HAN Dayuan*

 

Abstract: General Secretary Xi Jinping delivered an important speech on China’s Path of Human Rights at a group study session of the Political Bureau of the CPC Central Committee on February 25, 2022. Persisting with the law-based protection of human rights and improving the mechanism for the protection of human rights by the rule of law are essential for unswervingly following the development path of human rights in China. The improvement of the mechanism for the protection of human rights by the rule of law necessitates adhering to the principle of respecting the dominant role of the people and removing the institutional obstacles in rule of law protection of human rights; to comprehensively strengthen the implementation of the Constitution, advance the filing and examination of the Constitution, and safeguard the authority of the Constitution; to accelerate the theoretical innovation of human rights and the construction of the discipline system, the academic system and the discourse system of human rights that meet the needs of the new era in China, and to actively participate in and contribute to the global governance on human rights, etc. Improving the mechanism for the protection of human rights by the rule of law can provide a solid protection for people enjoying a better life.

 

Keywords: human rights · mechanism of rule of law protection · development path of human rights in China

 

On February 25, 2022, the Political Bureau of the Communist Party of China Central Committee held the 37th group study session on China’s path of human rights development. In his important speech delivered at the session, General Secretary Xi Jinping pointed out that respecting and protecting human rights is the unremitting pursuit of Chinese Communists. The century-long fight of the Party is all about the unremitting efforts to unite and lead the people in striving for, respecting, protecting, and developing human rights. China has embarked on a new journey to fully build a modern socialist country and march toward the Second Centenary Goal. We need to have a deep understanding of the importance and urgency of doing a good job in human rights work, unswervingly follow China’s path of human rights development, pay more attention to respecting and protecting human rights, and better promote the cause of human rights in China.¹

 

In his speech, General Secretary Xi Jinping summed up six successful experiences of the CPC in uniting and leading the people in respecting and protecting human rights. The fifth one was the protection of human rights in accordance with the law, improving the protection of human rights under the rule of law, deepening reform of the rule of law, and improving the mechanism for law-based protection of human rights. We need to study, understand and implement General Secretary Xi Jinping’s important remarks on protecting human rights in accordance with the law, focus on building the required institutions and mechanisms, take effective measures to improve the protection of human rights under the rule of law, and improve the mechanism of rule of law protection of human rights. This paper focuses on how to improve the rule of law protection mechanism.

 

 

Human rights are the basic values of the rule of law, and the rule of law is the fundamental guarantee for human rights. The rule of law, as a basic way of governing the country, is “fundamental, mandatory, normative and effective.”² China’s path of human rights development and comprehensive law-based governance are interrelated and mutually reinforcing. Comprehensive law-based governance is an important guarantee for the development of human rights in China. And respecting and protecting human rights is the basic goal of building a socialist country under the rule of law. General Secretary Xi Jinping has pointed out that “The fundamental purpose of advancing comprehensive law-based governance is to protect the people’s rights and interests in accordance with the law,” and that “We must ensure that the interests of the people, their aspirations, their rights and interests, and their well-being are reflected and promoted in all areas and throughout the whole process of the comprehensive law-based governance,” so as to improve the rule of law in protecting human rights. On the relationship between human rights and the rule of law, Xi said: “The people’s rights and interests must be protected by the law, and the authority of the law must be upheld by the people.”³

 

Improving the mechanism of rule of law protection for human rights will help improve the protection of human rights under the rule of law. Since the 18th CPC National Congress, positive progress has been made in law-based human rights, and some changes have taken place in the wording of the legal protection of human rights. The Third Plenary Session of the 18th CPC Central Committee proposed to “improve the judicial system for human rights protection.”⁴The Fourth Plenary Session of the 18th CPC Central Committee proposed to “strengthen judicial protection of human rights.”⁵ The report to the 19th CPC National Congress calls for “strengthening legal protection of human rights.”⁶ And in his speech, General Secretary Xi Jinping proposed to “improve the rule of law protection of human rights,” which not only reflects the deepened human rights practice in state governance but also reflects the new concept and experience of the CPC in protecting human rights through the rule of law. From “judicial protection of human rights” to “legal protection of human rights” and to “improving the mechanism of rule of law protection of human rights,” these changes reflect the inherent law of human rights development and show the ever-deepening understanding of China’s path of human rights development.

