Keywords: human rights   international human rights system   governing philosophy

 

The “international human rights system” is a general term for the international human rights standards and the international human rights implementation monitoring mechanisms developed and established under the auspices of the United Nations.¹ Three main factors affect the progress and practice of China’s participation in the international human rights system: China’s position in the global community, the Chinese government’s governing philosophy, and China’s socio-historical stage and economic development level. The interaction of these three factors have made China’s participation in the international human rights system stage-by-stage, unbalanced and progressive, and characterized by continuous learning and innovation.

 

 

The concept of human rights originated in the West, and China’s understanding of human rights has undergone a tortuous process. For a quite long time after the founding of the People’s Republic of China, human rights were considered to be a thing of the Western bourgeoisie, as a result of which, China took a negative attitude toward them. Until the 1980s, the theory of human rights was still largely off-limits and research on human rights issues was almost absent.² This resulted in China’s subsequent passivity in the discourse on human rights, which provided a pretext for some Western countries to criticize China.

 

 

To a certain extent, it was pressure from abroad that forced China to face up to human rights issues and begin to study them. After the launch of reform and opening-up in 1978, China’s growing economy raised doubts in the West about China’s future direction, which increased the resistance and challenges to its rise. The rise of China differs from that of Germany after World War II. Germany rose “within the system” of the West and therefore did not have a clash of civilizations, ideologies and values with dominant Western countries in the international order, while China was viewed as a dissident force. Moreover, as a mega-state, China’s rise would certainly pose a challenge to the existing international order. The combination of these two factors resulted in an instinctive response from Western countries that were at the core of the international order: will the rise of such a power with a different system pose a threat to us?

 

After the 1980s, when China began opening up to the world, it posed a dilemma for Western countries. Although they instinctively remained wary and exclusive of China because of the different social system and ideology, China’s huge market, cheap labor and raw materials, and generous super-national treatment for foreign investors had an irresistible attraction to Western multinational capital. In the context of modern international relations, where the principles of international law, such as sovereign equality, non-interference in internal affairs and national self-determination, are deeply rooted, Western countries hoped to find a way or means to enable China to implement reform and opening-up according to the script of Western countries, and “human rights” was one of the few issues that could be easily brought to the table for discussion. No country or government had ever blatantly rejected human rights since the people of the United Nations established the value base for a new world of peace and security and the ideals pursued by human society after World War II.³ By utilizing an inherent strength in core ideas and values (such as freedom, equality, democracy and the rule of law) embedded in the concept of human rights, the Western countries wished to resist and overcome the ideology of the socialist state. Moreover, the United States had established the “human rights diplomacy” long before establishing diplomatic relations with China in the 1970s.

 

Several acts adopted by the United States in the 1970s required that the government should “refrain from providing any assistance to the government of any country which has been committing serious violations of internationally recognized human rights... and which has been seriously depriving individuals of their right to life, liberty and security.”⁴ This “human rights diplomacy” was not initially established against China. However, after the end of the Cold War, the issue of human rights did become a major aspect that constrained the development of China’s relations with the West, especially with the United States, and became the most decisive factor in certain specific periods. After the political turmoil in China in 1989, the United States listed China as a country violating human rights as serious as Libya, Cuba, Iran, Iraq in its annual Human Rights Reports issued by the State Department, and imposed a series of sanctions on China.⁵ Meanwhile, the European Community (and later the European  Union) also adopted resolutions imposing “comprehensive sanctions” on China, and a number of international organizations joined the sanctions against China, such as the  World Bank and the International Monetary Fund, which announced the “termination  of loans to China.” Besides, the United Kingdom, France, West Germany, Japan, Belgium, Portugal, Spain, Austria, Greece, Finland, the Netherlands, Denmark, Sweden,  Switzerland, Australia, New Zealand, Canada and other countries have individually imposed various levels of sanctions against China.⁶

 

Based on the above-mentioned background of international relations, our country had to start proactive research on human rights theory. In November 1990, the Theory Bureau of the Publicity Department of the CPC Central Committee convened a small symposium on human rights, at which experts and scholars put forward proposals for conducting theoretical research on human rights, pointing out that human rights were universal, and that we should not only criticize the bourgeois concept of human rights, but also work on our own human rights issues.⁷ In March 1991, following a letter from Robert F. Kennedy Center for Justice and Human Rights to the then President of the Chinese Academy of Sciences, in which it stated that “the fate of thousands of peo- ple” in China had been treated in an inhumane way, the Publicity Department of the CPC Central Committee convened another symposium on human rights, highlighting the “urgency” of working on human rights issues. In order to refute Western fallacies, China decided to begin studying human rights issues. After that symposium, the Institute of Law of the Chinese Academy of Social Sciences, Peking University, Renmin University of China and China Legal Science held an array of symposiums on human rights issues to fully discuss the theory and practice of human rights.⁸ This process was accompanied by a dramatic change in China’s perception of human rights. Notably, on November 2, 1991, the State Council Information Office of China published a white paper entitled Human Rights in China, in which it stated that “human rights” was a “great term” and that “the enjoyment of full human rights is an ideal sought by mankind in the long run.”⁹ The white paper comprehensively described the Chinese government’s position on human rights issues, China’s human rights protection poli- cies and the human rights situation in China. It was a major breakthrough, as this was the first time the Chinese government used the concept of human rights positively in politics and discussed human rights issues in an open and positive manner.

