due to different conditions, countries have different historical traditions, cultures, religions, resources, and levels of economic development. Therefore, it is normal to have disputes on the understanding of human rights and on how to exercise human rights. Practice has proved that western countries’ attempts to resolve these human rights disputes in a confrontational manner often lead to resistance among the countries directly involved, which further deepens and intensifies the contradictions between the relevant countries. Such practice is not conducive to promoting the protection of human rights and respecting the basic freedoms enjoyed by human beings. Even in some cases, the human rights situation in the countries concerned worsened. China advocates the use of dialogue to settle the disputes concerning human rights. China is committed to working for peaceful solutions to the disputes over human rights through friendly negotiation and consultation on the basis of mutual respect, equality and voluntary actions. This kind of practice will help to bridge the gap on the understanding of human rights issues and find solutions to disputes, which can truly and effectively promote the respect and protection of human rights and fundamental freedoms. China’s practice provides a useful example for resolving human rights disputes through dialogue. Since 2013, China has held more than 50 human rights dialogues with more than 20 countries, including with the US, the European Union, and Australia. The first South-South Human Rights Forum held in Beijing in 2017 and the second South-South Human Rights Forum held in 2019 have become important platforms for developing countries to conduct international human rights dialogues and exchanges. The Chinese government actively fulfills its reporting obligations under the human rights treaties to which it is a party, submits treaty implementation reports to treaty-related bodies, and earnestly accepts the treaty body’s recommendations to correct problems in treaty implementation.
According to the universal periodic review mechanism established after the establishment of the Human Rights Council, China has accepted the Human Rights Council’s review of China’s human rights situation in a serious, open and frank manner, and has undergone three rounds of human rights review conducted by the Human Rights Council. China welcomes well-intentioned criticism and constructive suggestions. For these constructive suggestions, has China proactively made political, economic, and social strategies and plans for implementing the advice or the reasonable elements of the accepted advice. As a member of the Human Rights Council, China has also actively participated in the review of the human rights situation in other countries. During the review, China has appropriately used various means such as praise, concern, support and appeal, inquiries and suggestions to play a constructive role in the process. China carries out human rights exchanges, cooperation and dialogue, as well as offering help to other countries to ease the conflicts, winning applause from the majority of the reviewed countries. This has played a positive role in promoting the improvement of the human rights situation in the reviewed countries.
* CHI Deqiang ( 迟德强 ), Associate Professor, Law School, Shandong University, Doctor of Law. This article is a phased achievement of the Study on the Mechanism for Domestic Application of International Human Rights Law (Project Number: IFYT12089) under the Shandong University Independent Innovation Fund Project (Youth Team Project).
1. Wang Tieya, International Law (Beijing: Law Press China, 1995), 140.
4. Article 62 of the UN Charter provides that the Economic and Social Council may make recommendations for the purpose of promoting respect for, and observance of, human rights and fundamental freedoms for all.
6. Article 76 of the UN Charter provides that the basic objectives of the trusteeship system, in accordance with the Purposes of the United Nations laid down in Article 1 of the present Charter, shall be to encourage respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.
8. Thomas Buergenthal and Sean D. Murphy: Public International Law (Beijing：Law Press China, 2004), 133.
12. Office of the United Nations High Commissioner for Human Rights.
14.“China’s National Human Rights Report to the United Nations”, People’s Daily, October 19, 2018.