 

Improving the mechanism for the protection of human rights by the rule of law will help implement the constitutional principle of respecting and protecting human rights and safeguard China’s core values. The protection of human rights by means of the rule of law is fundamental to comprehensive law-based governance and embodies the essence of a country under the rule of law. In a society under the rule of law, human rights are the essence of the rule of law. Respecting and protecting human rights is the hallmark of a modern civilization, which embodies the spirit of the rule of law and provides an important guarantee for comprehensive law-based governance.

 

A sound mechanism for protection of human rights by the rule of law will help safeguard human dignity and freedom, ensure a better life for the people, enable the people to participate in, promote and benefit from the development of human rights, and promote all-round human development. The protection of human rights by the rule of law covers not only personal rights, property rights, and personality rights, but also citizens’ basic political rights such as participation in democratic elections, democratic consultation, democratic decision-making, democratic management, and democratic supervision, as well as citizens’ economic and social rights such as economic, social, cultural and environmental rights, demonstrating a comprehensive view of human rights.

 

Improving the mechanism for the protection of human rights by the rule of law will help build social consensus and make the respect for and protection of human rights “an important task of state governance.”⁷ In the new era, the core of the CPC’s state governance is “putting people first,” which reflects the essential nature of human rights protection and extends to the entire legal system of legislation, law enforcement, judicature, and law observance by all. This reflects a comprehensive and holistic approach to the rule of law and has helped improve the rule of law system for human rights.

 

 

People’s nature is the most prominent feature of China’s path of human rights development and the essential feature of the rule of law protection of human rights.⁸ It is also the fundamental position of the socialist rule of law with Chinese characteristics to put people first and realize the all-round development of the people. The starting point, process, and goal of the development of human rights in China are based on the people’s principal position and the supremacy of people’s interests as the basic premise and core value. While promoting the rule of law in human rights, we must always adhere to the people-centered development philosophy, safeguard the dignity of every individual, and fully implement the basic rights stipulated in the Constitution. Respect for and protection of the dignity and freedom of each individual is indispensable to the realization of the position of the people as masters of the country, their equal participation and development, and common prosperity for all.

 

In his speech, General Secretary Xi Jinping has put special emphasis on “ensuring that the people feel fairness and justice in every legal system, every law enforcement decision, and every judicial case.” He said that we should bring the protection of human rights under the rule of law from “every judicial case” to the entire rule of law system, including legislation, law enforcement, administration of justice, and law observation, and make human rights values part of all areas of state governance. This important spirit solves the fundamental problem of who is to benefit from the protection of human rights by the rule of law. On March 14, 2004, the Second Session of the 10th National People’s Congress adopted the Amendment to the Constitution of the People’s Republic of China. Article 24 of the Amendment adds a paragraph to Article 33 of the Constitution as Paragraph 3, which says that “The State respects and protects human rights.” This addition to the Constitution has laid a solid constitutional foundation for China’s protection of human rights and made it an important yardstick for evaluating all public power. Since the concept of human rights was written into the Constitution, the concept of human rights has been popularized throughout the whole society, and important achievements have been made in the legal protection of human rights.

 

In 2020, the National People’s Congress adopted the PRC’s first Civil Code. The Civil Code is of great significance in adhering to the people-centered development philosophy, safeguarding people’s rights and interests in accordance with the law, and promoting the development of human rights in China. It has been praised as “a Civil Code that embodies the equal protection of rights to life, health, property security, transaction convenience, life happiness, personal dignity, and other aspects.” However, in practice, especially in the law enforcement activities of some local governments, some law enforcement officials still “hurt people’s feelings and impair people’s rights and interests” due to their lack of awareness of respecting and protecting human rights. Although there have been only a few such cases, their social impact has been very bad.