 

Theoretically, a country, as an objective being, is qualified to be a subject of international law with rights and obligations under international law, provided that it has four elements, i.e., permanent population, defined territory, certain regime organizations and sovereignty. Meanwhile, its participation in the international system does not affect its status as an international legal personality and has little impact on its domestic legal order. In practice, however, the capability of a country to participate in international relations is inextricably linked to its capability to act in a manner that actually enjoys rights under international law. If a country is not recognized and ac- cepted by the global community, the actual enjoyment of its rights under international law will be affected.

 

Because the exercise of sovereignty is in relation to that of other countries, this necessarily involves the question of the practical effects of sovereignty being exercised. Moreover, as the global community becomes more and more interrelated, participation in the international system and multilateral diplomacy have become important ways for countries to build international relations. The various international systems provide an ideal platform and venue for interaction and cooperation in a certain field between countries, and the extent to which a country participates in the inter- national system is proportional to its ability to participate in international relations.

 

Before the end of the last century, China was marginalized in the international system dominated by the West, but its rise relied heavily on participation in that system, and the ability to properly address human rights issues became an important aspect that governs China’s relations with major Western countries. Ideally, human rights dialogue between countries should be equal and mutually respectful, but this was not the case in practice. Some Western countries, by virtue of their dominant po- sition, assume the role of judges and arrogantly demand that China should improve certain human rights and expand certain freedoms, which was uncomfortable for the Chinese people, but the root cause was that China’s overall strength was not strong enough, so it needed the recognition of other countries in its rise. In the relations between China and the West, the latter was the superior party that was critical of China such as over Taiwan, market opening issues, technology transfer issues, most-favored-nation treatment issues, and the issues of participating in international organizations, each of which was a matter of China’s core or vital national interests. In this regard, talk of human rights between China and the West was more of a payoff deal.¹⁰

 

Based on the above analysis, China’s participation in the international human rights system is a strategic issue. In the international order dominated by Western countries, human rights are a bridge between China and the West. If China is to implement an open-door policy, manage its relations with important Western powers and establish a positive image in the global community, it cannot keep itself outside the international human rights system. Therefore, China had to face up to human rights issues, accept international human rights norms, enhance understanding and resolve contradictions and conflicts of human rights issues through dialogue and cooperation, gain recognition and acceptance, thus creating a peaceful and friendly development environment for itself.

 

 

The core purpose of the international human rights protection system is to prevent countries from infringing upon the human rights of individuals or groups and to work for the respect, protection and realization of human rights within each country. The human rights situation in China, a big country with one-fifth of the world’s popu- lation, would be an important indicator of the effectiveness of the international human rights protection system. Therefore, no international human rights standard or international human rights implementation monitoring mechanism could be considered as a success in the universal sense without the participation of China. The international human rights system needed China’s participation and expected to have an impact on the human rights situation in China.

 

The International Labor Organization (hereinafter referred to as ILO) made an outstanding contribution to the international human rights protection system, and the international labor protection standards and its implementation monitoring mechanisms have become an important part of contemporary international human rights law.¹¹ Since the early 1970s, the ILO has been actively promoting China’s participation in ILO activities. In 1971, the governing body of the ILO adopted a resolution restoring the legitimate seat of the government of the People’s Republic of China in the ILO. Since then, the ILO Director-General has extended invitations to the Chinese government prior to each ILO conferences and its governing body meetings. However, after the resolution of the ILO on the restoration of the legitimate seat of the Chinese government in 1971, the Chinese government formulated a policy of “withholding participation.”

 

The ILO has made considerable diplomatic efforts to promote China’s participation in ILO activities.¹² In 1980, the ILO director-general personally led a delegation to China and reached a series of important understandings with China on certain issues: the director-general would recommend to the governing body for agreement and to the ILO conference for approval the cancellation of China’s arrears of membership fees; China’s voting rights would be restored at the International Labor Conference; a tripartite Chinese delegation would attend the International Labor Conference following the adoption of the above-mentioned resolutions; China’s permanent seat on the governing body would be confirmed and a certain number of Chinese staff would be employed by the ILO. Besides, the two parties agreed on the status of the Chinese language in the ILO, the treatment of previous labor conventions related to China, technical cooperation and other issues. Following the resolution of these issues, China formally resumed its participation in the ILO activities in 1983.¹³