 

Human rights protection is not only a constitutional principle but also a vivid rule of law practice. General Secretary Xi Jinping once pointed out that “We need to develop democracy at the grassroots level, ensure that the people directly exercise their democratic rights in accordance with the law, and effectively prevent the phenomenon that the people have only power in theory but no real power in practice.”⁹ How to prevent such a situation? In his speech, Xi said that “We need to systematically study and solve prominent problems in the rule of law that the people feel strongly about. All acts that infringe upon the legitimate rights and interests of the people, and all acts of indifference to violations of their rights and interests, must be investigated and punished in accordance with (the Party’s) discipline and the law.”¹⁰ In particular, he stressed that “We need to treat people’s demands fairly in accordance with the law. The miscarriage of justice, which hurts people’s sentiments and interests, must be completely eradicated.”¹¹

 

 

In his speech, General Secretary Xi Jinping put forward the important proposition of “improving the mechanism for the protection of human rights by the rule of law”¹² and specific goals and tasks. As mentioned above, the protection of human rights under the rule of law is an organic whole, which is composed of various elements, and different links have inherent relations. Perfecting the mechanism for the protection of human rights by the rule of law is not only the internal demand of the legal protection of human rights but also requires the innovation of systems and mechanisms in the field of human rights protection. In the development of the rule of law, it is necessary to remove the obstacles in the existing systems and mechanisms and make innovations based on existing systems and mechanisms. This is the important connotation of Xi Jinping’s thought on the rule of law and the basic experience of China’s reform and opening-up. At present, in the practice of legal protection of human rights, there are still problems of inadequate and unbalanced protection. Although the problems don’t look alike, they are mainly manifested as the lack of unity, effectiveness, and authority in the human rights protection mechanism, and the failure of protection links in various fields to form an effective joint force.

 

The legal protection of human rights is a systematic project, and a systematic concept should be established. General Secretary Xi Jinping has pledged to ensure that respect for and protection of human rights covers every link and process of legislation, law enforcement, administration of justice, and observance of the law so that the people can feel the fairness and justice in every law enforcement decision and every judicial case.¹³

 

The basic rights of citizens stipulated in the Constitution can only be effectively guaranteed through scientific and democratic legislation. In our legislative work, we need to ensure that all legislation reflects the spirit of respecting and protecting human rights, so that the people can feel the fairness and justice of the legal system, and effectively address the imbalance between human rights and legislation in practice. For example, when formulating legislative plans, the balance between politics, economy, culture, society, and ecological progress should be fully considered. We should not pay too much attention to a certain category or a certain field while ignoring the balance and overall nature of human rights legislation. In terms of the relationship between the quality and quantity of legislation, we should not blindly pursue the quantity of legislation. Rather, we need to first ensure its quality. Legislation should be both democratic and scientific. In the process of enacting, revising, abolishing, interpreting, and formulating legal texts, we should not blindly pursue the effect of legislation and law revision. We should also give full play to the role of legal interpretation in the development of the rule of law. We should not only pay attention to the legislative function but also emphasize the stability and predictability of legal norms. In terms of the operation mechanism of the rule of law, it is necessary to prevent the fragmentation of the procedures for the legal protection of human rights, ensure the overall effectiveness of the rule of law for human rights, and make human rights legislation the basis of good law and good governance.

 

Impartial administration of justice is the last line of defense for human rights. In judicial practice, how to make people feel fairness and justice in every judicial case? Since 2012, General Secretary Xi Jinping has repeatedly stressed the issue of judicial fairness and justice on different occasions. In 2012, at the commemoration of the 30th anniversary of the 1982 Constitution, he called for “making the people feel fairness and justice in judicial cases.” In recent years, through the reform of the judicial system, the people’s access to justice through judicial procedures has been constantly improved. The administration of justice has become an important guarantee for social fairness and justice. Many new measures have been taken to ensure the rule of law in the judicial protection of human rights. For example, the implementation of the goals of the judicial responsibility system; the implementation of the system of recording and accountability of cases involving the internal personnel of judicial organs; the open trial process, open trial activities, open judgment documents, and open execution information; the practice of circuit courts, the establishment of pilot cross-administrative courts, and the solution of stubborn problems in judicial practice.¹⁴ But on the whole, there is still a great distance between the reality of judicial justice and the expectations of the people. We need to constantly establish and improve institutions and mechanisms conducive to the fair administration of justice, ensure fair judicial procedures, and build a solid judicial defense line for human rights protection.

 

In law enforcement, we must ensure that every law enforcement decision reflects fairness and justice and that the rule of law is implemented for the benefit of the people. However, due to the weak human rights awareness of some law enforcement personnel, violations of people’s rights still exist in real life, which seriously damages the credibility of the government and affects people’s reasonable expectations for human rights protection. In the field of the rule of law in human rights, there is still a long way to go to build a law-based government. The first requirement of the rule of law is the limitation of public power. And among all state powers, administrative power is the most likely to be expanded and abused. So the protection of human rights should focus on the construction of a law-based government. Law enforcement is closely related to the people. And the rule of law should be incorporated into every link of law enforcement.

 

In the process of observing the law, it is necessary to raise the awareness of human rights of the whole society and make human rights a force of consensus. It is necessary to not only raise the awareness of human rights of all citizens but also to raise that of the “key minority” and make the observance of human rights principles a conscious act when exercising public power. Xi’s speech required that “Officials at all levels, especially leading ones, should consciously study Marxist and contemporary Chinese views on human rights, raise their awareness and confidence, and take the initiative to respect and protect human rights.”¹⁵ To strengthen the system of human rights protection, we must first address the issue of ideology. That is, why human rights should be protected, why human rights are the core values of a country, and why “the state respects and protects human rights” is a constitutional principle? Only by setting up the correct view of human rights, can we grasp the meaning of building a country under the rule of law comprehensively and accurately, so as to enhance national cohesion. The speech pointed out that it is necessary to promote a correct view of human rights, carry out extensive publicity and popularization of knowledge about human rights, and create a good atmosphere for respecting and protecting human rights.¹⁶ This is the social foundation for strengthening the legal protection of human rights and a basic requirement for building consensus on human rights.

 

As to the mechanism for the protection of human rights by the rule of law, the above four links are an organic and unified system. We need to form an institutional joint force for the legal protection of human rights and make use of the whole process, whole chain, and full coverage of human rights protection, so that “all regions, departments, and industries should strengthen their awareness of respecting and protecting human rights and form a joint force for the development of human rights in China.”¹⁷ The focus of the “joint force” mentioned here means that in the process of advancing the cause of human rights, various departments should cooperate and coordinate with each other to remove institutional obstacles. The cause of human rights is not the specific work of any one department, but a cause to be jointly promoted by all state organs, public organizations, enterprises, public institutions, political parties, and members of society. We must form an inherent joint force and avoid the tendency of “departmentalization” and “selfish departmentalism” in practice. To implement the spirit of Xi’s speech, we must earnestly explore and innovate systems and mechanisms for protecting human rights under the rule of law. For example, we can explore unified and authoritative leadership, organization, coordination, and publicity mechanisms for human rights work, so that the work of human rights under the rule of law can be seamlessly connected to form an overall effect. Through the joint force and effective mechanisms of human rights work, people’s expectations for justice and equity can be turned into tangible reality.

 

 

The Constitution is the fundamental guarantee of human rights and the basis for a community to build consensus on human rights. In a modern society with multiple interest patterns, highly complex structures, and many uncertainties, the Constitution plays an important role in protecting human rights, realizing national identity, promoting social integration, and ensuring stable expectations for human rights. To improve the protection of human rights under the rule of law, we must first fully implement the Constitution and ensure the effective implementation of citizens’ basic rights as stipulated in the Constitution.