 

The establishment of the United Nations High Commissioner for Human Rights was considered to be an important step in the struggle of the United Nations to strengthen its ability to address human rights violations.¹⁴ After decades of human  rights standard-setting, human rights have finally reached the stage of implementation and enforcement.¹⁵ The United Nations High Commissioner for Human Rights has maintained close cooperation with China since its establishment in 1993. During her tenure, Mrs. Mary Robinson, the United Nations High Commissioner for Human Rights, visited China seven times. The Office of the United Nations High Commissioner for Human Rights and the Ministry of Foreign Affairs of China signed the first stage of the Memorandum of Understanding on human rights cooperation and  the second stage of the cooperation agreement respectively in 2000 and 2001, and  the relevant cooperation projects therein were all successfully implemented. On this  basis, Ms. Louise Arbour, the United Nations High Commissioner for Human Rights,  and the Ministry of Foreign Affairs of China signed a three-year Memorandum of Understanding Between the Ministry of Foreign Affairs of the People’s Republic of China and the Office of the United Nations High Commissioner for Human Rights on the Agreement to Cooperate in the Development and Implementation of Technical Cooperation Projects in Beijing in 2005. Since then, China has also maintained close  contact with the Office of the High Commissioner for Human Rights.

 

The positive attitude of the above-mentioned organization in promoting China’s participation in the international human rights system demonstrated the global community’s awareness of the importance of China’s participation in the international human rights system. However, this awareness at this moment was only a formal recognition of China’s membership, not a recognition of value. Because while hoping China would join the international human rights system, they had not recognized that China had the same position and dignity as some other members of that system. This also explained why, for a considerable period of time after the 1989 political turmoil in China, China was the target of criticism and condemnation within various international organizations, including the United Nations Commission on Human Rights and the ILO, for the so-called “human rights issues.”

 

 

China’s initial participation in the international human rights system was mainly a passive acceptance of established international human rights norms and international human rights mechanisms. Human rights are a product of Western civilization, and the dominant ideas and theories of human rights are rooted in the West. Against the back- drop of the dominant position of Western countries in the international human rights system, other countries, including China, could only passively accept the existing rules of the system and gradually adapt to them if they wanted to integrate into the in- ternational human rights system. This inevitably led, over a long period of time, to the mode of China’s participation in the international human rights system, in which China was increasingly recognized and gradually became an “in-system” country through its learning and compliance with international human rights norms. However, China’s integration into the international human rights system has not been entirely passive. China’s participation has not been limited to learning and passive compliance, but resulted in mutual influence and interaction. In other words, while China was learning from the international human rights protection system, it was also, to varying degrees, influencing and transforming the international human rights system with its own characteristics, methods and growing strengths, so as to realize China’s reshaping of its identity in the international human rights system.

 

 

China’s recognition and acceptance of international human rights norms were demonstrated by its signature and ratification of international human rights conventions. Since its reform and opening up, China has ratified and acceded to 26 international human rights instruments, including six core human rights conventions of the United Nations.¹⁶ Specifically speaking, China signed and ratified the Convention on the Elimination of All Forms of Discrimination against Women in 1980, acceded to the International Convention on the Elimination of All Forms of Racial Discrimination in 1981, acceded to the International Convention on the Suppression and Punishment of the Crime of Apartheid and the Convention on the Prevention and Punishment of the Crime of Genocide in 1983, acceded to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in 1988, signed and ratified the Convention on the Rights of the Child in 1990 and 1992 respectively,  signed and ratified the International Covenant on the Economic, Social, and Cultural Rights in 1997 and 2001 respectively, and signed and ratified the Convention on the Rights of Persons with Disabilities in 2007 and 2008 respectively. China also signed the International Covenant on Civil and Political Rights in 1998 and has been creating conditions for its ratification. The signing of human rights conventions means that China could not violate the object and purpose of the corresponding conventions; the ratification of or accession to human rights conventions means that China has assumed the obligation under international law to respect, protect and fulfill the rights established in the conventions.

 

 

China’s participation in the international human rights system was conditional on not undermining national sovereignty, and it has always held a negative attitude toward international human rights activities that may undermine national sovereignty. However, in terms of specific strategies, China has changed to active participation at a later stage by fully expressing its views and positively interacting with other countries from a negative approach of unilateral evasion at the beginning of reform and opening up, with an aim of ensuring that the relevant international human rights protection system was not set up in a way deviating too far from China’s views and lay a foundation for possible future Chinese participation in practice.