 

The Constitution is closely related to citizens’ daily life. Every citizen is protected from birth to death by different types of basic rights as set forth in the Constitution. The creation and operation of state power need to be authorized directly or indirectly by the Constitution, and the existence of the Constitution ensures the normal operation of the life of a community. In a society at risk, the Constitution provides a basic consensus for society. Even in emergencies such as the COVID-19 pandemic, the bottom line of human rights protection is defined, providing valuable guidance and institutional channels for the society to return from emergency to normal.

 

The CPC attaches great importance to the important role of the Constitution in state governance, firmly upholds the dignity and authority of the Constitution, and promotes its improvement and development. In particular, since the 18th National Congress of the CPC, it has emphasized the role of the Constitution as the fundamental law of the state in promoting the development of human rights, providing a solid constitutional foundation for the rule of law in human rights. On December 4, 2012, General Secretary Xi Jinping delivered a speech at a meeting in Beijing commemorating the 30th anniversary of the implementation of the current Constitution in which people from all walks of life participated. He made the important statement that “The life and authority of the Constitution lie in its implementation.”¹⁸ When analyzing the current situation of the implementation of the Constitution in China, he said that “The supervision mechanism and specific system to ensure the implementation of the Constitution are not perfect.”¹⁹ In October 2014, the Fourth Plenary Session of the 18th CPC Central Committee adopted the Decision of the CPC Central Committee on Some Major Issues Concerning Comprehensively Promoting the Rule of Law in State Governance, making “strengthening the implementation of the Constitution” the primary task of implementing the overall goal of comprehensively advancing the rule of law in state governance. The Decision stressed that, “To uphold the rule of law in governance, we must first adhere to governance in accordance with the Constitution. To uphold the rule of law in administration, we must first adhere to administration in accordance with the Constitution.”²⁰ We should take the Constitution as an important guarantee for modernizing China’s system of governance. The Decision also requires that “We should improve the Constitution supervision system of the National People’s Congress and its Standing Committee, and improve the procedures and mechanisms for interpreting the Constitution.”²¹

 

In October 2017, the 19th National Congress of the Communist Party of China made it clear that “We will strengthen the implementation and supervision of the Constitution, advance the review of constitutionality, and safeguard the authority of the Constitution.”²² To implement the spirit of the 19th National People’s Congress, the 15th Session of the Standing Committee of the 13th National People’s Congress adopted the Decision of the Standing Committee of the National People’s Congress on Abolishing Legal Provisions and Systems Concerning Detention Education on December 28, 2019. This is a concrete implementation practice of the principle of human rights protection, a response to the concerns of the people, and an important step forward in the review of constitutionality.

 

In particular, after the Constitution was amended in 2018, the National People’s Congress Constitution and Law Committee was established. Steady progress has been made in filing and reviewing relevant documents, and normative documents that violate the spirit of human rights have been promptly corrected.²³ The practice fully shows that the progress of constitutionality review provides an effective way for the legal protection of human rights. In 2021, the General Office of the NPC Standing Committee received 1,921 administrative regulations, supervisory regulations, local regulations, autonomous regulations and special regulations, regulations of special economic zones, judicial interpretations, and laws of special administrative regions for filing, as well as 6,339 pieces of suggestions from citizens and organizations for review of violations of the Constitution. The archival filing and review organs have strengthened their efforts to review regulations and judicial interpretations submitted by the enacting organs, and promptly corrected problems found in the review concerning constitutionality, legality, and appropriateness, including the review of whether normative documents infringe upon citizens’ basic rights. All these are effective measures to promote the construction of China’s constitutionality review system.

 

Looking around countries of the world, there is a process from formulating constitutions suited to their national conditions to finding effective constitutional review mechanisms. Under China’s system of people’s congresses, the Constitution has sufficient historical accumulation and institutional space to develop a constitutional review system suited to China’s national conditions and to effectively meet the standard requirements of respecting and protecting human rights.