 

China has excluded the contentious jurisdiction of the International Court of Justice (hereinafter referred to as ICJ) to safeguard its sovereignty. The contentious jurisdiction of the ICJ was based on the consent of the state. Until 1971, the Taiwan Kuomintang authorities represented China in the Statute of the International Court of Justice and accepted the optional compulsory jurisdiction of the ICJ.¹⁷ In the year following the restoration of its legal seat in the United Nations in 1971, the government of the People’s Republic of China announced that it did not recognize the declaration made by the Taiwan Kuomintang government in 1946 for accepting the optional compulsory jurisdiction of the ICJ. Several international human rights conventions provided for dispute settlement clauses, whereby the member states may submit disputes concerning the interpretation and application of the conventions to the ICJ.¹⁸ When a state ratifies such clauses in the relevant convention, it will be considered to have accepted the jurisdiction of the ICJ over disputes arising out of the interpretation and application of the convention. Therefore, China usually has reservations about such clauses when ratifying the relevant human rights conventions.¹⁹

 

China has actively participated in the negotiation of the Statute of the International Criminal Court in order to safeguard its sovereignty. In 1998, the global community adopted the Statute of the International Criminal Court (hereinafter referred to as the Statute), which enshrines the protection of human rights as its fundamental principle. As a permanent member of the United Nations Security Council, China has always supported the establishment of an independent, impartial, efficient and universal international criminal justice institution. After the United Nations International Law Commission (hereinafter referred to as ILC) submitted the initial draft of the Statute to the United Nations General Assembly for discussion, China had been actively participating in all the preparatory meetings for the establishment of the International Criminal Court, putting forward its opinions on all the drafts, and had made considerable contributions to the establishment of the International Criminal Court.²⁰ However, in striking contrast to this positive attitude, China voted against the Statute and did not become a member of the International Criminal Court. As explained by Wang Guangya, then head of the Chinese delegation to the Rome Diplomatic Conference on the Establishment of the International Criminal Court, China voted against the Statute in part because certain elements of the Statute contained provisions that could affect or impair Chinese sovereignty.²¹

 

 

The United Nations Commission on Human Rights was at the heart of the United Nations human rights protection mechanisms. The People’s Republic of China started participating in the activities of the Commission on Human Rights in 1979, and after sending observers to the sessions of the Commission for three consecutive years, it was elected a member of the Commission in 1981 and has been re-elected afterwards, and has sent a delegation to the sessions of the Commission every year since 1982. We saw that 1989 was a watershed year, as no country had introduced a motion on the human rights situation in China at a session of the Commission on Human Rights before that time, but China has been the target of criticism and condemnation by Western countries for a long time after that. In the 14 years between 1990 and 2004, a number of Western countries joined hands to introduce a motion on the “Human Rights Situation in China” at the sessions of the Commission on Human Rights 11 times, condemning human rights issues in China, including family planning policy, Tibetan issues, most-favored-nation treatment, Export of products produced in prisons, judicial procedures, freedom of religion and belief, labor rights, etc., with the intention of adopting resolutions condemning human rights violations in China. Therefore, China, in conjunction with the developing countries of Asia and Africa, has fought fiercely with the Western countries in the Commission on Human Rights, resulting in the rejection of successive motions condemning the “human rights situation in China.”

 

The struggle between China and Western countries in the Commission on Human Rights was a process of mutual influence and has led to the following understandings. First, respect for and protection of human rights was the duty and responsibility of a state and formed the basis of its conduct and political legitimacy. Second, the effective way to promote the development of international human rights is dialogue and cooperation rather than confrontation. Third, dialogue and cooperation among states on human rights issues should be based on equality and mutual respect. Based on the formation of the above understandings, the confrontation between China and the West on human rights issues has taken a historic turn toward dialogue. In 1998, EU foreign ministers unanimously agreed to abandon their policy of confrontation with China on human rights issues, stating that neither the EU as a whole, nor individual member states, would raise or support any motion condemning China’s human rights at the Human Rights Conference. In 2000, Canada’s Minister of Foreign Affairs announced that Canada would no longer support a co-signing proposal to condemn human rights in China. In 2001, the human rights dialogue between the United States and China was resumed. In 2005, the United States delegation said that it would no longer introduce bills condemning the human rights situation in China before the Commission on Human Rights. Since then, China’s human rights dialogues or consultations with the United States, the European Union, the United Kingdom, Germany, Switzerland, the Netherlands, Australia, New Zealand and other Western countries have continued to this day.²²

 

 

China has upheld its own human rights concepts and positions. While China has accepted international human rights standards and adjusted its behavior in accordance with international human rights norms, it has also continuously interpreted, insisted on and practiced its human rights concepts and positions, namely, the right to life and the right to development are primary and fundamental human rights; human rights are an organic unity of individual and collective human rights; all human rights should be promoted in concert and be interdependent and indivisible; cooperation in the field of human rights should comply with the purposes and principles of the Charter of the United Nations and the use of human rights issues for interference in internal affairs should be opposed; differences on human rights issues should be resolved through dialogue on the basis of equality and mutual respect; human rights policies should be formulated in accordance with national conditions based on respect for the universality of human rights, etc. China’s eleven struggles against Western countries in the Commission on Human Rights are the result of its participation in the international human rights system with its own “conditional script.” Through such interaction, continuous expression, advocacy and adherence to its positions and views, China has played an important role in leading international human rights governance in a more just and inclusive direction.

 

China has promoted the reform of the United Nations human rights mechanisms. The United Nations Commission on Human Rights, once the leading intergovernmental body dealing with human rights issues within the United Nations system, has gradually transformed itself into a major forum for international human rights struggles in both developed and developing countries as the Commission’s status and role within the United Nations human rights mechanisms have continued to rise.²³ After the Cold War, many developing countries, including China, have become the target of criticism and accusations.²⁴ In order to strengthen the human rights mechanisms of the United Nations system as we enter the 21st century, the United Nations Human Rights Council was established by resolution of the 60th United Nations General Assembly in 2006 to replace the Commission on Human Rights. After three rounds of secret balloting, the 60th session of the United Nations General Assembly elected the first 47 members of the Human Rights Council, of which China was one. In 2009, China was re-elected as the member of the United Nations Human Rights Council at the 63rd session of the United Nations General Assembly with 167 votes in the re-election of total 18 members. Since then, with the exception of the three-term limit under the rules of the Human Rights Council, China has been continuously re-elected, receiving 176 votes in 2014 and 180 high votes in 2017. As a member of the Human Rights Council, China has actively promoted the Council’s consideration of human rights issues in an impartial, objective, non-selective and universal manner, and made positive contributions to overcoming double standards, selective treatment and politicization of human rights issues at the country level and enhancing the universality and objectivity of United Nations human rights monitoring mechanisms.²⁵

 

China has contributed to wisdom and solutions. Since the 1980s, China has participated in the meetings of the working group on the preparation of the optional protocols to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on the Rights of the Child, the Convention on the Rights of Persons with Disabilities, the International Convention on the Pro- tection of the Rights of All Migrant Workers and Members of Their Families and the International Covenant on the Economic, Social and Cultural Rights, and has made key contributions to the drafting, revision and improvement of these rules. As one of the main promoters, China participated in the drafting of the Declaration on the Right to Development.²⁶ In 2017, China’s Resolution On Contribution of Development to the Enjoyment of All Human Rights was adopted by the United Nations Human Rights Council²⁷, formally introducing the concept of “development for human rights” into the international human rights system for the first time.²⁸ In 2018, the 37th session of the United Nations Human Rights Council adopted China’s resolution on “promoting win-win cooperation in the field of human rights,” in which “building a Community of Shared Future for Human Beings” was included for the first time into a United Nations Human Rights Council resolution.²⁹

 

 

The international human rights standards consist of a series of international human rights conventions, which are at the core of the international human rights system. The implementation of the human rights conventions in a state member depends fundamentally on the will of the state to respect, guarantee and fulfill human rights, and ultimately on the actual enjoyment by its population of the rights and freedoms set out in the conventions. Research has shown that the direct penetration of international institutional norms into government-dominated countries is relatively difficult, but once a particular norm is supported by the government, it spreads very quickly.³⁰ The key to China’s implementation of international human rights standards lies in the will and action of the government. To this end, China’s initial participation in the international human rights system id based on the need to safeguard national interests and the international political struggle, but the multiple efforts it has made in the fields of national politics, law, economy, culture and social life over the past three decades to fully implement international human rights standards have been based on China’s profound recognition of human rights values and concepts, and on the self-awareness and voluntariness for fulfilling a state’s human rights protection obligations to enable people to actually enjoy their human rights.

 

 

The most remarkable progress for human rights in China was the integration of human rights into politics, thus completing the mainstreaming of human rights in the political life of the party and the state.³¹ In 1997, the report of the 15th National Congress of the Communist Party of China (CPC) proposed “respect for and protection of human rights,” which was for the first time included in the CPC’s program of action as a basic goal of governance. In 2002, the report of the 16th Congress of the CPC proposed the same issue. In 2003, the third Plenary Session of the 16th Central Committee of the CPC proposed to adhere to a people-oriented scientific view of development, emphasizing that the essence and core of the scientific view of development is people-oriented, that is, to respect and protect human rights. In 2006, the 6th Plenary Session of the 16th Central Committee of the CPC adopted the Decision on Some Major Issues concerning Building a Socialist Harmonious Society, which further elevated respect for and protection of human rights to the level of building a harmonious social system. In 2007, the report of the 17th National People’s Congress of the CPC, in discussing how to “fully implement the basic strategy of governing the country according to law and accelerate the construction of a socialist country ruled by law,” put forward the idea of “respecting and safeguarding human rights and ensuring the right of all members of society to participate and develop equally in accordance with the law.”³² It was also at this congress that “respect for and protection of human rights” was written into the Party’s charter for the first time, formally becoming an important concept and value for the CPC to govern and rejuvenate the country.