 

 

To strengthen the legal protection of human rights and promote the development of human rights, we must strengthen the basic theoretical research of human rights. Based on China’s human rights practice, we should combine theory with practice, history with reality, and the present with the future, and build a human rights discipline system, academic system, and discourse system that conform to the universal law of human rights development and reflect China’s reality and fine traditional culture. We should create original concepts based on China’s human rights practice, and provide Chinese experience, wisdom, and thinking for the global human rights cause.

 

The traditional human rights system is the result of turning Western experience into academic theories. Although it has played a progressive role in history, it still needs to be improved in practice. Based on the rich practice of human rights in China, we need to turn China’s human rights practice into concepts and innovative academic discourse. General Secretary Xi Jinping’s statements of “put the people first” and “life first” are original contributions to the contemporary theoretical system of human rights, integrating dignity, value, and equality into life, and enriching the connotation and value of “right to life first.” The pandemic in the past two years has not only tested the national public health governance capacity but also tested the overall national capacity, such as the institutional capacity of ideology integration, human mobilization, action organization, and resource allocation. But what matters most is whether a community can effectively form consensus, and pool its strength through human rights to effectively respond to major crises. In the pandemic times, disputes over different values and interests such as life and health, personal freedom, privacy protection, and economic development have emerged in some Western countries. Some countries have been mired in confrontation and fragmentation, leading to disastrous consequences.

 

As a socialist country, China has always taken the realization of social justice as its core concern. During the pandemic period, under the leadership of the CPC, all sectors of Chinese society quickly formed a value consensus of “life comes first,” and prioritized the protection of the right to life, providing a valuable basis for the effective fight against the pandemic. We should pay attention not only to the right to life and health but also to the proposition of social justice reflected by the pandemic. Are the elderly, children, women, people with disabilities, low-income groups, and other relatively vulnerable groups in terms of immune capacity and income in a more disadvantaged position due to the pandemic? The more critical the moment is, the more attention should be paid to the respect for and protection of the relatively vulnerable groups which is the essential requirement of social justice. These practices and reflections need to be summarized and turned into academic theories to enrich the theories of human rights in the world and contribute to Chinese wisdom and experience.

 

 

The global governance of human rights is an important part of the legal protection of human rights. The current Constitution of China does not specify the relationship between the Constitution and the human rights treaties is party to. But the Preamble to the Constitution states the basic principles, which is, based on the Five Principles of Peaceful Coexistence, China adheres to the path of peaceful development, adheres to the strategy of win-win results and opening up, develops diplomatic relations and economic and cultural exchanges with other countries, and promotes the building of a community with a shared future for human beings. China has ratified or joined 26 international human rights instruments, including several core UN human rights treaties, such as the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on the Rights of the Child, and the International Covenant on Economic, Social and Cultural Rights. In international human rights affairs, China abides by its obligations under these human rights treaties, actively aligns its domestic laws and policies with those obligations under treaties, submits timely implementation reports, and earnestly fulfills its obligations under international human rights treaties. China has actively participated in the review of China’s implementation reports by treaty bodies, paid attention to constructive dialogue with relevant human rights treaty bodies, actively adopted suggestions in light of national conditions, and fully brought into play the positive role of international human rights conventions in promoting and protecting the cause of human rights around the world.

 

In the global governance of human rights, we should pay close attention to the major issue of how to balance science and technology and human rights protection in the order of rule of law. In particular, big data, artificial intelligence, and biotechnology are advancing rapidly, posing new challenges to the relationship between human rights and science and technology. Although science and technology have played a role in pandemic prevention and control, human rights may be violated in the application of specific technologies, such as the use of big data and face recognition, which are likely to infringe on personal freedom and privacy. Science and technology are neutral. They can be used to improve human life, but at the same time, they may endanger people’s main role and fundamental freedoms. The rule of law should not only make good use of these technological means, but also guard against their negative effects, and give full play to the positive function of science and technology in the development of human rights. Therefore, in the global governance of human rights, based on the universal value of human rights, we should pay close attention to the humanistic spirit of the rule of law, protect the dignity and main role of human beings, constantly promote the balance between individual freedom and social order, and promote the process of building a community with a shared future for human beings.

 

In global human rights governance, China is playing an increasingly important role in the formulation of international human rights rules. Given the international significance of the rule of law in human rights, China needs to keep an open mind. For example, in the formulation of the Convention on the Rights of Persons with Disabilities, China has played its role as a major advocate and participant. The Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (hereinafter referred to as MT), which will enter into force in China soon, is the world’s first human rights treaty in the field of copyright. It will further guarantee equal access to culture and education for people with reading difficulties. On February 5, 2022, the Chinese government submitted its instrument of ratification of the MT to the World Intellectual Property Organization. Therefore, we need to do a good job in the implementation of the treaty, so that the right to reading of people with reading difficulties can be fully protected.

 

To promote the development of international human rights, the United Nations encourages countries to choose the framework of human rights protection best suited to their actual situations according to their differences in political and economic systems, as well as in cultural and legal systems. Due to different historical traditions, legal systems, and human rights cultures, human rights institutions of different countries take on different forms, such as Commission on Human Rights, Ombudsman, the Centre for Human Rights, Advisory Committee, and specialized agencies.²⁴

 

At present, China has established mechanisms and related institutions for the protection of human rights including legislative, judicial, and administrative organs, people’s organizations, and unofficial non-governmental organizations, but there is still no unified national human rights institution or organization system at the national level. Therefore, to improve the mechanism for the protection of human rights by the rule of law, it is necessary to establish specialized national human rights institutions timely based on the existing human rights protection mechanism, which is also a positive response to the need for the rule of law in human rights and helps to strengthen the voice and initiative of China’s human rights path.

 

 

The times are developing and human rights are advancing. The international situation is full of uncertainties and extremely complex. We need to strengthen our confidence in China’s path of human rights development and adopt a more open attitude to meet the new challenges facing the rule of law in human rights. For example, the traditional rule of law is mainly confined to domestic rule of law, but the pandemic has brought new problems to the concept of traditional rule of law. It is necessary to balance domestic rule of law with foreign rule of law and take into account both domestic and international human rights. In addition, the outbreak of COVID-19 has also brought about changes in the relationship between normal rule of law and abnormal rule of law and raised some new problems for the traditional rule of law paradigm. How to realize the commitment and consistency of human rights values while controlling risks and maintaining order is a major task facing human society today.

 

Therefore, to improve the mechanism of rule of law protection of human rights, we need to pay full attention to the new development of rule of law in the post-COVID era, build a new mechanism for the protection of human rights by the rule of law, and provide a solid institutional guarantee for the realization of the goal of “people’s happiness is the biggest human right.”²⁵

 

(Translated by CHEN Feng)

 

* HAN Dayuan ( 韩大元 ), Professor of Renmin University of China Law School, Doctor of Laws.

 

1. Xinhua News Agency, “Xi Jinping Stresses Firm Adherence to China’s Path of Human Rights Development and Better Development of China’s Human Rights Cause During the 37th Group Study Session of the Political Bureau of the CPC Central Committee,” People’s Daily, February 27, 2022. This speech by General Secretary Xi Jinping is referred to as the speech.

 

2. Wang Xigen, “The Human Rights Value of Xi Jinping Thought on the Rule of Law,” Oriental Law 1 (2021).

 

3. Xi Jinping, “Accelerating the Building of a Socialist Country under the Rule of Law,” Qiushi 1 (2015).

 

4. “Decision of the CPC Central Committee on Some Major Issues Concerning Comprehensively Deepening Reform,” People’s Daily, November 16, 2013.

 

5. “Decision of the CPC Central Committee on Some Major Issues Concerning Comprehensively Promoting the Rule of Law in State Governance,” People’s Daily, October 29, 2014.