 

 

Human rights are those to which every person is entitled as a human being, but can only be guaranteed in the most effective and practical way by law. The best form of human rights existence is to establish systems for them and their inclusion in systems.³³ An important manifestation of China’s sincere efforts to fulfill its human rights convention obligations is the continuous improvement of its legal system for the protection of human rights, the effective enhancement of the level of judicial protection of human rights and the consolidation of the legal basis for the protection of the human rights system.

 

The integration of human rights into the Constitution was achieved in 2004. At the Second Session of the 10th National People’s Congress, an amendment to the Constitution was considered and adopted, in which “the nation for and guarantees human rights” was written into the Constitution.³⁴ The “integration of human rights into the Constitution” elevated the “respects for and guarantees of human rights” from a political concept to a legal concept in China, establishing the prominent position of human rights in China’s legal system and national building. “Respect for and protection of human rights” became a constitutional principle and a legal obligation of the state, which was a significant development in systematized protection of human rights and opened a new realm of human rights protection by the rule of law.

 

China has enacted new laws and amended or repealed existing ones. Taking the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereinafter referred to as the Convention) as an example, after ratifying it in 1988, China has made the following efforts to effectively implement its obligations under the Convention. (1) In 1997, the Criminal Law was amended to include a new offense of “taking evidence with violence by a judicial officer” and to provide for clearer provisions and more severe penalties for the offenses of extorting confessions under torture, taking evidence with violence, and corporal punishment of persons under supervision.³⁵ (2) In 1996, the Criminal Procedure Law was amended to stipulate that “it is strictly forbidden to obtain confessions by torture and to collect evidence by threats, inducements, deceptions and other unlawful methods” and that “the sentence in all cases shall be based on evidence and research, and confessions shall not be relied on lightly. In cases where there is no evidence other than the confession of the accused, the accused cannot be found guilty and sentenced.” The law also abolished the system of review of admissions, established the principle of presumption of innocence, advanced the timing of the participation of lawyers in criminal proceedings, reformed the criminal trial model, established the defending approach to trials, allowed for the intervention of family members and doctors of detained or arrested persons at the earliest stages of the procedure, and reformed the method to carry out death penalty, among other things,³⁶ in order to strengthen the safeguards against torture or other cruel, inhuman or degrading treatment or punishment of suspects, accused persons and offenders. (3) A series of new laws were enacted. The Prison Law, among other things, was established in 1994 with reference to the United Nations Standard Minimum Rules for the Treatment of Prisoners, 1977, and was in line with the United Nations Basic Principles for Treatment of Prisoners, 1990. The Law on State Compensation established in 1994 provided that: “If, in the exercise of their powers of investigation, prosecution, adjudication and prison administration, an organ or its staff extorts a confession by torture, or causes bodily injury or death to a citizen by violence such as assault, or instigates another person to do so, the victim has the right to compensation.”³⁷ The law also set out in detail the procedures, modes and criteria for the calculation of compensation. Besides, the Public Procurators Law, the Judges’ Law and the Police Law contain explicit provisions on the prohibition of torture to extract confessions, unlawful detention, unlawful use of devices, weapons, etc. China’s efforts to implement the Convention are a microcosm of its entire implementation practice.

 

 

The Outline of the 11th Five-Year Plan for National Economic and Social Development (2006-2010), approved at the Fourth Session of the 10th National People’s Congress in 2006, clearly highlighted “respect for and protection of human rights and promotion of the comprehensive development of the human rights cause.”³⁸ This was the first time that China included “respect for and protection of human rights” in the outline of its national five-year plan. In 2009, the State Council Information Office issued the National Human Rights Action Plan (2009-2010), the first national plan formulated by the Chinese government on the theme of human rights, with the aim of clarifying the goals and specific measures to be taken by the Chinese government to promote and protect human rights over the next two years, and implementing those goals and measures in the political, economic, cultural and social construction spheres, as well as in the legislative, judicial and administrative sectors. After two years of efforts, the measures provided for in the National Human Rights Action Plan (2009-2010) were effectively implemented and the targets fully met.³⁹ Subsequently, the Chinese government issued and implemented the second National Human Rights Action Plan (2012-2015). At present, the third National Human Rights Action Plan (2016-2020) is being implemented. These efforts marked the beginning of a new stage in the systematic and comprehensive promotion of human rights in China, where “respect for and protection of human rights” has become an integral part of China’s national modern- ization and social development.⁴⁰

 

 

Systems are the product of culture, and the social basis for the establishment of systems for human rights lies in the human rights culture of a country. The real challenge of translating legal human rights into real human rights lies not only in punishing human rights violations after the fact, but also, and more importantly, in preventing them. Therefore, there is a need to internalize human rights awareness by shaping attitudes and values, and to cultivate a society rich in human rights culture, but it is a difficult task that can only be accomplished through long-term, systematic publicity, education and theoretical research on human rights.⁴¹

 

China has disseminated the concept and knowledge of human rights. The State Council Information Office has done plenty of work in the dissemination and popularization of human rights knowledge: publishing a series of human rights knowledge answers in People’s Daily, Guang Ming Daily, China National Radio and other national authoritative media, organizing human rights forums, and holding lectures on human rights knowledge; preparing and publishing the Human Rights Reader for Cadres handbook and including it in the national cadre learning and training series; organizing training courses on human rights for cadres and human rights training for  Party and government cadres at all levels, judicial system officials and media professionals; urging administrative colleges at all levels to incorporate human rights into  their teaching and educating leaders at all levels about human rights.⁴² In addition, the Supreme People’s Procuratorate has conducted human rights education and training courses for procuratorial organs at all levels throughout the country; the Supreme People’s Court has conducted model training courses on such themes as exclusion of illegal evidence and human rights education to train judges; and public security organs at all levels have provided law-related courses on the prohibition of excruciation and human rights education. Primary and secondary schools have incorporated personal rights, education rights, economic rights and other content into the textbooks, and released the Rule of Law Education Syllabus For Adolescents, with an aim to cultivate adolescents’ concepts on human rights and rule of law.

 

China has carried out multi-level, interdisciplinary and systematic professional human rights education. Colleges and universities in China have basically formed a level-by-level system of human rights education and personnel training. Since the late 1990s, human rights courses have appeared in domestic colleges and universities, such as China Foreign Affairs University, which has opened public elective courses, i.e., International Human Rights Law and Topics in International Human Rights Law, respectively for undergraduates and postgraduates. Many universities have added human rights-related courses to their undergraduate training programs in law and other majors, developed human rights-related teaching materials, introduced general courses such as Introduction to Human Rights and public elective courses such as Human Rights Law, International Human Rights Law and Topics in Human Rights Law; enrolled and trained master’s and doctoral students in human rights law, human rights political science, human rights philosophy and other fields of study; and set up postdoctoral research stations in human rights research. In particular, China University of Political Science and Law and Southwest University of Political Science and Law have independently set up secondary subjects of human rights law.⁴³

 

China has continued to deepen its research on human rights theory. Eight National Human Rights Education and Training Bases were established to promote universities and research institutions to carry out human rights theory research actively and to cultivate professional teams for human rights theory research.⁴⁴ Besides, the academic community enriched the human rights theoretical system and discourse system by translating and publishing a large number of foreign human rights research works, systematically compiling and sorting out relevant human rights research materials, and writing a lot of human rights research works and papers.

 

 

The progress of China’s participation in the international human rights system and its practices is a process of continuous learning, reference, and gradual innovation through complex interactions, i.e., from denying and excluding human rights concepts, learning and internalizing international human rights norms, actively participat- ing in the construction of the international human rights system, to affecting the evolution of the international human rights system. Changes in China’s attitude toward human rights issues are closely related to China’s reform and opening up policies and changes in the Chinese government’s governing philosophy, and are the inevitable result of China’s domestic political choices. In essence, it is an voluntary action based on China’s willingness to accept the norms and influences of the international human rights system because it identifies with the intrinsic values and concepts of human rights, and it also reflects China’s adaptable reform to continuously integrate into the global community. However, this does not mean that the process and practice of Chi na’s participation in the international human rights system are completely passive, nor does China’s participation practice stop at the learning and passive compliance stage. While adjusting its behaviors to the existing international human rights standards, China has also embarked on a path of human rights development with Chinese characteristics through influencing the evolution of the international human rights system with its own human rights stance, human rights concepts and growing capabilities. During this process, China has endeavored to fulfill its obligations under international human rights conventions; determined and adjusted the focus and themes of human rights system construction at different stages of social development in the light of the country’s actual situation; and continuously summarized and refined its own human rights practice experience and contributed its own wisdom and solutions to the international human rights cause.⁴⁵ By strengthening its overall strength, continuously advancing the cause of human rights at home and improving its diplomatic skills, China will certainly enhance its status and voice in the international human rights system.

 

(Translated by XU Yan)

 

* ZHANG Aining ( 张爱宁 ), Professor of Department of International Law of China Foreign Affairs University. 

 

1. In a broad sense, the international human rights protection system also includes regional human rights protection systems, namely the European human rights protection system, the Inter-American human rights protection system, the African and other regional human rights protection systems, etc. 

 

2. Zhao Lingmin, “From Off-limits to Constitutionalization of Human Rights — An Interview with Guo Daohui, Advisor of the Jurisprudence Research Society of the Chinese Law Society”, South Reviews 20 (2009).

 

3. Preamble, Charter of the United Nations. 

 

4. Hong Guoqi and Dong Guohui, Perspectives on the Human Rights Diplomacy of the United States (Beijing: World Affairs Press, 2003), 54-59.