 

6. Xi Jinping, “Secure a Decisive Victory in Building a Moderately Prosperous Society in All Respects and Strive for the Great Success of Socialism with Chinese Characteristics for a New Era — Report to the 19th National Congress of the Communist Party of China,” People’s Daily, October 27, 2017.

 

7. Xinhua News Agency, “Xi Jinping Stresses Firm Adherence to China’s Path of Human Rights Development and Better Development of China’s Human Rights Cause During the 37th Group Study Session of the Political Bureau of the CPC Central Committee”.

 

8. Ibid.

 

9. Xi Jinping, On Comprehensive Law-based Governance (Beijing: Central Party Literature Publishing House, 2020), 82.

 

10. Xinhua News Agency, “Xi Jinping Stresses Firm Adherence to China’s Path of Human Rights Development and Better Development of China’s Human Rights Cause During the 37th Group Study Session of the Political Bureau of the CPC Central Committee”. 

 

11. Ibid.

 

12. Ibid.

 

13. Ibid.

 

14. For research on the progress, achievements and problems of China's judicial system reform in the new era, please refer to Zhang Jincai, “Progress and Effectiveness of Judicial System Reform since the 18th National Congress of the Communist Party of China,” Contemporary China History Studies 2 (2016); Chen Weidong, “The Experience of China's Judicial System Reform: A Study of Xi Jinping's Thought on Judicial System Reform,” Chinese Journal of Law 2 (2017); Guo Zhiyuan, “Comprehensive Supplementary Reform of Judicial System: Review, Reflection and Perfection,” Law Science Magazine 1 (2020); Yang Li, “From Basic Judicial System Reform to Comprehensive Supplementary Judicial System Reform: Relief of the Effect of 'Involution,” China Legal Science 4 (2020).

 

15. Xinhua News Agency, “Xi Jinping Stresses Firm Adherence to China’s Path of Human Rights Development and Better Development of China’s Human Rights Cause During the 37th Group Study Session of the Political Bureau of the CPC Central Committee”. 

 

16. Ibid.

 

17. Ibid.

 

18. Xi Jinping, “Speech at the Commemoration of the 30th Anniversary of the Promulgation of the Current Constitution in the Capital,” People’s Daily, December 5, 2012.

 

19. Ibid.

 

20. “Decision of the CPC Central Committee on Some Major Issues Concerning Comprehensively Promoting the Rule of Law in State Governance,” People’s Daily, October 29, 2014.

 

21. Ibid.

 

22. Xi Jinping, “Secure a Decisive Victory in Building a Moderately Prosperous Society in All Respects and Strive for the Great Success of Socialism with Chinese Characteristics for a New Era — Report to the 19th National Congress of the Communist Party of China”. 

 

23. On June 22, 2018, the Third Session of the Standing Committee of the 13th National People’s Congress (NPC) decided that while continuing to uniformly review draft laws, the Constitution and Law Committee of the NPC will increase its responsibilities in promoting the implementation of the Constitution, conducting interpretation of the Constitution, promoting constitutionality review, strengthening supervision of the Constitution, and coordinating with public publicity of the Constitution.

 

24. In recent years, China has carried out some studies on the functions and setup of national human rights institutions. For example, Zhang Wei, “Some Thoughts on the Establishment of ‘National Human Rights Institutions’ in China,” Journal of China University of Political Science and Law 6 (2011); Yuan Gang, “The Paris Principles and the Establishment of China’s National Human Rights Institution,” Human Rights 2 (2018).

 

25. For the important statement of General Secretary Xi Jinping on human rights, please see Xi Jinping, “Xi Jinping Writes to the Symposium Commemorating the 70th Anniversary of the Launch of the Universal Declaration of Human Rights, Stressing Adherence to the Path of Human Rights Development Suited to China's National Conditions and Promotion of All-Round Human Development,” People’s Daily, December 11, 2018.