 

5. Ibid., 102-103.

 

6. Ibid., 103.

 

7. Zhao Lingmin, “From Off-limits to Constitutionalization of Human Rights”.

 

8. Ibid. 

 

9. State Council Information Office,White Paper on Human Rights in China, November 1991, paragraph 1 of the preamble. 

 

10. R. J. Vincent, Human Rights and International Relations (Beijing: Knowledge Press, 1998), 91.

 

11. Thomas Buergenthal et al., Essentials of International Human Rights Law, trans. Li Zuoheng (Beijing: Law Press, 2010), 103-106.

 

12. Liu Xu, An Overview of International Labor Standards (Beijing: China Labor and Social Security Press, 2004), 134. 

 

13. Ibid., 133-135.

 

14. Thomas J.Buergenthal, International Human Rights Law (St. Paul, West Group, 2002), 121-122.

 

15. Julie A. Mertus, The United Nations and Human Rights: A Guide for a New Era (London: Routledge, 2009), 8. 

 

16. State Council Information Office, Seeking Happiness for the People: 70 Years of Human Rights Development in New China, published in September 2019. 

 

17. Article 36 of the Statute of the International Court of Justice.

 

18. Article 9 of the Convention on the Prevention and Punishment of the Crime of Genocide, article 12 of the  Convention on the Suppression and Punishment of the Crime of Apartheid, article 22 of the Convention on  the Elimination of All Forms of Racial Discrimination, article 29 of the Convention on the Elimination of All  Forms of Discrimination against Women, article 30 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, article 92 of the Convention on the Protection of the Rights of  All Migrant Workers and Members of Their Families.

 

19. The only exception is the International Convention on the Prevention and Punishment of the Crime of Apartheid. The reason for this was presumably that China was less likely to have disputes with other state members  over the interpretation and application of this convention. 

 

20. Zhu Wenqi, “Should China join the International Criminal Court”, Hubei Social Sciences 10 (2007): 68.

 

21. “Wang Guangya’s View on the International Criminal Court,” Legal Daily, July 22, 1998. 

 

22. “Human Rights Events,” China Human Rights website.

 

23. Thomas Buergenthal et al., Essentials of International Human Rights Law, 88.

 

24. Peng Xihua and Gu Shengkai, “Views on the International Monitoring System for the Implementation of International Human Rights Conventions,” in Essence of Chinese International Law (2002) (Beijing: Machinery Industry Press, 2002), 88. 

 

25. Zhang Aining, “New Developments in the Implementation Monitoring of International Human Rights Protection”, Law 1 (2010): 106.

 

26. State Council Information Office, Seeking Happiness for the People: 70 Years of Human Rights Development in New China, published in September 2019.

 

27. United Nations Human Rights Council, Resolution 35/21: The Contribution of Development to the Enjoyment of All Human Rights, A/HRC/RES/35/21, 2017.

 

28. “UN Human Rights Council again adopts China’s resolution on ‘Development’s contribution to the enjoyment of all human rights’,” Xinhuanet.

 

29. United Nations Human Rights Council, Promoting Mutually Beneficial Cooperation in the Field of Human  Rights, A/HRC/RES/37/23, 2018. 

 

30. Su Changhe, “China and International System: A Research Agenda”, World Economy and Politics 10 (2002): 8.

 

31. Dong Yunhu, “Five Years of Breakthroughs in Human Rights in China”, Human Rights 1 (2008).

 

32. Paragraph 15 of the General Outline of the Constitution of the Communist Party of China. 

 

33. Zhang Aining, Monograph on International Human Rights Law (Beijing: Law Press China, 2006), 9.

 

34. Article 33 of the Constitution has express provisions for this.

 

35. Articles 232, 234, 238, 246, 247, 248, 305 of the Criminal Law. 

 

36. Articles 43, 46, 12, 96, 150, 14, paragraph 2 of Article 64, paragraph 2 of Article 71, 75 and 212 of the Criminal Procedure Law.

 

37. Article 15 of Law on State Compensation.

 

38. Section 1 of Chapter 43 of the Outline of the 11th Five-Year Plan for National Economic and Social Development.

 

39. Wang Chen, “Core of China’s Human Rights Development is People-oriented,” people.cn, accessed March 7,  2020.

 

40. Wang Chen, “Major Initiatives to Advance the Comprehensive Development of Human Rights in China,”  China.com.

 

41. Zhang Aining, “Views on the Characteristics of Human Rights Education”, Guangzhou University Journal  (Social Science Edition) 5 (2010): 23.

 

42. State Council Information Office, National Human Rights Action Plan (2012-2015): Implementation Evaluation Report, released in June 2016. 

 

43. Ibid.

 

44. Ibid. 

 

45. State Council Information Office, Seeking Happiness for the People: 70 Years of Human Rights Develo